DENVER—An attorney for former Qwest CEO Joe Nacchio asked the full 10th Circuit Court of Appeals on Thursday not to review a decision by a three-judge panel to overturn his insider-trading conviction.
Attorney Maureen Mahoney wrote in a court filing that the three-judge panel’s ruling did not establish a legal precedent that requires a review by the full court.
“The court’s decision announces no new law; it merely applies settled law to the facts of this case,” she wrote. “The petition thus seeks en banc (full court) review of alternative reasoning that would not change the result. For that reason alone, it should be denied.”
Nacchio was convicted in April 2007 of 19 counts of illegally selling $52 million worth of stock in 2001 after prosecutors argued he made the trades when he knew Qwest Communications International Inc. was at risk but didn’t tell investors. The jury acquitted him on 23 counts of insider trading.
He was sentenced to six years in prison but remained free on appeal.
The three-judge appeal panel overturned Nacchio’s conviction in a 2-1 decision in March, concluding U.S. District Judge Edward Nottingham improperly excluded trial testimony from defense expert witness law professor Daniel Fischel.
The panel also said Nottingham failed to give the defense adequate opportunities to disclose the reasons for Fischel’s opinions and that he erred in excluding Fischel’s economic opinions on the basis that they were within the jury’s common knowledge.
Federal prosecutors asked the full 10th Circuit panel to reconsider whether a district judge may exclude expert testimony under certain conditions and whether a judge may exclude expert testimony about economic concepts.
The full 10th Circuit typically is 12 judges.
In her filing, Mahoney said Nacchio should have an opportunity to present all of his arguments to the full court if it does a review.
The case grew out of a multibillion-dollar scandal that forced the Denver-based telecom to restate $2.2 billion of revenue. Federal regulators have said Qwest falsely reported fiber-optic capacity sales as recurring instead of one-time revenue between April 1999 and March 2002.
Nacchio still faces a civil fraud lawsuit filed by the Securities and Exchange Commission against him and four other former Qwest employees. The SEC alleges they coordinated a financial fraud that allowed Qwest to improperly report about $3 billion in revenue.
