Qwest's Joe Nacchio Gets Stay While Court Reviews His Cert Petition

Former Qwest CEO Joe Nacchio has filed his Petition for Writ of Certiorari to the U.S. Supreme Court (available here(pdf).) The issues: [More...]

1. Whether the defendant is entitled to acquittal or a new trial because the Tenth Circuit, in conflict with the standards applied in other circuits, erred by upholding the jury instructions bearing on the materiality of the type of information at issue, and by holding that there was sufficient evidence that the defendant failed to disclose material information and knew it.

2. Whether the judgment must be reversed and remanded for a new trial because the Tenth Circuit approved the use of impermissible procedures for the exclusion of expert testimony under Rule 702 that conflict with decisions of other circuits.

3. Whether the Tenth Circuit’s decision should be summarily reversed because it misapplie decisions of this Court, mischaracterized the district court’s reasoning, failed to resolve all the issues presented, and held that Nacchio failed to address an issue that was a principal focus of his brief.

Unlike the appeal, it's the materiality instruction, rather than the exclusion of expert testimony, that takes center stage.

As to the expert witness/daubert issue, Nacchio first argues:

Of course Nacchio bore the ultimate burden of laying a sufficient foundation for admissibility at trial. But when a litigant moves in limine to exclude evidence the movant bears the burden of producing facts sufficient to require a hearing or exclusion. The posture is like summary judgment, where the movant has the prima facie burden to prove the absence of a triable dispute. Such motions should be denied without a hearing if the movant relies only on the opponent’s ultimate burden of proof.

...The government never made even a prima facie showing of unreliability; it simply argued that Fischel’s methodology was undisclosed. The district court could have accelerated Nacchio’s burden by clearly ordering him to proffer the grounds for Fischel’s admissibility in writing. Contrary to the en banc court’s reasoning, however, the mere filing of a motion pointing out that the foundation has not yet been laid does not alert the defendant that he may be precluded from laying that foundation at the usual time—on the stand.

The second argument on the exclusion of expert witness testimony is the one I'd like to see the Supreme Court accept cert on:

2. The Tenth Circuit’s decision also transforms criminal expert practice. Criminal defendants have no obligation under Rule 16 to offer disclosures sufficient to justify the admissibility of an expert’s testimony under Daubert, and ordinarily may establish the reliability of expert testimony by questioning the witness. App.114a-24a. But the Tenth Circuit has now held that the government can force defendants to supply such disclosures—the equivalent of a civil expert report and “all available arguments for the testimony’s admissibility,” App.25a n.13 —simply by filing a motion pointing out that the defendant has not yet disclosed what the rules did not require him to disclose. The government will exploit this loophole in every case, collapsing the civil and criminal expert rules and threatening the constitutional principle that a defendant cannot be forced to prematurely disclose his defense. The consequences for the administration of justice merit review.

Calling the exclusion of Nacchio's expert witness "an appalling injustice" (words used by the 10th Circuit panel that tossed the conviction), Team Nacchio continues:

It cannot possibly be within a judge’s discretion to exclude a criminal defendant’s only substantive witness because he needs more information to assess methodology while simultaneously prohibiting counsel and the witness from providing it, and to then excuse the jury for much of the next four court days because “we’re moving much faster than ever anticipated” and need “to slow down just for a little bit.” ....

This was a “draconian decision” that “flies in the face of the truth-finding goals of trial, the constitutional safeguards to a full defense, [and] the liberal thrust of the rules of evidence,” App.99a (Henry, CJ, dissenting), and the en banc majority’s zeal to defend it on grounds contrary to the district court’s express language (and to call Nacchio, his lawyers, and Judge McConnell and the dissenters “disingenuous,” App.27a), is alarming.

The District Court judge now presiding over Nacchio's case will review the Petition and if she agrees it presents a substantial question, one which if decided in his favor, would likely result in a reversal or new trial,he will be granted bail until the Supreme Court decides whether to accept the writ, probably in June.

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