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United States v. Kieffer, 10th Cir. (2017)
United States v. Kieffer, 10th Cir. (2017)
Plaintiff - Appellee,
v. No. 16-1457
(D.C. No. 1:09-CR-00410-CMA-1)
HOWARD O. KIEFFER, (D. Colo.)
Defendant - Appellant.
_________________________________
This case has gone on far too long. Today, we attempt to end it. Howard
murder trial. When the truth caught up with him, the federal government in two
jurisdictions prosecuted him for a host of offenses: mail fraud, wire fraud, false
statements, and contempt of court. A tangled web of legal procedure since then has
led to six amended judgments and a lack of final resolution in Kieffers case. In this
latest appeal, we attempt to provide resolution by agreeing with Kieffer that the latest
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
sua sponte amended judgment by the district court must be vacated and the previous
In 2008, Howard Kieffer was first charged in federal court in North Dakota for
mail fraud and making false statements in connection with his practice of pretending
to be a lawyer. United States v. Kieffer, 621 F.3d 825, 830 (8th Cir. 2010). After the
jury convicted him, the federal district court sentenced him to 51 months in prison
and ordered over $150,000 in restitution. Id. at 830-31. In 2010, the Eighth Circuit
affirmed Kieffers convictions and sentence. Id. at 836. Also in 2010, the government
filed a superseding indictment against Kieffer in Colorado for wire fraud, false
statements, and contempt and a jury convicted him on all counts. The district court
from the North Dakota case and ordered $152,019 in restitution. United States v.
Kieffer (Kieffer I), 681 F.3d 1143, 1146 (10th Cir. 2012). The court also imposed a
Kieffers finances and employment by his probation officer and mandates to ensure
that he paid his restitution. On appeal, we affirmed Kieffers convictions, but vacated
the sentence and remanded for resentencing. Id. at 1147. We also vacated the
restitution order for lack of proof, but affirmed one of the special conditions that
1
Kieffer had not challenged the other special conditions of supervised release.
2
At the resentencing hearing in August 2013, the district court sentenced
Kieffer to 48 months in prison, a sentence which was now to run concurrently with
the 51-month North Dakota sentence, and again imposed special conditions of
supervised release. The court also lowered the restitution amount to $120,019. The
written First Amended Judgment reflected these oral findings. Kieffer appealed.
Then the wheels began to come off. While that appeal by Kieffer was pending,
the district court, acting sua sponte, issued a Second Amended Judgment (which
included restitution and the special conditions). Kieffer filed a Petition for Writ of
Mandamus with us, asking us to vacate the Second Amended Judgment and reinstate
the First. We denied that request, but remanded to the district court because the
government agreed that the Second Amended Judgment was flawedit did not credit
Kieffer with the full time served on the North Dakota caseand had moved for a
limited remand. In March 2014, on that limited remand, the district court vacated the
Second Amended Judgment and issued a Third Amended Judgment (which still
included restitution and the special conditions). In April 2014, the district court,
again acting sua sponte, tried preemptively to correct another potential error by
issuing a Fourth Amended Judgment (which still included restitution and the special
conditions).
vacated the First, Third, and Fourth Amended Judgments,2 and also vacated the
2
The district court had already vacated the Second Amended Judgment.
3
ordered restitution for lack of proof. United States v. Kieffer (Kieffer II), 596 F.
Appx 653, 655 (10th Cir. 2014) (unpublished). We found that the Third and Fourth
authorized neither by our limited remand nor by Federal Rule of Civil Procedure 36s
power to fix clerical errors. Id. at 659-61. And the First Amended Judgment, we
found, was inconsistent with the district courts oral sentencing at the August 2013
resentencing hearing. Id. at 661-62. We thus ordered the district court to enter a new
and final judgment on remand. Id. at 661. We did not address how the vacatur of the
restitution order would affect the imposition of the special conditions of supervised
release.
In retrospect, we probably should have, because absent such guidance, the case
was destined to return to us once again. In February 2015, the district court entered a
Fifth Amended Judgment. This Fifth Amended Judgment no longer included any
restitution. But, notably, it also did not contain any special conditions of supervised
conditions were gone, replaced by only None.* R. vol. 1 at 595. On its first page,
the judgment noted: (Changes Identified with Asterisks (*)). Id. at 592. For
example, asterisks also accompanied the new date of the judgment (February 20,
2015*) and the new restitution amount ($ 0.00*). Id. at 592, 596.
By omitting the special conditions that it had previously imposed and writing
removed them. The removal would have made sense in light of the vacatur of the
4
restitution order: four of the seven conditions explicitly mentioned either
and the remaining three arguably were implicitly about restitution because of their
concern with the close monitoring of Kieffers financial status. Id. at 14. Kieffer
appealed the Fifth Amended Judgment on grounds unrelated to the special conditions
and we affirmed. United States v. Kieffer (Kieffer III), 638 F. Appx 746 (10th Cir.
2016) (unpublished). The government did not appeal or otherwise act on the absence
But it was not to be. Nine months after we affirmed the Fifth Amended
Judgment, the district court, again acting sua sponte, issued a Sixth Amended
Judgment. The new judgment contained only one change: the special conditions were
back, dutifully marked with asterisks, just as the word None* had been when it was
added. The reason given for the change was: Correction of Sentence for Clerical
Mistake (Fed. R. Crim. P. 36). R. vol. 1 at 614. Kieffer appealed, and so here we are
again.
II
whether the district court had the proper authority under Rule 36 to add the special
conditions back into Kieffers sentence. Kieffer argues that the district court lacked
authority to amend the judgment as drastically as it did. Rule 36 provides that, After
giving any notice it considers appropriate, the court may at any time correct a clerical
error in a judgment, order, or other part of the record, or correct an error in the record
5
arising from oversight or omission. Fed. R. Crim. P. 36. But, as we noted previously
clerical errors of the sort that a clerk . . . might commit, mechanical in nature.
Kieffer II, 596 F. Appx at 660 (quoting United States v. Penson, 526 F.3d 331, 335
(6th Cir. 2008)). Notice to the defendant is not even strictly required for Rule 36
fixes because the error should be so clear on the face of the record as to obviate the
need for subsequent adversarial proceedings. Id. The mere existence of this
Previous cases dealing with Rule 36 in this circuit also suggest that the district
court stretched the Rules boundaries too far in this case. District courts have no
Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). The authority of Rule 36 extends only
though the error need not have been made by a clerk and can be either a wrongful
omission or inclusion, United States v. Sides, 16 F.3d 418 at *2 (10th Cir. 1994)
modification beyond the reach of Rule 36, Blackwell, 81 F.3d at 949, as is ordering
restitution, United States v. Dando, 287 F.3d 1007, 1010 n.3 (10th Cir. 2002),
adjusting restitution liability, United States v. Harris, 982 F.2d 530 (10th Cir. 1992)
supervised release from a written judgment, United States v. Tuyen Vu Ngo, 556 F.
6
The standard of review in this circuit for Rule 36 motions is unclear. See, e.g.,
United States v. Gardner, 601 F. Appx 717, 719-20 (10th Cir. 2015) (unpublished)
(We have found no published Tenth Circuit decisions outlining the proper standard
of review for such a claim.). Regardless, Rule 36 does not empower a court to
substantively modify a sentence. United States v. Gutierrez, 401 F. Appx 378, 380
Furthermore, earlier in this case, we found that the district court had exceeded
the authority of Rule 36 by shortening Kieffers sentence. Kieffer II, 596 F. Appx at
change amounted to a substantive alteration plainly beyond the scope of Rule 36.
Id. Similarly, we think that the wholesale reintroduction of seven special conditions
of supervised release into an amended judgment from which they had previously
Additional circumstances here also strongly suggest that the removal of the
conditions was not an error fixable by Rule 36: the Fifth Amended Judgment did not
merely omit the special conditions, but replaced them with None and an asterisk
plausible rationale for the removal. So plausible was the removal of the conditions, in
fact, that the government raised no objection either during Kieffers appeal or in the
7
nine months after we affirmed the Fifth Amended Judgment.3 The nature of the
surrounding it point firmly to its being a substantive change, and thus outside the
III
should simply follow our established rule that orally pronounced sentences trump
written judgments when the two conflict. See, e.g., United States v. Bowen, 527 F.3d
1065, 1080 (10th Cir. 2008). Because the district courts oral sentencing in August
2013 included the special conditions, the government argues, they survive any
them. See United States v. Sasser, 974 F.2d 1544, 1561-62 (10th Cir. 1992).
This argument ignores a crucial fact: the restitution order was a significant part
of the August 2013 oral sentencing, and highly relevant to the special conditions, and
we vacated it. In our cases that discuss the primacy of oral over written sentences, we
3
In another of its arguments, the government inadvertently highlights the
shaky foundation on which the special conditions stood after our vacatur of
restitution: the government argues that even if the special conditions tied to
restitution were wrongly reimposed, we need not reverse because our vacatur of the
restitution order rendered them inert.
4
Because we find for Kieffer based on the scope of Rule 36, we need not
address his arguments that the Sixth Amended Judgment should be vacated under the
law-of-the-case doctrine, and that the special conditions are not substantively
justifiable.
8
sentences. See, e.g., United States v. Barwig, 568 F.3d 852, 855 (10th Cir. 2009);
United States v. Villano, 816 F.2d 1448, 1451 (10th Cir. 1987) (en banc). If an oral
written sentence to help it interpret what was intended. Barwig, 568 F.3d at 855-56.
Although the August 2013 oral sentencing was not ambiguous when it was first
ambiguous. Given the close connection between restitution and the majority of, and
possibly all of, the special conditions, whether the special conditions were still a part
of the August 2013 oral sentence was an open question. On remand, the district court
had a chance to answer that question and did so: it took out the conditions and
marked the change. So when it comes to the special conditions, the oral sentencing
no longer controls and cannot serve as a blanket authorization for adjusting the
The government also argues that Kieffer, and now, implicitly, we, read[] too
much into the courts silence in the Fifth Amended Judgment. Appellee Br. at 12.
But it was far more than silence. As discussed, the special conditions were removed
from the space on the written judgment that they had previously occupied and the
word None was inserted, with an asterisk to mark a change. We will not weigh in
on what we might have held had the conditions simply been absent, but the insertion
The government argues that we are entering the murky arena of trying to
divine the intentions of the district court, id. (quoting Villano, 816 F.2d at 1453)
9
something we have previously cautioned against, Barwig, 568 F.3d at 856-57 (Our
jurisprudence leaves no space for undisclosed and unspoken judicial intent.). But
both Barwig and Villano, as we mention above, dealt with written judgments that
conflicted with unambiguous oral sentences. Here, our restitution vacatur made the
oral sentences treatment of the special conditions ambiguous after the fact, so we
have no choice but to interpret the intent of the district court at the time of the Fifth
Amended Judgment. As discussed, our interpretation finds that the district court
meant to remove the special conditions. The Sixth Amended Judgment, therefore,
sentence.5
5
The government also points out that we previously affirmed one of the
special conditionspre-approval of Kieffers future employment opportunities
when Kieffer challenged it substantively. Kieffer I, 681 F.3d at 1171-72. We did so
even as we vacated the restitution order for the first time. Id. at 1170-71. The
government argues that this proves that the conditions were separate from
restitution and sustainable without it. Appellee Br. at 17.
First, that is not necessarily true, because when we first vacated the restitution,
we had no reason to believe that the district court would not reinstate a revised
versionand in fact, it did just that. Second, we are not reviewing and deciding that
substantive issue here. What we are deciding here is squarely procedural: that after
the second vacatur of restitution, it was up to the district court on how to handle the
special conditions. It decided to remove them, and then much later tried to
reintroduce them via Rule 36, which was outside its authority.
10
CONCLUSION
For the reasons stated, we vacate the Sixth Amended Judgment and remand
Gregory A. Phillips
Circuit Judge
11
United States v. Kieffer, No. 16-1457
BACHARACH, J., dissenting.
Howard Kieffer) argues that the discrepancy was instead the result of an
1
These conditions were:
was invalid. United States v. Kieffer, 596 F. Appx 653, 664-66 (10th Cir.
2014) (unpublished).
In that appeal, Mr. Kieffer did not say anything about the seven
financial conditions, and neither did we. Nonetheless, after we decided the
appeal, the district court deleted not only the restitution requirement but
between the orally pronounced terms and the written judgment. The district
R. vol. 1, at 14.
2
court later acted sua sponte, removing that discrepancy by amending the
these conditions, the court explained that the previous version of the
In reinserting the seven financial conditions, the district court set out
the court invoked Federal Rule of Criminal Procedure 36. Rule 36 provided
the court with the authority to correct this clerical error. See United States
v. Sasser, 974 F.2d 1544, 1561-62 (10th Cir. 1992); see also United States
v. Kieffer, 596 F. Appx 653, 660 (10th Cir. 2014) (unpublished) (While
But Mr. Kieffer argues that the discrepancy did not constitute a
clerical error. In his view, the district court intentionally removed the
conditions after our court had struck down the restitution requirement. The
inadvertent and that the district court could correct its mistake by
2
When reinserting the conditions, the district court made some minor
wording and organizational changes. These changes are immaterial to the
outcome.
3
conforming the written judgment to the conditions that had been orally
The majority agrees with Mr. Kieffer, concluding that the district
court had intended to delete these conditions. For this conclusion, the
theory would have been plausible. Under his theory, the district court
But the governments theory would also have been plausible: that the
quite possible that no one thought to address the seven financial conditions
after our court had invalidated the restitution requirement. After all, our
court didnt mention the seven financial conditions and Mr. Kieffer didnt
4
ask the district court to rescind these conditions. Without any such request
by Mr. Kieffer, there is little reason to think that the district court
Rule 36.
So, which side is right about what the district court intended? Our
only clue is what the district court said: that the change was necessary
lack any basis for such an assumption. In fact, before the district court
reinserted the seven financial conditions, our court had explained the types
of errors that can be corrected under Rule 36. See United States v. Kieffer,
596 F. Appx 653, 660 (10th Cir. 2014) (unpublished). We have no reason
3
Absent evidence to the contrary, we cannot conclude that the district
court was being dishonest when it said that the change was necessary
because of a clerical mistake. See Nova Health Sys. v. Edmondson, 460
F.3d 1295, 1301 (10th Cir. 2006) ([I]n the absence of evidence to the
contrary, we must presume that courts will follow the law.).
5
* * *
The district court indicated that the omission was a mere clerical
error, and we have no reason to doubt the district court. Thus, the district
argument, Mr. Kieffer apparently assumes that the prior deletion of the
4
Notably, Mr. Kieffer does not argue that our court had directed the
district court to remove the financial conditions. Rather, Mr. Kieffer states
that the district court [p]resumably recogniz[ed] that the [financial
6
seven financial conditions had been intentional. For the reasons discussed
on this assumption. For the sake of argument, we may assume that Mr.
Kieffers argument does not hinge on this characterization. Even with that
contends that allowing the district court to further amend the judgment in
in the judiciary. Appellants Opening Br. at 11. But forbidding the court
in the judiciary.
Mr. Kieffer also argues that the seven financial conditions are no
7
too late for Mr. Kieffer to make this argument. In a prior appeal, Mr.
Kieffer had argued that the restitution requirement was not justified. See
Part 1, above. During that appeal, he could have argued that without a
valid requirement for restitution, the seven financial conditions were not
justified. But he didnt make this argument in the prior appeal, which
constituted a waiver. See Martinez v. Roscoe, 100 F.3d 121, 123 (10th Cir.
1996) (Under the doctrine of law of the case, a legal decision made at
opportunity to do so existed, becomes the law of the case for future stages
of the same litigation, and the parties are deemed to have waived the right
F.3d 350, 353 (10th Cir. 1993)). In light of the waiver, I would not
is also waived because it could have been presented in the prior appeal
100 F.3d at 123; Part 1, above. Because this appellate challenge is waived,
8
6. Conclusion
the seven financial conditions from the written judgment. The district court
knew why it had omitted the conditions. The court attributed the omission
should we doubt the district court about its own intent? I see no reason to
do so and would uphold the district courts correction of the clerical error.