United States v. Kieffer

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-3138
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Howard O. Kieffer, *
*
Appellant. *
__________

Submitted: May 14, 2010
Filed: September 13, 2010
___________

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
court1 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 (9th Cir.
Feb. 14, 1997) (unpub. table disp.). It is unclear whether Kieffer 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

1
The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.
2
We recite the facts in the light most favorable to the jury’s verdicts. See
United States v. Chavez-Alvarez, 594 F.3d 1062, 1064 (8th Cir. 2010).

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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

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“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, 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

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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

3
Kieffer’s fraud exposed systemic weaknesses in the attorney admissions
systems of some federal courts. At Kieffer’s trial, the Clerk of Court for the District
of North Dakota testified he now requests certificates of good standing and conducts
background checks on all applicants for admission.
4
Kieffer’s representation of Bergman generated significant litigation, including
additional federal criminal charges against Kieffer. See generally United States v.
Bergman, 599 F.3d 1142 (10th Cir. 2010) (remanding for a new competency hearing);

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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 Missouri to represent David Reed in his habeas corpus application. In May
2008, Kieffer was admitted to the Eighth Circuit.

In each application for admission, Kieffer certified he was admitted to practice
in the District of North Dakota. In most of the applications, an attorney vouched for
Kieffer under oath. For example, Bergeson and Mattox attested Kieffer was “an
attorney admitted to practice and currently in good standing in the [District of North
Dakota].” No one attempted to verify Kieffer’s credentials.5 From his fraudulent
scheme, Kieffer collected over $150,000 in “fees”—$27,000 “representing” Wells,
$65,750 “representing” Bergman, $15,000 “representing” Reed, $20,000
“representing” Noe, and $25,000 “representing” Henderson.

5. Discovery of Scheme
On May 31, 2008, Kieffer’s scheme collapsed. Wells, a dissatisfied “client,”
wrote the District of North Dakota’s Clerk of Court. Wells alleged Kieffer was not
an attorney and asked the Clerk of Court to investigate. According to Wells, the
Central District of California had no record of Kieffer’s admission and the Antioch
Law School’s former registrar confirmed Kieffer never attended that now-defunct
institution.

United States v. Kieffer, No. 09-410, 2010 WL 924060 (D. Colo. Mar. 10, 2010)
(discussing criminal charges). See also Bergman v. Kieffer, No. 08-2334, 2008 WL
5453771 (D. Colo. Dec. 31, 2008), rev’d, Bergman v. Kieffer, 335 F. App’x 720 (10th
Cir. 2009), on remand to Bergman v. Kieffer, 2009 WL 2858096 (D. Colo. Sept. 2,
2009).
5
Kieffer’s application to the District of Colorado required him to disclose the
“[t]erritory or District of Columbia” from which he received his law license. Kieffer
wrote “N/A.” When the District of Colorado’s attorney services coordinator called
Kieffer for an explanation, Kieffer said he was licensed in “DC.”

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 On June 5, 2008, the Chief Judge of the District of North Dakota ordered
Kieffer to show cause, demanding proof of his graduation from the Antioch Law
School and certificates of good standing from the Ninth Circuit, the Central District
of California, and a state bar. Kieffer tried to obtain a certificate of good standing
from the Ninth Circuit, but the Ninth Circuit denied Kieffer’s request and instituted
its own show cause proceedings against him. Kieffer then asked the District of North
Dakota for a certificate of good standing, ostensibly to satisfy the Ninth Circuit, but
the District of North Dakota denied the request.

On July 2, 2008, Kieffer responded to the Chief Judge’s show cause order.
Kieffer admitted he did not have a law degree and was not a member of the Central
District of California or any state bar. The Chief Judge found Kieffer’s application
for admission contained false statements, suspended his license to practice in the
district court, pending further proceedings, and referred Kieffer’s conduct to the
United States Attorney. On August 7, 2008, Kieffer tendered his resignation from the
District of North Dakota bar, which the Chief Judge refused. On August 11, 2008, the
Chief Judge disbarred Kieffer and notified the American Bar Association’s National
Discipline Data Bank. Other federal courts then revoked Kieffer’s licenses to practice
law.

B. Prior Proceedings
In December 2008, a grand jury in the District of North Dakota returned a two-
count superseding indictment against Kieffer. Count 1 alleged mail fraud, in violation
of 18 U.S.C. § 1341. Count 2 alleged false statements in a matter within the
jurisdiction of the judicial branch, in violation of 18 U.S.C. § 1001. After a two-day
trial, a jury found Kieffer guilty as charged.

At Kieffer’s sentencing, the district court calculated Kieffer’s advisory United
States Sentencing Guidelines (U.S.S.G. or Guidelines) range to be 51 to 63 months
of imprisonment (total offense level of 23, criminal history category of II). After

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considering all of the factors at 18 U.S.C. § 3553(a), the district court sentenced
Kieffer to 51 months and ordered him to make over $150,000 in restitution for the
benefit of Wells, Bergman, Reed, Noe, and Henderson. Kieffer appeals his
convictions and sentence.

II. DISCUSSION
Kieffer advances eight arguments for reversal. The first four arguments attack
his convictions, and the last four concern his sentence. We examine each argument,
in turn.

A. Convictions
1. Acts Committed Outside the District of North Dakota
In a motion in limine, Kieffer asked the district court to exclude evidence of
“any . . . alleged . . . acts, which did not take place in the District of North Dakota.”
Kieffer argued introduction of such evidence would violate Fed. R. Evid. 404(b). The
district court denied the motion, reasoning evidence of Kieffer’s actions in other
jurisdictions was “the very conduct which constitutes the scheme with which he has
been charged” and thus intrinsic to the superseding indictment.

The district court did not abuse its discretion. See United States v. Hall, 604
F.3d 539, 543 (8th Cir. 2010) (standard of review). Kieffer’s fraudulent scheme was
national in its scope. From coast to coast, Kieffer deceived lawyers and federal courts
into believing he was an attorney, gaining admission to practice and access to
“clients” in various jurisdictions under false pretenses—and then collecting substantial
fees for “representing” those “clients.” Evidence of Kieffer’s acts outside the District
of North Dakota was, therefore, “inextricably intertwined” with, and “intrinsic” to, the
allegations in the superseding indictment. See id. at 543-44. Fed. R. Evid. 404(b)
does not apply. See id.

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 2. Prosecutorial Misconduct
In the government’s closing argument, the prosecutor opined Kieffer was “not
accepting . . . responsibility” for his actions. Kieffer did not contemporaneously
object but, in a post-trial motion, argued the prosecutor’s statement “was an improper
and deliberate reference to [Kieffer’s] election not to testify in his own defense or to
proceed to trial at all, and thus, a violation of his rights, pursuant to U.S. Const.
amends. V [and] VI.” The district court declined to grant Kieffer a new trial, and
Kieffer now renews this prosecutorial misconduct argument on appeal.

Because Kieffer did not complain of prosecutorial misconduct until after his
trial ended, we only review for plain error. See United States v. White, 241 F.3d
1015, 1020, 1022-23 (8th Cir. 2001); Fed. R. Crim. P. 52(b). Kieffer must show

(1) there is an “error”; (2) the error is “clear or obvious, rather than
subject to reasonable dispute”; (3) the error “affected the appellant’s
substantial rights, which in the ordinary case means” it “affected the
outcome of the district court proceedings”; and (4) “the error seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.”

United States v. Marcus, ___ U.S. ___, ___, 130 S. Ct. 2159, 2164 (2010) (quoting
Puckett v. United States, 556 U.S. ___, ___, 129 S. Ct. 1423, 1429 (2009)); accord
United States v. Adamson, 608 F.3d 1049, 1055 (8th Cir. 2010) (requiring proof the
defendant did not “affirmatively waive” the alleged error).

We discern no plain error. Viewed in context of the entire trial, see United
States v. Christians, 200 F.3d 1124, 1128 (8th Cir. 1999), it is not clear or obvious that
the prosecutor was commenting indirectly on Kieffer’s failure to testify. Kieffer was
attempting to convince the jury that the Ninth Circuit’s decision to admit Kieffer to
practice somehow relieved Kieffer of responsibility for his own deceitful conduct. In
stating Kieffer was “not accepting . . . responsibility,” the prosecutor apparently was

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rebutting Kieffer’s defense. The prosecutor probably was deflecting Kieffer’s attempt
to shift blame, emphasizing the District of North Dakota’s attorney admission system
was based on trust and the jury should not “lose sight of who is on trial.” Cf. id.
(holding the prosecutor’s statement, “There was no contradictory evidence to those
facts,” was only “a general observation [about] the strength and clarity of the
government’s evidence presented at trial,” and not grounds for plain error relief for
alleged prosecutorial misconduct).

3. Sufficiency of the Evidence
Kieffer argues the evidence presented at trial was insufficient to support his
convictions. “We review the sufficiency of the evidence de novo, viewing the
evidence in the light most favorable to the government, resolving evidentiary conflicts
in the government’s favor, and drawing all reasonable inferences in favor of the jury’s
verdict.” United States v. Stymiest, 581 F.3d 759, 764 (8th Cir. 2009), cert. denied,
130 S. Ct. 2364 (2010).

a. Mail Fraud
To prove Count 1, the government was required to prove Kieffer
“(1) voluntarily and intentionally devised or participated in a scheme to defraud;
(2) entered into the scheme with intent to defraud; (3) knew that it was reasonably
foreseeable that the mails would be used; and (4) used the mails in furtherance of the
scheme.” United States v. Johnson, 463 F.3d 803, 807 (8th Cir. 2006). Kieffer asserts
he never intended to defraud anyone. He points out Bergeson and Mattox testified his
work product was “good” and “well-written,” respectively, and concludes there was
no “scheme to defraud” because there was “no evidence . . . Kieffer committed
malpractice in any case . . . , thereby depriving [that person] of the benefit of the
services for which they bargained.” Kieffer points out he was paid for his work on the
Sturgis, Henderson, and Noe matters before his admission to the District of North
Dakota. Kieffer submits the government failed to prove whether he used “the mails,”

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because it is unclear whether he sent his application for admission to the District of
North Dakota via the U.S. Postal Service or a private interstate carrier.

The record is replete with evidence to show Kieffer voluntarily and
intentionally devised a scheme to defraud others into believing he was a licensed
attorney and collecting substantial “fees” from them. Kieffer’s intent to defraud may
be inferred from his pattern of deceit. See United States v. Idriss, 436 F.3d 946, 950
(8th Cir. 2006). Not only did Kieffer lie to the judiciary about his qualifications, he
lied to his “clients.” For example, Kieffer bragged to Natasha Caron of an 85%
success rate in § 2255 motions. The quality of Kieffer’s work product is irrelevant.
Kieffer’s “clients” testified they would not have hired Kieffer had they known he was
not an attorney. Kieffer’s assertion that he did not collect any “fees” subsequent to
his admission to the District of North Dakota is misleading, because Caron and
Kenneth Henderson testified he solicited, albeit unsuccessfully, additional “fees” after
his admission. Finally, there is sufficient evidence Kieffer used “the mails.”
McCabe’s legal assistant testified she “distinctly” remembered Kieffer’s application
came via the U.S. Mail, FedEx, or UPS. Kieffer lived in California, McCabe practiced
in North Dakota, and the jury was entitled to use its common sense to infer Kieffer did
not hand-deliver his application.

b. False Statements
To prove Count 2, the government was required to prove Kieffer (1) knowingly
and willfully, (2) made a statement, (3) that was materially false (4) to the District of
North Dakota. See United States v. Turner, 130 F.3d 815, 818 (8th Cir. 1997).
Kieffer apparently concedes the government proved he knowingly and willfully made
false statements in his application for admission to the District of North Dakota when
he stated he had graduated from the Antioch Law School and was a member of the
Central District of California bar. Kieffer insists these “extraneous false statement[s]”
were not material, however, because he was, in fact, admitted to the Ninth Circuit.
Kieffer points out the District of North Dakota’s local rules permitted admission to be

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predicated solely upon proof of admission to a circuit court of appeals. See D.N.D.
Local R. 79.1.

We conclude a reasonable jury could find Kieffer’s lies about graduation from
the Antioch Law School and membership in the Central District of California bar were
material. When Kieffer’s deceit was discovered, the Chief Judge of the District of
North Dakota disbarred Kieffer.

4. Entrapment by Estoppel
In a post-trial motion, Kieffer argued for the first time that he was “entitled to
judgment of acquittal upon application of entrapment by estoppel.” Kieffer argued
he reasonably relied upon his Ninth Circuit admission when seeking admission to the
District of North Dakota and, therefore, the Ninth Circuit entrapped him into lying to
the District of North Dakota and subsequently seeking fraudulent admission to other
jurisdictions. Kieffer submits “[t]he ‘full faith and credit’ statute, 28 U.S.C. § 1738,
governs here.”

We assume without deciding Kieffer’s entrapment-by-estoppel argument is
properly before us. Compare United States v. Crump, 934 F.2d 947, 955-56 (8th Cir.
1991) (assuming entrapment issue was properly preserved), with United States v.
Parker, 267 F.3d 839, 844 (8th Cir. 2001) (reviewing only for plain error). The Ninth
Circuit did not entrap Kieffer. “The defense of entrapment by estoppel only applies
‘when an official assures a defendant that certain conduct is legal, and the defendant
reasonably relies on that advice and continues or initiates the conduct.’” United States
v. Benning, 248 F.3d 772, 775 (8th Cir. 2001) (quoting United States v. Achter, 52
F.3d 753, 755 (8th Cir. 1995)). Notwithstanding Kieffer’s specious contention that
the government failed to prove his admission to the Ninth Circuit was fraudulent—the
fraud may be inferred from Kieffer’s concession that he never passed the bar or
attended law school—any reliance Kieffer placed upon the Ninth Circuit’s decision
to admit him to practice was not reasonable as a matter of law.

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 Entrapment by estoppel is an affirmative defense, United States v. Patient
Transfer Serv., Inc., 413 F.3d 734, 742 (8th Cir. 2005), yet Kieffer presented no
evidence he could have reasonably believed he was properly admitted to practice
before the Ninth Circuit, given his lack of legal education or training and his prior
felony convictions. See, e.g., United States v. Treviño-Martinez, 86 F.3d 65, 69 (5th
Cir. 1996) (“In order for his reliance to be reasonable, the defendant must establish
that ‘a person sincerely desirous of obeying the law would have accepted the
information as true, and would not have been put on notice to make further
inquiries.’” (quoting United States v. Brebner, 951 F.2d 1017, 1024 (9th Cir. 1991)).
Nor is there any evidence of government misconduct. See Benning, 248 F.3d at 775
(emphasizing a government official must be guilty of “affirmative misconduct” for a
defendant to succeed with an entrapment-by-estoppel defense). As the district court
aptly observed, “One fraud successfully completed does not legitimize subsequent
frauds.”

B. Sentence
In each of his four arguments for vacating his sentence, Kieffer maintains the
district court committed procedural error in misapplying a part of the Guidelines.6
“We review the application of the Guidelines to the facts de novo and factual findings
underlying the calculation of the Guidelines for clear error.” United States v. Morse,
___ F.3d ___, ___, No. 08-3425, 2010 WL 2869540, at *7 (8th Cir. July 23, 2010).

1. Amount of Loss—U.S.S.G. § 2B1.1(b)(1)
The district court assessed Kieffer with a ten-level increase to his base offense
level, pursuant to U.S.S.G. § 2B1.1(b)(1)(F), because his offense resulted in a loss
greater than $120,000. The district court found Kieffer intended the victims to suffer

6
Kieffer does not argue his 51-month sentence is substantively unreasonable.
At his sentencing hearing, Kieffer opined, “I do agree that . . . the [Guidelines] range,
whatever you determine it to be, would likely be considered reasonable under Eighth
Circuit law.”

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losses totaling $162,750. Kieffer argues the district court erred, because “it is readily
apparent that the [District of North Dakota] was the only entity defrauded” and “the
amount of loss . . . should have been determined to be zero . . . dollars.”7

Kieffer cites no authority for his argument, which impermissibly cabins the
analysis of his fraudulent scheme within the District of North Dakota. When all
relevant conduct is included, see U.S.S.G. § 1B1.3(a)(2) (countenancing consideration
of “all acts and omissions . . . that were part of the same course of conduct or common
scheme or plan as the offense of conviction”), we detect no error in the district court’s
loss calculation. See, e.g., United States v. Heath, 122 F.3d 682, 684-85 (8th Cir.
1997) (similarly including relevant conduct in loss calculation). Where, as here, the
defendant fraudulently rendered services to victims by falsely posing as a licensed
professional, under the Guidelines the loss amount “shall include the amount paid for
the . . . services . . . rendered . . . , with no credit provided for the value of those . . .
services.” U.S.S.G. § 2B1.1 cmt. n.3(F)(v).

2. Mass Marketing—U.S.S.G. § 2B1.1(b)(2)(A)(ii)
The district court assessed Kieffer with a two-level enhancement, pursuant to
U.S.S.G. § 2B1.1(b)(2)(A)(ii), for “mass-marketing.” The Guidelines define “mass-
marketing” to include fraudulent schemes “conducted through solicitation by . . . the
Internet . . . to induce a large number of persons to . . . invest for financial profit.”
U.S.S.G. § 2B1.1, cmt. n.4(A). Kieffer posits the district court erred in applying the
mass-marketing enhancement because attorneys referred all of his “clients.” Kieffer

7
In conjunction with his other sentencing arguments, Kieffer cites United States
v. Smith, 951 F.2d 1164 (10th Cir. 1991), for the proposition that no enhancements
to his base offense level are appropriate absent proof of some loss. Because we find
the district court did not err in determining Kieffer is responsible for some loss, we
need not discuss Kieffer’s construction of Smith, a case we have repeatedly declined
to follow in the past. See, e.g., United States v. Nelson, 988 F.2d 798, 808 (8th Cir.
1993); United States v. Prendergast, 979 F.2d 1289, 1292 (8th Cir. 1992).

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points out he touted himself as an “Executive Director,” not a licensed attorney, on his
websites; his websites were largely “informational in nature”; and his websites
concerned his “administrative advocacy and sentencing consulting business, Federal
Defense Associates.”8 Kieffer questions whether one could ever “‘mass-market’ the
services of a federal criminal defense practice” in light of the fact-intensive nature of
each case.

The district court did not err in applying the mass-marketing enhancement. It
is irrelevant that all of Kieffer’s clients were referred through attorneys. See Hall, 604
F.3d at 545 (stating the mass-marketing enhancement “applies regardless of whether
. . . [the defendant] could have successfully solicited his victims employing the more
traditional arts of persuasion”). Kieffer does not dispute his websites were “accessible
to millions of persons worldwide via the Internet,” which is equivalent to “‘a billboard
on the information superhighway’ to advertise his fraudulent scheme.” See id. at 545,
546 (quoting United States v. Hanny, 509 F.3d 916, 920 (8th Cir. 2007)). Indeed, the
evidence presented at Kieffer’s trial and sentencing established that Kieffer used his
websites to solicit “clients” and solidify the impression that he was a licensed
attorney. Kenneth Henderson testified he hired Kieffer for help with his wife’s habeas
corpus case after viewing Federal Defense Associates’ website, which touted Kieffer’s
knowledge of post-conviction issues, and “bec[oming] convinced that [Kieffer] had
the expertise that would be required to handle a [28 U.S.C. §] 2255 [motion].” Kieffer
advertised the same website to McCabe while convincing McCabe to vouch for
Kieffer’s admission to the District of North Dakota. Kieffer also collected fees
through the website. Cf. Hanny, 509 F.3d at 920 (upholding mass-marketing
enhancement in part because the website in question “allowed visitors to actively . . .
purchase controlled substances”).

8
We note Kieffer’s letterhead listed his email address as
“hkieffer@dcounsel.com” and implied membership in the National Association of
Criminal Defense Lawyers (NACDL).

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 3. Sophisticated Means—U.S.S.G. § 2B1.1(b)(9)
The district court assessed Kieffer with a two-level enhancement, pursuant to
U.S.S.G. § 2B1.1(b)(9)(C), for employing “sophisticated means” in his fraudulent
scheme. The district court did not err. Kieffer’s scheme “did not involve a single
fraudulent act, but a complex series of fraudulent transactions.” United States v.
Halloran, 415 F.3d 940, 945 (8th Cir. 2005). Kieffer’s use of his fraudulently
obtained admission to the Ninth Circuit to gain admission to the District of North
Dakota and then other courts was a multi-layered plot, akin to the use of corporate
shells, for which courts have long upheld this enhancement. See U.S.S.G. § 2B1.1
cmt. n.8(B) (using “corporate shells” is generally indicia of “sophisticated means”);
see, e.g., United States v. Waldner, 580 F.3d 699, 706 (8th Cir. 2009) (affirming
sophisticated-means enhancement for use of corporate shells). By integrating a
defunct law school into his scheme, Kieffer made his false statements difficult to
verify. See U.S.S.G. § 2B1.1 cmt. n.8(B) (using fictitious entities is generally indicia
of “sophisticated means”); see, e.g., United States v. Janecek, 86 F. App’x 215, 217
(8th Cir. 2003) (per curiam) (affirming sophisticated-means enhancement, where
district court had found the defendant “moved embezzled funds through both current
and defunct entities in an attempt to conceal the fraud”).

4. Abuse of Position of Public Trust—U.S.S.G. § 3B1.3
The district court assessed Kieffer with a two-level enhancement, pursuant to
U.S.S.G. § 3B1.3, for “abus[ing] a position of public . . . trust.” A licensed attorney
generally holds a position of public trust, United States v. Post, 25 F.3d 599, 600-01
(8th Cir. 1994), and the Guidelines advise the abuse-of-trust adjustment applies where
“the defendant provides sufficient indicia to the victim that the defendant legitimately
holds a position of . . . public trust when, in fact, the defendant does not.” U.S.S.G.
§ 3B1.3 cmt. n.3.

Kieffer argues the abuse-of-trust enhancement is inappropriate because he
“never represented to anyone that he was a licensed attorney,” but instead stated, “he

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had been admitted to practice in various federal districts [sic].” This is a distinction
without a difference. Only licensed attorneys may be admitted to practice in the
federal courts, and Kieffer used his fraudulently obtained bar admissions to provide
his victims with sufficient indicia he was a licensed attorney. And in conjunction with
his application for admission to the District of North Dakota, Kieffer swore a solemn
oath to “conduct [himself] as an attorney and counselor of [the] court, uprightly and
according to the law,” which he promptly violated. Kieffer’s victims would not have
hired him had they known he was not an attorney. The district court, therefore, did
not err in applying the abuse-of-trust enhancement.

III. CONCLUSION
We affirm. We grant counsel’s motion to withdraw, subject to counsel
informing Kieffer about the procedures for seeking rehearing and for filing a petition
for a writ of certiorari.
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