Nacchio’s Hearing–before the Judges Who Gave Him Bail–Set for Next Week

I said yesterday that the lawsuits against the telecoms were the only means left for us to find out how the government spied on Americans. I forgot about Joseph Nacchio, whose appeal will be heard by the same folks who decided his appeal addressed a "substantial issue."

The same three appellate judges who ruled that Joe Nacchio could remain free pending an appeal of his conviction of insider trading will hear his case next week, the 10th Circuit Court of Appeals announced Monday.

That could favor the former Qwest CEO because the judges already decided when they granted Nacchio’s request to stay out of prison that there was "a substantial question of law or fact" that could lead to a reversal of his April conviction.

"Nacchio has to be very happy," said Jay Brown, a University of Denver law professor who has followed the case.

The judges already have drawn some conclusions about the case and are sympathetic to Nacchio, Brown added.

But Marcy Glenn, head of the appellate practice group for the Holland & Hart law firm, didn’t think one should read too much into the fact that the panel is the same.

"The earlier decision was an interim decision, and it was made before there were any briefings on the merits of the case," Glenn said. "I would expect (the three-judge panel) to be absolutely open to all arguments at this point."

Oral arguments are scheduled for 2 p.m., Dec. 18. The case is being heard on an expedited basis, though no deadline for a decision has been set and the panel may issue its ruling at any time.

Jeralyn Merritt live-blogged a good deal of Nacchio’s trial, so hopefully she’ll give us her expert opinion on this appeal.

  1. emptywheel says:

    They will discuss whether the evidence–among others things–that he had the expectation of further NSA business but got cut off bc he refused to do illegal wiretapping should have been introduced. It will be a discussion about whether the judge in his case made inappropriate decisions on evidence.

    • bmaz says:

      Selise – No. The general rule, and a fair one for you to assume pretty much anytime you are discussing an appeal, is that they are on the record transmitted from the trial court only. It is not impossible to have new evidence interjected, but it is rare and the chances of such a situation being applicable to our general discussions is pretty remote. I would also note that in most of the occasional instances where new evidence does pop up, if the appellate court thinks it of any significance, they remand the case back to the trial court for determinations thereon.

  2. bmaz says:

    I have never thought that Nacchio was quite the significant holy grail that many do, mostly because I believe his motivations for refusing to go along with Bushco were quite a bit different than most people seem to believe and not nearly as altruistic. That said, I sure hope I am wrong, because all the other paths to the truth are being blockaded, one by one, by the evil empire. (hat tip to Red Sawx fans for that descriptor). The other Marcy (Glenn) that our Marcy (Wheeler) quoted is full of it; of course it is a good thang to draw the same panel that granted you release pending appeal, because that means that they felt there was a significant chance you could succeed in your appeal. No matter how you add it up, that is a good thing; doesn’t by an means mean you will win, but it is positive. Jeralyn should know this panel fairly well, at least Kelly and Holmes from their respective involvement in McVeigh. I don’t know any of them, but have a colleague that has groused mightily about McConnell. Of course, defense lawyers are usually a pretty grumpy bunch by the time they are in an appellate court; there are few good reasons for us to be there. Despite my misgivings about how significant Nacchio is to our quest, and in spite of the fact that he was involved in some pretty clear accounting hanky panky, I think he was absolutely pounded by the government in an inexplicable way and got shafted unreasonably, so I wish him the best of luck.

  3. emptywheel says:


    I don’t really care about Nacchio’s motivations. I think his argument that he thought he was going to get business but didn’t rings true from working with govt contracting. Add in the fact taht he’s the one telecom exec who got busted (though many should have), I’d like to see this get retried with his evidence. He may well be guilty as hell. But I’d like to see him present that evidence.

  4. bmaz says:

    Oh, I agree with that; I not only would like to see him get to present his case, I think he was absolutely entitled to do so in the first place. And there is no question but that “he thought he was going to get business but didn’t “; my difference with the conventional wisdom has only ever been as to why he didn’t get that business. I think Nacchio’s appellate argument regarding being unreasonably prevented from presenting his defense case is actually quite strong, but the 10th isn’t the friendliest for the defense if you know what I mean.

  5. Jeralyn Merritt says:

    Marcy, I will be at the oral arguments and they said we can bring our laptops in, so I’ll either be live-blogging Marcy-style at TalkLeft or or providing a full report after it’s over.

  6. froggie says:


    Initially I didn’t have much sympathy for Nacchio, but after reading (I think it was in RawStory) that this might be a case of “government revenge” in connection with the Telecom spying fiasco, I’ve smelled a rat. I’m very glad you folks are on to this case, it’ll keep me glued again to emptywheel like I was with the Libby case!

  7. PetePierce says:

    I posted this on a few threads because I want everyone to realize how spineless most of the Democrats are because I guarandamtee you that every Democratic Senator was given the prime oportunity to sign onto this letter via email today and only 14 did. It gives me a very bad vibe.

    Look at all the Dems who are conspicuously absent from this letter–wonder if it’s an omen of bad tidings to come?

    Senators Lobby Reid to Keep Telecom Immunity out of Surveillance Bill

    Dear Majority Leader Reid:

    We understand that the Senate will shortly be considering amendments to the Foreign Intelligence Surveillance Act. As you know, the Senate Select Committee on Intelligence and the Senate Judiciary Committee have reported very different versions of the FISA Amendments Act, S. 2248, and it is up to you, as Majority Leader, to decide how the Senate considers this legislation.

    We urge you to make the version of S. 2248 reported by the Senate Judiciary Committee the base bill to be considered by the full Senate. While the structure of Title I of both bills is the same, and both make improvements over the Protect America Act, the reasonable changes to Title I made in the Judiciary Committee ensure that the FISA Court will be able to conduct much-needed oversight of the implementation of these broad new surveillance authorities, and help to better protect the rights of innocent Americans. While we appreciate the hard work that the Intelligence Committee has done on this legislation, the process by which the Judiciary Committee considered, drafted, amended and reported out its bill was an open one, allowing outside experts and the public at large the opportunity to review and comment. With regard to legislation so directly connected to the constitutional rights of Americans, the results of this open process should be accorded great weight, especially in light of the Judiciary Committee’s unique role and expertise in protecting those rights.

    We also believe that the Judiciary Committee bill is preferable because it does not provide immunity for telecom companies that allegedly cooperated with the administration’s warrantless wiretapping program. As this is such a controversial issue, we feel it would be appropriate to require the proponents of immunity to make their case on the floor.

    Thank you for your consideration.


    Russell D. Feingold (D-WI)

    Christopher J. Dodd (D-CT)

    Barack Obama (D-IL)

    Bernard Sanders (I-VT)

    Robert Menendez (D-NJ)

    Joseph R. Biden, Jr. (D-DE)

    Sherrod Brown (D-OH)

    Tom Harkin (D-IA)

    Benjamin L. Cardin (D-MD)

    Hillary Rodham Clinton (D-NY)

  8. JohnLopresti says:

    I wonder if Gillespie’s accession to the Rovian nonCorner office related in part to the executive council paradigm emanating from FourthBranch, as in the duckblind absolute absence of camaraderie chat between a certain AssociateJustice and the Veep concering the EnergyTaskForce proceedings. I would expect even USTelecomAssoc to have had a certain resistance to upstart Qwest’s bragadocchio as the least cooperative member of the Good Ole Club which is USTA. (If you Googl USTA you need to add one more parameter so the finds exclude the Tennis Association which also is a PAC). Which is to say, letting Nacchio speak about the competition for security or defense contracts as part of his defense in the insider trading scandal is going to exacerbate longstanding friction between his former employer and the rest of the USTA oligarchs. The question would be how venturesome his attorney’s discovery would be allowed to become; and, after all, Qw was sufficiently monopolist and incumbency imbued to belong to that insider aggregation at the highest level, so N’s own telco morality would keep revelations in court to a minimum. I wonder what Chris Cox thinks of what the proper defense bounds might be at this early stage. I know little of the expanse of TalkLeft’s spectrum of clientele, but I look forward to visiting there for the live impressions. As usual, if I could find a transcript, the research effort for later history writing would be improved, for my files’ purposes.