Odds of Nacchio Remaining Free Pending Appeal

Rigas of Adelphia, Ebbers of Worldcom, and Skilling of Enron all remained free during the appeal process to the appeals court. Consequently, the odds are good that Nacchio will remain free after sentencing in July pending his appeal for two reasons given in these prior decisions. First, he would not be considered a flight risk. Second, Judge Nottingham might determine that Nacchio has substantial grounds for an appeal.

In Ebbers' case, the trial judge determined that Ebbers should remain free because there was a substantial ground for appeal. The substaintial ground was the fact that several officers refused to testify on Ebbers' behalf citing fifth amendment claims against self-incrimination. Similarly, a key witness for Nacchio's defense might have been Yash Rana, the Qwest attorney who Stern in closing arguments maintained Nacchio orally committed to a prearranged selling plan that qualified under SEC rules. But Rana was unavailable to Nacchio under a similar 5th amendment claim and he could have testified favorably on the issue of whether Nacchio backdated his 10b-5(1) stock sale plan. While the jury did not find Nacchio guilty of the first 23 counts on the basis of backdating, the jury could have found that this backdating evidence did "strike a stake through the heart" of Nacchio's "good faith defense" related to the last 19 guilty verdict counts. However, in Ebbers' case, the appeals court did not overturn his conviction in spite of the unavailability of witnesses.

Nacchio's further freedom after the first appeal is based upon the appeals court’s decision. In Skilling’s case, the appeals court denied his request to remain free pending his appeal to the Supreme Court and stated: “Skilling raises no substantial question that is likely to result in the reversal of his convictions on all of the charged counts.” This result is also likely to occur in the Nacchio appeal.