The three-judge panel that granted Joe Nacchio’s motion for bail pending appeal will also rule on the former Qwest chief executive’s effort to overturn his insider-trading conviction, the 10th U.S. Circuit Court of Appeals said Monday.
The unusual move of having the same panel hear the appeal is favorable for Nacchio, experts said. That’s because those judges — Paul Kelly, Michael McConnell and Jerome Holmes — have already indicated they believe the appeal has substance in granting his motion for bail in August.
“It’s probably a slight benefit to him,” said white-collar-crime expert Peter Henning, a professor at Wayne State University Law School in Detroit. “They’ve spotted the issues and said these are colorable issues.”
Former federal prosecutor Rick Kornfeld said it was a “good sign” for Nacchio to have the same judges hear the appeal.
“In granting him bond pending appeal, that panel found that there’s a significant legal issue that he may prevail on,” Korn feld said.
Experts also said it doesn’t necessarily mean the conviction will be reversed. In the same order in August, the panel put the case on expedited review, limiting the time Nacchio remains free on bond.
The judges didn’t disclose which specific issues caught their attention in their surprise decision to overturn U.S. District Judge Edward Nottingham’s order that Nacchio begin serving his six-year prison sentence during the appeal.
Oral arguments are set for Dec. 18. Though there is no time frame for the panel to issue a decision, experts are estimating that it could come two to three months after oral arguments.
Kelly, nominated by President George H.W. Bush in 1991, has served on a high-profile case before as a member of the panel that denied the appeal of Oklahoma City bomber Timothy McVeigh.
McConnell and Holmes were nominated by President George W. Bush in 2001 and 2006, respectively.
The judges can acquit Nacchio of the charges, grant him a new trial or uphold the conviction. They will also affirm or reduce his sentence if they uphold the conviction.
Nacchio was convicted in April on 19 counts of illegal insider trading connected to his sale of $52 million in Qwest stock. In addition to the six-year prison sentence, he was ordered to forfeit the $52 million and pay $19 million in fines.
Nacchio’s attorneys have contended there was insufficient evidence to convict him. They have also challenged Nottingham’s jury questions, decision to prevent a defense witness from testifying and rulings related to Nacchio’s classified-information defense.
That defense, which wasn’t used during trial, suggested Nacchio was upbeat on Qwest because he had top-secret information that the company was in line to receive lucrative government contracts.
Andy Vuong: 303-954-1209 or avuong@denverpost.com
The Nacchio panel
Paul Kelly
Born: 1940 in Freeport, N.Y.
Nominated: Nov. 19, 1991, by President George H.W. Bush to a new seat
Confirmed: April 8, 1992
Education: University of Notre Dame, BBA, 1963; Fordham University School of Law, JD, 1967
Michael W. McConnell
Born: 1955 in Louisville, Ky.
Nominated: Sept. 4, 2001, by President George W. Bush to replace Stephen H. Anderson
Confirmed: Nov. 15, 2002
Education: Michigan State University, BA, 1976; University of Chicago Law School, JD, 1979
Jerome A. Holmes
Born: 1961 in Washington
Nominated: May 4, 2006, by President George W. Bush to replace Stephanie K. Seymour
Confirmed: July 25, 2006
Education: Wake Forest University, BA, 1983; Georgetown University Law Center, JD, 1988; Harvard University, MPA, 2000
