United States v. Kieffer
2012 U.S. App. LEXIS 11797
10th Cir.2012Background
- Howard Kieffer posed as an attorney and Executive Director of Federal Defense Associates, although he never licensed or educated as a lawyer and did not attend law school.
- Kieffer obtained admission in multiple districts by falsified or misleading information, enabling him to represent federal criminal defendants under a non‑attorney identity.
- He was convicted in North Dakota (mail fraud and false statements) and later in Colorado (wire fraud, false statements, contempt) for continuing unauthorized practice and related deception.
- Evidence showed he operated boplaw.com, promoted through a site hosted in Virginia, with access from multiple states, and used to solicit clients for BOP/misdirected legal services.
- The district court sentenced him to multiple concurrent and consecutive terms; the Eighth Circuit affirmed convictions but vacated/constrained aspects of the Colorado sentence and remanded for resentencing.
- On appeal, the court analyzed sufficiency of the wire fraud evidence, the district court’s jury instruction on reasonable doubt, and several sentencing issues including relevant conduct, 5G1.3, loss calculations, restitution, and a supervised-release condition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of interstate element for § 1343 | Sufficiency of interstate transmissions via boplaw.com. | No cross-state transmission; insufficient to prove interstate element. | Interstate nexus established by content transmission across state lines via origin and host servers. |
| Reasonable doubt instruction adequacy | Instruction did not shift burden; properly framed. | Instruction misdescribed reasonable doubt as a kind of proof. | No plain or structural error; instruction adequate in context. |
| Criminal history and relevant conduct under § 4A1.1 and § 1B1.3 | North Dakota sentence and conduct were relevant conduct for offense level. | North Dakota offense should not be included as relevant conduct to avoid double counting. | District court erred by excluding North Dakota conduct from offense level; error requires remand for resentencing. |
| Application of § 5G1.3 and concurrent/consecutive sentencing | Court properly exercised discretion within guidelines. | Consecutive sentence improperly applied; § 5G1.3 required concurrency. | Procedural error; district court must resentence within proper § 5G1.3 framework. |
| Loss calculation and relevant-conduct evidence under § 2B1.1 | Loss could be aggregated from multiple victims as relevant conduct. | Loss amounts and victims not properly proven or identified. | Government failed to prove loss amounts by preponderance; remand for proper calculation. |
| Restitution and MVRA applicability | MVRA requires restitution to identified victims with proven losses. | Insufficient proof to establish victims or losses for restitution. | Restitution order invalid for lack of evidentiary basis. |
Key Cases Cited
- United States v. Mullins, 613 F.3d 1273 (10th Cir. 2010) (interstate transmission sufficiency in wire fraud cases)
- Schaefer v. United States, 501 F.3d 1197 (10th Cir. 2007) (internet use alone not enough for interstate element)
- Redcorn v. United States, 528 F.3d 727 (10th Cir. 2008) (purpose requirement tied to execution of scheme at time)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (sufficiency standard for evidence beyond reasonable doubt)
- Sullivan v. Louisiana, 508 U.S. 275 (U.S. 1993) (structural vs. plain error in reasonable doubt instructions)
- United States v. Gall, 552 U.S. 38 (U.S. 2007) (reasonableness review of sentences; procedural error standard)