NO. 07-1311 (Oral Argument Scheduled for December 18, 2007) IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT __________ UNITED STATES OF AMERICA, APPELLEE V. JOSEPH P. NACCHIO, APPELLANT __________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (Nottingham, C.J.) __________ BRIEF FOR THE UNITED STATES __________ TROY A. EID United States Attorney District of Colorado JAMES O. HEARTY KEVIN T. TRASKOS STEPHAN E. OESTREICHER, JR. Assistant United States Attorneys Attorney District of Colorado Appellate Section, Criminal Division U.S. Department of Justice LEO J. WISE P.O. Box 899, Ben Franklin Station Trial Attorney Washington, DC 20044-0899 Fraud Section, Criminal Division (202) 305-1081 U.S. Department of Justice
[email protected] TABLE OF CONTENTS TABLE OF CONTENTS . i TABLE OF AUTHORITIES . iv JURISDICTIONAL STATEMENT . 1 STATEMENT OF THE ISSUES . 2 STATEMENT OF THE CASE . 2 STATEMENT OF FACTS . 3 I. July 2000 To December 2000: Nacchio Sets Unrealistic Targets Dependent On A “Shift” From One-Time Transactions To Recurring Revenue . 4 II. January 2001 To April 2001: Qwest Fails To Make The “Shift” To Recurring Revenue And “Drains The Pond” Of IRUs, But Nacchio Withholds That Information From Investors . 8 III. April 2001 To May 2001: Nacchio Dumps Qwest Stock Based On His Inside Information . 12 IV. June 2001 To September 2001: Nacchio Further Delays Disclosure To Conceal His Scheme . 13 SUMMARY OF THE ARGUMENT . 16 i ARGUMENT . 21 I. The Government’s Evidence Was Sufficient . 21 A. The inside information was a “significant factor” in Nacchio’s decision to sell.