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October 21, 2007

Punished (twice?!?) for an uncharged murder in federal court

A helpful reader sent me this remarkable story about a recent federal sentencing in Nevada.  Here are the highlights:

A Las Vegas judge found by "clear and convincing evidence" Friday that David Fitch killed his wife eight years ago, although the defendant has never been charged with murder and the woman's body has never been found. The finding allowed U.S. District Judge James Mahan to depart from federal guidelines and sentence Fitch to nearly 22 years in prison for committing bank fraud and other crimes in a case that stems from the September 1999 disappearance of the Fitch's wife, Maria Bozi....

Fitch, 49, recently completed an eight-year prison term for illegally possessing firearms and false identification documents in a related case.... Fitch's court-appointed attorney, Lisa Rasmussen, argued that Bozi's disappearance was considered by U.S. District Judge Kent Dawson at the previous sentencing and that her client should not be required to serve any additional time in the new case, which stemmed from the same "scheme of conduct."  Mahan said the record does not support the contention that Dawson considered the murder allegation in sentencing Fitch....

Although federal guidelines suggested a sentence in the range of 41 to 51 months, Mahan chose to impose a 262-month sentence, which amounts to nearly 22 years. Assistant U.S. Attorney Timothy Vasquez had requested a 30-year term....

Fitch ... argued that authorities have no evidence showing that he harmed anyone. "I'm not a violent person," he said.  Fitch pleaded guilty in July 2000 to multiple felony counts that involved possession of firearms, ammunition and false identification documents.  In July 2004, while Fitch was serving his eight-year sentence, he was indicted in the bank fraud case. A jury convicted Fitch earlier this year of multiple felony counts of bank fraud, money laundering and unauthorized possession of a credit card. Bozi was the victim of most of the crimes....

Clark County District Attorney David Roger said he doesn't plan to file a murder charge against Fitch, despite Mahan's comments Friday. Clark County prosecutors will not pursue a murder charge until they have enough evidence to prove the case beyond a reasonable doubt, Roger said.

In prior posts, I have noted numerous other recent instances in which federal courts have enhanced sentences based on uncharged murder allegations.  The great irony is that Justice Scalia's opinion in Blakely expressed grave concerns about allowing judges to "sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it."  It seems that, despite Blakely's outcome, this remains a surprisingly common occurrence in federal court.

Related posts on uncharged murder sentencing enhancements:

October 21, 2007 at 01:57 PM | Permalink


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This might be a case that the Supreme Court would ultimately take up. It is the most severe set of facts that has been posted on this site that I have seen. There is the double jeopardy claim-- that he was enhanced at the one sentencing for this conduct and is not enhanced again. I would glibbly call this being twice being put in jeopardy for the same non-offense.

The blog often cites Blakely and sometimes Apprendi on these issues of non charged conduct. It seems to me that Souter's majority opinion in Jones v. U.S. 526 U.S. 227 (1999) states the proposition more fully, by including the indictment component. At headnote [1][2] "Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt." citing Hamlin and Gaudin. At a later passage footnote 6: "The preceding paragraph in the text expresses that principle plainly enough, and we restate it here: under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt."
Later cases adopt Jones but gloss the indictment requirement.

The core problem here is a disconnect from the law of the land proclaimed by the Supreme Court (here the Command of the Sixth Amendment) and the application of that law in District Courts and in the States. Here the State prosecutor states that the man will not be charged with murder until they have proof beyond a reasonable doubt. The District Judge in federal court took care of the problem. He finds by clear and convincing evidence that the bank fraud defendant committed murder in as yet an uncharged crime. For all we know the wife is in Miami living a life of leisure under a new identity. This case is wrong on all fours: no indictment, no jury trial, no proof beyond a reasonable doubt and double jeopardy because the guy already got hosed with the murder in the first go-round. The "Command" of the Sixth Amendment is not getting much respect down in the ranks.

Keep us posted on the appeal in this case.

Posted by: M. P. Bastian | Oct 22, 2007 7:20:31 AM

So, if this guy were to commit bank fraud in the future, the district couldn't use it to enhance his sentence because that would violate double jeopardy? Don't think so.

I have little problem with the argument that using uncharged crimes violates the Sixth Amendment (don't agree with it, but it at least makes sense). Why convolute your argument with the double jeopardy nonsense?

Posted by: JustClerk | Oct 22, 2007 8:05:36 AM

How is this any different than using prior convictions every time someone commits a new crime? Repeat offenders always get an increased punishment.

Posted by: | Oct 22, 2007 11:32:55 AM

Response to Just Clerk:
Double jeopardy attaches here because as the current defense counsel asserts, the initial charge was of the same scheme of conduct.
It may convolute the argument but this is not a tidy case.

A double jeopardy claim can arise under the Stirone doctrine--where the court constructively amends the charge in an indictment. The govt cannot charge one in an indictment with stealing from the wife and then charge the jury with a jury instruction to find him guilty of murder. Double jeopardy must be considered in tandem with Sixth Amendment Apprendi issues.

Response to second post. There was no prior conviction for murder. What facts concerning murder was the jury charged to consider and what facts did they find beyond a reasonable doubt concerning the murder of missing wife?

The Jones, Apprendi, Blakely (Due Process Clause of the Fifth Amendment taken together with the notice and jury trial guarantees of the Sixth Amendment) jurisprudence dictates that any fact that any fact that increases a penalty (other than prior conviction) must be charged in an indictment, tried to a jury and found by that jury beyond a reasonable doubt.

The Crawford (Confrontation Clause) jurisprudence holds that the court can not consider hearsay evidence-- that the defendant has a right to confront the witnesses against him face to face in open court within the context of a trial. From what witness did the trial court determine that this guy murdered missing wife? It was post jury stage and therefore we must know here that there was no face to face confrontation of any such witness before the defendant and before the jury.

The third Sixth Amendment issue is effective assistance of counsel at the first case where he pled guilty on the assurance that he was pleading guilty to the counts charged and not murder.

They keep gassing up on this guy. The first cases are in the same scheme of conduct as the bank fraud. The next thing they will do is charge him with child support crimes and enhance his sentence for the (as yet uncharged murder crime) on that offense.

This is an insult to the jury that tried the case on bank fraud charges. They go home after their verdict and later read in the paper that the judge gave him 22 years for murder.

Posted by: M.P. Bastian | Oct 23, 2007 5:01:26 AM

Insulting to the jury? How is this any different than say the 3 strikes law -- the jury isn't told about the guy's priors, they find him guilty of say a minor theft offense and then they learn he's getting 50 years. Jurors have always been kept in the dark as it relates to sentencing because it's an improper consideration during the guilt phase of trial. The fact that this involves uncharged conduct doesn't make it any more "insulting" than any other sentencing factor which cannot and should not be presented to a jury.

Posted by: JustClerk | Oct 23, 2007 8:29:27 AM

Will somebody shed light on this. I thought enhancement on uncharged conducts was part of the same scheme. So, JustClerk, what you're saying is, that a sentence can be enhanced even if it not part of the same scheme that happened years ago. This seemed definitely an abused of power by the court.

Posted by: | Oct 24, 2007 12:50:08 PM

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