Corporate Governance

United States v. Joseph Nacchio: Order requires Nacchio to appear for an Advisement Hearing prior to Resentencing Hearings

By Charles Nichols

On Tuesday, April 13, 2010, Judge Krieger issued an order in response to Joseph Nacchio's ('Mr. Nacchio') request to waive his appearance at his re-sentencing hearings.  Our post on Mr. Nacchio's request as well as the United States Attorney's ('Government') objection to that request can be found here. 

Judge Krieger began her order with a brief overview of the case's procedural posture and the arguments of both sides concerning the waiver issue.  She followed with an in-depth discussion of Rule 43 of the Federal Rules of Criminal Procedure ('Rule 43'), the basis for Mr. Nacchio's waiver request.  Judge Krieger stated that a main concern of Rule 43 is to protect a defendant's rights under the Fifth Amendment's due process clause and Sixth Amendment's confrontation clause.  The order further stated that the crux of a right is an individual's ability to waive it, but that waiver must be both voluntary and informed.  Going one step further, Judge Krieger stated that in order to find a waiver to be informed and voluntary, a defendant should be advised of his rights in court.

Next, Judge Krieger addressed Mr. Nacchio's case specifically.  She stated that this order views both upcoming resentencing hearings in the same light.  The fact that they were separated into two hearings does not change Mr. Nacchio's rights regarding them.  After a brief discussion of alternative modes of appearance such as videoconference or remote video, the order stated that such an alternative is not available on these facts.   Judge Krieger deemed only a personal advisement of his rights to be sufficient because: (1) Mr. Nacchio did not allocute at his prior sentencing hearing; (2) Mr. Nacchio changed counsel since his prior sentencing; (3) Mr. Nacchio is incarcerated and the court is unsure what role that plays in his attempt to waive his appearance; and (4) the judge presiding over these hearings is different than the judge who presided over pretrial matters, the trial and prior sentencing.

Judge Krieger concluded by ordering Mr. Nacchio to appear at the earliest possible date for an advisement hearing. If this is not arranged prior to the hearing scheduled for April 21, 2010, that hearing will be moved to the June 24, 2010 hearing date and the hearing currently scheduled for June 24 will be continued.  Judge Krieger acknowledged the expense and inconveniences associated with bringing Mr. Nacchio to court, but nonetheless deemed the hearing necessary to ensure his awareness of the rights he attempts to waive.

We will post on any further developments on this issue.

Primary materials are located at the DU Corporate Governance website. 

?

Full post as published by The Race to the Bottom on April 14, 2010 (boomark / email).