The federal government is using attorney Herb Stern’s written words against his client, former Qwest chief executive Joe Nacchio.
In a filing asking an appellate court to uphold Nacchio’s insider-trading conviction, the Justice Department included excerpts from Stern’s eight-volume set of books titled “Trying Cases to Win.”
At the heart of the appellate review is whether the trial judge properly excluded expert testimony from a defense witness. Government attorneys argue that it was Nacchio’s burden to ask for a separate hearing to review the matter during trial.
They said it is up to the trial judge to decide whether to hold such a hearing, and Stern should have known this because he wrote about it.
“In view of these settled principles, with which counsel was well familiar, the defense could not expect that the district court would hold a hearing as a matter of course and absent a specific request,” the government states in a filing made Friday.
In a footnote, the government cites this excerpt from Stern’s book: “The Supreme Court makes it clear that whether to hold a hearing . . . is left to the discretion of the trial judge,” Stern wrote in Vol. 3. “Appellate courts . . . will defer to the trial judge’s decision on how to determine reliability (e.g., to hold a hearing).”
The government attached 29 pages from Stern’s book with the filing. Stern didn’t return a call seeking comment.
Meanwhile, Nacchio’s appellate attorney, Maureen Mahoney, wrote in a filing Friday that the burden was not on Nacchio to request a hearing and that the court abused its discretion by excluding certain testimony without holding a hearing. Mahoney also argued that Nacchio did not have adequate time to request a hearing.
Mahoney said that “six years in prison should not turn on so trivial a matter.”
Nacchio in 2007 was convicted on 19 counts of illegal insider trading, sentenced to six years in prison and ordered to pay $71 million in fines and forfeitures.
In March, a three-judge appellate panel overturned the conviction and ordered a new trial, ruling 2-1 that the trial judge erred by limiting the testimony of a defense witness. The excluded testimony was central to Nacchio’s defense, his attorneys have argued.
In July, the 10th Circuit Court of Appeals in Denver granted the government’s request for a full-court review of the conviction.
Oral arguments are set for Sept. 25, a hearing that is open to the public on a first-come, first-served basis.
Andy Vuong: 303-954-1209 or avuong@denverpost.com
