The Appeal of Joe Nacchio: En Banc (Another Prediction)

The en banc court had only nine judges, three others having recused themselves.  Based upon the questioning (admittedly a somewhat precarious basis for prognostication), four judges favored vacating the panel and reinstating the conviction.  These included Judges Holmes, Tacha, Lucero and Briscoe.  Two judges favored upholding the panel decision, Judges McConnell and Kelly.  The Chief Judge, Judge Henry, seemed concerned about the fairness of excluding Fischel, describing the decision as overkill.  He seems, therefore, to be leaning towards affirming the panel opinion. 

Judge Hartz had less to say but he appeared troubled by the panel decision.  At one point, when Maureen Mahoney, counsel for the defense, was making good points about the need for a hearing in her rebuttal argument, he interrupted and asked why the defense couldn't have put those arguments in its response.  He therefore seems to be leaning towards vacating the panel opinion and reinstating the conviction. 

Judge Murphy also remained mostly quiet during the argument.  From his few comments, however, he seemed concerned about the remedy of a new trial.  He therefore appears open to sending the case back to the trial court for some type of hearing on whether the evidence should have been admitted. 

It seems, therefore, that there is a majority for vacating the panel and reinstating the conviction.  Nonetheless, it is still possible that the court may opt to send the case back to the trial court for "the hearing that never was" to determine the admissibility of the evidence.  The court could do so either to obtain the necessary fifth vote or out of a collegial decision to increase the size of the majority. 

Prediction?  The panel opinion will be vacated.  It is not entirely clear whether the court will simply reinstate the conviction or send the matter back to the trial court for additional findings.  This is more or less what we predicted before oral arguments.