Mail Fraud Convictions, Sentences, for Pretending to be a Lawyer Upheld

U.S. v. Kieffer, 2014 WL 7238565 (12/22/14) (Col.) (unpub'd) - The 10th finds FRCP 36, which allows correction of a clerical error in a judgment, is not the proper vehicle to do what the district court did, but in the end the district court's intent is fulfilled. The district court wanted Mr. Kieffer to spend 48 months extra for committing the same fraud in Colorado that he did in North Dakota, i.e., pretending to be a real lawyer. He got 51 months in North Dakota. The 10th reversed the judge's first attempt because the guideline called for a concurrent sentence. This time he announced at sentencing that Mr. Kieffer would get a 99 months concurrent sentence. He added that the 99 months would be adjusted by the 51 months served in North Dakota. The judgment mentioned the 99 months and added the remaining sentence should be 48 months after subtracting the 51 months already served. The BOP interpreted the order such that Mr. Kieffer would only serve an extra 8 months. When the probation officer got wind of this, the officer dutifully tried to help the court correct this situation. The court eventually issued three more judgments, including a couple after learning the second judgment would result in Mr. Kieffer not getting credit for 11 months of incarceration. The court tried to use Rule 36 as the authority for all the changes. The 10th admonished that the court had done more than correct a transcription error, which is essentially the only kind of error Rule 36 can correct---the kind of error a "clerk or amanuensis" might make. Rule 36 can't be used to correct a judicial error. That sort of correction requires a formal hearing with the defendant being present in person. Here Mr. Kieffer was only present by video when the court made one of the changes, Video doesn't satisfy the presence requirement. The court could only adhere to its original orally announced sentence. So the 10th ordered that the court issue a judgment that reflected that, which would be 99 months with full credit for 11 months Mr. Kieffer served between the start of his North Dakota incarceration and the start of the Colorado case, resulting in an 88-month concurrent sentence.

The 10th found no double jeopardy problems. Mail or wire fraud is committed with each use of the mails or "wires." So Mr, Kieffer was punished for different acts in the two states. It doesn't matter that his actions in Colorado were considered in the North Dakota sentencing It's not the same as prosecution for the same conduct. The upward variance was just fine, given the judge's justification that Mr. Kieffer engaged in a pattern of misleading vulnerable victims.

The 10th holds that Apprendi and Alleyne do not forbid judicial fact-finding to determine the restitution amount. 10th precedent says restitution is a civil remedy, not penal. But the 10th panel does say "Mr. Kieffer offers compelling reasons why we might consider restitution under the Mandatory Victims Restoration Act to be penal." But precedent rules. Mr. Kieffer does prevail on his non-constitutional restitution argument. The district court ordered restitution of more than $120,000 based on losses to people other than the victim noted in the indictment and conduct before the beginning date of the scheme alleged in the indictment. The 10th rejected the government's notion that the prior fraud furthered the later scheme against the victim named in the indictment. That conduct did not reasonably occur in the course of the scheme the indictment alleged. Plus there was insufficient proof of the amounts of the ordered restitution. The claims asserted in FBI interviews were not enough absent financial records, credit card statements, canceled checks or other proof of payment to Mr. Kieffer. The government did not prove the actual losses by a preponderance. The restitution order was therefore invalid.