Monday, September 26, 2011

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Panel Upholds Sentence Increase Based on Uncharged Murder

Ninth Circuit Affirms 22-Year Sentence for Man Convicted of Raiding Missing Wife’s Assets

By SHERRI M. OKAMOTO, Staff Writer

A Nevada man convicted of raiding the assets of his missing wife was properly subjected to a seven-fold increase in his sentence based on the district court’s determination he had killed her, even though he had not been accused of murder, the Ninth U.S. Circuit Court of Appeals ruled Friday.

U.S. District Judge Frederic Block of the Eastern District of New York, who sat on the appellate panel by designation, wrote for the court and noted David Kent Fitch’s 262-month sentence was “a poignant example of a drastic upward departure from the Guidelines range—albeit below the statutory maximum—based on uncharged criminal conduct.”

Fitch had married Maria Bozi, a naturalized citizen of the United Kingdom, in 1999. After the couple settled in Nevada, Bozi vanished.

In the months that followed Bozi’s disappearance—which went unreported by Fitch—her husband withdrew funds from her bank and credit card accounts, used her health insurance card, and attempted to dispose of her belongings.

He also took on an assumed identity and purported to marry a former girlfriend in London.

Fitch was later detained for a traffic violation while driving Bozi’s car and arrested based on some outstanding warrants.

The FBI subsequently seized from Fitch a shotgun, three rifles, a revolver, a box of shotgun shells, and numerous books—including such titles as “The Modern Identity Changer”; “How to Make a Silencer for a .45”; “The Paper Trip I, II, and III—The Master Guide to New Identity”; “More Workbench Silencers”; “ID by Mail; High-Tech Harassment; Pipe and Fire Bomb Designs”; “The Revenge Encyclopedia”; 1”00 Ways to Disappear and Live Free”; “Make ‘Em Talk! Principles of Military Interrogation”; “Hit Man, A Technical Manual for Independent Contractors”; “Improvised Explosives, How to Make Your Own; Improvised Radio Detonation Techniques”; “The Death Dealer’s Manual”; “Deadly Brew, Advanced Improvised Explosives”; “Dragon’s Touch, Weaknesses of Human Anatomy”; “How To Make a Silencer for a .22”; “Methods of Disguise”;” Acquiring New ID”; “New ID in America”; and “Kill Without Joy! The Complete How to Kill Book.”

Numerous Charges

Fitch was indicted in 2000 for four counts of being a felon in possession of a firearm, two counts of possession of false identification documents with intent to defraud, and four counts of use of a false passport.

He pled guilty to all 10 counts and was sentenced to 97 months in prison.

The government indicted Fitch on 16 additional counts of criminal conduct in 2004, stemming from his use of Bozi’s ATM cards and taking of money from her accounts.

A jury found him guilty of all charges, and at sentencing, the government sought an upward departure from the advisory guidelines range of 41-51 months based on a theory that Fitch had killed Bozi, and that her death was the means by which he was able to commit his fraudulent scheme.

U.S. District Judge James C. Mahan of the District of Nevada agreed, finding that “causing death to effectuate the fraud scheme is sufficiently outside the heartland of the fraud, forgery, and false statement offenses to warrant a departure from the sentencing guidelines.”

Upward Departure

Based on “the dangerousness of the defendant’s conduct, the extent to which death or serious injury was intended or knowingly risked [and] the extent to which the offense level for the offense of conviction already reflects the risk of personal injury,” as well as his determination that “Ms. Bozi’s death was intended,” Mahan settled on a 15-level upward departure to an offense level of 35.

Applying that offense level to Fitch’s criminal history category of III yielded a sentencing range of 210 to 262 months. Mahan concluded that the upper limit of that range was “appropriate,” as “first degree murder, of course, is a very serious offense,” and sentenced Fitch accordingly.

Block, who was joined in his opinion by Judge N. Randy Smith, explained that a “sentencing judge is possessed of extraordinarily broad powers to find the facts that will drive the sentence,” and “can increase the defendant’s sentence based—as here—on uncharged conduct…and even acquitted conduct.”

He acknowledged that “[i]t is problematical whether much of the Sixth Amendment’s substance has been preserved in the present case, given the 360-year statutory maximum Fitch faced,” and that the Ninth Circuit has “not had occasion to address a scenario quite like this,” but said “we… are constrained to affirm.”

“The only restrictions that the Supreme Court has imposed on a district court’s power to impose a sentence less than the statutory maximum are that the sentence must not be tainted by procedural error, and that it must not be substantively unreasonable,” and these standards were met in this case, Block said.

Here, “[t]he district court was confronted with a defendant who had failed to report his wife’s disappearance, gave several inconsistent—and, in light of his possession of her passport, implausible—statements as to her whereabouts, and tried to dispose of her clothes and personal effects,” he noted. The defendant “then used her bank account, credit card and health insurance—sometimes through forgery and deception—and eventually married a former girlfriend while still ostensibly married to his missing wife,” Block added.

Under these circumstances, Block said “[i]t was eminently reasonable for the district court to infer that Bozi was dead, that Fitch knew she was dead, and that he had brought about her death in order to pillage her assets.”

Once the district court considered Fitch’s involvement in Bozi’s death factually established by this inference, Block concluded, “the district court certainly was not unreasonable in giving it great weight” and substantially increasing Fitch’s sentence as it did.

Senior Judge Alfred T. Goodwin dissented, although he agreed that “evidence of aggravated criminal exploitation of the victim here would support an upward departure from the Sentencing Guidelines.” Goodwin opined that there was not “clear and convincing evidence in the record upon which the district court could find that Fitch committed premeditated murder in connection with the fraud charged.”

He noted that Bozi undisputedly was missing, and that “Fitch immediately exploited her disappearance for his own benefit,” but argued “the record contains no evidence that sheds light on the manner of his involvement or the degree of his involvement” in her disappearance, much less her death.

To date, Bozi’s whereabouts remain unknown and the FBI investigation remains ongoing.

The case is United States v. Fitch, 07-10607.