Former Qwest CEO Joseph Nacchio caught a break today. The Tenth Circuit Court of Appeals ordered he may stay free on bond pending the outcome of his appeal. The two page order did not specify why the relief was being granted. The case will be heard on an expedited basis, with Nacchio's opening brief due Oct. 9. Oral arguments will be held in mid-December. This isn't a precedent-setting ruling. Bernie Ebbers of Worldcom and John and Timothy Rigas of Adelphi, for example, also were granted appeal bonds. Enron's Jeff Skilling, on the other hand, was not. What it it does mean is that the 10th Circuit believes Nacchio's appeal raises a substantial factual or legal question, which if decided in his favor, will likely result in reversal of the conviction or a new trial. A "substantial question" according to the Tenth Circuit is a "close" question or one that very well could be decided the other way.'" Nacchio's motion for bond on appeal, denied by Judge Nottingham, was 59 pages long. It focused on four areas:
- Whether the jury instructions on materiality, scienter, and good faith were in error.
- Whether the Court's exclusion of defendant's expert on materiality issues, Professor Daniel Fischel, was reversible error.
- Whether the evidence regarding objective materiality and state of mind was insufficient to permit a reasonable to jury to find guilt on every element of the offense beyond a reasonable doubt.
- Whether the Court erred in its admissibility determinations under Section 6(a) of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. 3, Â§ 6(a). (For example, they argue the classified evidence Nacchio sought to introduce "had a bearing on his state of mind and the reasonableness of his beliefs that Qwest would meet its public projections.")