Ex-Qwest CEO asks court to dismiss charges

updated 8:14 p.m. ET June 1, 2005

DENVER - Former Qwest Communications CEO Joe Nacchio asked a federal judge Wednesday to dismiss fraud charges against him, arguing that the allegations amount to "enforcement by hindsight."

In a brief filed in U.S. District Court, Nacchio's attorneys argued that the Securities and Exchange Commission improperly based its case against Nacchio on statements he made about Qwest's business and future market conditions.

"It is impossible to verify objectively these subjective remarks," the attorneys wrote. "This is not the stuff of securities fraud."

The SEC sued Nacchio and six other Qwest Communications International Inc. executives in March alleging they orchestrated a massive financial fraud that concealed the source of billions of dollars in revenue later wiped off the books.

The SEC said the fraud at Qwest occurred between April 1999 and March 2002, allowing it to improperly report approximately $3 billion in revenue that facilitated its 2000 merger with U.S. West.

Among other things, the SEC said Qwest repeatedly booked revenue from one-time sales while falsely claiming to investors that the income was recurring — allowing defendants to reap tens of millions in profits.

Also named in the lawsuit were former chief financial officers Robert Woodruff and Robin Szeliga; former Chief Operating Officer Afshin Mohebbi; Gregory Casey, a former executive vice president of Qwest's wholesale business; and James Kozlowski and Frank Noyes, two former accountants.

Last fall, Qwest agreed to pay $250 million to settle SEC charges of fraud. The deal did not cover former executives like Nacchio and Szeliga, who now face charges including fraud, failure to maintain book and records, lying to auditors and false filings with the SEC.

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