Michael Peter Spitzauer claims to be a man without a country, or even a true identity.
The convicted con man was born in Austria, but he says he learned four years ago that he, in fact, is a Texas native.
He’s long celebrated his birthday in February 1968, but now says he is uncertain of the date.
And he legally changed his name to Michael Peter Scott Spitzauer McCune after learning that he may have had a different birth father and been born Michael Scott McCune.
Now, as he is facing a return to federal prison, Spitzauer is asking for a break because of all this uncertainty.
Spitzauer, 51, is scheduled to be sentenced Thursday in U.S. District Court in Richland for two more felonies — making a false statement and aggravated identity theft.
He admitted last September to using the birth certificate of a dead baby to apply for a United States passport and prove citizenship. He was on probation at the time.
The passport application was done just two months after Spitzauer got out of prison for stealing millions of dollars from investors in his Pasco company.
Defense wants plea set aside
While federal prosecutors are asking for a 2 1/2-year sentence, defense attorney Gary Metro says two years is more appropriate.
Spitzauer also is facing an additional six months for violating the terms of his supervised release by committing another crime while on probation.
But first, the defense wants Judge Sal Mendoza Jr. to set aside Spitzauer’s guilty plea to the identity theft because there was no factual basis for it, according to a motion.
“Mr. Spitzauer’s belief is hard to understand. Even harder to understand is Mr. Spitzauer’s belief that his story was credible ...,” Metro wrote in a sentencing document.
“The craziness of Mr. Spitzauer’s story is not a story told by a master of fraud but rather the story of someone who is incredibly naive and/or desperate to be someone other than himself and/or someone who is suffering a mental breakdown.”
Biofuels focus of Pasco company
Spitzauer was the CEO of Green Power, a Port of Pasco-based company that he told U.S. and international investors he founded in order to convert municipal waste to biofuel.
He was sent to prison for four years in 2015 for swindling those investors and using their money to pay back previous investors and 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.
Restitution included nearly $13 million to the victims and nearly $2.6 million to the IRS.
Spitzauer has said he was born in Salzburg, Austria, and came to the United States in the 1990s. His criminal history includes convictions in Austria for forgery, fraud and attempted fraud, and an earlier false statement conviction in the United States.
Birth place in dispute
Spitzauer said while he was in prison for the Green Power case, he was contacted by a man named James L. McCune who believed Spitzauer was his long-lost son.
McCune claimed that Spitzauer was born in 1967 in El Paso, Texas, but the baby was taken back to Austria by his mother, who also changed the year on his birth record and gave him the name of her new husband.
A DNA test showed that Spitzauer’s father was McCune.
But Spitzauer’s longtime friend, Judith Calhoun, admitted last year that she bought a DNA test from a drugstore, got DNA samples from Spitzauer and his son, and submitted it under the McCune names to try to show a genetic link.
Spitzauer, who was in the county jail at the time, sent his DNA out using “balloon things,” or rubber gloves, according to court documents. Calhoun told investigators it was her idea to falsify the DNA.
The Issaquah woman helped get the Texas certificate of the baby who died within 24 hours of birth. She had the birth certificate sent to her home.
She said James McCune came up with a false story for the passport application to explain the discrepancies between the El Paso birth certificate and Spitzauer’s actual biographical data and familial history, documents said.
Defrauding the U.S. government
Calhoun, 74, pleaded guilty in federal court to one misdemeanor charge of possessing an identification document to defraud the United States. She was released from custody Jan. 31 after serving a one-month sentence, and now is on community supervision for a year.
Spitzauer has been locked up on the passport case since March 2018. He faces deportation from the United States, even though he is a legal permanent resident.
Spitzauer has previously said he cannot say where he was born because he does not know who lied to him, and that he can only tell federal officials what he has heard people say about his birth.
In January, Spitzauer tried to withdraw his pleas to both counts. Federal prosecutors pointed out how Spitzauer answered under oath that he was guilty of the charged crimes and that the facts supported the plea. The defense request was denied by Judge Mendoza.
Baby’s existence questioned
This time, Spitzauer says that to prove identity theft, the federal government must show the victim was an actual real person and that Spitzauer knew the victim was an actual person.
There is a copy of a birth certificate that claims to show the existence of a Michael McCune. And there is a record “which alleged to show the death of Michael McCune if he lived at all within 24 hours of his alleged birth,” the defense wrote in its motion.
Yet, there are no witnesses to baby McCune’s birth or death, no one who “heard his voice or recorded any other aspects of his supposed being,” the motion states.
The birth and death certificates aren’t enough to prove he was a person, which wipe out the factual basis for a plea, argues Metro.
The identity theft carries a mandatory two-year prison sentence. If that plea is withdrawn, he could get out for time served.
Spitzauer ‘grabbing at straws’
Spitzauer’s 2017 attempt to pass off McCune’s Texas birth certificate as his own wasn’t his first.
In September 2016, he also tried to file a U.S. passport application from the Taft Correctional Institution in Southern California. He included his Austrian birth certificate along with the Texas document.
The attempt failed that time because there is no recognized Department of State passport acceptance facility at Taft, said Assistant U.S. Attorney Meghan M. McCalla.
She noted that Spitzauer even lied to officials on his U.S. entry documents in the mid-1990s by claiming he didn’t have a criminal history, and continued that lie when completing his application for permanent residency.
Now with his guilty plea, the only thing that has changed is Spitzauer’s change of heart, McCalla said. That is not a fair and just reason for withdrawing a plea, and it appears Spitzauer is “grabbing at straws,” she said.
“The government is hopeful that a total sentence of 36 months would alter (Spitzauer’s) thinking regarding engaging in fraudulent conduct,” McCalla wrote in a sentencing document.
“While he has a history of continuing to engage in this conduct, this will be another term of imprisonment to follow that which he has already served, and he has acknowledged the negative affect it has on his relationship with his family.”