In the middle of March, the Tenth Circuit Court of Appeals overturned Joseph Nacchio’s 2007 conviction for insider trading. But his victory, according to Reuters, might be short-lived, as the Tenth Circuit has agreed to rehear the appeal en banc. (Link)
There’s a good lesson to learn from the Court’s decision: a victory (defined as reversing a conviction) isn’t always the end of the story. According to Rule 35 of the Federal Rules of Appellate Procedure, rehearings en banc (which means that all the judges in the Circuit will rehear the appeal), are “not favored” and therefore do not ordinarily occur. Nonetheless, if a rehearing en banc will help ensure uniformity of the Court’s decisions, or if the proceeding involves a question of exceptional importance, then a rehearing may be ordered.
The primary thing to take away from the Tenth Circuit’s decision is to realize that the government can ask for the case to be reheard–it isn’t like it is at the trial court if the defendant is acquitted and the case is over.
