DENVER-
Joe Nacchio wants a judge to acquit him or grant him a new trial in a new city, claiming the jury that convicted him of insider trading was exposed to damaging pretrial publicity.
Defense attorneys also advised the judge late Monday that Nacchio has set aside as much as $52 million in the event U.S. District Judge Edward Nottingham requires him to forfeit any money as a result of his conviction.
In a series of briefs, lead defense attorney Herbert Stern said it was impossible for Nacchio to receive a fair trial in Denver, an argument he supported with hundred of pages of newspaper clippings and broadcast transmissions detailing developments of the case.
Nearly 80 percent of the jurors and alternate jurors who heard evidence acknowledged hearing about the case when they were questioned during the selection process but Nottingham denied a defense request to move the trial at the time, Stern said.
“Because anyone who had read, seen or heard about this case, as a matter of simple truth, had to have been exposed to inflammatory and prejudicial material about the defendant, the interests of justice require a new trial and the grant of a change of venue,” he wrote.
A U.S. District Court jury deliberated six days before concluding Nacchio illegally sold stock in April and May of 2001 when he knew the company relied heavily on one-time sales to meet revenue targets.
He was convicted of 19 counts while the jury acquitted him on 23 other counts. The guilty verdicts involved stock sales that occurred after Qwest Communications International Inc. posted first-quarter results which did not reveal how much of its revenue was based on one-time sales.
When he is sentenced July 27, Nacchio faces a sentence of up to 10 years in prison and a $1 million fine on each count. Legal analysts have speculated Nacchio will get a prison term of eight to 10 years.
Nottingham previously denied two defense requests to move the trial, one during the jury selection process and one last summer, saying he believed the jurors would be able to impartially judge the evidence. During the trial, he admonished jurors daily to avoid all news coverage of the case and ordered news reporters and the public to stay away from the panel members.
In detailing his argument, Stern said the negative publicity increased before the trial began in March and even during the trial.
During the jury selection process, 32 of 44 prospective jurors—and 14 of the 18 jurors and alternates who were seated—said they previously had heard about the case but Nottingham denied a defense request to automatically dismiss juror prospects who had prior knowledge, he said.
Stern also described two encounters Nacchio had while walking along downtown streets during the trial. In the first, the attorney said a motorist drove up behind Nacchio and yelled, “Nacchio, I hope you get cancer and die.” The next day, a taxi driver stopped and screamed obscenities at Nacchio, Stern said.
In seeking a judgment of acquittal, Stern argued that the prosecution’s evidence was insufficient to establish Nacchio’s guilt beyond a reasonable doubt, noting the 23 acquittal counts.
Prosecutors have asked Nottingham to require Nacchio to forfeit the amount of money earned on the illegal stock sales, $52 million. Stern said Nacchio and his wife, Anne Esker, have put that amount in escrow accounts where it will be available to pay any forfeiture.
Separately, Nacchio and several other one-time Qwest executives are still involved in a pending civil fraud lawsuit that accuses them of orchestrating a financial fraud that forced the Denver-based telecommunications company to restate $2.2 billion in revenue.
