A federal judge dismissed a Pasco businessman’s argument that dozens of charges filed against him should be dismissed because the Yakima and Benton county jails improperly recorded calls between him and his attorney.
Michael Spitzauer, owner of biofuels company Green Power, said his rights to due process and counsel were violated when the jails recorded several phone calls between him and attorney Christopher Black.
Black argued the only remedy to those violations would be to dismiss the case, a move federal prosecutors said was unwarranted.
Judge Sal Mendoza Jr. listened to testimony from seven witnesses from the FBI, IRS, local law enforcement and phone service providers during a daylong hearing Thursday in Yakima.
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Jail officials did wrongly record the phone calls between Spitzauer and Black, Mendoza ruled Friday. However, prosecutors took significant measures to ensure they didn’t listen in on those calls, meaning the indictment against Spitzauer stands and prosecutors may use information gathered from other recorded phone conversations at trial.
“Far from shocking or outrageous, this is the conduct the court expects prosecutors to implement to ensure a defendant’s constitutional rights are protected,” Mendoza wrote.
Spitzauer faces 45 federal charges, including money laundering, tax evasion, lying on a federal tax return and multiple counts of wire fraud and aggravated identity theft. He is accused of defrauding seven U.S. and international businesses and individuals of an estimated $7.6 million.
Prosecutors recently added new charges tied to Spitzauer allegedly defrauding Chinese companies of up to $2.5 million, even while he’s been in custody for the past year.
Federal authorities reviewed Spitzauer’s phone calls because of his constant contact with witnesses and victims in his case. Spitzauer and his attorney were aware his non-privileged phone calls were being recorded and his attorney periodically received copies.
Black contacted the Yakima and Benton county jails whenever his client was housed at either facility to have any calls to his phone number not recorded. Unfortunately, staff at each jail or with the jail’s phone service contractor failed to put that phone number on a do-not-record list before Spitzauer and his attorney began having conversations.
An IRS analyst listened to part of a conversation between Spitzauer and Black in early February and was removed from the case. Prosecutors also had access to that call through an online link but a program glitch prevented it from being opened and there’s no indication it was ever accessed.
Prosecutors also discovered another privileged conversation was recorded in July but did not listen to it. Other recorded phone calls connected to Black’s number were actually complaints from Spitzauer to Telmate, a jail phone service company, and were legal to record.
Black and Spitzauer were notified of each incident when they happened and prosecutors said no remedial action was requested beyond what was done. However, Black said he’s further investigated the intercepted calls since being contacted by prosecutors.
“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 has said.
While the jails’ recording of the calls between Spitzauer and Black was a “reckless delay on the part of both jails to timely register Mr. Black’s phone numbers as attorney numbers that should not be recorded,” there is no evidence showing intent to record the conversations nor that any of the information from them was provided to prosecutors, Mendoza wrote.
The conduct of the jail officials also isn’t flagrant enough to amount to a violation of due process.
“Ultimately, the facts in this case do not demonstrate that (Spitzauer) has suffered a substantial prejudice,” Mendoza wrote.