681 F.3d 1143 (10th Cir. 2012), 10-1391, United States v. Kieffer

Docket Nº:10-1391.
Citation:681 F.3d 1143
Opinion Judge:BALDOCK, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Howard O. KIEFFER, Defendant-Appellant.
Attorney:Karin M. Fojtik, Assistant United States Attorney (Carlie Christensen, United States Attorney, with her on the brief), Salt Lake City, UT, for Plaintiff-Appellee. Gail K. Johnson, Johnson & Brennan, PLLC, Boulder, CO, for Defendant-Appellant.
Judge Panel:Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges.
Case Date:June 11, 2012
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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681 F.3d 1143 (10th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Howard O. KIEFFER, Defendant-Appellant.

No. 10-1391.

United States Court of Appeals, Tenth Circuit.

June 11, 2012

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Karin M. Fojtik, Assistant United States Attorney (Carlie Christensen, United States Attorney, with her on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Gail K. Johnson, Johnson & Brennan, PLLC, Boulder, CO, for Defendant-Appellant.

Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges.

BALDOCK, Circuit Judge.

Oh what a tangled web we weave, when first we practice to deceive!

Sir Walter Scott

Scottish Novelist (1771-1832)

By all appearances, Defendant Howard Kieffer had a successful nationwide criminal law practice based in Santa Ana, California. Defendant held himself out as Executive Director of Federal Defense Associates, and touted his services through websites, legal conferences, and professional contacts. As early as 1997, Defendant appeared as co-counsel of record in United States v. Olsen, 1997 WL 67730 (9th Cir.1997) (unpublished). Over the next few years, Defendant gained admission to a slew of federal trial and appellate courts around the country, where he appeared on behalf of numerous criminal defendants. All the while, Defendant had a secret. He is not and never has been an attorney. He never went to law school, never sat for a bar exam, and never received a license to practice law.

Defendant no longer has a secret. In 2009, a jury in the District of North Dakota convicted Defendant of mail fraud, in violation of 18 U.S.C. § 1341, and making false statements, in violation of 18 U.S.C. § 1001. The jury found Defendant gained admission to the District of North Dakota by submitting a materially false application to the court. He then relied on that admission to gain admission to the District of Minnesota, District of Colorado, and Western District of Missouri. Once admitted in those districts, Defendant proceeded to appear on behalf of federal criminal defendants unaware of his true identity. The district court sentenced Defendant to 51 months imprisonment and ordered him to pay $152,750 in restitution to six victims of his scheme. The Eighth Circuit affirmed. United States v. Kieffer, 621 F.3d 825 (8th Cir.2010).

Defendant's web of deception continued to unravel in 2010 when a jury in the District of Colorado also convicted him of making false statements in violation of § 1001, in addition to wire fraud, in violation of 18 U.S.C. § 1343, and contempt of court, in violation of 18 U.S.C. § 401. As to the false statements count, the jury found that to gain admission to the District of Colorado, Defendant fraudulently represented to the court clerk's office that he was licensed to practice law in the District of Columbia. As to the wire fraud count, the jury found Defendant used a website, www. boplaw. com, to promote his unauthorized practice of law and bilk a criminal defendant's brother out of several thousand dollars. Lastly, as to the contempt count, the jury found Defendant jeopardized the administration of justice by lying to the clerk's office and purporting to represent that criminal defendant before the district court. The district court sentenced Defendant to 57 months imprisonment to run consecutively to the 51 month sentence previously imposed on him in the District of North Dakota. The court further ordered him to pay restitution in the amount of $152,019 to seven victims of his scheme unaccounted for in North Dakota, and directed him as a special condition of supervised release to obtain

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the probation office's preapproval of any proposed employment or business ventures. Defendant now appeals his most recent convictions and sentence. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2). For reasons to follow, we affirm the district court's judgment of conviction, but vacate its judgment of sentence on the wire fraud and false statements counts, and remand for resentencing.

I.

Defendant presents three challenges to his convictions in the District of Colorado. Each is based on his Sixth Amendment right to have the Government prove, and a jury find, all elements of the charged crimes beyond a reasonable doubt. First, Defendant asserts he is entitled to a judgment of acquittal on the wire fraud count because the Government failed to prove all of § 1343's necessary elements. Specifically, Defendant argues the Government's evidence failed to establish that his internet communications (1) traveled in interstate commerce or (2) were used for the purpose of executing a scheme to defraud. Second, Defendant asserts he is entitled to a new trial on all counts because the district court's " reasonable doubt" instruction erroneously defined that term and shifted the burden of proof to him.

Defendant further presents five challenges to his sentence, three of which bear directly upon the district court's application of the Sentencing Guidelines. First, Defendant asserts the district court improperly included his sentence in the District of North Dakota in its criminal history calculation under U.S.S.G. § 4A1.1, rather than the offense underlying that sentence in its consideration of relevant conduct under § 1B1.3. Second, Defendant contends the district court's failure to consider his offense in the District of North Dakota as relevant conduct enabled it to impose a sentence consecutive to the sentence imposed on him in North Dakota, contrary to § 5G1.3. Third, Defendant asserts the court failed on the evidence presented to make a reasonable estimate of loss amounts under § 2B1.1 in its calculation of his offense level. Defendant also challenges the district court's restitution order based on the Government's failure to prove actual loss amounts to identified victims of his scheme by a preponderance of the evidence, as required by 18 U.S.C. § 3664(e). Lastly, Defendant challenges, as contrary to 18 U.S.C. §§ 3563(b)(5), the court's imposition of the special condition of supervised release that he obtain the probation office's approval before undertaking any occupational endeavor.

We present our discussion of Defendant's numerous legal challenges in two parts and various subparts. In Part II, we address Defendant's three challenges to his convictions. First, we set forth in a light most favorable to the Government the trial evidence relevant to Defendant's § 1343 conviction. See United States v. Bass, 661 F.3d 1299, 1307 (10th Cir.2011). We then analyze Defendant's sufficiency challenges to that conviction based on the evidence and the applicable law. We conclude Part II by analyzing Defendant's challenge to the district court's reasonable doubt instruction. In Part III, we address Defendant's five challenges to his sentence. We begin by summarizing the presentence proceedings through the final sentencing hearing. Therein, we include additional facts which the Government did not present at trial, but which the district court considered in reaching its sentencing decision. We then analyze Defendant's sentencing challenges, as well as the Government's assertion of harmless error, based on the record evidence and applicable sentencing statutes and guidelines.

II.

We begin our recitation of the evidence with the trial testimony of Natalie Sterling.

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Sterling is the custodian of records for both Network Solutions and Name Secure, a subsidiary of Network Solutions. Network Solutions and Name Secure are domain name registrars headquartered in Herndon, Virginia. In addition to being a registrar, parent company Network Solutions provides hosting services for websites. On direct examination, Sterling made no distinction between Network Solutions and Name Secure. On cross-examination, Sterling clarified that she was the custodian of records for both companies. She explained (1) Name Secure was " a separate functioning registrar from Network Solutions," (2) anyone who wanted to register a domain name could " go through" either Name Secure or Network Solutions, and (3) Network Solutions, " in addition to being a registrar, provides hosting services." Rec. vol. 3, at 219-22.

Sterling explained that a domain name is necessary to create a website. Once a purchaser registers a domain name with either Network Solutions or Name Secure, that purchaser may create an internet website associated with the domain name. As long as that registration is maintained, the domain name is exclusive to the registrant.

Q. Once a registrant registers their web site name with your company, is that web site available on the internet?

A. It is.

Q. And how does that website name get broadcast over the internet, for lack of a better term?

A. When a customer purchases the domain name, they would associate files with that domain name and then those files would be available on the internet.

Q. Do you guys operate servers or anything like that?

A. We do.

Q. And where are those servers located?

A. Sterling, Virginia.

Q. And what do those servers function to do? What is their job?

A. They process and store data.

Q. Okay. When you say " process and store data," do they help distribute the web site information over the internet?

A. Yes.

Q. Okay. So anyone who would register a domain name with your company, would that site be viewable anywhere in the United States?

A. Yes.

Rec. vol. 3, at 199-200. Based on records maintained in a customer service database by Network Solutions, labeled Plaintiff's Exhibit 9, Sterling testified that on May 13, 2004, one Howard Kieffer, P.O. Box 206, Santa Ana, California, 92702, registered the domain name boplaw.com with Name Secure. Kieffer reported his...

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