US v. Nacchio: The Final Chapter?

Joe Nacchio went to prison last Tuesday in Pennsylvania after the 10th Circuit and Justice Breyer denied his petition for certiorari. The only remaining issue, therefore, is whether the Supreme Court will hear the case.  A tantalizing suggestion in the Tenth Circuit opinion suggests that it will not.

The 10th Circuit order was issued by the same panel that reversed the lower court and ordered a new trial (before being overturned by the circuit en banc).  In other words, it couldn't be described as a court hostile to Nacchio.  In the order, the panel had this to say about Nacchio's petition before the US Supreme Court:

• Mr. Nacchio, on the other hand, maintains that he must show only that there is a reasonable chance that the Supreme Court will accept certiorari. Renewed Emergency Application for Release at 9-11; Reply Br. at 2. We need not decide this question, however, because the showing as to even the more lenient standard is insufficient: Mr. Nacchio has not shown that there is a reasonable chance that the Supreme Court will grant his petition.  (emphasis added)

This is no idle statement.  This comes from a panel that includes a Judge (McConnell) who takes pride in the fact that the US Supreme Court has taken five cases (Wikipedia says four but Judge McConnell noted at the University of Denver a few weeks ago that there was a fifth) where he has written an opinion (whether majority, dissenting or concurring) and the Supreme Court had decided in a manner consistent with those opinions and another judge who sided with Nacchio in the merit appeal and the earlier request for bail.  Having said that, as the commentator to this post notes, Judge McConnell did dissent from the decision to deny bail. 

And, right now, the panel is saying that the Court won't take the Nacchio appeal.

Comments

[gary]

Judge McConnell dissented re: denial of bail pending cert.

[J. Robert Brown]

Major oversight on my part. Thanks for noting taht.