Qwest's Joe Nacchio Still Trying for Appeal Bond

By Jeralyn, Section Crime in the News
Posted on Thu Mar 12, 2009 at 06:59:47 PM EST
Tags: Joseph Nacchio (all tags)

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Former Qwest CEO Joe Nacchio is trying hard to avoid reporting to federal prison on March 23. In the past week, he's filed a motion for new trial based on newly discovered evidence in the trial court and, in the 10th Circuit, a request for continued bail pending the disposition of an as-yet unfiled petition for a writ of certiorari to the Supreme Court.

The Tenth Circuit dismissed his bond request (pdf)saying he should have filed it in the trial court. It said if he gets denied there, he can come back to the appeals court.

He filed the request yesterday in the trial court and today it was denied (pdf) -- because the Bail Reform Statute doesn't apply to petitions for cert that haven't been filed yet. The trial court said the denial was without prejudice, meaning if he cites the correct authority for allowing bail before the writ is filed, he can try again. [More...]

He also has filed a motion under seal to extend his voluntary surrender date due to a health problem. Nacchio obviously doesn't want the problem made public. But,the Judge unsealed the request (not the attached health document) because you can't just file things under seal here. Motions to seal have to be posted on the court's website and the public has to be given a chance to object.

Substantively, I like his motion for new trial. It's based on cooperating witness Robin Szeliga's apparent contradiction of her trial testimony in a recent SEC deposition. The testimony went to the heart of the issue of whether Nacchio sold his stock based on material, insider information.

I also like the preview his lawyers filed of cert petition, contained in his bond applications. It's the Rule 16 vs. Rule 702 issue on excluding his expert's testimony. He adds a few more issues regarding materiality and jury instructions and says there's a split among the circuits...which is a consideration for the Supreme Court in deciding whether to grant cert.

So Nacchio has a few moves left before March 23. Don't count him out yet.

I'm hoping Nacchio gets bond and the Supreme Court takes up the 702 vs. Rule 16 issue since the issue applies to defendants in all federal cases, not just Nacchio.

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Qwest's Joe Nacchio Still Trying for Appeal Bond | 6 comments (6 topical)

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Bail Pending Cert (5.00 / 2) (#1)
by Peter G on Thu Mar 12, 2009 at 08:58:15 PM EST

The wording of 18 USC 3143(b), as applied to bail pending certiorari, is odd -- something I've briefed several times and have pending right now in the district court in one of my cases. The ruling by district judge Krieger is untenable -- that because the statute allows bail to someone who "has filed an appeal" or "has filed a petition for certiorari" a person (like Nacchio) whose appeal has been denied and who has not yet filed his/her cert petition cannot even apply for bail in the interim. This is goofy and unreasonable -- why would Congress have intended a period of 90-150 days (from appeal denial to cert filing) during which bail was unavailable, and yet have intended that it would become available again when the petition is filed? I think it makes more sense to construe the statute as allowing the judge to treat a person in Nacchio's situation as someone who "has filed an appeal" (which, after all, he has done) and on that basis can still have bail. I've never had a judge reject a bail motion in this posture on the ground asserted by Judge Krieger -- in fact, I've never even seen it argued by the DOJ.

judicial economy (none / 0) (#3)
by Bemused on Fri Mar 13, 2009 at 07:19:23 AM EST

Probably because defendants who have already have been denied release on bail pending appeal would routinely file motions for release from detention pending filing of certiorari when the only changed circumstance is that they have now lost their appeal and tell the court they intend to file a cert petition. The granting of bail pending resolution of a cert petition is extremely rare and in those cases, the court actually has the petition from which to judge likelihood of the defendant prevailing on the merits.

Where there is no petition for cert, the court would essentially be reviewing the likelihood of the defendant prevailing entirely on record which has already resulted in the court finding the defendant did not prevail.

I don

: sorry (none / 0) (#4)
by Bemused on Fri Mar 13, 2009 at 07:39:33 AM EST

I cut myself off.
I meant to finish with, I don't think there would be any harm in removing the jurisdictional obstacle where a defendant can, in the rare instances where it applies, have release considered on the basis of substantially changed circumstances since the previous denial of release but I can understand why both Congress and the courts would not think making denial of the appeal a trigger for reconsideration of release is ncessary

Bail pending cert (none / 0) (#5)
by Peter G on Fri Mar 13, 2009 at 09:42:39 AM EST

can come up when the defendant has been on bail pending appeal, but the prosecutor now seeks to revoke that bail based on the affirmance, saying the adverse decision shows the issues are not "substantial," as required for appellate bail. Or it came come up when bail pending appeal was not granted but the person seeks release pending cert. The "likely to result in" standard is not a prediction of success -- if it were, no one would get bail pending appeal, much less cert! -- it is a test of whether the issue is substantial and if it were to prevail would be likely to result in a reversal. Point is, an issue can be "substantial" at the S.Ct. level even though it wasn't so in the court of appeals (depending on the state of precedent at each level). The issue should be whether Nacchio has serious legal issues to present (which it appears he does) of the character that the S.Ct. agrees to hear, and which (if decided in his favor) would make service of the sentence now unjust, and of course that he is not a danger to flee or harm anyone.

That might be true (none / 0) (#6)
by Bemused on Fri Mar 13, 2009 at 09:55:26 AM EST

but it doesn't affect my point that the reason for the law (whether or not you like it) is because it would result in people who are in custody because they have already been denied bail pending appeal filing again when the only difference is they have now lost the appeal.

Your argument about the situation where a person who has been out on bail is subject to prosecutor's motion seeking detention really has little to to do with the issue you raised initially. There is no question the court can allow the person to remain on bail in the interim between loss of appeal and filing of cert. the scenario only applies to someone who is not already released.

He's already in ... (none / 0) (#7)
by Peter G on Fri Mar 13, 2009 at 12:35:20 PM EST

He's trying to get out. And the judge is a woman.