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

October 21, 2007

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: