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April 16, 2009

(Phony?) sentencing expert convicted of fraud for impersonating lawyer

Many practitioners know the name Howard O. Kieffer from his federal sentencing work in a vareity of settings on a variety of issues.  But, as detailed in this AP article and this local piece, Kieffer now need to devote his expertise to his own upcoming sentencing after his federal conviction this week.  Here are the fascinating details:

A federal court jury has convicted a Duluth man on charges of mail fraud and false statements in impersonating a lawyer. A prosecutor says he hopes the case continues in other states. Authorities said Howard O. Kieffer, 54, represented clients in at least 10 states. North Dakota was the first to charge him.

The Bismarck jury of seven men and five women reached a verdict after about an hour and a half of deliberation Wednesday afternoon. Kieffer faces up to 25 years in prison and a $500,000 fine. U.S. District Judge Patrick Conmy did not immediately set a sentencing date but ordered Kieffer to remain on home confinement until sentencing....

“I hope there are other districts in this country that will pursue something,” Assistant U.S. Attorney David Hagler said immediately after the two-day trial. Hagler told jurors that Kieffer made his own rules and befriended reputable attorneys because “he needed to use them” to vouch for him in applying to practice law.

Kieffer’s attorney, Joshua Lowther, called no witnesses, but he said the government did not prove its case beyond a reasonable doubt. Kieffer did not testify at his trial.

Prosecutors called two witnesses Wednesday who said they paid Kieffer at least $20,000 to appeal prison sentences for their loved ones, only to find out later he was not an attorney.

Ken Henderson of Woodbury, Minn., testified he paid Kieffer $25,000 to file an appeal for his wife, Denise, after her conviction for lying to the government in a Social Security fraud case. Natasha Caron of Naples, Fla., said she paid Kieffer $20,000 for an appeal of her son’s drug conviction.

Neither appeal succeeded. Henderson said his wife found out in talking with other federal prisoners that Kieffer was not really an attorney. Caron said her daughter found out Kieffer was a phony by searching prison Web sites. She said her son’s conviction and Kieffer’s handling of the case caused her “health and emotional collapse.” “I put my son’s case in this man’s hands and he was not an attorney,” Caron testified....

Other attorneys testified earlier that they thought Kieffer was one of their colleagues because he seemed to know about federal court matters and because they saw him at attorney training seminars. Bismarck attorney Chad McCabe said he vouched for Kieffer on his application to practice law in North Dakota.

Cases Kieffer handled outside North Dakota include that of former St. Louis Blues player Michael Danton, who pleaded guilty in 2004 to plotting to kill his agent, and a Colorado woman who was convicted of soliciting the killing of her former husband.

Kieffer was charged in North Dakota last year after one of his clients, a man accused of child pornography, wrote to U.S. District Judge Dan Hovland in Bismarck, raising questions about whether Kieffer had ever been a licensed attorney.  Conmy had said Hovland would be among the trial witnesses but the judge did not testify.

Court records show Kieffer was convicted earlier of theft and filing false tax returns and served time in a federal prison from 1989 to 1992.

I would be eager to hear in the comments about what sort of sentencing readers think would be appropriate in this case.  Folks who knew Keiffer are especially encouraged to share their thoughts.

UPDATE:  TalkLeft has this post on the case, which includes a link to this long and effective article on Kieffer appealing in the April 2009 ABA Journal.

April 16, 2009 at 10:03 AM | Permalink


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In my state, we have duly licensed attorneys who file briefs on direct appeal from capital trials that are barely distinguishable from pro se pleadings (often as short as twelve or fourteen pages, including statement of case, standard of review, etc.; stream of conciousness style; very little and/or inappropriate citation of authority), and they would not be caught dead at a professional development event where they might learn something about criminal appeals.

Not saying this guy shouldn't be punished; he should. Just saying my first thought on reading this was that I have no doubt this guy is a better lawyer than a substantial number of "real" lawyers shafted onto defendants in serious criminal trials and appeals!

Posted by: Southern boy | Apr 16, 2009 10:17:45 AM

Yes, I am in complete agreement as to the many licensed lawyers impersonating legal scholars. I always enjoyed listening to the lawyers with the histrionic babbling masquerading as legal argument. And how 'bout the judges (Cook County springs to mind), whose last review of a legal text occurred around the time of the Bar review?

Posted by: FluffyRoss | Apr 16, 2009 10:41:37 AM

25 years would indeed be excessive, as most people who commit crimes of violence get off with less than that. I expect that the appellants he represented will get new appeals and a second bite at the apple.

Posted by: Kent Scheidegger | Apr 16, 2009 11:16:36 AM

I find it most interesting that, while many knew of his prior convictions and sojourns within the confinement system, those same folks stepped forward to vouch for him thus enabling him to continue his deception.

Posted by: alan chaset | Apr 16, 2009 11:52:13 AM


I'm not so sure that they will. The way I read the article, it seems that he was being hired (under the false guise of actually being an attorney) to work WITH the defendant's attorney, not as the defendant's sole "attorney". It seems to me that he was being pro hac'ed in on cases via other attorneys, which necessarily means that he wasn't the only "attorney" representing the defendant. If this is the case, then the defendant did have an attorney on appeal and thus I do not see it being anywhere near certain that the defendant would have grounds for a new appeal. Furthermore, whether the defendnat does get a new appeal will not be known for quite a while, certainly well past whenever this guy gets sentenced.

If that is the case, it seems to me that the proper sentence for him has to require a pretty detailed, and difficult, review by the sentencing judge of whether and to what extent his actions prejudiced the client's appeal. Did this guy, under the auspices of being an expert sentencing attorney, make strategic decisions or arguments that a real attorney would not, to the detriment of the client? If so, then I see no reason for the judge to go below the max.

Posted by: A. Nony. Mous. | Apr 16, 2009 12:02:43 PM

Seems like 25 years is some magical number. It blurs the distinction between serious violent crimes with GBI and everything else. Somehow that I'm unable to articulate at the moment, this loss of proportionality would have to result in a loss for the respect of law to some degree. Someone once said when there are too many laws and normal people would be criminals if caught, respect for the law is lost. This is similar to that.

Posted by: George | Apr 16, 2009 1:38:26 PM

One of the people who often comments here (and actually has something to say when he does) is quoted in the ABA article.

Posted by: anonymous | Apr 16, 2009 2:50:51 PM

Prof. Berman: I hear there is now one opening in the Federal Sentencing Seminar business. Go for it. You can be an inspirational speaker. I would ask that you conduct my lawyer exercise, of attempting the say the V word out loud. If anyone can get a roomful of lawyers to utter it, you can.

Posted by: Supremacy Claus | Apr 16, 2009 4:30:07 PM

Scotus impersonates a lawyer also!

Posted by: anon | Apr 16, 2009 7:45:55 PM

So i don't have to go to law school to practice law? Wow!!

Anyway, 25 years seems unreasonable at first glance, specially when the two judges that unnecessarily send thousands of juveniles to detention centers only got 8 years. However, we do not know the impact that this man had in the sentence of the people he represented. I'm sure those defendants would mind if they had to spend additional years in prison, because this man was not competent to represent them.

Posted by: E | Apr 18, 2009 2:38:31 PM

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