A serial swindler who stole millions of dollars from investors in his Pasco company will remain in jail.
Michael Peter Spitzauer of Kennewick has been accused of using a false identity to apply for a passport.
At the time he was on probation after serving his latest prison term, which was related to his Green Power biofuels company at the Port of Pasco.
On Friday, federal Judge Sal Mendoza Jr. denied Spitzauer's request that he be released from the Benton County jail and be allowed to live at home with electronic monitoring to provide assurance that he show up for court hearings.
"This court is frankly concerned that Mr. Spitzauer, after being told by a probation officer that he cannot leave the country, purchased or had someone purchase tickets allowing him to travel outside the country," Mendoza said at the U.S. District Court hearing in Richland.
The train ticket was part of Spitzauer's efforts to show he was a U.S. citizen, according to court documents filed by the defense.
Spitzauer had believed he was born in Austria to Austrian parents, court documents said.
But James Leo McCune, who believed Spitzauer was his long-lost son born in El Paso, Texas, sought him out in 2013, the documents said.
A DNA test showed that Spitzauer's father was McCune.
Spitzauer's mother, Leopoldine Spitzauer, had met McCune during a brief spring break visit to Michigan in 1966. He knew her as Patsy Adams.
After Leopoldine Spitzauer returned to Austria, she learned she was pregnant, and traveled to Texas in search of McCune, according to court documents.
While there she gave birth to a son, listing her name on the 1967 birth certificate as Patsy Sue Adams.
She took the baby, alleged to be Michael Spitzauer, back to Austria and married the man Spitzauer long believed to be his father, Rudolph Spitzauer.
She registered the birth of her son, giving a later birth date of 1968, the defense documents claim.
Michael Spitzauer said he was the baby born to Patsy Adams in Texas when he filed an application for U.S. citizenship, first while serving time in prison and again shortly after his release.
He had been charged in 2013 with wire and bank fraud, aggravated identity theft, money laundering, tax evasion and lying on his federal tax return.
Two years later, Spitzauer reached a plea agreement that reduced counts to failing to file a tax return and filing a false return. He was sentenced to four years in federal prison, with credit for time served.
As part of the deal, he acknowledged defrauding investors in his Pasco company that he said would turn municipal waste into biofuel.
He agreed to repay nearly $13 million to Green Power investors and $2.6 million to the Internal Revenue Service.
Spitzauer faced deportation after being released from prison, but while still in prison was able to persuade Immigration and Customs Enforcement officials that he might be a U.S. citizen, according to defense documents.
No action was taken then, but Spitzauer still needed to prove his citizenship.
Judith Calhoun, of Issaquah, a longtime friend of Michael Spitzauer's family, said in a declaration filed in the case that she understood that the best way to prove Spitzauer's citizenship was to apply for a passport.
As she worked to get him a passport, a ticket to Canada was purchased to bolster the application, according to the defense.
Calhoun was scheduled to testify in the case Thursday, but the judge required her to get an attorney first.
Her testimony was delayed until Friday, and then the attorney appointed to represent her, Scott Johnson, said she would invoke her right to remain silent.
Efforts to obtain a passport show the great lengths that Spitzauer would go to to stay in the United States with his wife of 20 years and four children, rather than being deported, said his attorney, Adam Pechtel.
His client is not a flight risk, Pechtel said.
Prosecution questions birth certificate
But federal prosecutors questioned his paternity story in court documents.
The birth certificate submitted for Spitzauer's passport application was for a baby who lived only one day after being born to Patsy Adams, according to the prosecution.
The ages on the birth certificate also do not match those of the claimed parents, Leopoldine Spitzauer or James McCune, and there also is a discrepancy in the father's name, the prosecution said.
Harvey Victor Lee McCune, 32, was listed as the father, and the James McCune who was looking for his son would have been 19 then.
Patsy Adams was 32 years old when she gave birth, according to the birth certificate. At the time Leopoldine Spitzauer would have been a teenager.
Michael Spitzauer's current charges are for aggravated identity theft for allegedly using the identification of another person to apply for a passport; making a false statement; and making a false statement in application and use of a passport.
Spitzauer said he legally changed his name to Michael Peter Scott Spitzauer McCune after learning that he was born Michael Scott McCune.
Calhoun said in a written declaration that a court clerk said Spitzauer's name must be changed to match his birth certificate for his passport application to be accepted.
Prosecution claims flight risk
Meghan M. McCalla, assistant U.S. attorney, said Spitzauer had a history of committing fraud, as she argued against him being released from jail until trial.
He had a juvenile conviction for fraud and forgery in Austria in 1989, a fraud conviction in Austria in 1992, a false statement conviction in the United States in 1997, and the 2015 conviction that resulted in his current probation.
When he bought the ticket to travel to Canada, he either intended to leave the country or bought the ticket as a sort of passport fraud if he had in fact not been intending to leave the country, she said.
Kennewick's proximity to Canada would make the home monitoring recommended by the defense useless, McCalla said. It can take up to four hours for officials to learn that a location monitor has moved, she said.
The defense had also suggested that the judge consider restricting computer access if that would allow Spitzauer to be released from jail.
But McCalla said that Spitzauer had proved himself adept at getting other people, like Calhoun, to act for him, and individual restrictions would be meaningless.
Mendoza found that Spitzauer was a flight risk.
"There is no set of conditions I can impose to ensure his presence at future hearings," the judge said. He also could not ignore Spitzauer's history of fraud, he said.
The judge granted a defense request to move Spitzauer's trial from May 14 to July 30.