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Mike Nowatzki, Published November 06 2009

Gattuso's brother urges ‘maximum justice’

The brother of Philip M. Gattuso says he wants the death penalty on the table for the two Oklahoma men accused in the Fargo periodontist’s death.

For that to be possible, the criminal cases against Gattuso’s father-in-law, Gene Carl Kirkpatrick, and the handyman he allegedly hired to kill Gattuso, Michael Allen Nakvinda, would have to be tried in federal court because North Dakota has no death penalty statute.

“I would love for them to be tried in the court … where they’d have the maximum that justice would allow,” Roy Gattuso said Thursday.

“So, if you’re asking me, death penalty? Absolutely,” he added.

Nakvinda, 41, of Oklahoma City, is charged in Cass County District Court with murder, a Class AA felony carrying up to life in prison without parole. He also faces felony charges of robbery, burglary and theft.

Kirkpatrick, 63, of Jones, Okla., is charged with conspiracy to commit murder, also a Class AA felony, and conspiracy to commit burglary.

Prosecutors allege Kirkpatrick paid Nakvinda $3,000 to kill Gattuso because the father-in-law didn’t approve of how Gattuso was raising his 3-year-old daughter, Kennedy, who is Kirkpatrick’s granddaughter. Gattuso, 49, was raising the girl alone after his wife, Valerie, died in March.

Kirkpatrick reportedly told authorities he visited Fargo about two weeks before the killing and videotaped Gattuso’s south Fargo condo for Nakvinda, who is accused of beating Gattuso to death with a hammer there on Oct. 26, court documents state.

Cass County State’s Attorney Birch Burdick said it’s premature to speculate on whether the U.S. attorney’s office will get involved in the case.

“I had an initial conversation with the feds just because of the obvious interstate aspects of what went on here, but it was only a very cursory discussion so far,” he said. “I’m sure we’ll sit down a little later and talk in some further detail about it.”

Roy Gattuso said he wants the death penalty on the table because of “the brutal beating my brother took.” He stressed that it should be an option only “if the courts decide that’s what is just.”

For now, he said, the Gattuso family is focusing strictly on getting custody of Kennedy, who is in the custody of Kirkpatrick’s daughter, Regan Williams, in the Oklahoma City area.

Former U.S. attorney Drew Wrigley declined to comment on the likelihood of the Gattuso case going federal, saying he doesn’t have all of the facts. But he said he’s not surprised those initial discussions have taken place, given the strong relationship between federal and state law enforcement in the area.

State and federal prosecutors must weigh which jurisdiction’s statutes best fit the alleged crimes, said Wrigley, who recently ended an eight-year run as U.S. attorney in Fargo.

Federal law has a murder-for-hire statute that makes it a crime to cross state lines with the intent to commit murder for money. The statute covers both the “hit man” and contractor, according to the U.S. Attorney’s Criminal Resource Manual.

The penalty for violating the law depends on the severity of the crime, with maximum penalties of a $250,000 fine, life imprisonment or death.

Wrigley said proof issues may make a case more or less complicated by taking it to federal court.

For example, in the Alfonso Rodriguez Jr. murder case, investigators couldn’t prove exactly where Dru Sjodin was killed. She was kidnapped outside a Grand Forks, N.D., shopping mall, and her body was found in April 2004 in a ditch near Crookston, Minn.

Under federal law, it didn’t matter where Sjodin was killed or whether she was alive or dead when she crossed state lines, whereas those issues could have complicated a state case, Wrigley said.

Another high-profile case was that of Vincent Degidio Jr., who in early 2008 kidnapped a woman in Fargo and forced her at gunpoint to drive to Moorhead, where he pistol-whipped her, robbed an auto parts store and shot at police.

Degidio pleaded guilty in Clay County to charges of attempted murder and aggravated robbery, and in Fargo’s U.S. District Court to firearms and kidnapping charges. He was sentenced to concurrent prison sentences spans nearly 29 years.

Besides statutes, Wrigley said other factors that may be considered include the amount of time, money, travel and personnel required, availability of the death penalty and the fact there’s no parole in the federal prison system.

The state of Oklahoma has the death penalty, but Oklahoma County District Attorney David Prater said he doesn’t plan to file charges there against Kirkpatrick or Nakvinda.

Prater said conspiracy charges can be filed where the alleged conspiring took place or where the overt act that resulted from the conspiring happened, and prosecutors are taking the latter course of action.

Kirkpatrick was charged Wednesday as a fugitive from justice in Oklahoma County, which is routine after he refused to sign a waiver of extradition to Fargo. He is being held without bond in the Oklahoma County Jail.

Burdick said he expects the extradition process to take 30 to 60 days.

Nakvinda waived extradition and arrived at the Cass County Jail on Thursday.


Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528