Friday, March 13, 2009

Nacchio: A New Direction

The Tenth Circuit recently reinstated the convictions of former CEO of Qwest Communications International, Inc, Nacchio. (see here) But the decision was a close one at 5-4.  Nacchio is now presenting new evidence and asking the court to consider this new evidence and also to provide bail pending the resolution of this matter.

What is particularly fascinating here, is that normally the government is the one who obtains favorable evidence in a parallel civil proceeding and the defense may be contesting the use of this evidence in a criminal case.  This case finds a reverse scenario, in that the evidence the defense wants the court to consider was evidence obtained in a SEC deposition.  As the court typically allows the prosecution to use parallel proceeding evidence, then shouldn't it also be permitted for use by the defense?  Now there are other considerations that the court will need to consider here, such as the timing of obtaining this evidence and whether it is inconsequential or harmless evidence.  But from a fairness perspective, it would seem that if the government can use evidence from a parallel proceeding, then the defense should have the same benefit.  It may be particularly important here with the close vote on the case and new evidence that goes to an issue before the court.

Motion for a New Trial Pursuant to Federal Rule of Crim Proc 33 - Download Motion

(esp)(blogging from Cambridge, Massachusetts)

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