[JURIST] The US Court of Appeals for the Tenth Circuit [official website] ruled [opinion, PDF] Monday that former Westar Energy [corporate website] CEO David Wittig and former Chief Strategy Officer Douglas Lake may face a third trial on charges of conspiracy. The court found that the third trial would not necessarily be barred by the double jeopardy [Cornell LII backgrounder] clause of the Fifth Amendment. Wittig and Lake were initially tried in 2004 on charges of fraudulently taking millions of dollars from the company, the largest electric utility in Kansas. That trial ended in a hung jury. A second trial resulted in convictions [JURIST report] in 2005, but those convictions were reversed [opinion, PDF] by the Tenth Circuit in January 2007 for insufficient evidence. When prosecutors decided to bring charges for a third time, Wittig and Lake sought a dismissal of the charges, arguing that that third trial would be barred by double jeopardy. The appeals court disagreed, but indicated that certain evidence might be barred and that prosecutors could have difficulty obtaining a conviction:
To the extent that the defendants do seek dismissal of the conspiracy charges against them, we hold, consistent with our last ruling and the district court's judgment, that double jeopardy doesn't categorically foreclose a new trial because the conspiracy charges in the indictment are considerably broader in scope than the wire fraud charges on which defendants were acquitted. At the same time, we readily acknowledge that today's opinion may not represent the last word on double jeopardy in this case. If, as the defendants predict, the government’s proof of conspiracy at trial is narrower than its indictment and seeks to rehash only matters on which the defendants have already been acquitted, more will remain to be said. But all that depends on a guess about the future, and the future must be left to the future. For the present, we are obliged to affirm.
Attorneys for Wittig and Lake were pleased [Kansas City Star report] that the appeals court expressed doubt as to the strength of the government's case, but were disappointed in the decision to allow the third trial to proceed.
In a separate case, Wittig was resentenced [JURIST report] in February 2007 to 24 months in prison, his third sentencing for charges stemming from a 2002 indictment [text, PDF] on bank fraud, money laundering and conspiracy. The bank fraud charges stem from a 2001 loan transaction in which the president of Topeka's Capital City Bank illegally increased Wittig's credit line for a joint real estate investment. In July 2003, Wittig was given 51 months in prison. That sentence was vacated [opinion, PDF] by the Tenth Circuit in February 2006 for errors in computing his sentencing level. On remand, US District Judge Julie Robinson issued a 60-month sentence, which was overturned [opinion, PDF] in November 2006 on similar grounds.