Catch Me If You Can
Posted Apr 02, 2009 03:19 am CDT
Natasha Caron admits she has a “rotten kid.”
Actually her son, Peter Noe, isn’t really a kid but a 32-year-old federal felon serving time for conspiracy to distribute methamphetamines and marijuana. Faced with the thought of him spending the rest of his life in jail, Caron last year paid $25,000—with savings, credit cards and personal loans—to appeal her son’s 40-year sentence.
The money went to Howard O. Kieffer, who was recommended to Caron as a talented criminal defense lawyer with federal sentencing expertise.
Caron, who was working at the time as a waitress at a Florida country club, says she started to get a bad feeling about Kieffer last summer after he asked her to pay him an extra $5,000 on top of the $20,000 fee she had already paid.
When she complained, Caron says Kieffer told her he usually charged $40,000 for similar work.
After Kieffer lost the original motion, he again asked Caron for the $5,000. She finally agreed to pay him the extra money when he persuaded her that the additional sum would help him get appointed by the court to handle a last-ditch appeal for her son.
“It was kind of a blackmail thing,” she says, adding that she paid him reluctantly. “I was in a panic because I needed this filed. I was trying to save my son from spending the rest of his life in prison from an unfair sentence.”
It was not until her daughter began to research Kieffer’s background on the Internet that Caron discovered what some lawyers were starting to suspect: That Kieffer wasn’t a lawyer of any kind. He was not licensed to practice law anywhere. He did not graduate from law school. And, like her son, he was a federal felon.
Kieffer had, however, been admitted pro hac vice in almost 20 federal cases nationwide.
Kieffer had passed himself off as an attorney to more clients, lawyers and judges, in more courts, than any other scam artist in recent memory. But even the extent of his con is difficult to pin down.
His deception may have played out over the course of more than 15 years. The office Kieffer lists on motions, Federal Defense Associates, was first registered with the Orange County, Calif., recorder’s office in 1993—less than a month after he was released from a federal prison.
Over the past four years—the period of time covered by the nationwide federal case file database—Kiefer represented at least 18 federal defendants, filing motions in 12 states. In 2007 and 2008 alone, he earned at least $92,000 in legal fees, according to court records.
Kieffer hoodwinked not just his clients and most of the judges who handled his cases, but lawyers who vouched for him when he sought admission to the bars of the courts in which he practiced.
Most of his cases involved motion practice, and in many of them there is no record he ever actually argued before a judge. But among his cases was a murder-for-hire trial in Denver federal court last year, which he lost.
Yet evidence of his flimflam was as close as the nearest computer, as Caron’s daughter discovered when she Googled Kieffer’s name. She turned up newspaper accounts of another of his disgruntled clients, this one in North Dakota.
The North Dakota client, who had been charged with possession of child pornography, sent his allegations about Kieffer to that state’s U.S. District Court. In June 2008, the court gave Kieffer 20 days to document information he had provided in his application for admission to the court’s bar. The order sought information from Antioch Law School—a now-shuttered Washington, D.C., law school—and proof of his good standing with the San Francisco-based 9th U.S. Circuit Court of Appeals.
Tellingly, he didn’t represent himself.
In a filing by his counsel, he confessed that he was not admitted to practice law in any jurisdiction, and that he had never graduated from Antioch. Kieffer did not respond to the ABA Journal’s requests for an interview; his lawyer declined to comment.
In August 2008, a federal grand jury indicted (PDF) Kieffer for mail fraud and making false statements to the court, alleging he used his fraudulent admission to that court to gain admission to federal courts in Minnesota, Colorado and Missouri. He was scheduled to go on trial in April.
Kieffer’s long-running con has reverberated across the federal court system. As the case gathered steam last summer, the Administrative Office of the U.S. Courts sent a memo to federal court clerks’ offices urging them to review admissions carefully. In March, the Judicial Conference of the United States was scheduled to consider a plan for a standardized application form and verification process to replace the patchwork of federal attorney admission rules that vary from court to court.
Observers and Kieffer’s victims are only now discovering how such a scam could play out in so many courts over such a long period of time.
At an August court appearance following his indictment, Kieffer told the court: “I graduated from high school and went to college and have a lot of credits, but not a college degree.”
Caron says Rick E. Mattox, a Prior Lake, Minn., lawyer, referred Kieffer to her. Mattox’s name appears on two pro hac vice applications Kieffer filed. When contacted by the ABA Journal, Mattox declined to comment.
Many lawyers knew Kieffer through the Internet, which may have led to his success and his downfall. He ran BOPWatch, an e-mail discussion list that some criminal defense lawyers say was useful and most likely got Kieffer clients. Through BOPWatch—which Kieffer described as a “watchdog group” that focused on Federal Bureau of Prisons issues—Kieffer monitored developments and placed the information all on one site, with daily subscriber alerts.
He also posted comments on respected legal sites like SCOTUSBlog, usually including his phone number and Web address, boplaw.com. He was even quoted as an expert in the Washington Post and Slate.
“He was pleasant to talk to, and I thought he had a good grasp of the issues. I never met him personally,” says Paul Engh, a Minneapolis sole practitioner who, with Kieffer, represented federal defendant Thomas James Martin. The two are listed as counsel on a 2004 motion filed to alter or amend Martin’s federal sentence. The motion was granted.
The client, Engh says, was also familiar with Kieffer. “He’s well-known in prison circles,” Engh says of Kieffer. Few lawyers want to do work involving the Bureau of Prisons, he adds, because it usually involves the tedious job of re-evaluating agency regulations.
“He was doing it all over the country for a lot less, so he was marketing himself in a good niche.”
Whatever misrepresentations Kieffer committed, they were made, it seems, with unwitting help from the federal court system.
Many lawyers say that when someone asks them to sign off on a pro hac vice petition, they don’t personally check the candidate’s background, either.
“You’re sure as heck not supposed to say someone is a fine upstanding member of the bar if you don’t know that. But, say three of your friends introduce someone as a great lawyer,” says Rory Little, a professor at the University of California’s Hastings College of the Law in San Francisco. “I’ve never checked the credentials of any lawyer. I take it on faith.”
Little, a former associate deputy attorney general under Janet Reno, serves as the reporter for the ABA Criminal Justice Standards Committee’s task force on the prosecution function and the defense function. He says that the allegations against Kieffer may change the federal court attorney admission system. “It’s kind of an explosion in the bar that someone could fool this many courts this many times.”
PERSONAL PRISON EXPERTISE
Kieffer lived in Santa Ana, Calif., until 2006. Gail R. Shifman, a San Francisco criminal defense lawyer, knew him through criminal defense seminars they both attended.
“He just kept showing up and talking about his cases, like they all do,” Shifman says, mentioning a fondness some defense lawyers have for bragging about their work. “So he’d end up being invited to join others for dinner, because it would be awkward not to, and he’d tag along. Then he would chat up his cases. He was definitely luring people into thinking he was a lawyer.”
Some say Kieffer was known at conferences for sitting in the front row, frequently asking questions and making statements. In some cases he was such a frequent commenter that others mistook him for a presenter instead of an attendee.
At one point Shifman had a BOP question and tried to find Kieffer to help her. She couldn’t find a listing for him as a member on the State Bar of California website, but says she didn’t think much of it because some lawyers who live in California only practice in federal court and are licensed elsewhere.
Shifman says someone eventually told her they thought Kieffer was not licensed to practice anywhere because he had a number of felony convictions. Shortly after that, she searched his name on the Internet and was shocked at what turned up.
In 1976, Kieffer was convicted of possessing $48,828 in stolen checks. The conviction was later set aside because he was 20 at the time. In 1983, Kieffer was convicted of grand theft. According to the Los Angeles Times, he illegally deeded himself an elderly woman’s house, which he then used as collateral for a loan. The loan was foreclosed, and the woman lost her home.
After that, Kieffer violated his probation by using an employer’s credit card to buy himself furniture.
And in 1989 he was convicted of tax fraud. Kieffer had created fake companies and salary information on W-2 forms to collect income tax returns. According to news accounts, the scheme went on for five years, netting Kieffer $212,000 before he was caught by the IRS.
“I said, ‘Oh my God, there is no way he could be practicing law,’ ” Shifman says. “ ‘Not even in wacky California.’ ”
Kieffer had a regular membership, reserved for attorneys, with the National Association of Criminal Defense Lawyers. According to Jack King, NACDL director of public affairs and communications, Kieffer did appear to be holding himself out as an attorney to some, and when he refused to provide bar membership on request, his NACDL membership was terminated. King says that it appeared the organization refunded Kieffer’s dues in September 2006. King said he found no evidence that Kieffer engaged in the unauthorized practice of law, and the organization did not report allegations against Kieffer to any bar or court.
Daniel J. Kern, a Kieffer client, had suspicions as early as July 2004, when he sent a letter to the U.S. District Court for the Southern District of Illinois. The letter was addressed to G. Patrick Murphy, the court’s chief judge; it stated that Kieffer was not a licensed lawyer, and that Kern at that point represented himself. Kern later filed a motion to dismiss his habeas petition, and he was released from prison in 2005.
According to Murphy, Kern probably paid Kieffer to make some court filings, but Kieffer wasn’t on the court’s roll of licensed attorneys, so when Kieffer tried to enter an appearance “it just didn’t happen.”
Still, there is no evidence that anyone in the Southern District of Illinois reported Kieffer’s actions to any police or disciplinary authorities.
“Because he never got in our court,” Murphy says. “This was a prisoner’s [Kern’s] suit, and we get those things by the bales. So the short answer would be no.”
Indeed, it appears that many lawyers suspected Kieffer did not have a law license, but few reported their concerns to any legal authorities.
For the most part attorney rules require that lawyers report the unauthorized practice of law, but there’s no requirement to report the unauthorized practice of law by nonattorneys.
Some states consider the unauthorized practice of law a crime, and lawyers could have a duty as an officer of the court to report it, says Janet Green Marbley, chair of the ABA’s Standing Committee on Client Protection.
Many criminal defense lawyers balk at that notion, which could have worked in Kieffer’s favor.
“I’m a defense lawyer; I’m not a cop. My job is not reporting criminals,” says Alan Ellis, who has a real background somewhat similar to the one Kieffer allegedly created for himself. Ellis handles federal sentencing and Bureau of Prisons matters out of Mill Valley, Calif., and is a member of the 9th Circuit, but is not a member of the California bar. He is admitted to practice in Pennsylvania.
Ellis met Kieffer 10 years ago at an ABA Annual Meeting. Ellis was on a panel and Kieffer was in the audience, asking “very insightful questions and making competent comments.”
“I said, ‘Who the heck is this?’ ” Ellis recalls. “I always candidly refer to myself as having a monopoly on this, because 99 percent of lawyers don’t want to have anything to do with the Bureau of Prisons.”
Ellis also knew of Kieffer through BOPWatch, and he describes the discussion list as a “tremendous service.”
Others say that while information from Kieffer was frequent, it wasn’t always useful.
“While some on the list no doubt appreciated the coverage, many of the posts were duplicative of one another,” says Todd Bussert, a New Haven, Conn., criminal defense lawyer. “It also appeared that in responding to inquiries he would, on occasion, repost previous contributions by list members without attribution.”
Kieffer first came onto the Justice Department’s radar around 2006.
An assistant U.S. attorney in Tennessee, who asked not to be quoted by name, was opposing counsel to Kieffer on a habeas petition. One day, when reviewing old files, he noticed that the case had been dismissed because Kieffer failed to seek admission to the court’s bar or seek pro hac vice admission. That same day, the lawyer says, one of his contacts from the Bureau of Prisons called.
“He said he’d had a very angry conversation with Mr. Kieffer. He wasn’t angry, but Mr. Kieffer was,” the assistant U.S. attorney says. “And he said, ‘This guy sounds like an inmate.’ ”
Out of curiosity, the Bureau of Prisons contact told him that he had searched Kieffer’s name against the agency’s inmate locator database and found a match. The database showed that someone with the same name as Kieffer had been released from prison in 1993.
The Tennessee federal prosecutor began his own check. He called the admissions clerk for the 9th Circuit, where Kieffer claimed to be admitted, and learned that Kieffer had not been. He then faxed the clerk a 9th Circuit docket sheet, which showed that Kieffer had filed pleadings there in a 1996 case. The clerk stated that Kieffer could have filed pleadings there without seeking admission. Today, however, the pleadings do not show up as court records, and according to David Madden, the 9th Circuit’s public information officer, there’s no longer any record that Kieffer filed motions there.
The assistant U.S. attorney then confronted Kieffer on the phone. “He reiterated that he was admitted to practice before the 9th Circuit Court, he claimed to have a law license from the District of Columbia, and he denied that he was the same Howard Kieffer who served time,” he says of his conversation with Kieffer.
Not convinced, the Tennessee assistant U.S. attorney contacted the state attorney general’s office, which prosecutes unauthorized-practice-of-law cases. To date no case has been filed against Kieffer by the agency.
AN EMPTY SEARCH
“I don’t know what happened with that,” the assistant U.S. attorney says. “I didn’t give them much to work with, and the guy was gone. He was no longer appearing in my case. It was sort of like reporting a hit-and-run accident.”
According to the Tennessee prosecutor, the Justice Department later sent an e-mail about Kieffer to all U.S. attorneys’ offices, saying “be aware that you may see this guy; we have reason to suspect he’s not licensed to practice law.”
Also in 2006, Kieffer and his wife, Leanne, moved from Santa Ana to Duluth, Minn. He told people his wife was getting a doctoral degree at Carleton College and that Minnesota would be a better place to raise their two children.
Before they left Santa Ana, Kieffer’s $491,000 mortgage loan for his home went into default. In 2002, Kieffer transferred title to his wife. In September 2008, a few months after the indictment, Leanne Kieffer sold the home for $990,000, according to public records.
Martin A. Cole, director of Minnesota’s Office of Lawyers Professional Responsibility, says that his agency has received some complaints about Kieffer’s alleged activities. Kieffer was already in trouble when the calls came in, and Cole says the office elected not to investigate the complaints. Plus his office doesn’t have the authority to discipline nonlawyers.
According to David Anderson, public information officer for the Minnesota U.S. attorney’s office, the agency has not filed charges against Kieffer.
In California the state bar is “well aware of him,” says Alan Gordon, the bar’s supervising trial counsel. No action has been taken against Kieffer, Gordon says, because “he no longer has any business presence here, so far as we are able to determine.”
But his presence has been felt elsewhere.
In 2008, he defended a murder trial in a Denver federal court. The family of Gwen Bergman told the Denver Post that they found Kieffer through the Internet. Bergman was tried and convicted in a murder-for-hire plot against her ex-husband. According to a civil lawsuit Bergman filed against Kieffer after his arrest, her family paid him more than $70,000 in legal fees.
The Utah U.S. attorney’s office is currently investigating Kieffer, says Melody Rydalch, the office’s public information officer. The Justice Department referred the case to them, she says, because it would be a conflict for the Colorado federal prosecutor’s office to handle the investigation.
AGAINST THE CROWD
Even though federal court filings listing kieffer as counsel of record are easy to find, some who know him caution against a rush to judgment.
Peter Goldberger, a Philadelphia criminal defense lawyer, says that Kieffer was always vague about whether he was a lawyer, “which made me question it, in my own mind,” he says. “I never assumed he was a lawyer.”
In criminal defense circles Goldberger is known as Kieffer’s biggest—if not only—supporter. “I just don’t condemn him universally, even if he crossed that line,” Goldberger says.
“I’m not one who will condemn the good things he did. He still runs the BOPWatch e-mail discussion list, and he’s helping people every day. He’s helping complete strangers for nothing, people who don’t know where to turn for accurate information.”
The judge presiding over Kieffer’s case put a stop to that in December—in response to a government motion to revoke Kieffer’s pretrial release. The motion complains that after his arrest Kieffer continued to provide legal advice to federal inmates.
The government’s motion was denied, but the judge ordered Kieffer (PDF) to end his association with the discussion list. The judge also barred Kieffer from any contact with federal inmates and required him to terminate his home Internet service. Additionally, the order limits Kieffer’s telephone usage to his home landline.
Kieffer argued (PDF) that the inmates called him, so talking to them didn’t violate any pretrial release conditions.
“He was always very aggressive and fast-talking; that’s entirely in character with him,” says George Urch, who met Kieffer in 1986. “My impression is that he would just keep pushing until he hit a wall.”
Urch is not a lawyer, and Kieffer didn’t present himself as one when the two met in 1986, through the Orange County, Calif., Democratic Party. Kieffer was a volunteer with a lot of time on his hands, and Urch was the group’s executive director.
Kieffer didn’t seem to have a regular job, Urch says, because he spent a fair amount of time doing volunteer work for the party. Urch recalls that Kieffer had a nice house in Silverado Canyon, an east Orange County neighborhood in the Santa Ana Mountains.
“My impression was that he had family money or had earned money from investments. He seemed to be fairly well-off,” Urch adds.
Three years later, though, Kieffer was convicted of tax fraud. The government argued that in five years Kieffer took $212,000 from the IRS, which could have explained how he supported himself.
Even after Kieffer’s conviction, people in the party still thought highly of him, Urch says, and believed he was innocent of any wrongdoing. They’d even visit him at the Lompoc Federal Correctional Complex in Santa Barbara County.
“He was a very persuasive guy,” says Urch, now a political consultant. “He was very good at looking for areas of compatibility to try and build relationships and exploit them.”
Kieffer was released in 1993 and by 1996 played a role in the congressional campaign of Loretta Sanchez. At the time Sanchez was in a highly contested race in which she defeated the incumbent, Robert Dornan, by less than a thousand votes. According to the Orange County Weekly, Kieffer is a friend of Sanchez’s; but some in her campaign feared that his presence would hurt her, and he was asked to leave.
The situation, as well as Kieffer’s prior convictions, was detailed in the 1997 article. But the information didn’t draw the attention of the defense bar until suspicious lawyers and clients began Googling Kieffer’s name.
While it may seem strange that the information wasn’t discovered earlier, Kieffer’s history also didn’t set him back much with the Orange County Democrats. In 2004 he attended the Democratic National Convention, serving as one of the county’s delegates for John Kerry. [Listen to an interview with Kieffer by following this 89.3 KPCC link and scrolling to Wednesday, July 28, 2004.]
“We live in this society where I can be whomever I want to be,” says J. Patrick Murphy, a private investigator in Tomball, Texas, who also does expert witness work. “This is a very strange way to go about doing some sort of scam, but it sounds like he’s been scamming people and the courts for years, so the risk versus reward is much higher on the reward side.”
A key to a good scam, Murphy says, is to target people who’d be so embarrassed by getting reeled in that they may not want to report the scam to authorities. That, he says, could include lawyers who under oath vouched for Kieffer’s character.
Looking for cracks also figures in.
“They’ll exploit things when they find them, and the federal court makes itself an easy mark by not really checking,” says Gregg O. McCrary, an expert witness and retired FBI special agent who now heads Behavioral Criminology International in Fredericksburg, Va.
“These guys are the chameleon-type folks,” McCrary says. “They assume the coloration of the environment they’re in.”
See also “On My Honor: How did Howard Kieffer pull off his alleged legal impersonation act?”