DENVER (CN) — Hearing a fourth appeal from a recidivist criminal who pretended to be a defense lawyer, a panel of the 10th Circuit did not hide their frustration Wednesday that the page and a half of special conditions they added to the sentence was deemed a “clerical error.”
Howard Kieffer was imprisoned for four years for filing false tax returns in the 1990s. Then in 2008 he posed as a federal defense attorney to represent a Colorado woman who was accused of hiring a hit man to kill her husband.
After that the trial, the Denver Post reported that Kieffer had represented 16 clients in 10 federal jurisdictions across the country. Law enforcement investigated and discovered he had never graduated from law school or been admitted to the bar. Federal officials had failed to verify Kieffer’s credentials on several occasions.
Kieffer was sentenced in 2010 to 57 months in prison by U.S. District Judge Christine Arguello, for one count of wire fraud, one count of making false statements, and one count of contempt of court.
But Kieffer’s case was far from over. On Wednesday morning, a 10th Circuit panel heard a fourth appeal based on the Colorado District Court’s sixth amended judgment, which came after an alleged clerical error caused it to differ from the 10th Circuit’s 2015 decision to increase Kieffer’s sentence to 88 months.
The district court’s amended judgment came with seven new special conditions of supervision that required Kieffer to tell his probation officer before he opened any new lines of credit and to report his earnings and employment to the court.
Federal Public Defender Gail Johnson, representing Kieffer at the hearing, told 10th Circuit judges Robert Bacharach, Carlos Lucero and Gregory Phillips that the proceedings were becoming gratuitous.
“You’re saying five bites of the apple, but not six,” Judge Lucero said.
Johnson agreed, calling the proceedings a “waste of judicial resources.” Johnson detailed what happened in the nine months after the judgment had been affirmed, before the district court determined that a mistake had been made on the judgment.
“Isn’t there a timeline to correct clerical errors?” Lucero asked.
“Clerical errors do not have a time limit,” Johnson replied.
Lucero said he had always considered clerical errors to mean “spelling, commas” — not the page and a half of special conditions added by the district court.
“This is like adding whole sections to the judgment,” Lucero said.
“Exactly, your honor,” Johnson agreed. “If this court affirms the sixth amended judgment, we have no guarantee that the court wouldn’t issue, nine months from now, a seventh amended judgment.”
“When is enough enough, for crying out loud?” Lucero asked.
“We shouldn’t have to play whack-a-mole,” Johnson said. “This is the fourth appeal. We should be done. The rules have time limits for a reason, so we don’t have sentences like this.”
Ryan Tenney with the U.S. Attorney’s Office in Salt Lake City defended the judgment, and said the district court had just been trying to “make the written judgment conform to what was said” in the most recent court proceedings.
“If there’s a dispute between the written and oral, the oral prevails,” Lucero said.
“The written is supposed to reflect ... the oral,” Tenney replied.
“Rule 36 specifically says that clerical errors can be caught at any time,” Tenney added. “A clerical error in its usual form is a transcription error. That’s what happened here.”
Tenney said the importance of being scrupulous overwhelmed any concerns of judicial frivolity.
“If years down the road, somebody notices [an error],” Tenney said, “then we have an amendment of someone’s sentence by accident.”
Lucero said that the judgment “summarizes a legal principle. The trial court yet again for the fifth time changes its mind. What is the public going to say?”
“If [we] don’t catch [an error], it gets solidified as law,” Tenney replied. “There is a specific process for modifying sentences.”
Lucero insisted, “The court did not do what the Circuit told it to do.”
Tenney said the district court did not mean to “substantially modify” the 10th Circuit’s decision.
“It’s a classic transcription error,” Tenney said.
“I’m not so sure I’d be quite as charitable,” Lucero said. “Am I being impatient?”
“We are all frustrated at the chronology of this case,” Tenney said. “Clerical errors can happen at any time. We’re trying to get it right.”
Gail Johnson is with Johnson and Klein in Boulder.
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