Denver ? Attorneys for two former top executives convicted of looting millions of dollars from Kansas’ largest electrical utility told a federal appeals court Friday the trial judge made so many mistakes that the men deserve at least new trials, if not acquittals.

The trial judge failed to instruct jurors on crucial regulatory rules, failed to excuse two jurors who might have had a conflict of interest and admitted improper testimony from at least two witnesses, attorneys for David Wittig and Douglas Lake told a three-judge panel of the 10th Denver-based U.S. Circuit Court of Appeals.

Two of the judges appeared skeptical of the government’s case, peppering Kansas Assistant U.S. Atty. Rich Hathaway with questions about whether some of the charges were appropriate in the first place.

Wittig, Westar Energy Inc.’s former chief executive officer, chairman and president, was sentenced in April to 18 years in prison after being convicted of one count of conspiracy, 14 counts of circumvention of internal corporate controls, seven counts of wire fraud and 17 counts of money laundering. Lake, the former chief strategy officer, was sentenced to 15 years in prison after being convicted of 30 counts. Both also were ordered to pay $5 million in fines and millions of dollars more in restitution to the Topeka, Kan.-based utility.

Prosecutors accused them of using company planes for personal use without properly reporting that use and persuading the board to invest in companies in which their families had a financial interest. Wittig and Lake also were accused of leading an effort to sell Westar’s regulated utilities to a New Mexico company and then spin off a series of Westar subsidiaries to a new company they would operate, leaving a $3 billion debt with Westar and its shareholders.

Wittig and Lake have argued their actions were legal and had all been approved by the board of directors.

But Hathaway said they could not use that as a defense because prosecutors had proved the men acted with criminal intent to loot Westar by exploiting weaknesses in internal policies and failing to fully report their actions to the board.

Lake’s attorney, Seth Waxman, argued that two Westar customers were improperly allowed to sit on the jury over the defense’s objection, and that the trial judge improperly allowed testimony from a ratepayer attorney whose statements directly conflicted with some other evidence.

“The net effect was to precondition the jury to convict these defendants,” Reiss said.

Wittig’s attorney, Steven Reiss, said many of the charges stemmed from personal use of corporate airplanes by Wittig and Lake.

But he said 35 other corporate officials had used the company planes for personal use without reporting it. He also said the judge improperly allowed a witness to testify that personal use of the planes by Wittig and Lake was worth about $2.1 million, but under Securities and Exchange Commission regulations, it was worth far less.

The judge refused to instruct the jury about those regulations, which require reporting only when the value of personal use exceeds a certain threshold, Waxman said.

“It seems to me the jury should have been instructed,” Appeals Judge Harris Hartz said.

Hathaway told the appeals court panel that it didn’t matter because simply failing to report the personal use of corporate airplanes as compensation violated SEC regulations and federal law and showed intent to commit a crime.

In a separate case, the judges also heard arguments on Wittig’s five-year sentence for bank fraud stemming from a $1.5 million loan. He was convicted in July 2003 of a scheme in which a banker, who was also sentenced to five years, increased his line of credit, and in exchange, Wittig loaned $1.5 million to the banker so he could invest in a real estate deal.

Wittig’s attorney, Ed Dawson, argued that Wittig’s sentence should have been no longer than six months because his financial gain from the deal was only about $90,000 in interest paid by the banker.

Hathaway argued that Wittig’s potential gain was far greater because the loan was connected to Westar transactions that could have resulted in gains of up to $60 million for Wittig.

The judges did not indicate when they would rule on any of the cases.