On February 25, 2009, a full Tenth Circuit overturned a three judge panel’s decision to grant former Qwest CEO, Joe Nacchio, a new trial. Nacchio had previously been convicted on 19 of 42 counts of insider trading for selling Qwest stock in 2001 while having nonpublic information that the company’s financial condition was deteriorating. In a 5-4 vote, the court disagreed that Nacchio’s right to a fair trial was hindered by the exclusion of expert witness, Daniel Fischel. Fischel, a business law professor and private consultant, was expected to testify that Nacchio’s sales were consistent with a previous plan and were not accelerated in 2001. Following an extremely thorough analysis of expert qualifications, the court found that “the district court properly performed its Daubert gatekeeping role in excluding Professor Fischel’s testimony as inadmissible for lack of reliability under FRE 702, and Mr. Nacchio did not carry his burden of establishing the admissibility of Professor Fishcel’s testimony.” In addition to upholding the conviction, the court revoked Nacchio’s bail. Maureen Mahoney, Nacchio’s appeals attorney, stated that the defense was “optimistic that the Supreme Court of the United States will review the case.”
The opinion may be reviewed at: http://www.ca10.uscourts.gov/opinions/07/07-1311.pdf
Posted on
Wednesday, March 4, 2009
by Chance L. Pearson & Matthew C. Kane