Joseph Nacchio, the former chief executive officer of Qwest Communications International Ltd. who was convicted of insider trading, wants a new trial because the judge denied him access to juror questionnaires.
Nacchio, who was convicted April 19, filed a motion Thursday seeking access to forms filled out by 1,000 potential jurors before the trial to screen for bias. Nacchio, 57, said in court papers that U.S. District Judge Edward Nottingham in Denver may have erred in winnowing the pool to 78 people.
"The court has never explained how this occurred," defense attorney Herbert Stern said in his motion.
Nacchio was convicted of dumping $52 million in shares based on private warnings that Qwest, the fourth-largest U.S. phone company, would miss revenue targets for 2001. He faces dozens of years in prison when he's sentenced July 27. Prosecutors said in a motion Thursday that Nacchio should forfeit $52 million.
The judge used the completed questionnaires to help pick a panel of 12 jurors and six alternates on March 20. The forms were mailed to potential jurors after Nottingham and the lawyers had extensive discussions on the format. The judge had earlier denied Nacchio's bid for a venue change on the grounds that he couldn't get a fair trial in Denver, where Qwest is based.
The defense sought detailed written questions "to determine if the jurors harbored any prejudice against Mr. Nacchio or the government," according to court papers. Nottingham used a less extensive list of queries to discern whether there was "any direct relationship between the jurors and Mr. Nacchio or Qwest," the filing said.
In his motion, Stern claimed that the judge's method of narrowing down the jury pool from 1,000 to 78 "may be error that warrants the grant of a new trial. Because the court did this without observing the jurors' demeanor, the court is not entitled to the deference normally accorded jury selection determinations."
Defense lawyers said Nottingham may have denied Nacchio his constitutional right to a jury drawn from a cross-section of the community.
Nacchio and other executives are also defendants in a civil lawsuit filed by the U.S. Securities and Exchange Commission that accuses him of leading a $3 billion accounting fraud. Qwest paid $250 million to settle the SEC claims. The civil case had been put on hold pending Nacchio's criminal trial.
At a hearing in Denver Thursday, U.S. Magistrate Judge Craig Shaffer ruled that the SEC case must proceed. Nacchio's lawyers asked Shaffer to continue to delay the case while he appeals his conviction.