Circuit Watcher

07-1311 U.S. v. Nacchio
Before KELLY, McCONNELL, and HOLMES, Circuit Judges.
McCONNELL, Circuit Judge. A Denver jury convicted Joseph Nacchio, the former CEO of Qwest Communications International, Inc., of nineteen counts of insider trading. Mr. Nacchio appeals, arguing that the evidence was insufficient to convict him, that the jury was improperly instructed, and that the trial judge incorrectly excluded evidence—expert testimony and classified information—important to his defense. We agree that the improper exclusion of his expert witness merits a new trial, but we conclude that the evidence before the district court was sufficient for the government to try him again without violating the Double Jeopardy Clause. … The judgment of the district court is REVERSED and the case is REMANDED for a new trial before a different district judge.
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HOLMES, Circuit Judge, dissenting in part and concurring in part. The majority elevates form over substance in concluding that Rule 16 was the foundation for the district court’s exclusion of Professor Fischel’s expert testimony. Daubert was at the heart of the district court’s decision, and Mr. Nacchio was on clear notice of this fact. The court did not abuse its discretion in finding that Mr. Nacchio did not carry his burden under Daubert of establishing the admissibility of Professor Fischel’s testimony. Accordingly, I respectfully dissent from Section II(A) of the majority’s opinion. I concur with the majority’s conclusion that Mr. Nacchio failed to establish grounds for reversal in the district court’s exclusion of classified information and in its instructions to the jury. I also believe the evidence was legally sufficient to support the jury’s verdict. Therefore, I would affirm the district court and uphold Mr. Nacchio’s conviction. … U.S. v. Nacchio.