Judge Edward Nottingham this morning ruled that he won't allow an adviser to testify that Joe Nacchio transferred $90 million in assets to his wife's name.

Nottingham said he saw little similarity between the insider-trading charges and the transfer of assets.

"The acts in question (transfer of assets) allegedly occurred in February 2002," Nottingham said. He noted that the last act of alleged insider trading occurred in late May 2001, "so we're talking about a temporal span of almost nine or ten months . . . The jury is being asked to focus on what Nacchio's state of mind was in May 2001."

Nottingham also said the prosecution's argument that the transfer was "relevant to a consciousness of guilt" to be an "extremely weak" inference.

The transfer of assets may support an inference of a guilty conscience, Nottingham said, or it may support a number of other inferences including that the asset transfer occurred as part of estate planning.

Prosecutors were hoping that financial adviser David Weinstein's testimony would show that Nacchio, charged with 42 counts of insider trading in connection with $100.8 million of sales, knew his assets were "ill-gotten gains" and was trying to take dramatic action to avoid losing the money.

Nottingham said one has to remember that by February 2002, "we're in a far different situation that we were in May 2001 or even September 2001." He noted that by 2002, Qwest's stock was in decline.

Nottingham also said he didn't believe prosecutors when they said they could present the testimony in 10 minutes. "We aren't going to have a mini-trial with the diversion of the jury’s attention from the charges in this case," Nottingham said.

For all those reasons, Nottingham said he was excluding the testimony.