DENVER (AP) – Citing new evidence, former Qwest Communications CEO Joe Nacchio has asked a Denver federal court for a new trial less than one month before he is to start serving a six-year prison term for insider trading.
Nacchio argued in a late Thursday filing that former Qwest CFO Robin Szeliga offered evidence in a pending civil suit that differs from her testimony in Nacchio's 2007 criminal trial.
Szeliga testified in a deposition in the civil case in February that she told Nacchio in late 2000 that Qwest would have a 2001 revenue shortfall of 1.4 percent.
Nacchio attorney Maureen Mahoney argued that the 10th U.S. Circuit Court of Appeals, in its review of Nacchio's conviction, concluded Szeliga had told Nacchio that Qwest would miss its revenue target by 4.2 percent.
The issue of earnings expectations is critical to Nacchio's case. Federal prosecutors argued that Nacchio sold Qwest stock knowing that the company's future earnings were substantially at risk, but that he did not tell investors.
"The newly discovered evidence in this case is material to Nacchio's conviction because it establishes that the 'risk' that Nacchio allegedly traded on was not 'what it was alleged to be' by the government," Mahoney argued in the filing.
Prosecutors alleged Nacchio sold $52 million worth of stock at a time when he knew Denver-based Qwest Communications International Inc. was at risk.
A jury convicted Nacchio of 19 counts of insider trading in 2007. Nacchio was sentenced to six years in prison and ordered to pay $71 million in fines and forfeitures.
A three-judge appeals court panel threw out the conviction last year, ruling that the trial judge wrongly excluded expert testimony from a defense witness.
Last week, the full 10th Circuit reinstated the conviction and revoked Nacchio's bond.
On Wednesday, U.S. District Judge Marcia S. Krieger ordered Nacchio to report March 23 to a federal prison in Pennsylvania.
Jeff Dorschner, a spokesman for the U.S. attorney's office in Colorado, could not be immediately reached for comment Friday.