SANDY SHORE AP Business Writer
DENVER A judge agreed today to allow testimony at Joe Nacchio’s insider trading trial that the former Qwest CEO wanted to resign in January 2001 after a son’s attempted suicide. The testimony, expected to be provided by Denver billionaire Phil Anschutz, who hired Nacchio, is designed to give jurors an idea of Nacchio’s state of mind at the time of the $101 million in stock sales that are the subject of the 42 insider trading counts against him. Defense attorney John Richilano told U.S. District Judge Edward Nottingham that Nacchio could have walked away without exercising stock options coming due that year. He said a “state of mind to cheat and fraud pales in significance to what was going on with his son.” Over the prosecution’s objection, Nottingham said the testimony would be permitted. Nacchio’s attorneys have said it may take no more than a day and a half to present Nacchio’s defense. “We anticipate our entire case to be a day and a half, and that doesn’t include the decision whether Mr. Nacchio will testify,” Richilano said during a private bench conference Wednesday. The transcript of the conversation was made available today as the defense prepared to present its case. Richilano said the defense would decide over the weekend whether Nacchio will testify. After Nottingham’s ruling, Anschutz, who founded Qwest, took the stand and described the company’s early days and his first meeting with Nacchio, whom he hired to turn Qwest Communications into a major telecommunications company. Anschutz was expected to testify about Nacchio’s employment contract, which included shares representing 3 percent of the company’s growth, or about $27 million, by December 2001. The so-called growth shares are included in the government’s allegations that Nacchio illegally sold $101 million worth of stock during the first five months of 2001 based on inside knowledge that Qwest would be unable to meet revenue targets. Prosecutors rested their case Wednesday after calling 20 witnesses over the course of 10 days who testified they were worried that Qwest faced financial risk because of its heavy reliance on one-time sales to meet revenue projections. Many said they told Nacchio in late 2000 that they believed financial targets were unrealistic given ramped-up competition, a weakening market and slowing economy. After Qwest acquired former Baby Bell U S West Inc. in 2000, they described a tensionfilled atmosphere under Nacchio, as he focused on meeting the revenue goals and maintaining a high stock price. Qwest’s reliance on one-time sales to meet revenue targets is a critical component of the government’s overall investigation of Denver-based Qwest Communications International Inc., a primary telephone service provider in 14 mostly Western states. Prosecutors have maintained Nacchio kept issuing optimistic advisories to investors and analysts while dumping his stock. They also have alluded to an allegation that a document outlining Nacchio’s plan to sell some of his stock was backdated in late 2000. David Weinstein, a financial analyst for Nacchio, testified last week about phone conversations with Nacchio late in 2000 in which they discussed investment strategies for a large number of shares that Nacchio was due to receive in early 2001. He said Nacchio did not mention signing the sale commitment document during a Nov. 2, 2000, phone call but did tell Weinstein on Dec. 9 that he was signing it. The document submitted in evidence and signed on Nacchio’s behalf by a Qwest attorney was dated Nov. 3, 2000. A motion is pending to strike some of Weinstein’s testimony as prejudicial or to declare a mistrial as a result of the document. The defense says Nacchio legally exercised stock options under terms of his contract and was optimistic about Qwest’s future because he anticipated lucrative contracts with clandestine government agencies. In a separate civil lawsuit, federal regulators have said Qwest falsely reported one-time sales as recurring revenue between April 1999 and March 2002, which allowed the company to improperly report approximately $3 billion in revenue to help acquire U S West. Qwest later restated about $2.2 billion in revenue. In one quarter, for example, one-time sales of capacity on Qwest’s fiber-optic network accounted for 39 percent of revenue growth, prosecutors have said. Among those named in the lawsuit are Nacchio and other one-time Qwest executives. Each of the 42 insider trading counts against Nacchio carries a penalty of up to 10 years in prison and a $1 million fine.