KANSAS CITY, KAN. ? The federal fraud trial for two former Westar Energy Inc. executives is now in the hands of the jurors.

After seven weeks of complex testimony, the six-man, six-woman jury received the case late Tuesday afternoon and will begin deliberations this morning.

Former Westar chief executive David Wittig and former executive vice president Douglas Lake are charged with trying to loot the largest electric utility in Kansas. They face 40 counts each and at least 10 years in prison, if convicted.

Among the charges, the men are accused of using company airplanes for personal travel without reporting it as compensation; manipulating board members to have Westar buy or invest in companies in which Wittig and Lake had personal interests; and pushing a combined merger of the utility and spin-off of unregulated businesses that would have garnered the two men millions of dollars.

In many instances, prosecutors say the men falsified company documents to hide their activities from company directors or federal regulators.

Throughout the trial, defense attorneys have said their clients did nothing wrong and that the company’s board of directors knew about and approved all of their actions.

They also said at the beginning of trial that Westar’s current management was using the men as scapegoats for the company’s financial problems last year. The attorneys said Westar management also trumped up the case to gain traction in its ongoing mediation dispute with the men about millions of dollars in deferred compensation.

“This is not the way for people who didn’t have the responsibility for running a company to second-guess the people who did,” Wittig’s attorney, Paula Junghans, told jurors Tuesday in her closing statement.

Junghans added that while jurors might be shocked by the huge amounts of money Wittig and Lake were paid, not to let their emotions take over.

“The law does not dictate what a corporate executive can make,” she said.

But assistant U.S. Atty. Richard Hathaway said Wittig and Lake had failed to protect Westar shareholders, instead taking advantage of their positions with the utility.

“There was no negligence, there was no mistakes, there was no one else’s responsibility,” Hathaway said. “These men engaged in conduct that was criminal in nature.”

Personal trips

The two sides continued to spar over airplane use. Prosecution witnesses said Wittig used the company plane for 110 personal trips between 1999 and 2002. Lake, they said, used the plane for 130 personal trips.

Lake has admitted to 30 personal trips. Junghans, for the first time Tuesday, said a 10-day European trip Wittig and his family took on the company plane in July 2002 should have been considered personal.

But Junghans and Lake’s attorney, Edward Little, said the company had never had a policy requiring employees to report the trips to federal regulators or to the IRS as income. They noted that many employees used the planes for personal travel without reporting it.

“There was no internal control,” Little said. “Maybe right, maybe wrong. But it’s not criminal.”

Hathaway responded that Wittig was the top leader at Westar but never proposed creating a policy, despite the requests from the company’s accountants and internal auditor.

Conspiracy claims

Defense attorneys also ridiculed prosecution charges that Wittig and Lake conspired to get approval for and benefit from the proposed 2001 merger of Westar with a New Mexico utility and creation of a company for Westar’s unregulated businesses.

Prosecutors say Wittig stood to make up to $65 million in so-called “change of control” payments, and Lake would have received up to $35 million, plus other benefits.

Junghans said the deal had to pass through numerous accountants, lawyers and board members.

“It’s not something that Mr. Wittig and Mr. Lake scribbled on the back of an envelope and bamboozled the board into approving,” she said.

But Hathaway said the men never fully revealed the extent of their potential gains, which included Westar paying them for their homes — a real incentive for Wittig and his $6 million Topeka mansion.

“These are the individuals who are strategizing and pushing to spin off the (unregulated) assets despite having a conflict of interest,” said Hathaway, who often claimed Wittig had a “paranoia” about disclosing his compensation to others.