Legal Commentary

Joe Nacchio to Get Ride on Con Air

By Jeralyn

A federal judge in Denver today ordered the Government to transport former Qwest CEO Joe Nacchio, serving a 6 year sentence at Minersville, PA, to court in Denver to appear at a hearing to decide if his request to waive his appearance at his re-sentencing is knowing and voluntary. The Court of Appeals previously ruled Nacchio's sentence was not properly calculated and he should be resentenced to less time.

This is not good news for Nacchio, unless he's somehow able to convince the Marshals to allow him to pay for and fly on a private jet(which would include the cost of two or more Marshals to accompany him) which I don't know is even allowed. He'll be flying on JPats, aka, Con Air. [More...]

The U.S. Marshals Office operates the Justice Prisoner and Alien Transportation System (JPATS), more commonly known as "Con Air," one of the largest transporters of prisoners in the world.

Each year U.S. marshals use a fleet of high-flying paddy wagons to transport more than 175,000 prisoners throughout a sophisticated and secure government-operated, regularly scheduled, national airline system. For its passengers, there is no first-class cabin, no complimentary beverage offered during flight, and restroom breaks are traditionally allowed only during brief four-to-six-city daily stops. The "seat belt" sign remains illuminated throughout every flight. Handcuffs, shackles and a belly chain supplement the passenger-restraint system.

Unlike traditional commercial flights where laptop computers and portable CD players are common, the only electronic devices permitted on board are maintained in secret compartments and accessible only to aviation enforcement officers and contract guards on board.

For the ordinary prisoner, it's rarely a direct flight. Because the Marshals want to fill every seat, they stop at hubs along the way, picking up and dropping off other prisoners, and the inmate ends up in the secure area (isolation) of some prison, like Oklahoma City, for a week or more. It's a miserable experience.

the Government argued Nacchio couldn't waive his right to appear at sentencing, and the Judge disagreed. From the court order today (available on PACER)

Logically, the essence of a right is the freedom to exercise it or not. If one cannot waive
a right, then it ceases to be a right and becomes obligation.1 Thus, because Mr. Nacchio has the
right to be present at his re-sentencing, he may also waive that right. His waiver, however, is not
effective unless it is both informed and voluntarily made.

But, because of unique factors to Nacchio's case, the court ruled it was essential to determine his waiver was voluntary and knowing:

However, the circumstances of this case are unique. Mr. Nacchio did not allocute at his prior sentencing hearing. His sentence was reversed on appeal, based on a theory for calculation of gain/loss for calculation under the Federal Sentencing Guidelines that he was unable to present to the trial court. Since his prior sentence, he has changed counsel. New counsel intend to advance the theory endorsed on appeal with regard to calculations of gain/loss applicable under the sentencing guidelines and, alternatively, to argue for a variant sentence in order to satisfy the objectives set forth in 18 U.S.C. §3553(a). Mr. Nacchio is currently incarcerated, and it is not clear whether, or to what degree, his detention has affected his desire to waive his right to be present at re-sentencing. Finally, the re-sentencing will be performed by a different judge than the one who presided over pretrial matters, the trial and prior sentencing. These circumstances all favor requiring Mr. Nacchio to be physically present in order to assure that his waiver is voluntary and informed.

Can't they could hold a hearing on whether his waiver is voluntary by videoconferencing, so he doesn't have to be schlepped here in shackles and chains at a cost of thousands, ultimately borne by the taxpayer? The Court considered it, but ultimately decided no.

The Court has found no authority specifically authorizing any of these means, or guidance within the Circuit as to when use of such means might be appropriate. The Tenth Circuit has held that a sentence may not be imposed upon a defendant who appears by video at a remote location. United States v. Torres-Palma, 290 F3d 1244, 1248-49 (10th Cir. 2002). One might reason that because a sentence cannot be imposed without the defendant being physically present, an advisement of rights with regard to waiver of his appearance at the sentencing hearing similarly cannot occur without the defendant being physically present. Interestingly, in the newly proposed Rule 43 of the Federal Rules of Criminal Procedure, physical absence or presence by video teleconferencing are specifically allowed for preliminary advisements in misdemeanor cases, but no such provision is made for felony cases.

So, barring a motion for stay and appeal (assuming that's possible) Nacchio will be returning to Denver, most likely via Con Air, and being housed in some unpleasant facilities over the next months. All to get a reduction in his sentence, mandated by the Court of Appeals.

Full post as published by TalkLeft on April 14, 2010 (boomark / email).