Just two months after he was ordered back to federal prison for a passport scam, a former Tri-Cities CEO tried to have his sentence cut short.
Michael Peter Spitzauer claims the six-month prison term he got for violating probation on an earlier fraud case should be tossed out because there is “no basis” for the sentence.
Spitzauer argued it’s invalid because he never pleaded guilty to a crime of probation violation.
The 51-year-old is serving three years total and currently is at Taft Correctional Institution in California. Earlier this month, he mailed a motion requesting that the sentence be thrown out or corrected to Richland’s U.S. District Court.
Judge Sal Mendoza took just four days to fire off a response.
“Having reviewed the file and relevant legal authorities, the court summarily dismisses Spitzauer’s claim because the record conclusively establishes he is entitled to no relief,” the judge wrote.
Mendoza presided over both of Spitzauer’s federal cases in Eastern Washington.
Swindled biofuels company investors
Spitzauer was the CEO of Green Power, a Port of Pasco-based company, when he was investigated for swindling U.S. and international investors in the biofuels company.
He used their money to pay back previous investors and to buy a $1 million Kennewick mansion, furniture and professional sports tickets. He also failed to file a tax return one year and filed a false return another year.
Spitzauer pleaded guilty in 2015 to wire fraud and tax evasion, in a plea agreement that saw dozens of other charges dismissed. He was sent to prison for four years.
Restitution included nearly $13 million to the victims and nearly $2.6 million to the IRS.
He claimed that while in prison for that case, he was contacted by a man who claimed Spitzauer was his long-lost son.
Birth certificate for citizenship
Spitzauer, an Austrian immigrant, said he was told that he was born in Texas and was taken back to Austria by his mother. A DNA test showed that Spitzauer’s father was that man, James L. McCune.
However, Spitzauer’s longtime friend later admitted that she bought a DNA test from a drugstore, got DNA samples from Spitzauer and his son, and submitted it to try to show a genetic link. Judith Calhoun told investigators it was her idea to falsify the DNA.
She also helped get the Texas birth certificate of a baby who died for Spitzauer to use to apply for a United States passport just two months after his release from prison.
Spitzauer legally changed his name to Michael Peter Scott Spitzauer McCune after learning that he may have had a different birth father.
He previously said he cannot say where he was born because he does not know.
Wrongful conviction claim
Spitzauer pleaded guilty last year in federal court to two more felonies: making a false statement and aggravated identity theft. He later tried to withdraw his pleas, but was sentenced in March to three years.
The sentence includes a mandatory two years for the identity theft, six months for making a false statement and another six months for violating his supervised release conditions on the Green Power case by committing new crimes.
In his May 6 motion, Spitzauer acknowledged he did not raise the issue in any post-conviction motion, petition or application; however, he said six months should be wiped off his prison sentence because he didn’t plead guilty to any probation violations.
Spitzauer admitted on March 7 that he violated the conditions of his release after prison by committing new crimes. But he now disputes that should result in prison time because it wasn’t a formal guilty plea.
Motion is ‘patently frivolous’
Judge Mendoza said though the original indictment was dismissed, that doesn’t erase the fact Spitzauer pleaded guilty in the passport scam and admitted violations in the other case.
“Spitzauer’s suggestion that the court sentenced him for nothing is palpably incredible and patently frivolous,” the judge wrote. “And Spitzauer otherwise fails to allege facts that, if true, establish his sentence is invalid.”
If his motion had been granted, Spitzauer still would have 2 1/2 years to serve for the passport scam. He also checked a box on the motion that said he plans to challenge that sentence.
Spitzauer’s criminal history before these two cases includes convictions in Austria for forgery, fraud and attempted fraud, and an earlier false statement conviction in the United States.
His expected release date is Oct. 23, 2020, according to the Federal Bureau of Prisons website.
Spitzauer is a legal permanent resident, but he faces deportation from the United States once he’s finished the prison sentence.
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