KANSAS CITY, Mo.—A federal appeals court in Denver plans to hear arguments the first week of October on whether to uphold a 24-month prison sentence for a former Westar Energy Inc. executive convicted of bank fraud.
It will be the third time the 10th U.S. Circuit Court of Appeals considers a sentence in the case against David Wittig, former chief executive officer of the Topeka-based utility. The three-judge panel in Denver has overturned previous prison sentences of 51 and 60 months as too harsh.
Officials at the court said judges will hear oral arguments during the Oct. 1-5 session, but a definite date hasn’t yet been scheduled.
Wittig was convicted in July 2003 of loaning $1.5 million to former Topeka bank President Clinton Odell Weidner II, then helping him hide the transaction from bank and federal officials.
Prosecutors say Weidner extended Wittig’s line of credit at Capital City Bank in 2001 by $1.5 million and Wittig then loaned the money back to Weidner so the banker could invest in an Arizona real estate deal.
They claim Wittig loaned the money in exchange for Weidner’s future help providing loans to Wittig and other Westar officials wanting to invest in the proposed spin-off of the company’s unregulated businesses. Kansas regulators eventually nixed the deal, which could have garnered an estimated $30 million to $60 million for Wittig.
The appeals court upheld the convictions against Wittig but threw out the prison sentences, saying calculations used to determine the sentences were flawed and the sentences were far longer than guidelines allow.
The panel in November said the maximum penalty Wittig could receive under federal sentencing guidelines is six months in prison. The guidelines are not mandatory, but judges are required to justify departing from them.
U.S. District Judge Julie Robinson went above those guidelines in February, sentencing Wittig to 24 months. She said a six-month term “failed to reflect the seriousness of the offense” and was far below the five-year sentence for Weidner.
Wittig’s defense attorneys argue the sentence runs afoul of the appeals court’s earlier rulings. They want the appeals court to sentence Wittig to time served. He spent more than a year behind bars after Robinson determined he violated conditions of his release on appeal.
The case is separate from charges alleging that Wittig and former Westar strategy officer Douglas Lake conspired to circumvent internal controls at the utility to bulk up their compensation and hide it from shareholders. A trial of those charges is scheduled to begin in January.
