DENVER-
Joe Nacchio’s attorneys asked a federal judge Tuesday to delay his insider trading trial, saying prosecutors have been so slow in turning over evidence that the former Qwest chief’s rights could be jeopardized if the trial starts March 19 as scheduled.
Attorney Herbert Stern sought a 60-day postponement to evaluate documents prosecutors have provided in recent weeks, including six CD-ROMs of material that Stern said he was made aware of Monday evening.
He said the prosecutors advised if his team wanted to use any of the classified material, they would have to submit them to the court as required by federal law.
“The government has chosen on the eve of trial to place a heavy burden on the defendant—to review voluminous materials and then make applications to the court and we do not even know the full extent of that burden,” Stern wrote in a brief filed in U.S. District Court.
Stern said the documents may support Nacchio’s contention that he had hope for Qwest’s future because he knew about the Denver-based phone company’s classified business dealings with the government.
“This request is not of our making, but if not granted will prejudice our ability to mount a full defense as required by the Sixth Amendment,” Stern wrote.
U.S. attorney spokesman Jeff Dorschner declined comment.
Nacchio’s attorneys have complained previously about government attorneys being slow to provide evidence, prompting U.S. District Judge Edward Nottingham last week to order prosecutors to step up efforts to turn over such material. At issue are witness interviews and other documents that Nacchio’s attorneys say may help his defense, a contention prosecutors have disputed.
Prosecutors have told the judge that the evidence exchange has been hampered because some documents fall under the Classified Information Procedures Act, which sets guidelines for viewing secret government material such as business contracts.
In the brief, Stern said the defense was required to outline its strategy involving the classified documents by Oct. 31 but prosecutors did not provide any evidence involving classified documents from May to October.
Nacchio, who is free on bail, is accused of selling $101 million worth of stock in 2001 based on inside knowledge Qwest Communications International Inc. would be unable to meet revenue targets.
He is charged with 42 counts, each carrying a penalty of up to 10 years in prison and a $1 million fine. He has pleaded not guilty.
Defense lawyers have said Nacchio believed Qwest would get hundreds of millions of dollars worth of classified government contracts that made him more optimistic about the company’s financial future.
The Classified Information Procedures Act which was enacted several decades ago to counter a strategy used by defendants charged with spying who would threaten to expose national secrets unless the charges were dropped.
In order to view the contracts and determine their relevance at trial, attorneys for both sides and the judge received Justice Department security clearances. They must view the documents in secure facilities and debate their merit in a secure courtroom closed to the public.
Separately, Nacchio also is one of several former Qwest executives accused by the Securities and Exchange Commission in a civil case alleging they orchestrated a financial fraud that forced the company to restate billions of dollars in revenue. That case is pending.
