The Saga of Joe Nacchio Continues

The ruling is in.  The Tenth Circuit voted to hear the appeal of Joe Nacchio en banc.  The Race to the Bottom argued that the case should be reheard.  The issues to be briefed en banc?

• 1 . Was the defendant sufficiently on notice that he was required either to present evidence in support of the expert's methodology or request an evidentiary hearing in advance of presenting the expert ’s testimony?
• 2 . Did the defendant have an adequate opportunity to present such evidence or request an evidentiary hearing in advance of presenting the expert ’s testimony?
• 3. Did the defendant bear the burden of requesting an evidentiary hearing?
• 4 . Did the district court abuse its discretion in disallowing the evidence, and if so, is the appropriate remedy necessarily a new trial or is a remand for purposes of conducting an evidentiary hearing adequate?

The choice of issues are indicative.  It was the evidentiary issues (the exclusion of testimony from Daniel Fischel) that resulted in reversal of the conviction by the 10th Circuit panel.  Nacchio argued, however, that if the case went en banc, all of the issues addressed in the appeal should be reopened, including the issue of the materiality of the nonpublic information.  The 10th Circuit, however, rejected that approach. 

The en banc panel will consist, apparently, of only nine judges (including the two in the majority in the panel opinion) since Judges O ’Brien, Tymkovich, and Gorsuch are listed as not participating and therefore presumably recused.  That means that the panel majority need only find three more votes to affirm its position.