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United States v. Kieffer

June 23, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
HOWARD O. KIEFFER, DEFENDANT.



The opinion of the court was delivered by: Patrick A. Conmy, Senior District Judge

ORDER

Before the Court are the Defendant's motion for judgment of acquittal and motion for new trial. For the reasons explained below the motions are denied.

I. BACKGROUND

The Defendant was charged with one count of mail fraud and one count of making a false statement. The false statement charge related to a petition for admission to the Bar of the United States District Court for the District of North Dakota submitted by the Defendant in which the Defendant falsely claimed to be a law school graduate and a member of the bar of another federal court. The mail fraud claim related to the Defendant's use of his admission to the Bar of the United States District Court for the District of North Dakota in order to gain admission to the Bar in other courts and that he represented a number of individuals in various courts and was paid for his efforts. A jury convicted the Defendant on both counts after a short trial. The Defendant did not testify or call any witnesses. The defense was limited to contesting the Government's proof and the offer of one exhibit relating to Kieffer's participation in a case before the Ninth Circuit.

Rule 29 motions for judgment of acquittal were made at the close of the Government's case and at the close of all the evidence. The motions were taken under advisement and later denied in a written order order issued a few days after trial. See Docket No. 99. The Defendant has since filed a renewed motion for judgment of acquittal and a motion for new trial. It is these motions which are now under consideration.

II. DISCUSSION

A. Motion for Judgment of Acquittal

In reviewing a motion for judgment of acquittal the court must view the evidence in a light most favorable to the jury's verdict, drawing all reasonable inferences in favor of the government. United States v. Peters, 462 F.3d 953, 957 (8th Cir. 2006). The conviction must be upheld as long as there exists some interpretation of the evidence which would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt. Id. A jury verdict will be reversed only if a jury must have had a reasonable doubt as to one of the essential elements. Id. Where the evidence could support a guilty or a not guilty verdict depending on conflicting theories of the case the jury's verdict must be upheld. Id.

1. Mail Fraud

The Defendant argues the Government failed to prove any of the elements of mail fraud beyond a reasonable doubt. The Court instructed the jury as to the elements of mail fraud as follows:

One, Howard O. Kieffer voluntarily and intentionally devised or made up a scheme to defraud another out of money or property by means of material false representations or promises, which scheme is described as follows:

Howard O. Kieffer fraudulently gained admission to the Bar of the United States District Court for the District of North Dakota by falsely representing that he had obtained a law degree from the Antioch School of Law in Washington, D.C.; and that he was properly admitted to practice law in the Central District of California and the Ninth Circuit Court of Appeals. The Defendant used said admission to fraudulently gain admission to other courts and obtain money from individuals for legal services.

Two, Howard O. Kieffer did so with the intent to defraud; and

Three, Howard O. Kieffer used, or caused to be used, the mail, a private interstate carrier, or a commercial interstate carrier in furtherance of, or in an attempt to carry out, some essential step in the scheme.

Docket No. 91.

The scheme was rather obvious: dupe a number of courts and lawyers into thinking the Defendant was a lawyer, solicit clients based upon his admission to several courts and representations that he was a lawyer, represent them, and collect fees for having done so. Several lawyers, court officials, and clients testified as to the Defendant's conduct and representations. The quality of work performed is irrelevant, although described as good by one Government witness. The Defendant could never have secured admittance to ...


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