621 F.3d 825 (8th Cir. 2010), 09-3138, United States v. Kieffer

Docket Nº:09-3138.
Citation:621 F.3d 825
Opinion Judge:RILEY, Chief Judge.
Party Name:UNITED STATES of America, Appellee, v. Howard O. KIEFFER, Appellant.
Attorney:David D. Hagler, U.S. Attorney's Office, Bismarck, ND, for Appellee. Joshua Sabert Lowther, Joshua & Sabert, Savannah, GA, for Appellant. Howard O. Kieffer, FCI Englewood, Littleton, CO, pro se.
Judge Panel:Before RILEY, Chief Judge, LOKEN and MURPHY, Circuit Judges.
Case Date:September 13, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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621 F.3d 825 (8th Cir. 2010)

UNITED STATES of America, Appellee,

v.

Howard O. KIEFFER, Appellant.

No. 09-3138.

United States Court of Appeals, Eighth Circuit.

September 13, 2010

Submitted May 14, 2010.

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[Copyrighted Material Omitted]

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David D. Hagler, U.S. Attorney's Office, Bismarck, ND, for Appellee.

Joshua Sabert Lowther, Joshua & Sabert, Savannah, GA, for Appellant.

Howard O. Kieffer, FCI Englewood, Littleton, CO, pro se.

Before RILEY, Chief Judge, LOKEN and MURPHY, Circuit Judges.

RILEY, Chief Judge.

Howard Kieffer, an attorney-impersonator, misled federal courts across the country into admitting him to practice law within their respective jurisdictions, including the Eighth Circuit Court of Appeals. Although he was not a lawyer, Kieffer collected over $150,000 in " legal fees" for " representing" persons accused or previously convicted of federal crimes. After a jury found Kieffer guilty of mail fraud, 18 U.S.C. § 1341, and making false statements, 18 U.S.C. § 1001, the district court 1 sentenced Kieffer to 51 months in prison. Kieffer appeals, alleging a myriad of trial and sentencing errors. We affirm.

I. BACKGROUND

A. Facts2

Kieffer is not an attorney. Kieffer never obtained a college degree and has never attended law school or passed a bar exam. Kieffer is a felon with a history of dishonesty, including convictions for petty and grand theft, passing bad checks, and stealing cable TV. In the late 1980s, Kieffer pled guilty in the United States District Court for the Central District of California to claiming over $150,000 in federal tax refunds to which he was not entitled. See generally Kieffer v. United States, 995 F.2d 231, 1993 WL 181360 (9th Cir. May 27, 1993) (unpub.mem.).

After release from federal prison, Kieffer settled in Santa Ana, California, and styled himself the " Executive Director" of " Federal Defense Associates." In 1997, Kieffer appeared as counsel of record in United States v. Olsen, 108 F.3d 340, 1997 WL 67730 (9th Cir. Feb.14, 1997) (unpub. table disp.). It is unclear whether Kieffer

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fraudulently gained admission to practice in the Ninth Circuit Court of Appeals before participating in the Olsen appeal.

In the ensuing years, Kieffer boasted specialized training in the policy, practices, and regulations of the United States Bureau of Prisons (BOP). He operated websites with legal themes, most notably www. boplaw. com and www. guiltyornot. com, and attended conferences sponsored by the federal government under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A. At the CJA conferences, Kieffer left his fellow attendees with the impression he was licensed to practice law.

1. District of Minnesota

In April 2005, Kieffer attended a CJA conference in Santa Monica, California, where he acquainted himself with two Minnesota attorneys, Steve Bergeson and Rick Mattox. Bergeson and Mattox thought Kieffer was an expert in federal sentencing and related matters. Bergeson believed Kieffer was licensed to practice law, because " [n]obody goes to these things unless you're an attorney [or] a judge."

In 2006, Bergeson, Mattox, and another attorney, Howard Bass, referred to Kieffer existing or prospective clients who were parties in the United States District Court for the District of Minnesota. Bergeson asked Kieffer for help with a re-sentencing of Donald Sturgis in the district court. Having " learned from [Bergeson] that [Kieffer] had done a good job for ... [Sturgis]," Mattox referred Peter Noe's mother, Natasha Caron, to Kieffer for help with Noe's habeas corpus application. Bass recommended Kieffer to Kenneth Henderson, the husband of Denise Henderson (Henderson), for her habeas corpus application.

Representing Sturgis, Noe, and Henderson presented a problem for Kieffer, because he was not admitted to practice law in the District of Minnesota. For example, to obtain admission on a pro hac vice basis, Kieffer was required to attest he was " currently a member in good standing of [a] United States District Court," which he was not. Kieffer, therefore, devised a scheme to gain pro hac vice admission to the District of Minnesota, and general admission to other federal courts, in order to continue charging " fees" to unwitting criminal defendants and their family members on the pretense Kieffer was an attorney. In the interim, Bergeson helped Kieffer file a re-sentencing memorandum for Sturgis and a 28 U.S.C. § 2255 motion for Henderson. Bergeson characterized the memorandum as " good" and billed the United States under the CJA Act for the hours Kieffer spent drafting it. Bergeson and Kieffer " jointly" filed the § 2255 motion, asserting Kieffer's application for pro hac vice admission was " pending."

2. Ninth Circuit

In January 2007, after an unsuccessful attempt to obtain a certificate of good standing, Kieffer applied for general admission to the Ninth Circuit. Citing his participation in Olsen -Kieffer claimed he had participated in oral argument and was paid for his services under the CJA Act-Kieffer asserted he was admitted to the Ninth Circuit approximately " 13 or 14 years" previously. In his application, Kieffer swore to " conduct myself as an attorney and counselor of the court, uprightly and according to the law." A member of the Ninth Circuit bar vouched for Kieffer. See Fed. R.App. P. 46. Based upon these false representations, the Ninth Circuit admitted Kieffer on February 12, 2007.

3. District of North Dakota

Around March 8, 2007, Kieffer attended another CJA conference, this time in Phoenix,

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Arizona, which focused on advanced federal sentencing issues. Kieffer met Chad McCabe, a North Dakota lawyer. McCabe believed Kieffer was a fellow attorney, because McCabe thought only experienced CJA panel members attended the conference. Kieffer had an official name tag, promoted himself as knowledgeable about federal sentencing matters, and drew attention to one of his websites.

Less than a week after the Phoenix conference, Kieffer called McCabe and asked whether McCabe would support Kieffer's application for general admission to the District of North Dakota. McCabe agreed, and Kieffer sent McCabe a nearly complete application, as well as a check payable to the District of North Dakota for the required admission fee.

At the time, " [a]ny member of the bar of ... any United States Circuit Court of Appeals, or of any District Court of the United States" was eligible for admission to the District of North Dakota. See D.N.D. Local R. 79.1. The District of North Dakota's application required a member of its bar to " personally vouch for [the applicant]'s qualifications, integrity and good character." As in other federal jurisdictions, the District of North Dakota's attorney admission system was based on trust. The District of North Dakota did not request a certificate of good standing from applicants or otherwise verify their credentials.3

In his application, Kieffer swore he was (1) admitted to the Ninth Circuit; (2) admitted to the Central District of California; and (3) graduated with a Juris Doctor degree from the Antioch Law School in Washington, DC. McCabe signed Kieffer's pre-prepared application-thereby attesting to Kieffer's qualifications-and hand-delivered it to the court. On March 16, 2007, Kieffer was admitted to practice in the District of North Dakota.

4. Subsequent Court Admissions

Kieffer used his District of North Dakota admission for pro hac vice and general admissions to federal courts across the country. In April 2007, Kieffer was admitted pro hac vice to the District of Minnesota, for the Noe and Henderson post-conviction matters, and granted general admission to the United States Court of Appeals for the Fourth Circuit. In October 2007, Kieffer was admitted to the United States District Court for the District of Colorado, where he subsequently " represented" Gwen Bergman at a mental competency hearing and a bench trial on murder-for-hire charges.4 In January 2008, Kieffer was admitted pro hac vice to the District of Minnesota to " represent" Joel Wells, an accused child pornographer. In April 2008, Kieffer was admitted pro hac vice to the United States District Court for the Western District of...

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