Topeka ? A federal appeals court refused Monday to block a third trial for ex-CEO David Wittig and another former Westar Energy Inc. executive accused of trying to loot Kansas’ largest electric utility.

But in its ruling, the 10th U.S. Circuit Court of Appeals in Denver expressed skepticism about prosecutors’ case. Its three-judge panel cited mostly procedural grounds for ruling against Wittig and Douglas Lake and said they could prevail on some constitutional arguments after a trial.

“If you’re going to lose, this is the way to lose,” said Maxwell Carr-Howard, a Kansas City, Mo., attorney representing Lake.

Wittig, from Topeka, and Lake, of New Canaan, Conn., Westar’s former chief strategy officer, were forced out at the utility late in 2002. They face one count of conspiracy to commit wire fraud and money laundering and up to 14 counts of trying to circumvent internal corporate controls.

The U.S. attorney’s office is reviewing the decision and evaluating its options, spokesman Jim Cross said. Previously, prosecutors had planned on a third trial.

Attorneys for Wittig did not return telephone messages.

In 2004, a grand jury indicted Wittig and Lake on 40 counts, including 17 counts of money laundering, seven counts of wire fraud and a single count in which the government sought to force them to forfeit some assets.

Their first trial ended in a mistrial. In a second trial, jurors convicted them on all counts.

But in 2007, the 10th Circuit overturned their convictions. It said prosecutors didn’t have enough evidence of wire fraud or money laundering and barred a third trial on those counts. That ruling allowed a new trial on the remaining 16 counts.

Wittig and Lake’s attorneys argued that the issues raised in the remaining counts are the same as those raised in the counts blocked by the appeals court. They said a new trial would therefore violate their constitutional right against being tried a second time for the same crimes.

The appeals panel said prosecutors could present broader evidence and “we cannot say a retrial is legally impossible.”

But Judge Neil M. Gorsuch also wrote for the appeals panel: “The defendants’ double jeopardy claim is not frivolous; it may even prove correct. As we will explain, all we decide today is that the argument does not entitle the defendants to dismissal at this time.”

Gorsuch also wrote that Wittig and Lake “continue to labor” under the indictment and that prosecutors’ approach in the second trial “does make one wonder” whether they have sufficient evidence to prove a conspiracy.