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Former Qwest CEO Joe Nacchio Sues Trial Counsel For Negligence and Overbilling

Former Qwest CEO Joe Nacchio, still serving a 70 month sentence on his insider trading conviction, has sued his chief defense counsel, ex-U.S. District Court Judge Herb Stern and his firm, Stern & Kilcullen LLC (including partner Kilcullen) for negligence in representing him and for overbilling.

The firm billed Nacchio more than $25 million to defend criminal and civil matters, charging tens of thousands of dollars for staff breakfasts, attorney underwear and in-room movies during the trial in federal court in Denver, according to the complaint in state Superior Court in Newark, New Jersey.

On the negligence, Nacchio alleges: [More...]

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Nacchio Medical Condition Revealed

The judge in the Joe Nacchio case has unsealed his request to delay the March 23 start of his prison term.

Here's the doctor's letter (pdf) stating Nacchio has been undergoing treatment for several months for a suspicious growth on his leg. He had an appointment yesterday to see if a biopsy is needed to determine if it is malignant.

A hearing is scheduled Thursday on the request. The Judge denied Nacchio's sealing request even though no objections were lodged. From the court order: [More...]

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Qwest's Joe Nacchio Still Trying for Appeal Bond

Former Qwest CEO Joe Nacchio is trying hard to avoid reporting to federal prison on March 23. In the past week, he's filed a motion for new trial based on newly discovered evidence in the trial court and, in the 10th Circuit, a request for continued bail pending the disposition of an as-yet unfiled petition for a writ of certiorari to the Supreme Court.

The Tenth Circuit dismissed his bond request (pdf)saying he should have filed it in the trial court. It said if he gets denied there, he can come back to the appeals court.

He filed the request yesterday in the trial court and today it was denied (pdf) -- because the Bail Reform Statute doesn't apply to petitions for cert that haven't been filed yet. The trial court said the denial was without prejudice, meaning if he cites the correct authority for allowing bail before the writ is filed, he can try again. [More...]

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Nacchio: 10th Circuit Orders Full Rehearing

Former Qwest CEO Joe Nacchio can't be happy today. The Tenth Circuit Court of Appeals has granted the Government's request for an en banc rehearing of his appeal. The three judge panel which initially heard the appeal threw out Nacchio's convictions because the trial court didn't allow his expert witness to testify. The Government sought review by the full court. Its petition is here(pdf).

Here's today's order (pdf), which specifies the topics they will be addressing at a September 24 hearing. The first relates to whether Nacchio had to ask the court before trial to hold a Daubert hearing and present the methodology of his expert at the hearing -- or demonstrate his expert's methodology some other way before trial, such as in a brief. Next the appeals court will address whether the trial judge failed to give Nacchio the opportunity to do either. [More...]

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Government Seeks En Banc Review of Joe Nacchio Reversal

The Government isn't giving up on challenging the reversal of former Qwest CEO Joe Nacchio's insider trading conviction. Today it filed a petition in the 10th Circuit Court of Appeals seeking a review of the reversal by all of the Judges on the court. The reversal was decided by a panel of three judges. The Petition alleges the panel erred in holding that the trial judge was wrong to exclude Nacchio's expert witness.

First, the government challenged the panel's ruling that the district judge "lacks discretion to exclude expert testimony even where the government's motion to exclude the evidence challenges the expert's reliability and the defendant's written opposition makes no showing of reliability and does not request an evidentiary hearing."

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Insider Trading Conviction of Qwest's Joe Nacchio Reversed

The Tenth Circuit Court of Appeals has reversed the insider trading convictions of former Qwest CEO Joseph Nacchio. The panel voted two to one for reversal and ordered that a different judge preside over a re-trial.

The reason: The judge's exclusion of Nacchio's expert witness.

"Mr. Nacchio appeals, arguing that the evidence was insufficient to convict him, that the jury was improperly instructed, and that the trial judge incorrectly excluded evidence — expert testimony and classified information — important to his defense," the decision states. "We agree that the improper exclusion of his expert witness merits a new trial, but we conclude that the evidence before the District Court was sufficient for the government to try him again without violating the double jeopardy clause."

The Court did not agree with Nacchio he should have been able to present his classified information defense. Nor did it agree with him that the jury instruction on materiality was fatally flawed. It also found that a properly instructed jury could have found him guilty of insider trading.

You can read the opinion here (pdf.) [More...]

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Live Blogging Joe Nacchio Oral Arguments

Update: Nothing on classified information or telecoms and NSA surveillance requests. Neither side brought it up.

I'm in the courtroom at the Tenth Circuit Court of Appeals waiting for oral arguments to begin in the appeal of former Qwest CEO Joseph Nacchio who was convicted earlier this year of insider trading. I'll be live-blogging over at 5280.com for as long as my batteries and internet connection last.

Update: Conclusion: This is no slam dunk for the Government, particularly on whether Judge Nottingham erred in excluding expert defense witness Fischel without a Daubert hearing and perhaps on the materiality instruction. The judges were definitely harder on the Government than on Maureen Mahoney. You can't predict the outcome of an appeal based on the questions. Still, two of the judges seemed more favorable to the defense than the government on the materiality issue and all three had problems with the exclusion of the defense expert witness without a Daubert hearing. If I were Nacchio, I'd be cautiously optimistic. If I were the Government, I'd be concerned. But no one has a crystal ball and everyone will have to wait until the opinion is rendered.

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NY Times: NSA Wanted Telecoms' Help With Data-Mining in Drug Cases

The New York Times has some new and very disturbing revelations in the NSA warrantless wiretapping controversy. The news may explain why the telecoms are fighting so hard for retroactivity immunity in the planned FISA law revision.

To detect narcotics trafficking, for example, the government has been collecting the phone records of thousands of Americans and others inside the United States who call people in Latin America, according to several government officials who spoke on the condition of anonymity because the program remains classified. But in 2004, one major phone carrier balked at turning over its customers’ records. Worried about possible privacy violations or public relations problems, company executives declined to help the operation, which has not been previously disclosed.

In a separate N.S.A. project, executives at a Denver phone carrier, Qwest, refused in early 2001 to give the agency access to their most localized communications switches, which primarily carry domestic calls, according to people aware of the request, which has not been previously reported. They say the arrangement could have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order, which alarmed them.

More....

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Nacchio: Did U.S. Retaliate Because Qwest Refused to Comply With NSA Surveillance?

Looks like it's time for a trip to the courthouse tomorrow. The Judge in the insider trading trial of former Qwest CEO Joseph Nacchio has unsealed documents related to his classified information defense which he was not allowed to present at trial. This is coming up now because yesterday Joe Nacchio filed his appeal brief and one of the grounds alleges the Judge erred in refusing him to raise his classfied secrets defense.

The Rocky Mountain News reports:

The National Security Agency and other government agencies retaliated against Qwest because the Denver telco refused to go along with a phone spying program, documents released Wednesday suggest.

The documents indicate that likely would have been at the heart of former CEO Joe Nacchio's so-called "classified information" defense at his insider trading trial, had he been allowed to present it.

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Six Years for Qwest's Joe Nacchio

Former Qwest CEO Joseph Nacchio, convicted of insider trading, today was sentenced to six years in prison, fined $19 million and ordered to forfeit $52 million to the Government.

He was granted a voluntary surrender and will report to the designated facility within 15 days of designation. He was denied an appeal bond.

More here, including my take:

Joe Nacchio suffered a supreme fall from grace today. He didn’t get off lightly. The Judge, to his credit, resisted the Government’s request to max him out and flatten him like a pancake. We are all greater than the sum of our misdeeds, including Joe Nacchio.

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Sentencing Day for Former Qwest CEO Joseph Nacchio

Today is reckoning day for former Qwest CEO Joseph Nacchio. He will be sentenced by Judge Edward Nottingham, Chief Judge of Colorado's U.S. District Court.

Among the unknowns, in addition to the length of the sentence and the amount of forfeiture and any fine the Court will impose on Nacchio, is whether he will be allowed to remain on bond pending appeal and if not, whether he will be taken into custody immediately or told to report to his designated institution within a period of weeks.

These are very different issues. One involves the Judge determining whether Nacchio has met the stringent legal standard for an appeal bond, which I discuss here and the Rocky Mountain News discusses today here.

The other only has to do with self-surrender.

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Qwest's Joe Nacchio Faces Sentencing

I spent a long time on the phone yesterday with reporter Sara Burnett of the Rocky Mountain News discussing the upcoming July 26th sentencing of former Qwest CEO Joseph Nacchio from a legal perspective.

Here's her new article on how much time he is likely to get and the extent of the forfeiture the Judge will impose.

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Qwest's Joe Nacchio Convicted of 19 Counts of Insider Trading

The jury returned guilty verdicts Thursday on 19 of 42 counts of insider trading against former Qwest CEO Joseph Nacchio.

I can't imagine sitting through the verdict, hearing 23 counts of "not guilty" one by one, only to be followed by 19 counts of guilty. Talk about an emotional rollercoaster.

As to my thoughts on the verdict, I've blogged the trial over at 5280.com and my analysis is here.

In a nutshell,

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Praise for Live-Blogging Joe Nacchio Trial

After live-blogging the Scooter Libby trial, it seemed natural to me to give it another try for the insider trading trial of former Qwest CEO Joseph Nacchio. I live-blogged the jury selection, opening arguments and first day of testimony last week, over at 5280.com

David Kopel, writing in Saturday's Rocky Mountain News, has this review of internet trial coverage.

Denver criminal defense lawyer and civil liberties advocate Jeralyn Merritt runs the TalkLeft.com weblog, which sets a great example of how to write about legal issues in an intelligent way while still connecting with readers who haven't gone to law school. Merritt has been live-blogging the Nacchio trial for 5280 magazine's weblog, Elevated Voices.

She provides a running semi-transcript of courtroom events, in far greater detail than you can find anywhere else while the court is in session. She doesn't attend every day of the trial, but when she's there, Elevated Voices is the best Web site for up-to-the minute coverage.

The trial runs Monday through Thursday. This week I'll be there live-blogging Monday and Tuesday. TChris will be blogging here.

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Live Blogging Joe Nacchio Trial

Yes, I changed my mind this morning and decided to live-blog another day at the Joseph Nacchio insider trading trial. I'm actually enjoying it now, so I will continue for most of the afternoon.

The transcript of yesterday's opening arguments is now available here(pdf).

You can read the live-blogging at 5280.

I did get formally introduced to Joe Nacchio and Herb Stern this morning. I'm sitting behind the Nacchio family in the courtroom today.

I only have one laptop battery so I can't stay in the courtroom the whole time because there are no electrical outlets for us. It's so much better in the courtroom than the media room where you only get a partial view and it's hard to hear. But better in the media room than nowhere.

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