The Guy Who Refused to Wiretap Illegally Is Off to Jail

The full 10th Circuit just decided to send Joseph Nacchio off to jail after reinstating his insider trading conviction.

A federal appeals court reinstated the insider trading conviction of former Qwest CEO Joe Nacchio on Wednesday and said he could be ordered to begin serving a 6-year prison sentence.

A three-judge panel of the 10th U.S. Circuit Court of Appeals had overturned the conviction last year, ruling that the trial judge improperly barred testimony from a defense witness.

But on a 5-4 vote, the full 10th Circuit said Wednesday the trial court was ”well within its discretion” to keep the witness off the stand.

Now, it’s likely that Nacchio will appeal to SCOTUS. Which means the Roberts Court will probably be refusing cert for Nacchio at about the time they overrule Vaughn Walker’s impending decision that retroactive immunity for telecoms–you know, the guys who broke the law when they cooperated with Dick Cheney’s illegal wiretap program?–is illegal. 

66 replies
  1. scribe says:

    Now, it’s likely that Nacchio will appeal to SCOTUS. Which means the Roberts Court will probably be refusing cert for Nacchio at about the time they overrule Vaughn Walker’s impending decision that retroactive immunity for telecoms–you know, the guys who broke the law when they cooperated with Dick Cheney’s illegal wiretap program?–is illegal.

    Yup. Funny how that works, ain’t it?

  2. pdaly says:

    from the article emptywheel linked to:

    A jury convicted Nacchio in 2007 of 19 counts of insider trading while acquitting him on 23 counts of the same charge.

    Federal prosecutors alleged Nacchio sold $52 million worth of stock at a time when he knew Denver-based Qwest Communications International Inc. was at risk while other investors did not.

    He’s going to jail over $52 million? If it was all about the money, Nacchio should have been an investment banker. They’re getting government handouts not handcuffs.

    Six years in jail is a long time. Wish Nacchio would spill the beans about the Bush Administration’s illegal wiretapping nonetheless.

    • phred says:

      Perhaps that’s what the barred witness was there to do… Why else would they be barred? As usual the NPR report on this story failed to even mention any of the really tantalizing bits of the case, the refusal to permit warrantless wiretapping, the lost government contract, or the barred witness. To NPR it was just another crooked CEO story, ho hum.

      • pdaly says:

        I like the thought, but I think the witness was this one, a university professor

        At trial, Nacchio’s lawyers wanted author and Northwestern University professor Daniel Fischel to offer an explanation for the fall in Qwest stock and to discuss whether Nacchio’s trading pattern was suspicious.

        (follow ew’s link at the top of her post) I don’t know whether Fischel would have had much to say about the Bush WH.

        • bmaz says:

          Correct. Fischel was there to testify as an expert about some form of pattern analysis on the facts, figures and trading by Nacchio purportedly to establish that there was no intent or fact of insider trading.

        • phred says:

          Thanks! I appreciate that. I had thought that part of Nacchio’s argument was that he thought he was going to get a big government contract, that didn’t in fact come through (possibly because he refused to play ball with BushCo). But it’s certainly possible that that was only ever speculation around here and never asserted in the course of the trial. And for all I know, Nacchio did indulge in insider trading, it’s not exactly unusual behavior for the ruling class.

  3. klynn says:

    So, this means the prosecution can use classified information too? I do not see this as a victory for the defense but an leveling of the field.

  4. Mary says:

    I may not get around to reading it at all today – but for those who can, here’s a link to the fas hosted version

    and here is the FAS description of the ruling,…..court.html

    As a folo to bmaz’ earlier post about the NEW Dist Ct ruling, the circuit court notes that even under the old rulings it had before it up to this point,

    “We are … concerned by the potential that [Judge Ellis’ August 2006 ruling (pdf)] imposes an additional burden on the prosecution not mandated by the governing statute,” the appeals court said in a strikingly ambivalent footnote (footnote 8). That concern has no immediate legal consequences, but it suggests that the proper interpretation of the Espionage Act is not yet a settled matter.

  5. bobschacht says:

    I am hoping for some discussion here of Glenzilla’s new blog on Pelosi criticizes Truth Commission as inadequate, advocates criminal prosecutions. What’s going on here, with Whitehouse, Leahy, and others? What is Feingold saying about this?

    And thank the Goddess for Rachel Maddow’s intelligent journalism, asking intelligent questions, and demanding intelligent answers. You go girl!

    And thank the Goddess also that Pelosi is no longer all kissy-face with Bush and the phony “bipartisanship” disaster of the 110th Congress. There should be a special Hall of Infamy for such things, and I nominate Pelosi.

    Bob in HI

    Bob in HI

    • emptywheel says:

      As Glenn also points out, Leahy has always talked about prosecutions on this. Feingold supports Leahy, but wants to make sure prosecutions are preserved.

      I also think Glenn’s attack on Leahy’s concern about failed prosecutions is problematic. It’s one thing to prosecute a murderer. A failed prosecution simply results in a free alleged murderer, it doesn’t undermine the notion that murderers can be prosecuted. But a failed prosecution of John Yoo undermines any means of hold OLC hacks accountable.

    • Leen says:

      Pelosi the one who took “impeachment off the table” sounds like she feels like she is being upstaged and may be left in the dust on the issue of accoutability

    • phred says:

      Bob, did you notice how buoyant the Speaker was last night? She was almost giddy. I’ve never seen her look so happy. After reading Glenn’s post I almost wonder whether her delight is rooted not just in Bush’s departure, but Rahm is out of her hair. Perhaps now that he’s not breathing down her neck to get her leadership position, she’s feeling her oats a bit. If so, good for her. I’ve been as big a critic of Pelosi as anyone, but if she is willing to turn to the light I’m happy to help her do it. I can’t wait to see the interview…

      • Leen says:

        I think she might feel that Leahy is taking her thunder, leaving her in the dust. She was the one who said “impeachment is off the table”

        I just do not trust Pelosi. Did you watch her face last night, eyes darting back and forth, biting her lip, lips pursed…the woman never quit twitching. Just do not trust her especially after we all worked so hard to fill up those seats with Dems in 06…she threw the reasons many of us worked thousands of hours off the bus. IMPEACHMENT/ACCOUNTABILITY FOR THAT FUCKING UNNECESSARY WAR

        • phred says:

          I did watch her face and Biden’s and everyone else blessed with a candid shot. They all looked twitchy to me. Joe Lie looked like he had something caught in his teeth. Did you see how fast Pelosi shot out of her chair when Obama mentioned SCHIP? She was almost bouncing on the balls of her feet. Sure she has nervous ticks (we all do), but she looked thrilled last night.

          Maybe bmaz is right, maybe she is finally pro-prosecution now because it’s almost too late (although in a rare disagreement with our esteemed colleague, there is no statute of limitations on war crimes and that is what I most want them in the pen for), but I honestly think she might feel a bit more confident in her role. She may also feel a bit more confident that Rahm’s DLC Blue Dog pals are going down, while progressives are ascendant. Maybe she’s ready to finally rise to the occasion.

          Or maybe, I’m being set up once again for profound disappointment.

          • Leen says:

            “maybe she’s ready to finally rise to the occasion….or follow Kucinich, Whitehouse and Leahy.

            She had far more nervous ticks going on last night. Maybe it was excitement. Sure looked odd.

            did folks hear this Scott Horton interview with Glen?

    • bmaz says:

      Well, I mostly agree with Glenn’s take; however, I AGAIN come back to the salient fact that if any party gives a tinker’s damn about prosecutions on any of the wiretapping stuff, ever, they are letting their best possible crime to charge, and best leverage to use to break loose other charges, idly drift by the wayside as we speak. The most clear cut crimes imaginable are those that happened immediately after the “Hospital incident” and beginning on March 11, 2004. In fact, it is right during the start of that period, between March 11-13 or so I think, that the al-Haramain phone log indicates that al-Haramain’s attorneys were illegally wiretapped. THAT is why the government, even under Obama, is fighting like hell to keep the case killed by state secrets.

      These crimes have five year statutes of limitation. They are the best, most concrete and indefensible crimes available. Especially al-Haramain because there is evidence commonly known to exist confirming the crimes. All going down the shitter in 14 days. So when Pelosi (and by inference Greenwals from his article) get all amped up about prosecutions that might emanate from some report that may come out next summer, i am rather non-plussed. The way you break up criminal conspiracies is to hammer people on the known crimes and then leverage that against the crimes that are more elusive and harder to pin down. The best ability to do this is frittering away, and Pelosi damn well knows it. So, to answer your question, Pelosi’s new found toughness doesn’t mean dick to me. She should back it up or shut up.

      • phred says:

        Dang it bmaz, there you go raining on my parade! I was postively delighted there for a few minutes, thinking Pelosi might be trying to do the right thing finally. Now if you don’t mind, I’m going straight back to my corner to sulk. Harummpphhh.

    • Leen says:

      Just read Glenn’s post thanks for linking. What I don’t get is while holding those responsible for torture, undermining the DOJ, illegal wiretapping…what happened to holding those responsible for the false pre war intelligence ACCOUNTABLE. I know folks remember that the whole fucking bloody death and destruction in Iraq is a direct result of the false intelligence. Did I miss something? Has someone been held accountable for those Niger Documents?

      You would think holding the individuals responsible for that “pack of lies” accountable would be first on our Reps list.

  6. Mary says:

    OT – France has released ex-GITMO prisoners, after an appellate court ruled the info gathered from them at GITMO couldn’t be used.…..dUSLO49577

    The court in Paris released the men on grounds the ruling was based on evidence illegally extracted by French security agents at the U.S. prison, a symbol of detainee abuse which U.S. President Barack Obama plans to shut down.

    Also OT
    Prosecutors have come up with pyschologists who are willing to say Aafia Siddiqui is able to stand trial, so they have filed motions for that – while back in almost melting Pakistan, the response was that a lawyer for her interest has filed a Pakistani version of a Freedom of Information request for information on Musharef detentions – the same issue that led to Musharef jailing the former chief justice and the Penquin revolt.

  7. Mary says:

    Imagine this –…..guantanamo

    He said he did not witness any rough treatment of detainees

    Who could have predicted that there would be no prisoner abuse in the AG’s presence during his pre-announced and escorted tour?

    I feel so much safer with such a sharp guy in charge.

  8. bobschacht says:

    Regarding Pelosi– I’m going to try for a two-track thesis here.

    Yes, I saw Pelosi enthusiastically jumping up to applaud numerous Obama points; maybe she was hyperventilating after all that. *g*

    But more seriously, perhaps she is both happy about the prospect of the SoL expiring on March 11 *as well as* happy of frogmarching Bush & Cheney based on other charges. Just maybe there’s something about the charges expiring on March 11 that she was complicit in, or that would be very difficult at least for her to explain, that would only(?) come out in court proceedings? I have no idea what such charges would be, but the Truth Commission without persecutions option might be able to help her dodge one of the more difficult bullets that she’s facing.

    But I think phred might be on to something, regarding Pelosi’s new-found enthusiasm.

    Bob in HI

    • emptywheel says:

      Another issue I’ve got with Glenn’s post is that he claims this is the first that Pelosi has given those details on her own briefings.

      It’s not. She has given them before, I’ve pointed them out repeatedly, and Glenn has ignored them.

      Pelosi’s not got something to worry about. Harman, probably does. Jello Jay too. But not Pelosi, unless she has been explicitly lying for years.

  9. bmaz says:

    In fairness to Pelosi, I doubt she is as focused on that aspect as I am consumed with it; although, I am sure that if she stopped and thought for a minute, she would realize. I do think that, legislatively, things seem to be looking up for her; there are probably some reasons for the bounce in her step. And, also in fairness, even if criminal statutes run, any real down and dirty investigation might well delve into facts that don’t make her look great, even if they are not totally damning. Ultimately, I will take whatever accountability steps we can get, in spite of the fact that I remain an unhappy broken record that we should be getting much better and more.

    • Leen says:

      “that don’t make her look great” that has always been my suspicion. don’t dig down to far you may find your own fingerprints

  10. Mary says:

    I think bmaz is right on the almost too late, and I also think something else even less generous.

    As tough as it might be to Prosecute Yoo et al, that job is ezee peezee next to the concept of being able to prosecute a member of Congress on an amorphous, likely unrecorded, briefing they may or may not have recieved and esp where that member of Congress had no executive ability to say yeah or nay to the activity.

    So prosecutions are going to be much much much much much less likely to have days that dwell on what Dems were told and when and by whom etc. – all the things that the Republicans will lay teeth to if there are hearings. They’ll want to make Pelosi and Rockefeller and Harman etc. witnesses (which they should be imo) Her capital is much more like to go down – way way down – if there are public, splashy hearings than if there are prosecutions where briefings of four or so members of Congress wouldn’t be all that relevant to the guilt or innocence of torturers.

    And it kinda seems like Pelosi’s liking for prosecutions (of things other than the USAtty matters) kind of post-dates Leahy’s announcement that he thinks Democrats as well as Republicans should be investigated in a truth commission proceeding.…..shane.html

    As a senator under seven presidents, Mr. Leahy said, he has learned that the temptation to abuse powers in a crisis is bipartisan, and the commission’s review should include the role of Democrats in Congress in approving the Bush policies


    • Leen says:

      Mary “all the things that the Republicans will lay teeth to if there are hearings. They’ll want to make Pelosi and Rockefeller and Harman etc. witnesses (which they should be imo) Her capital is much more like to go down – way way down -”

      Tonight on the Maddow show Pelosi said that when they were briefed about “enhanced interrogation techniques” they were never told that they were being used. Never told

    • phred says:

      You may both be right, but I still think having Pelosi be on the side of prosecutions makes it a much more likely occurrence. Since we’ve been pushing for such actions for ummm, years now, doesn’t it behoove us to take advantage? Does it matter if Pelosi is being self-serving? As I mentioned above, I am not a fan, but in my opinion there are much much bigger fish to fry. Who am I to argue if Pelosi is the one handing me the batter?

  11. Mary says:

    31- Oh, you betcha I’m all for taking advantage! Absolutely.

    The only reason it matters is for strategic purposes – if you think or know that she’s playing for delay of game, you push that much harder on issues like those bmaz raised about expiring statutes and not letting best case opportunities go by – if she was a Feingold and you could kind of take her at her word, you would feel like you could work with or through her as opposed to having to stay balanced against her doing things to undercut the efforts when your back is turned.

  12. bmaz says:

    I almost wonder if there haven’t been discussions with Holder and Craig and that there is solid agreement that they will NEVER allow real prosecutions or competent and pointed investigations; the only thing possible is some kind of weak politicized Leahy blue ribbon Lee Hamilton commission. So there is a little more freedom for Pelosi to act all supportive and pandering to her base. It is all a play. Just a thought.

    • phred says:

      Well, it certainly wouldn’t be the first time Pelosi has indulged in kabuki. All the same, if we can take advantage of her position, I’m all for doing so. If nothing else, it adds a high profile voice (even if it’s a duplicitous one) to our own. Perhaps we can use it to push DoJ for the appointment of a special prosecutor or Leahy et al. to be careful in how they craft their commission to not preclude any possibility of subsequent prosecution. I don’t think either course will be easy, but how else are we going to get anywhere? I’m willing to take all the support I can get.

    • Blub says:

      I still think Germany and Canada should prosecute shrub in their respect courts for those of their nationals that we had kidnapped, renditioned and tortured.

  13. BlueStateRedHead says:

    OT, but it would be great to have EW’s and Bmaz’s read on the Foggo stuff coming out. Reading TPM on the Foggo documents, one finds two cases where highly placed government employees were fired/forced to quit for crossing him.

    As for example, trying to make his mistress do better than subpar work.

    Can they ask for remedies for wrongful dismissal–the one who was fired? Sue someone?

  14. acquarius74 says:

    Has anyone noticed the peculiar timing of these news releases? Might Britain’s release of B. Mohammed, with the inescapable shame the US must bear for his unspeakable treatment, have something to do with it? Also, I read that France has released one or more GITMO detainees stating that they could not be prosecuted due to their treatment there.

    Seems to me that the open accusations by those 2 countries along with the loud public protests may be putting pressure on Obama and congress to be at least as humane as they.

  15. randiego says:

    This is totally random and off-topic, but I just had to share this comment from an open thread over at Balloon Juice:

    #35, Third Eye Open

    GOP Hip-Hop:

    Are you down with the G-O-P?
    Yeah, you know me!
    Are you down with the G-O-P?
    Yeah, you know me!

    So you want something for free
    Well don’t tread on me
    Cuz ill break it down like Reagan
    Bring Jeebus to the Pagans
    While I bitch-slap Nagin

    Welfare queens, knocked up teens, holes in your jeans
    Permanent Majorities in my dreams
    Here comes the Red Dawn
    Now get the fuck off my lawn!

    Are you down with the G-O-P?
    Yeah, you know me!
    Are you down with the G-O-P?
    Yeah, you know me!

    I got scrilla hidden in Manilla
    I got oil to drilla, and hoes from Wasilla
    You can’t see me, like analog TV

    But don’t forget to respect the au-thor-i-ti
    Or ill bust you in your fuckin’ eye
    I got mice and trains on my brain
    But still can’t seem to get over that stain

    Give me Liberty or Death,
    Hookers and Meth
    Foot tappin’, double wet-suit wrappin’
    Ditto heads fwappin’ and John McCain nappin’

    Werd to yer mother!

  16. bmaz says:

    I have said forever that Nacchio was somewhat of a red herring in that regard, and that certainly wasn’t what the expert Fischel was slated to testify about.

  17. foothillsmike says:

    While I applaud the refusal by Quest to not be involved in illegal wire tapping I have several friends who were former Quest employees who witnessed Nacchio engaging in dumping his stock. They lost a lot of money when their stock cratered.

  18. rwcole says:

    The court case that would not end is still going on in Minnesota. Has anyone heard an estimate of when Coleman will give up?

      • rwcole says:

        I haven’t seen any-it’s incredible though that the election was held in November and we are nearly to March with no senator from Minnesota sitting in the empty seat.

      • Watt4Bob says:

        This Minnesotan thinks Coleman is doing all he can to keep otherwise unemployed lawyers working.

        It’s evidently part of the GOP jobs program.

        I believe most of us also consider his career to be over.

  19. i4u2bi says:

    It’s time for ‘quid pro quo’. Nacchio spills on Bush, if he has anything to spill and Obama gives Nacchio a ‘Medal of Freedom’.

  20. rwcole says:

    Coleman actually spent the Viet Nam war years as a long haired reefer smokin freak- then went on to law school. He’s never had a job in the private sector- interesting for goopers that many of them are career govt. employees.

    • SouthernDragon says:

      I spent the Viet Nam war years as a short-haired reefer smokin’ River Rat. Bet my weed was a lot better than his weed.

  21. Twain says:

    Huff Post says Roland Burris II got state job ($75,000)
    from Blago 5 months ago. Blago just happened to give a job to the Burris son. Whoops!

  22. robspierre says:

    There is a certain perverse, accidental, natural justice to what has happened to Nacchio.

    Yes, he refused to play ball on wiretapping and maybe got screwed when they pulled his secret contract. But let’s not forget that he was one of the A-1 creeps, the pet of Anschutz no less. He was almost certainly guilty of insider profiteering in fact, even if it was less clear as a matter of law. The whole US West -> Qwest deal was a legal fraud, but a fraud nonetheless that ruined one of the best phone companies in the world and badly injured the whole hi-tech economy in the Rocky Mountain region. And if Nacchio refused to cooperate with the spying, he was probably just being coy and angling for some sort of deal sweetener.

    I fear that this sort of thing may be as much justice as we are likely to get for the last 20 years of lying and thieving. So I, for one, am going to enjoy it.

    • bmaz says:

      And if Nacchio refused to cooperate with the spying, he was probably just being coy and angling for some sort of deal sweetener.

      Bingo. And doing so to cover the hinky accounting that was starting to become apparent from his tenure at Qwest.

  23. biodieselvw says:

    Another stretch of an article by emptywheel. What a surprise!

    It’s an insider trading case, plain and simple.

    Slow news day?

  24. JohnLopresti says:

    There were ample warning signs for telco stocks, even the stock from the pyrotechnician Nacchio’s outfit, years prior. Then there was retrenchment. His style always was to dare to jump the bike over the Snake River Canyon each morning, to make the other dereg artists wonder if that was all special effects. Meanwhile he had the first all digital network, except he sold the hokey countrylane external plant instead of dealing with lastmileUSA capital quagmire. The reinstatement of the verdict seems all technical trading issues to me. It would be funny to see him have his day in Scotus, whose opinion might set a record for covering many topics.

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