US v. Nacchio (En Banc): The Government Speaks

On August 29, the parties in the en banc hearing of US v. Nacchio filed briefs.  The briefs are, as usual, posted on the DU Corporate Governance web site.

The Government argued, unsurprisingly, that the trial judge did not commit error in excluding the testimony of Daniel Fischel, relying primarily on the failure of the Defendant to request a hearing.  To the extent error was found, however, reversal of the verdict was not an appropriate remedy.  For one thing, the Government contends that the error was harmless.  Even if it was not, remand was the more appropriate remedy.  As the brief noted:

• But even if this Court were unable to conclude on the record to date that the alleged error did not affect the verdict, the appropriate course would be a limited remand. The panel did not conclude that Fischel’s opinions were reliable under Rule 702, such that they would be admissible at any new trial. Instead, it held that the defense had been given no opportunity to establish reliability, such that the district court, on an incomplete record, “abuse[d] its discretion [in] mak[ing] a Daubert finding of unreliability.” Add. 26; see Add. 21-26. The most tailored remedy for that alleged error would be to remand the case for particularized evidentiary proceedings, permitting the district court to decide admissibility in the first instance. See infra Argument Point III (pertaining to the second half of Question 4 of this Court’s order granting rehearing en banc).
  

In other words, even if the court agrees there was error by the trial judge, the matter should go back for a hearing on the evidentiary issue not a new trial.  Even this, however, the brief argued strenuously, was a "windfall" for Defendant.

• To be clear, the government does not in any way believe that Nacchio is entitled to relief of any sort. Rather, in the government’s view, a close examination of the record will confirm that, for all the reasons stated above, a limited remand would itself be a windfall. In any event, if the Court does order a remand, it should make clear that the district judge need only review for admissibility the opinions that the defense mentioned in its Rule 16 disclosures. In reviewing evidentiary decisions,  an appellate court must “evaluate the trial court’s decision from its perspective when it had to rule.” Old Chief, 519 U.S. at 182 n.6. No different approach should apply where a district court, on remand, is reviewing its own determination. To hold otherwise here would confer a tactical advantage on the defense for having disclosed Fischel the day before trial and having withheld throughout the trial the full scope of,and bases for, his opinions.

We will note a couple of other interesting things about the Government's brief in the course of the day.