Topeka ? Prosecutors say an appeal by two former Westar Energy executives is frivolous and should not be allowed to delay the men’s criminal trial on charges they looted the state’s largest electrical utility.

The government on Friday urged U.S. District Judge Julie Robinson to start the trial for David Wittig and Douglas Lake as scheduled Sept. 9.

Earlier this month, the men had asked Robinson to dismiss charges against them because they said a retrial would violate their constitutional double jeopardy protection.

The first trial for the two ended in a deadlocked jury in December 2004. Jurors found them guilty in a second trial in 2005 on most counts, including wire fraud and money laundering.

But the 10th U.S. Circuit Court of Appeals in Denver threw out wire fraud and money laundering convictions last year, saying there was insufficient evidence. It also reversed the remaining counts of conspiracy and circumvention of internal controls, but sent them back for a possible retrial.

The government decided to retry the men on those charges.