Tri-Cities conman and former CEO Michael Spitzauer was ordered back to federal prison on Thursday.
U.S. Judge Sal Mendoza Jr. refused Spitzauer’s request to withdraw his guilty plea to aggravated identity theft and, instead, sentenced him to three years in prison.
The Austrian immigrant used the identity of a Texas baby who lived less than 24 hours to prove U.S. citizenship in his application for a passport.
At the time, he’d been on probation for two months after finishing a prison sentence for swindling investors in his Pasco biofuels company, Green Power.
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The new sentence, handed down in U.S. District Court in Richland, includes a mandatory two years in prison for aggravated identity theft and six months for making a false statement. The remaining six months is for violating his probation.
Spitzauer asks for leniency
Spitzauer, 51, his voice breaking, asked the judge to show him mercy and let him go home to his family as soon as possible.
His wife has cancer and his children need him, he said.
“I’m really sorry for what has happened,” he told the judge.
He apologized both to the judge and to relatives attending the hearing.
Mendoza was not swayed.
Spitzauer has commited fraud time after time, he said.
The judge said he felt sorry only for Spitzauer’s family, the community and the victims of his schemes.
A sentence should promote respect for the law and, in this case, it helps protect the community, he said.
Sentence reflects continuing crimes
“The longer you are in prison the less likely you are to commit crime,” he said. “Either you can’t help yourself or you will not.”
The judge warned that if Spitzauer appears before him again, he will be even more skeptical of Spitzauer’s explanations.
Mendoza also said he took some offense at arguments made by defense attorney Gary Metro that there was no crime because Spitzauer took the identity of a baby who lived for just a few hours.
“It is no less serious than if the person were alive,” Mendoza said. “It is still identity theft and aggravated identity theft.”
He did grant Spitzauer’s request to ask that he be incarcerated in the federal prison in Sheridan, Ore., so his family could visit. However, there is no guarantee that is where he will be held, the judge said.
Metro argued that Spitzauer’s behavior was not that of a conman, or at least not that of a good conman.
They were the “unsophisticated acts of a desperate man,” Metro said.
He just wanted to remain in the United States and help his sick wife and his children, he said.
Passport fraud story
Spitzauer, a legal permanent resident of the United States, is unlikely to receive U.S. citizenship, said Assistant U.S. Attorney Meghan M. McCalla.
Spitzauer has said he was born in Salzburg, Austria, in 1968 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.
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.
That was when Spitzauer learned his true identity, Spitzauer claimed in court documents.
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, according to defense accounts.
A DNA test showed that Spitzauer’s father was McCune.
DNA test falsified
But Spitzauer’s accomplice, Judith Calhoun, of Issaquah, has admitted falsifying the test.
Calhoun obtained a DNA sample from Spitzauer while he was in prison and a sample from Spitzauer’s son for a test using a drugstore DNA kit, McCalla said.
She labeled the samples as belonging to McCune, the supposed father, and Spitzauer.
Calhoun also helped get the Texas certificate of a baby named Michael S. McCune who died within 24 hours of birth. She had the birth certificate sent to her home.
Spitzauer changes name
Spitzauer legally changed his name from Michael Peter Spitzauer to Michael Peter Scott Spitzauer McCune before applying for a U.S. passport.
Calhoun 74, pleaded guilty in federal court in September to one misdemeanor charge of possessing an identification document to defraud the United States. She was released from custody Jan. 31 after serving one month and now is on community supervision for a year.
The judge ordered Spitzauer to have no contact with Calhoun, other than collecting rent because she lives in an Issaquah house that he owns. However, the judge said that the house may be in foreclosure.
The judge waived a fine, saying Spitzauer had no way to pay it. He already owes millions in restitution from his previous cases.
History of fraud
The defense attorney said Spitzauer had been paying restitution in the Green Power case when he was not in prison. He has been incarcerated since March 2018 on the passport case.
As part of the 2015 sentence for the earlier fraud case, Spitzauer was ordered to pay $13 million to his victims and nearly $2.6 million to the IRS.
He used new investors’ money to pay back previous investors and buy a $1 million Kennewick mansion, furniture and professional sports equipment.
Spitzauer’s 2017 attempt to pass off the 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, McCalla said.
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.