The founder and CEO of a Pasco biofuels company is trying to get dozens of federal charges against him dismissed over claims the Yakima and Benton county jails improperly recorded phone calls.
Green Power founder Michael Spitzauer claims his Fifth and Sixth Amendment rights to due process and counsel were violated because calls between himself and Seattle attorney Christopher Black were monitored.
But federal prosecutors say no one violated due process or of Spitzauer’s rights.
A hearing is set for 2 p.m. Dec. 19 in federal court in Richland.
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Prosecutors accuse Spitzauer of defrauding seven victims of an estimated $7.6 million. He faces federal indictments in connection with wire and bank fraud, aggravated identity theft, money laundering, tax evasion and lying on a federal tax return. His trial is set to start April 20.
He has been in custody since he was arrested last December and has spent most of that time at the Yakima County jail. He was at the Benton County jail from April 1 to June 26 for medical care.
Investigators have reviewed Spitzauer’s nonprivileged phone calls because of concerns about him contacting witnesses and alleged victims, prosecutors said. Spitzauer called one witness 777 times, spending about 97 hours on the phone, and another witness/alleged victim 145 times, spending about 12 hours on the phone.
Spitzauer, of Kennewick, also called a third government witness/alleged victim at least 21 times, which will be addressed with a superseding indictment, FBI Special Agent David DiBartolo wrote in court documents.
Spitzauer knew jail staff monitored his calls. In addition to the notice provided to inmates by the Yakima and Benton county jails, prosecutors notified Black that they requested the calls, and Black also periodically received copies of the jail calls being reviewed, according to court documents.
Federal prosecutors questioned the timing of Black’s request for the indictment to be dismissed. They said he was notified Feb. 5 of the steps prosecutors had taken after learning an Internal Revenue Service analyst accidentally listened to about three minutes of a 12-minute conversation between Black and Spitzauer. The Yakima County jail failed to redact the call from a recording provided to investigators, according to court documents. The analyst is no longer participating in the case.
Black also was notified in June that the Benton County jail recorded one phone call between himself and his client. Recording had not been blocked for Black’s phone numbers when that call was made. No one from the prosecution team listened to that call, prosecutors wrote.
In both instances, prosecutors said Black did not ask for any remedial action beyond what prosecutors already had done.
Black said in court documents that he has investigated the interception of his calls with his client since February.
“Because no other remedy can cure the Sixth Amendment violation suffered by Mr. Spitzauer as a result of the government’s actions, dismissal of the indictment is appropriate,” Black wrote in court documents.
He wrote that he knows of five calls between Spitzauer and himself that were recorded during Spitzauer’s incarceration.
The other calls Black questioned were complaints made by Spitzauer to Telmate, which provides the phone service, about a problem with calls to his attorney’s number, prosecutors said in court documents. The only recording was between Spitzauer and the Telmate customer service representative, not between him and his attorney.
“There is absolutely no evidence of prosecutorial misconduct, absolutely no evidence of other government misconduct, absolutely no evidence of prejudice and absolutely no evidence of any due process violation,” federal prosecutors wrote.
If the indictment is not dismissed, Black asked in court documents for all evidence based on the recorded phone calls that the government seized be suppressed during the trial.
In the meantime, Spitzauer’s company, Green Power, lost its only physical location.
Panda Holding received the former Green Power facility at a recent auction after foreclosing on its liens against the company’s personal property. Panda Holding was created by Jose Gonzalez, owner of American Electric of Richland, and James Osterloh of West Richland, who was Green Power’s former chief engineer and owner of Concrete Structures.
Green Power filed for bankruptcy protection for the third time this year Oct. 12 after the foreclosure auction. However, that case recently was dismissed because the company failed to file the necessary information and documents with the U.S. Bankruptcy Court in Seattle.