Risk Management

Retrial for Westar Pair

The judge said federal prosecutors did not prove that the former executives concealed their actions from the Securities and Exchange Commssion.
Stephen TaubMay 1, 2007

Three is not much of a charm for two former Westar Energy Inc. executives. On Monday, a federal prosecutor said the pair will be tried for a third time on charges that they tried to loot the Topeka, Kansas utility, according to the Associated Press.

Former Chief Executive David Wittig will face one count of conspiracy and 14 counts of circumventing internal financial controls. Former Westar Chief Strategy Officer Douglas Lake will face the conspiracy charge and 13 circumventing counts identical to Wittig’s, according to the report. “The United States of America is ready to proceed to trial,” assistant U.S. attorney Richard Hathaway told U.S. District Judge Julie Robinson in court Monday, according to the AP.

Earlier this year, the tenth circuit court reversed the pair’s convictions for conducting “a far-reaching scheme to milk the company for all they could through a pattern of fraud and deceit.” In reversing their convictions, the court asserted that the prosecution in the case had “hung by a thin legal thread.”

“Despite the scope of the alleged fraudulent scheme, all the counts of the indictment depended on proving the efforts of the defendants to conceal from the United States Securities and Exchange Commission (SEC) their personal use of corporate aircraft,” the court wrote. However, “the attempt to prove concealment was flawed,” concluded the court. The judge pointed out that government produced no evidence that the defendants failed to comply with SEC regulations governing the reporting of personal use of the aircraft. Furthermore, the judge said that the jury was never instructed regarding the SEC’s reporting requirements.

As a result, the court set aside the convictions on every count, adding that the most serious charges of wire fraud and money laundering could not be tried a third time. The pair’s first trial in 2004 ended in a hung jury, the AP noted.

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