We will talk a bit more about the appeal today and tomorrow. We wanted, however, to raise an issue concerning the perceived favoritism by the 10th Circuit panel.
In setting the appeal, the panel provided for an accelerated appeal, including a shortened briefing schedule. While the panel may have been motivated by a desire to resolve the matter quickly since Joe Nacchio was free on bail, the accelerated process demonstrated favoritism unimaginable in a non-white collar criminal case. One cannot imagine a drug dealer receiving this type of treatment. Moreover, the accelerated schedule actually worked to the disadvantage of the government. Counsel for Nacchio could and probably did start working on the appellate brief the day the trial ended (Mahoney was hired before Nacchio was sentenced). The shortened time period, therefore, effectively gave the government less time to become familiar with the record and the relevant legal issue.
The accelerated schedule also probably influenced the judges that would hear the appeal. By deciding the motion for bail pending appeal, the panel signaled that it found some merit in the Nacchio appeal. Had the panel simply allowed the case to be scheduled in the ordinary fashion, the case probably would have been reassigned to a different set of judges. By setting a special briefing schedule and requiring the 10th Circuit to form a special panel for a single case, the judges increased the likelihood that the administrative staff would simply reassign the case to the same panel.
The favoratism continued at the oral argument. In addition to a specially scheduled hearing (there were no other appeals scheduled for the same afternoon by the same panel), the panel allowed the oral argument to run over. It lasted not the usual 30 minutes but over an hour. While there were some interesting legal issues, they were not so unusual or extraordinary that they ordinarily would have deserved the extra time. Again, it is hard to imagine a defendant in a drug case getting this kind of treatment.
Finally, during the argument itself, Mahoney finished and reserved some time. Oestreicher went over but only because the panel continued to question him. Thus, for example, as he began to leave the podium, Judge McConnell indicated an interest in discussing the Fischel matter. The panel proceeded to ask a series of questions on the issue. It was extra time but occurred only because the judges on the panel had more questions to ask.
When Mahoney returned for her rebuttal, she quickly ran out the clock and asked for the time to make another point. Judge Kelly responded by saying that because they had given the government "ample time," Mahoney should "take all [the time] you want." A number of times thereafter, Mahoney used the opportunity to make additional points not in response to questions from the panel. The government had no similar opportunity in its "ample time."
While we appreciate the intensity and knowledgeableness of the panel, the unique treatment in a white collar criminal appeal suggests that some types of cases matter more. This is a bad message for the appellate court to send.