Judge orders Nacchio to appear in court to waive his right to appear in court
Somewhere Franz Kafka is smiling (or crying). As detailed in this Denver Post article, a prominent white-collar defendant has been ordered to appear in federal court in order to be able to effectively waive his right to appear in federal court:
Joe Nacchio, currently serving time in Minersville, Pa., for criminal insider trading, could soon make a public appearance in Denver — in prison clothes.
A federal judge Tuesday ordered the former Qwest chief executive to appear at a hearing in U.S. District Court in Denver to ensure that Nacchio’s planned waiver of his right to attend his resentencing is “voluntary and informed.”
U.S. District Judge Marcia Krieger said she wants Nacchio to be transported “at the earliest possible time,” though a date for the hearing has not been set.
Nacchio began serving a six-year prison term in April 2009. In July, an appeals-court panel ordered a resentencing for Nacchio because the trial judge erred during the initial sentencing in 2007. The ruling means Nacchio’s prison term could be shortened.
Nacchio, 60, would likely return to Denver via the Justice Prisoner and Alien Transportation System’s private aircraft — otherwise known as Con Air. He would be held at a local detention center based on space availability, said Dave Floyd, a spokesman for the U.S. Marshals Service. Floyd couldn’t provide cost estimates.
Nacchio would probably be required to attend the hearing in prison garb because he won’t appear before a jury, said former federal prosecutor Rick Kornfeld. Defendants in custody may appear in civilian clothes if a jury is present.
Nacchio attorney Sean Berko witz didn’t respond to requests for comment Tuesday. In March, Berkowitz indicated in a filing that Nacchio planned to waive his right to appear at the resentencing. The Justice Department objected, stating that Nacchio’s presence would help achieve some of the goals of sentencing, such as “promoting deterrence.”
Krieger said in Tuesday’s order that Nacchio has the legal right to waive his appearance, but the waiver “is not effective unless it is both informed and voluntarily made.” Berkowitz has said Nacchio “is willing to execute whatever document the court deems appropriate to reflect his knowing and voluntary waiver.”
But Krieger cited several reasons for mandating Nacchio’s presence: He has changed attorneys since the initial sentencing. He is currently incarcerated. And Krieger is overseeing the resentencing and not the trial judge, Edward Nottingham, who handed down the initial sentence but has since resigned.
Judge Krieger’s full opinion in support of his order can be downloaded here: