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Former Qwest CEO Joe Nacchio has filed his appeal brief seeking to overturn his insider trading conviction and six-year prison sentence. The Rocky Mountain News has posted the brief here (pdf). The main allegations:
- Insufficient evidence “for a jury to conclude that Nacchio possessed ‘material’ inside information when he made his sales.”
- Faulty jury instructions on the materiality of forward-looking statements.
- Improper exclusion of defense expert Daniel Fischel’s testimony about the materiality of the information Nacchio possessed.
- Refusal of the trial judge to allow Nacchio to present his classified information defense
- Miscalculation as to Nacchio’s amount of gain which was used to determine his sentence.
The appeal will be heard by the Tenth Circuit Court of Appeals in Denver on December 18. Nacchio’s lawyers also take a shot at Judge Nottingham, asking that if the case is remanded for a new trial, it be assigned to a different judge.
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If a new trial is granted, Nacchio respectfully requests this Court to exercise its “inherent power â€¦ to reassign this case to a different district judge.” Mitchell v. Maynard, 80 F.3d 1433, 1448 (10th Cir. 1996). Where, like Mitchell, “there would be little unnecessary duplication of effort in having a different judge preside over the new trial,” and the record reflects “expressions of [the judge’s] disapproval toward [the defendant], his attorney[s] and his claims,” e.g., APP-1317, 1324, 1326, 1327, 1329â€“30, 2393, 2813â€“14, 3923, 3924, 3927â€“28, 3928â€“29, 3973,this Court, without finding that the judge “harbored any personal bias or acted improperly,” can still exercise its power “merely on the conclusion that the interests of justice would be best served by remanding the case with instructions that a different judge be assigned.”