Legal Commentary

Nacchio Medical Condition Revealed

By Jeralyn

The judge in the Joe Nacchio case has unsealed his request to delay the March 23 start of his prison term.

Here's the doctor's letter (pdf) stating Nacchio has been undergoing treatment for several months for a suspicious growth on his leg. He had an appointment yesterday to see if a biopsy is needed to determine if it is malignant.

A hearing is scheduled Thursday on the request. The Judge denied Nacchio's sealing request even though no objections were lodged. From the court order: [More...]

Here, Defendant has based his motion for postponement of the date to report to the institution designated by the Bureau of Prisons upon on his medical condition and the possibility of a need for further medical treatment. To support the request, he sought and obtained a statement from the associate of his doctor. Rather than submitting copies of his medical records, he has submitted a letter that summarizes only the aspects of his condition that are pertinent to his request. Thus, he has not only put his medical condition at issue, but also effectively redacted his medical information to include only that pertinent to his purpose.

This Court’s ruling on the motion necessarily requires assessment of the Defendant’s medical needs and the facts he has disclosed relating thereto. Therefore, the public interest in understanding the Court’s decision-making process outweighs Defendant’s desire to keep general statements about his medical condition confidential. Finding no compelling reason to seal Defendant’s motion or the supporting exhibit, IT IS THEREFORE ORDERED that the Motion to Seal Document (#534) and Motion to Seal Defendant’s Motion for Postponement (# 535) are DENIED.

Yesterday, the Government filed its response to another Nacchio request -- for bail pending a decision on his as-yet unfiled Petition for Writ of Certiorari to the U.S. Supreme Court. The Government did not attempt to justify the court's ruling that the request was premature. Rather, it said Nacchio didn't spell out his exact grounds for the Petition.

Today, Team Nacchio responded, listing these grounds.

1. Whether the defendant is entitled to acquittal or a new trial because the Tenth Circuit adopted erroneous standards, in conflict with other circuits, for evaluating the materiality of internal corporate predictions and interim operating information allegedly bearing on whether the company will meet its public earnings projections.

2. Whether the defendant is entitled to a new trial because the Tenth Circuit adopted erroneous standards for the review of jury instructions that conflict with decisions of this Court and other circuits.

3. Whether the defendant is entitled to a new trial because the Tenth Circuit approved the use of impermissible procedures for the exclusion of expert testimony under Rule 702 that conflict with decisions of other circuits.

Full post as published by TalkLeft on March 17, 2009 (boomark / email).