National Association of Criminal Defense Lawyers File Amicus Brief in Support of Mr. Nacchio

On October 16, 2007 the National Association of Criminal Defense lawyers (“NACDL”) filed an amicus brief in support of Joseph P. Nacchio with the United States Court of Appeals for the Tenth Circuit. NACDL argues that the District Court made two reversible errors.  The court erred by not allowing Mr. Nacchio to call one of his expert witnesses, and in the court’s order demanding Mr. Nacchio forfeit “gross proceeds of his alleged crimes.”  Brief of the Nat’l Assoc. of Criminal Def. Lawyers Amicus Curiae in Support of the Defendant-Appellant, at *2, U.S. v. Nacchio (No. 07-1311). The NACDL concludes that in lieu of these errors the judgment against Mr. Nacchio should be reversed. Id. at *12.

NACDL argues the District Court’s denial of Mr. Nacchio’s defense expert hindered his ability to put on a defense, and denied him his Sixth Amendment rights. Id. at *2.  The NACDL contends that Court accomplished this through its interpretation and application of Federal Criminal Procedure Rule 16(b)(1)(C)(“the Rule”) listed below:

Rule 16

(b) Defendant's Disclosure.

(1) Information Subject to Disclosure.

(C) Expert Witnesses.

The defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if --

(i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or

(ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant's mental condition.

This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications[.] Fed. R. Crim. P. 16(b)(1)(C).

The NACDL states the District Court held Mr. Nacchio’s “summary of his expert opinion was insufficient because it did not establish his expert was reliable.” Id. at *4.  The NACDL puts forward the argument that the Rule did not require Mr. Nacchio to provide such assurances, but, merely to provide notification to the government. Id.  The NACDL states if the government objects to an expert’s qualifications a separate set of standards is utilized to determine if an expert is qualified.  Further, if the court finds the expert is not qualified sanctions can be imposed. Id at *5.  NACDL argues the District Court misinterpreted the Rule and then levied sanctions upon the defense without conducting any separate analysis or a separate hearing to determine if a lessor sanction, if any, was appropriate.  Thus, the total exclusion of the expert witness as a sanction was too harsh. Id.  

NACDL’s second argument deals with District Court’s order that Mr. Nacchio forfeit the gross proceeds of his criminal activity, pursuant to 18 U.S.C. Section 981(a)(2)(A). Id. at *9.  NACDL believes that the court misapplied this statute. NACDL states that section 981(a)(2)(A) deals with forfeiture when crimes such as “forgery, prostitution, and murder for hire,” are involved. Id.  The NACDL insists the District Court should have applied section 981(a)(2)(B) which deals with crimes such as “insider trading.” Id.

The NACDL believes that it is particularly well versed with 18 U.S.C. Section 981(a)(2) as it helped to draft the statute. Id. at *10.  NACDL states the court applied section 981(a)(2)(A) allowing for gross forfeiture when the criminal activity, mentioned above, is in connection with “illegal goods." Id.  NACDL states that section 981(a)(2)(B) should have been applied as Mr. Nacchio criminal activity was in connection with the obtaining of “legal goods...in an illegal manner.” Id.  Under this section of the statute the court should have ordered forfeiture of only “net proceeds.” Id.

The primary materials for this Amicus Brief, as well as material on the Nacchio case may be found on the DU Corporate Governance website

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