United States v. Kissentaner

In United States v. Kissentaner, No. 23-20348 (5th Cir. Aug. 27, 2024) (unpublished), the Fifth Circuit affirmed the defendant’s conviction for seven counts of aiding and assisting in the preparation and presentation of false tax returns and affirmed her 144-month prison sentence, but it modified the $71,810.00 restitution order.

Conviction Challenges: Kissentaner argued that the district court had made several errors during her trial, but the Fifth Circuit rejected each argument.

First, Kissentaner complained that an agent had been allowed to testify “(1) that information in [Kissentaner’s] clients’ tax returns was ‘false’ and (2) why tax sting operations focusing on tax preparers often fail.” Kissentanerhad not objected to that testimony at trial, however, so the Fifth Circuit applied plain-error review. As to the first claim, Kissentaner’s attorney had “conceded at trial that the information, which Kissentaner had inserted in the tax returns, was ‘false,’” so Kissentaner had waived that argument. For the second argument, a recent Supreme Court decision made clear that an expert may testify that “‘most’ criminals have a particular mental state relative to [the] crime at issue,” so there was no error here. United States v. Diaz, 144 S.Ct. 1727, 1733–35 (2024).

Next, Kissentaner argued that the agent should not have been allowed to testify that Kissentaner “had failed to file timely her own personal tax returns,” because she viewed that as a violation of Fed. R. Evid. 404(b). But the Fifth Circuit concluded that any such error was harmless in light of the “overwhelming evidence … that supports the verdict of guilt.”

Sentencing Argument: Kissentaner argued that her 144-month sentence was substantively unreasonable in light of the Sentencing Guidelines that had recommended a sentence between 41 and 51 months. But in the Fifth Circuit, such arguments face an uphill battle, and here the district judge “properly weighed and balanced the relevant factors.”

Restitution Argument: The Fifth Circuit agreed with Kissentaner in one respect: the district court erred by ordering her to begin paying restitution immediately. For tax offenses like this one, a district court may order restitution as a condition of supervised release, but that obligation may only begin once the defendant begins her term of supervised release. The district court here “exceeded its statutory authority by ordering restitution to begin immediately,” so the Fifth Circuit modified the judgment to “make clear that restitution is not required until the beginning of [Kissentaner’s] term of supervised release.”