The Appeal of Joe Nacchio: En Banc (A Student's Perspective)

As a student contributor and managing editor of this blog I attended the en banc oral arguments in Joe Nacchio's appeal. Below, I provided my interpretation of the arguments by counsel from each side.

Maureen Mahoney, counsel for the defense, started by couching the issue as whether the defense forfeited its right to present Fischel’s testimony by failing to ask for a hearing. Mahoney argued that it was the court’s responsibility to require a separate hearing about the admissibility of Professor Fischel’s expert testimony. And that the en banc court should not permit the government to exclude Fischel’s testimony with a motion in limine on the day in which Fischel was supposed testify. Judges Briscoe, Holmes, and Lucero did not appear persuaded by this argument. Specifically, Judge Holmes noted that the party seeking admissibility has the burden to get its expert’s testimony admitted. When asked why the defense did not ask for hearing in response to the Rule 16 notice, Mahoney responded that the defense was not required to, she compared this to a court granting a motion for summary judgment because a party failed to attach all of its evidence to a reply.

Edwin Kneedler, counsel for the government, went straight into the standard of review by arguing that Judge Nottingham did not abuse his discretion by excluding Fischel's testimony without a separate hearing. Judge McConnell provided a majority of the tough questions directed at Kneedler. Judge McConnell seemed reluctant to accept that Fischel, a person who has testified in over 200 matters, could be denied as an expert witness. Whenever Judge McConnell would provide a good argument, however, Judges Holmes or Lucero seemed to throw out an easy question to get Kneedler back on track.

My prediction? The panel opinion will be vacated and the court will reinstate the conviction.