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United States v. Nacchio

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APPELLANT’S OPPOSITION TO THE PETITION FOR REHEARING EN BANC

INTRODUCTION

This Court recently reversed Joseph P. Nacchio’s insider-trading conviction and remanded the case for a new trial before a different judge. The Court held that the district court improperly excluded Daniel Fischel, a nationally-renowned expert who is frequently retained by the government and has never before been precluded from testifying. Professor Fischel would have provided expert testimony of a kind routinely admitted in securities fraud cases, and would have refuted the government’s evidence on the key issues in the case, materiality and intent. The Court held that the district court committed reversible error when it excluded the evidence based on its erroneous conclusion that a defendant’s notice under Federal Rule of Criminal Procedure 16 must demonstrate the admissibility of expert testimony under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),and Federal Rule of Evidence 702. Add.*fn1 16–22.

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