Supreme Court Watch: Is Nacchio Expert Ruling Cert-Worthy? - Supreme Court Answers "No" (Part II)

Supreme Court denies petition for certiorari review on October 5, 2009, putting to rest this challenge to the Tenth Circuit's reinstatement of defendant Nacchio's conviction, finding no error in the trial judge's exclusion of defense expert testimony, in Nacchio v. United States, 555 F.3d 1234 (10th Cir. Feb. 25, 2009) (No. 07-1311)


As reflected on the Supreme Court’s docket this week, the Court decided not to grant the petition for certiorari review on the case of defendant Joseph Nacchio, former CEO of Qwest Communications International, Inc., who was convicted on nineteen counts of insider trading and acquitted on twenty-three other counts.

Divided panels of the Tenth Circuit reviewed his conviction. On March 17, 2008, a split three-judge panel vacated the conviction. The majority concluded that the trial court erred in excluding the defendant’s expert witness who would have testified about whether economic diversification better explained the pattern of defendant’s stock trades than his insider information. See United States v. Nacchio, 519 F.3d 1140 (10th Cir. 2008). On February 25, 2009, the Tenth Circuit en banc, in a 5 to 4 ruling, reinstated his conviction. See United States v. Nacchio, 555 F.3d 1234 (10th Cir. 2009). The en banc majority concluded “the exclusion was the obligatory result of Mr. Nacchio’s failure to meet his requisite burden under FRE 702 despite serial opportunities to do so.” Nacchio, 555 F.3d at 1250.

With the reinstatement of his conviction, the defendant sought a writ of certiorari to address three issues, one related to a procedural question of presenting expert evidence. The question raised by the defendant concerned:

"Whether the judgment must be reversed and remanded for a new trial because the Tenth Circuit approved the use of impermissible procedures for the exclusion of expert testimony under Rule 702 that conflict with decisions of other circuits."

In an initial post on this issue, the Federal Evidence Blog asked whether the Nacchio case was cert-worthy for the Supreme Court to clarify the role of the trial court in ruling on expert testimony, as well as the burden on the proponent of expert testimony, and whether the trial court abused its discretion in excluding the defense expert. The answer "no" came October 5.

For prior posts on the Nacchio case, see:

Federal Rules of Evidence
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