Nacchio one of few spared `perp walk' in a U.S. fraud case

Qwest's ex-CEO allowed to surrender in Colo.

December 23, 2005|By THE DENVER POST

DENVER --Bernard J. Ebbers of WorldCom had to do it. so did Enron's Kenneth L. Lay. Tyco's L. Dennis Kozlowski, too.

But former Qwest CEO Joseph Nacchio, indicted in Denver Tuesday on 42 counts of illegal insider trading, was not paraded in handcuffs before photographers and TV camera crews in a ritual that's known as the "perp walk."

Prosecutors allowed Nacchio to travel to Denver from his New Jersey home Monday night on a commercial flight and surrender to the FBI the next morning. Agents fingerprinted him, then drove him across the street in a car with tinted windows into the garage of the federal courthouse.

There, he was placed under arrest by U.S. marshals, who later led him into court- inaccessible to photographers - in handcuffs for his initial appearance. He entered pleas of not guilty on all counts and was released on $2 million bond after surrendering his passport.

"The government handled this case like it handles most ... of its criminal matters," said Jeff Dorschner, spokesman for the U.S. attorney's office in Denver. "The government did make an arrangement with the defendant's lawyer for him to surrender to the FBI."

Arranging for a defendant to be photographed in handcuffs "is not an accepted practice in this judicial district," Dorschner said.

Nacchio's handling by federal authorities was the exception, not the rule, for recent high-profile corporate fraud cases. Martha Stewart was another one of the few who avoided the perp (as in perpetrator) walk.

In 2003, a federal appeals court upheld the government's right to march defendants before the media, rejecting the notion that it's a violation of privacy.

"We suspect that perp walks are broadcast by networks and reprinted in newspapers at least in part for their entertainment value. Yet, perp walks also serve the more serious purpose of educating the public about law enforcement efforts," the court wrote. "The image of the accused being led away to contend with the justice system powerfully communicates government efforts to thwart the criminal element, and it may deter others from attempting similar crimes."

As commonplace as it has become, however, the perp walk is viewed by many in the criminal-law profession as an unseemly spectacle that paints a defendant as guilty long before a trial begins.

"People are presumed to be innocent. It's inconsistent with that to portray them on the evening news in handcuffs before the trial even begins," said William Mitchelson, a former federal prosecutor who now is a white-collar criminal defense attorney with Alston & Bird in Atlanta.

Federal judges in Colorado are said to frown on the practice. Chief Judge Lewis Babcock, of the U.S. District Court in Denver, declined to comment for this article. In two previous indictments of lower-ranking Qwest Communications International Inc. officials on fraud-related charges, defendants were allowed to surrender to authorities and avoid perp walks.

Nacchio's lawyer did not return a call for comment.

In court Tuesday, U.S. District Judge Edward Nottingham, who is presiding over the Nacchio case, asked U.S. Attorney Bill Leone why it was necessary to arrest Nacchio at all.

"Why did the government issue a warrant instead of a summons?" Nottingham asked.

"We believed it was important to treat this case as a criminal matter," Leone replied.

"A summons can be criminal, too," Nottingham said.

In a summons, a defendant is informed that he or she must make a court appearance at a certain time. An arrest warrant allows law enforcement officials to take the defendant into custody, whether voluntarily or involuntarily.

Even without the perp walk, being arrested, finger-printed, processed and hauled before a federal judge is no picnic, said Denver fraud investigator Anthony Accetta, also a former federal prosecutor.

"Don't underestimate what it's like to be taken into custody by U.S. marshals, to be taken down into the bowels of the courthouse in handcuffs and be fingerprinted," he said. "It's an extremely daunting experience."

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