Four former Wilmington Trust executives, all facing multiyear sentences stemming from the bank’s 2011 collapse, will remain out of prison while they appeal their criminal convictions, a Delaware federal judge has ruled.
U.S. District Judge Richard G. Andrews of the District of Delaware on Wednesday granted bail pending appeal to the executives, who were convicted last year on charges related to a massive reporting scandal that hid hundreds of millions of dollars in bad loans from investors and federal regulators.
In December, Andrews sentenced the bank’s former president, Robert V.A. Harra, and David Gibson, who served as the bank’s chief financial officer, each to six years and ordered them to pay $300,000 in fines. William North, Wilmington Trust’s lead credit officer, and Kevyn Rakowski, the bank’s former controller, received sentences of four and a half years and three years, respectively.
All four have appealed their convictions to the U.S. Court of Appeals for the Third Circuit and had been free on bail, awaiting Andrew’s decision. The appeals process is expected to take up to a year to resolve.
Requests for bail pending appeal are rarely granted in criminal cases, but can sometimes be appropriate when federal defendants are determined not to be a flight risk and their appeals raise issues that would at least result in a new trial.
Federal prosecutors did not dispute that the executives were unlikely to flee, but challenged assertions from defense counsel that the appeals turned on substantial issues of law. The defendants, meanwhile, have honed in on instructions Andrews had issued to the jury, which they said worked in the government’s favor.
On Wednesday, Andrews said a key ruling earlier in the case was ”fairly debatable” and that a reversal would mean, “at a minimum,” that the convictions would need to be vacated.
“I still think I am right. But the fact that a government banking agency seemed to take a different view gives me pause,” he wrote in a four-page order.
Kenneth Breen, a Paul Hastings attorney who represents Gibson, said he was “pleased that the court recognized the substantial issue that we will now take to the Third Circuit.”
Harra, Gibson, North and Rakowski were convicted last May on 15 counts of fraud and conspiracy for failing to report the amount of toxic and past-due loans on Wilmington Trust’s books between October 2009 and November 2010.
According to a 2015 indictment, Wilmington Trust avoided mandatory disclosures to the U.S. Securities and Exchange Commission and the Federal Reserve Bank by “waiving” matured loans from the reporting requirements for past due loans.
Prosecutors said that by the end of 2009, the bank reported just $10.8 million of the $344.2 million in commercial real estate loans that were past due by 90 days or more, giving investors and regulators a false impression of the Delaware financial institution’s health.
Under pressure to eliminate the past due and matured loans, the executives hatched a plan to “mass-extend” more than 800 commercial loans worth around $1.3 billion. Once the public learned the scope of the toxic loans, Wilmington Trust was purchased in a fire sale by M&T Bank in November 2010 for just $3.84 per share.
Prosecutors had wanted the defendants to self-report to prison this month.