U.S. v. Fitch

• Decision Date: 23 September 2011
• Docket Number: No. 07–10607.,07–10607.
• Citation: 11 Cal. Daily Op. Serv. 12176,659 F.3d 788,2011 Daily Journal D.A.R. 14468
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.David Kent FITCH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

659 F.3d 788

11 Cal. Daily Op. Serv. 12,176

2011 Daily Journal D.A.R. 14,468

UNITED STATES of America, Plaintiff–Appellee,

v.David Kent FITCH, Defendant–Appellant.

No. 07–10607.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 2011.Filed Sept. 23, 2011.

Mario D. Valencia, Henderson, NV; Beau Sterling (argued), Sterling Law, LLC, Las Vegas, NV, for the defendant-appellant.Camille W. Damm, Assistant United States Attorney, District of Nevada, Las Vegas, NV, for the plaintiff-appellee.Appeal from the United States District Court for the District of Nevada, James C. Mahan, District Judge, Presiding. D.C. No. 2:04–cr–262–JCM.Before: ALFRED T. GOODWIN and N. RANDY SMITH, Circuit Judges, and FREDERIC BLOCK, District Judge.^*Opinion by Judge BLOCK; Dissent by Judge GOODWIN.

OPINION

BLOCK, District Judge:

David Kent Fitch was convicted by a jury of nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering. The applicable Sentencing Guidelines range was 41–51 months. At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.

Fitch appeals his sentence,¹ arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable. Because Fitch has never been charged with his wife's murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range—albeit below the statutory maximum—based on uncharged criminal conduct. We have not had occasion to address a scenario quite like this, but are constrained to affirm.

I

In determining Fitch's sentence, the district court relied on the trial record and undisputed portions of the presentence report (PSR). Since Fitch does not challenge that reliance, see United States v. Flonnory, 630 F.3d 1280, 1286 (10th Cir.2011) (“The district court can properly consider trial testimony for sentencing purposes.”); United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir.2005) (en banc) (“[T]he district court may rely on undisputed statements in the PSR at sentencing.”), we take the facts from the same sources.²

In 1997 and 1998, Fitch spent considerable time in Bogotá, Colombia, where he became romantically involved with Patricia Molano Gutierrez (Molano), a Colombian citizen. Molano moved to England in early 1998, and in mid–1998, Fitch traveled to England to visit her.

While in England, Fitch met Maria Bozi. Romanian by birth, Bozi was a naturalized citizen of the United Kingdom and had lived and worked in England since 1991. Although still romantically involved with Molano, Fitch married Bozi in England on April 23, 1999.

A few weeks after their wedding, Fitch went to the United States while Bozi remained in England and prepared to leave. She sublet her apartment and shipped, sold or stored her personal property. She also opened a United States bank account, in her name only, at Citibank. She transferred $120,000 into the account in July 1999.

Bozi stayed with a former boyfriend, Michael Novin, for a few weeks before she left England. She used Novin's mailing address for her bank and credit card statements. At the end of July, Novin drove Bozi to the airport, where she took a flight to Nevada to meet Fitch.

Soon after arriving in Nevada, Bozi purchased a 1994 Ford Thunderbird. She registered the car in her name only. She also purchased a $14,000 mobile home and leased space for it at the Lake Shore Trailer Village in the Lake Meade National Recreation Area. Bozi was the sole tenant on the lease and listed herself as the sole owner of the mobile home. She and Fitch moved into the mobile home at the end of August 1999.³

Bozi's previously regular phone calls to her mother in Romania and Novin in England stopped a few days after she and Fitch moved into the mobile home. Novin last spoke to Bozi on September 4, when she told him that she and Fitch were going on a “mini trip” for a week or two, and that she would call him when she returned. Bozi did not tell Novin where she and Fitch were going.

Between September 7 and 17, 1999, Fitch withdrew a total of $8,000 from Bozi's Citibank account. On one occasion he made the withdrawal while wearing a hat, sunglasses and a fake mustache. On September 10, Fitch purchased an $8,000 cashier's check payable to Molano.

On September 11, a Citibank representative called Novin trying to reach Bozi regarding, in Novin's words, “some checks and some urgent matter.” Novin gave the caller Bozi's phone number in the United States.

On September 13, Fitch deposited a $40,000 check drawn on Bozi's Citibank account into his own account. Four days later, Citibank froze Bozi's account.

On September 18, Novin attempted to contact Bozi to discuss Citibank's phone call, and left a message on her answering machine. Fitch returned Novin's call “half-an-hour later,” and told Novin that Bozi had “gone ahead to Vancouver because she had found a job there.” At roughly the same time, Fitch told Gracie Silvers, a neighbor, that Bozi “went back to England.”

Concerned that he had not heard from Bozi in several days, Novin contacted the United States Park Service. Prompted by Novin's phone call, park ranger Gary Sebade visited Fitch on September 29. Fitch told Sebade that Bozi had returned to Romania. Earlier that same day, Fitch—calling himself “Mario Bozi”—had used Bozi's health insurance card and account number to schedule hernia surgery for October 5.

On October 1, park rangers saw Fitch loading his truck at the trailer park. They followed Fitch to a dumpster, where they saw him discard several items. Searching the dumpster, the rangers found a receipt, dated July 7, 1999, reflecting the purchase of chloroform by a “Dr. David.”

Now suspecting foul play, the rangers sealed Bozi's mobile home with police tape. Fitch did not return to the trailer park, but instead checked into a motel in Las Vegas. On October 9, Bozi's Thunderbird was stolen and the police-tape barrier was broken.

At some point in October, Fitch attempted to sell Lorinda Brodoski “a woman's clothing and shoes and just personal items for a woman [her] size.” Brodoski testified at trial that Fitch had told her “he was selling these things because his wife left him.” Later that month, Fitch attempted to use Bozi's credit card to purchase $5,000 in synthetic emeralds over the Internet; the card was declined.

While in Las Vegas, Fitch met a man named David Lee Krause. Fitch convinced Krause to give him his personal information, which Fitch then used to obtain duplicates of Krause's social security card and birth certificate. Using those documents, Fitch obtained a Utah driver's license and United States passport; both bore Fitch's photograph, but Krause's name.

Fitch used the Krause passport to travel to London on November 25. There, he married Molano using his assumed identity.

Fitch re-entered the United States on February 7, 2000, again using the Krause passport. The following day, officers with the Henderson (Nevada) Police Department stopped Fitch for speeding. Fitch was driving the 1994 Thunderbird and presented the Krause driver's licence as identification. A routine licence plate search revealed the connection to Bozi, prompting the officers to contact the FBI. The FBI asked them to detain Fitch until federal agents could get to the scene. Since the license plate search had also revealed outstanding warrants against Fitch, the officers placed him under arrest.

Fitch's arrest triggered a full FBI investigation. Between February 8 and 25, 2000, agents seized from Fitch, inter alia, a shotgun, three rifles, a revolver, a box of shotgun shells, numerous books,⁴ a passport in the name of Maria Bozi and a “briefcase with miscellaneous documents” in Bozi's name. They also recovered the Krause birth certificate, passport and driver's licence.

In addition, the FBI sought information from potential witnesses living in Romania and the United Kingdom through Mutual Legal Assistance Treaty requests (MLATs). As a result of those MLATs, the FBI received witness statements from Novin, Molano and others. None of the potential witnesses had any knowledge of Bozi's whereabouts.

In March 2003, the FBI interviewed Fitch's father. He stated that his son had married a woman in England, but could not recall her name. When asked about Bozi, he stated that he had “no knowledge” of her.

To date, Bozi's whereabouts remain unknown.

II

A. 2000 Charges

A criminal complaint filed the day after Fitch's arrest stated that Fitch

admitted to fraudulently taking money from BOZI's account by using her ATM card and wearing disguises to conceal his identity from bank surveillance cameras. He also admitted to cashing a fraudulent $40,000 check after her disappearance, and concealing the money in an account that he opened under a false name.

On February 15, 2000, the Government indicted Fitch for violating 18 U.S.C. § 922(g)(1), unlawful possession of a firearm by a felon. A superseding indictment filed in June of that year added three additional § 922(g)(1) charges, as well as two counts of possession of false identification documents with intent to defraud the United States, in violation of 18 U.S.C. § 1028(a)(4), and four counts of use of a false passport, in violation of 18 U.S.C. § 1542.

In July 2000, Fitch pleaded guilty to all ten counts without a plea agreement, and was sentenced in November 2000 to 97 months. At the time of sentencing, the FBI's investigation was still ongoing.

B. 2004 Charges

In June 2004, the Government indicted Fitch on nine counts of bank fraud, in violation of 18 U.S.C. § 1344; two counts of fraudulent use of an access device, in violation of 18 U.S.C. § 1029(...