Joe Nacchio to Get Ride on Con Air

A federal judge in Denver today ordered the Government to transport former Qwest CEO Joe Nacchio, serving a 6 year sentence at Minersville, PA, to court in Denver to appear at a hearing to decide if his request to waive his appearance at his re-sentencing is knowing and voluntary. The Court of Appeals previously ruled Nacchio's sentence was not properly calculated and he should be resentenced to less time.

This is not good news for Nacchio, unless he's somehow able to convince the Marshals to allow him to pay for and fly on a private jet(which would include the cost of two or more Marshals to accompany him) which I don't know is even allowed. He'll be flying on JPats, aka, Con Air. [More...]

The U.S. Marshals Office operates the Justice Prisoner and Alien Transportation System (JPATS), more commonly known as "Con Air," one of the largest transporters of prisoners in the world.

Each year U.S. marshals use a fleet of high-flying paddy wagons to transport more than 175,000 prisoners throughout a sophisticated and secure government-operated, regularly scheduled, national airline system. For its passengers, there is no first-class cabin, no complimentary beverage offered during flight, and restroom breaks are traditionally allowed only during brief four-to-six-city daily stops. The "seat belt" sign remains illuminated throughout every flight. Handcuffs, shackles and a belly chain supplement the passenger-restraint system.

Unlike traditional commercial flights where laptop computers and portable CD players are common, the only electronic devices permitted on board are maintained in secret compartments and accessible only to aviation enforcement officers and contract guards on board.

For the ordinary prisoner, it's rarely a direct flight. Because the Marshals want to fill every seat, they stop at hubs along the way, picking up and dropping off other prisoners, and the inmate ends up in the secure area (isolation) of some prison, like Oklahoma City, for a week or more. It's a miserable experience.

the Government argued Nacchio couldn't waive his right to appear at sentencing, and the Judge disagreed. From the court order today (available on PACER)

Logically, the essence of a right is the freedom to exercise it or not. If one cannot waive a right, then it ceases to be a right and becomes obligation.1 Thus, because Mr. Nacchio has the right to be present at his re-sentencing, he may also waive that right. His waiver, however, is not effective unless it is both informed and voluntarily made.

But, because of unique factors to Nacchio's case, the court ruled it was essential to determine his waiver was voluntary and knowing:

However, the circumstances of this case are unique. Mr. Nacchio did not allocute at his prior sentencing hearing. His sentence was reversed on appeal, based on a theory for calculation of gain/loss for calculation under the Federal Sentencing Guidelines that he was unable to present to the trial court. Since his prior sentence, he has changed counsel. New counsel intend to advance the theory endorsed on appeal with regard to calculations of gain/loss applicable under the sentencing guidelines and, alternatively, to argue for a variant sentence in order to satisfy the objectives set forth in 18 U.S.C. §3553(a). Mr. Nacchio is currently incarcerated, and it is not clear whether, or to what degree, his detention has affected his desire to waive his right to be present at re-sentencing. Finally, the re-sentencing will be performed by a different judge than the one who presided over pretrial matters, the trial and prior sentencing. These circumstances all favor requiring Mr. Nacchio to be physically present in order to assure that his waiver is voluntary and informed.

Can't they could hold a hearing on whether his waiver is voluntary by videoconferencing, so he doesn't have to be schlepped here in shackles and chains at a cost of thousands, ultimately borne by the taxpayer? The Court considered it, but ultimately decided no.

The Court has found no authority specifically authorizing any of these means, or guidance within the Circuit as to when use of such means might be appropriate. The Tenth Circuit has held that a sentence may not be imposed upon a defendant who appears by video at a remote location. United States v. Torres-Palma, 290 F3d 1244, 1248-49 (10th Cir. 2002). One might reason that because a sentence cannot be imposed without the defendant being physically present, an advisement of rights with regard to waiver of his appearance at the sentencing hearing similarly cannot occur without the defendant being physically present. Interestingly, in the newly proposed Rule 43 of the Federal Rules of Criminal Procedure, physical absence or presence by video teleconferencing are specifically allowed for preliminary advisements in misdemeanor cases, but no such provision is made for felony cases.

So, barring a motion for stay and appeal (assuming that's possible) Nacchio will be returning to Denver, most likely via Con Air, and being housed in some unpleasant facilities over the next months. All to get a reduction in his sentence, mandated by the Court of Appeals.

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    While I don't endorse Con Air (5.00 / 1) (#3)
    by Socraticsilence on Tue Apr 13, 2010 at 10:13:57 PM EST
    wouldn't allowing Nacchio to charter a jet, be a bit disturbing- I mean if we're going to do that why not allow him finance his own prison too, etc. its the whole equal punishment thing that makes America's justice system better than that recieved in Mexico or Colombia- the rich already have the system stacked in their favor both in terms of representation (I'm not saying legal aide attorneys are inferior rather that their massive caseloads prevent them from devoting the same time to a proceeding) and the law itself (the cocaine-crack disparity oft mentioned on here for just one example) if wealth is now allowed to allieviate punishment then justice is once again denied.

    True dat (none / 0) (#4)
    by Peter G on Tue Apr 13, 2010 at 10:20:08 PM EST
    but if the appellate court vacated his prior sentence, then he is technically in pre-sentence detention status now, not a prisoner serving a sentence.  So the judge could grant him bail under any reasonable conditions he wanted to, for his appearance at the resentencing.  Was Nacchio detained after conviction and prior to the original sentencing?

    he was allowed a voluntary surrender but (none / 0) (#10)
    by Jeralyn on Wed Apr 14, 2010 at 09:47:07 AM EST
    denied bail pending his cert petition, and that decision was upheld by the 10th Circuit and Supreme Court.

    "The renewed emergency application for release is denied, and we deny the request to stay the surrender date ordered by the district court," the order by the 10th Circuit Court of Appeals panel states. Nacchio filed a request for bail with Supreme Court Justice Stephen Breyer today after the 10th Circuit rejection, according to a Supreme Court spokeswoman.

    Breyer denied the request.

    The decision (here) reversing his sentence ended with:

    Based upon the foregoing, we REVERSE the district court's sentencing order with respect to its gain calculation and its forfeiture determination and REMAND for resentencing consistent with this opinion.

    On that basis, I would argue (none / 0) (#11)
    by Peter G on Wed Apr 14, 2010 at 12:02:45 PM EST
    (and I think I would be right in arguing) that Nacchio is now eligible for bail pending (re)sentencing.  An appellate court cannot "reverse" a sentence and "remand" for resentencing unless it vacates the prior judgment of sentence.  He is presently in an unsentenced status, and thus not ultimately properly subject to BOP control, but rather to the sentencing court's control.  The prior order allowing his voluntary surrender shows that bail would be reasonable and not risky, even though he is facing the probability, on resentencing, of being subjected to at least some further period of incarceration.

    Interesting stuff (5.00 / 1) (#5)
    by ruffian on Tue Apr 13, 2010 at 10:30:45 PM EST
    So to waive a right to be present at re-sentencing, he has to be present anyway at a hearing. I can understand the need for that in pre-videoconferencing days, but it seems rather antiquated now.

    Minus the belly-chain restraint system, ConAir sounds rather like my last flight. I suppose the taxpayers pay his baggage fees too. seems like a massive waste of time and money. But letting him charter his own flight? I don't think so.

    Or why the heck can't (none / 0) (#7)
    by gyrfalcon on Tue Apr 13, 2010 at 11:43:02 PM EST
    an officer of the court of some kind be designated/deputized to go to him to hear what he has to say in person, if face-to-face is so important?

    It seems to take the court system forever to catch up to technology.  I do some transcribing in my freelance editorial work, and I was once some years ago subpoenaed by the prosecution to testify in a trial halfway across the country that a transcript I had made of a videotape was, yes, in fact my transcript and that I had, yes, taken down everything that had been said, because they were at that time in that court, anyway, not able to enter the videotape itself into evidence.  (I knew nothing of this case or the people involved except for what was on the tape.)

    I would have been willing to do it, except that although they would pay my airfare and hotel expense, they would not reimburse me for lost work as a freelancer and of course could not guarantee how long I'd have to be there before I was called.

    Y'know, I'm willing to do my duty, but not if I lose significant unrecoverable income as a result, so I refused (on advice of counsel, of course).  They finally agreed to send somebody to take my deposition in my own city, but then ultimately decided it wasn't worth the hassle for them to come and do that, so they dropped it and found some other way to get whoever it was they were after.

    A day trip out and back was too much of a burden for them, but they had been insisting I had to just leave my work and my income source for as long as it might take and sit in a hotel room waiting to be called for what would have been a 5-minute appearance to testify to something they had right before their eyes anyway.


    Based on quite a few similar cases (none / 0) (#1)
    by Peter G on Tue Apr 13, 2010 at 09:52:38 PM EST
    in which I won my appellate clients resentencings, I think it is very likely that Mr. Nacchio offered to waive his presence at the resentencing not because he believed his interests would be better protected at a resentencing where he was not present, but precisely because he wanted to avoid the miseries of a cross-country trip in US Marshal custody.  The judge's order defeats that objective.  If he has to be schlepped to Denver in custody anyway, he might as well seek local detention until the sentencing hearing and be present to fully participate.

    Exactly (none / 0) (#2)
    by Jeralyn on Tue Apr 13, 2010 at 10:09:01 PM EST
    the whole point is to avoid Con Air and the indignity. There are two sentencing hearings set, one for April to decide on the correct new guidelines re: amount of loss, and the other in June to decide the 3553 factors. It's ridiculous to make him appear for the April hearing, which is legal only. It's also unlikely the Marshals can get him there in time. But he'd spend six weeks at least at FDC in Englewood, CO, the detention center, to wait for the second hearing, and I suspect he'll opt to return asap to his camp. I wonder if he's guaranteed to return to the same camp. The longer he's away, seems to me, the more likely they may give out his space and he could get designated to a new facility -- another miserable choice.

    The term Kafkaesque (none / 0) (#6)
    by gyrfalcon on Tue Apr 13, 2010 at 11:29:44 PM EST
    kept occurring to me as I was reading that "reasoning."



    I'm sure that Nacchio's trial and conviction.. (none / 0) (#8)
    by lambert on Wed Apr 14, 2010 at 08:39:13 AM EST
    ... had absolutely nothing to do with his refusal -- alone among the telcos -- to release phone records to the NSA (pre-9/11, mind you) under Bush's warrantless surveillance program, which Obama voted to normalize retrospectively by granting immunity to the telcos. Then again, warrantless surveillance was quite profitable. So there's that.

    Sure, like, totally. Move along, people, move along! There's no story here....

    It wasn't an issue in his trial (none / 0) (#9)
    by Jeralyn on Wed Apr 14, 2010 at 09:35:43 AM EST
    or before the jury since the trial judge didn't allow it in. As to whether that's the reason the Government chose to prosecute him, who knows. But Qwest retirees were clamoring really hard for his head because the stock tanked. I think they needed a fall guy and Nachhio was it, and the telecom issue had little to do with it. I've written about this many times.

    And?I (none / 0) (#12)
    by lambert on Wed Apr 14, 2010 at 01:26:23 PM EST
    I'm not sure how the retirees would have influenced what the judge allowed in, or didn't allow in. Kidding!

    From the 30,000 foot level, I find it remarkable that the single executive who resisted the program was prosecuted, when in fact the program was not legal, and every CEO who did participate in it should have been prosecuted. YMMV, and yours obviously does. Regardless, this is part of the story.