United States v. Kirchner: Clarifying Wire-Fraud “Furtherance,” Judicial Questioning, and Abuse‑of‑Trust Enhancements in Integrated Fraud–Money‑Laundering Schemes

I. Introduction

In United States v. Kirchner, No. 24‑10644 (5th Cir. Dec. 8, 2025), the Fifth Circuit affirmed the conviction and 240‑month sentence of a startup founder who siphoned tens of millions in investor funds from his logistics software company, Slync, to fuel a lavish lifestyle. The opinion, authored by Judge Willett, is doctrinally rich and important in several respects:

• It clarifies when a trial judge’s questioning of witnesses is not structural error and remains subject to ordinary plain‑error review.
• It refines what it means for a wire communication to “further” a scheme to defraud, especially where funds are moved among business and personal accounts controlled by the defendant.
• It explains how the Sentencing Guidelines’ abuse‑of‑trust enhancement can apply to money‑laundering counts in an integrated fraud–laundering scheme.
• It addresses Guidelines loss calculations in venture-backed startup fraud, including downstream investors and funds later repaid after detection.

The case thus sits at the intersection of criminal procedure (judicial conduct and standards of review), substantive wire‑fraud law, and federal sentencing—particularly as applied to modern startup financing structures and complex account‑commingling schemes.

II. Factual and Procedural Background

A. The Slync Startup and the Fraudulent Scheme

Christopher Kirchner co‑founded and served as CEO of Slync, a Dallas‑based logistics software startup. Slync operated two key bank accounts:

• A Silicon Valley Bank (SVB) account, jointly controlled by Kirchner and the chief of staff (Tim Kehoe), with joint approval required for transfers over $100,000.
• A JPMorgan Chase (Chase) account, over which Kirchner had exclusive control.

Over three investment rounds, Kirchner raised substantial capital:

1. Series A (early 2020): Approximately $7.2 million from six investors, wired into the SVB account. Kirchner then executed 27 sub‑$100,000 transfers from SVB to the Chase account to avoid the joint‑approval threshold and diverted much of that money to personal uses (e.g., wine, golf clubs, private jets, and personal credit card debt), while paying some legitimate expenses.
2. Series B (late 2020–early 2021): Nearly $50 million from nine investors, again into SVB. To secure this funding, Kirchner:
   • Falsely inflated Slync’s revenues and misstated how the capital would be used.
   • Concealed prior misuse of Series A funds.
   • Omitted key customer information and fabricated a bank statement.
   He then persuaded Kehoe to approve a $20 million transfer supposedly to an “investment account,” but in reality, he diverted it to his own bank account, using it to buy a private jet, a Dallas Cowboys stadium suite, and a golf-club membership, and to move $800,000 to yet another personal account. He continued siphoning sub‑$100,000 wires from SVB to Chase for additional personal spending.
3. Series C (spring 2022): As Slync began missing payroll, Kirchner—without Board authorization—launched a “Series C,” raising nearly $850,000 from four investors. Distinctly, these funds were wired directly to the Chase account and then moved to SVB to cover payroll and other expenses.

By mid‑2022, an investor complained to the CFO that Kirchner was misrepresenting Slync’s financial performance. The CFO alerted the Board; Kirchner then produced a falsified payroll document to reassure them. Kehoe, responsible for payroll, contradicted Kirchner’s representation, and the Board suspended Kirchner on July 24, 2022. After damaging media reports and pressure from Series C investors, Kirchner sold his jet and in August 2022 wired $850,000 from a personal account back to those investors. Slync then terminated him, and the company soon liquidated.

B. The Trial, Conviction, and Sentence

Kirchner was charged with:

• Four counts of wire fraud (18 U.S.C. § 1343), and
• Seven counts of money laundering.

At trial, the Government presented investors, Slync employees, and a forensic accountant; Kirchner testified in his own defense and called his accountant. The district court (over four trial days) occasionally questioned witnesses, including:

• Venture capitalist Brian Yee (about the nature of investor funds and their ties to pensions, endowments, and “working mom and pops”).
• Chief of staff Tim Kehoe (about missed paychecks and his reliance on a military pension and his wife's business income).
• CFO Samar Kamdar (light‑hearted comments about Kamdar seeking sports tickets and his children’s interest in sports).
• Kirchner himself (critical questions about buying a private jet during COVID, the economics of charter flights versus purchase, and whether a 30‑something CEO “should have known better”).

The court gave strong instructions that the jury alone decided facts and should not infer any judicial views from questions or rulings. The jury convicted Kirchner on all counts.

The Presentence Report (PSR) initially applied the fraud Guideline (U.S.S.G. § 2B1.1), yielding an offense level of 37. After Government objection, an amended PSR applied the money‑laundering Guideline (§ 2S1.1) while also applying a § 3B1.3 abuse‑of‑trust enhancement, producing a total offense level of 38 and an advisory range of 235–293 months based on a loss of about $71.7 million. The district court:

• Adopted the amended PSR.
• Imposed concurrent terms of 240 months (statutory maximum) on the wire‑fraud counts and 120 months on the money‑laundering counts, plus three years of supervised release.
• Explicitly stated that, even without the Guidelines or if its calculations proved erroneous, it would impose the same sentence based on 18 U.S.C. § 3553(a).

C. The Appeal

On appeal, Kirchner raised four principal challenges:

1. Due Process / Judicial Bias: The district court’s questioning allegedly showed bias, humanized Government witnesses, signaled sympathy for employees and investors, and indicated disbelief in his testimony.
2. Sufficiency of the Evidence: As to two wire‑fraud counts based on transfers from the Chase account (which he alone controlled) to his personal accounts.
3. Sentencing – Guideline Selection & Abuse of Trust: The court wrongly applied § 2S1.1 with a § 3B1.3 enhancement, instead of § 2B1.1, and the abuse‑of‑trust enhancement could not properly be tied to money laundering.
4. Sentencing – Loss Calculation: The court erred by:
   • Including losses from other investors’ stock sales to third parties, and
   • Including the $850,000 he later repaid to Series C investors.

Because Kirchner failed to object or preserve these issues in the district court, the Fifth Circuit reviewed each under the plain‑error standard.

III. Summary of the Opinion

The Fifth Circuit affirmed in full, holding:

• Judicial questioning is not “structural error” in this context. Alleged bias from a judge’s questioning of witnesses, without a disqualifying pecuniary interest or similarly extreme circumstance, is not structural error and remains subject to plain‑error review. The brief, largely collateral interventions here did not deprive Kirchner of a fair trial, particularly given strong curative instructions and overwhelming evidence of guilt.
• Wire transfers from a business account under the defendant’s exclusive control to his personal accounts can “further” the scheme. Where the business account also pays legitimate expenses and account‑to‑account transfers are used to complete and conceal the fraud, such transfers can support wire‑fraud counts. The court distinguished United States v. Ashley, where similar transfers were deemed superfluous to an already completed scheme.
• The abuse‑of‑trust enhancement can apply to money‑laundering counts in an integrated fraud–laundering scheme. Relying on § 2S1.1 and its commentary, and clarifying United States v. del Carpio Frescas, the court held that the defendant’s abuse of trust as CEO permeated both the fraud and the laundering, justifying a § 3B1.3 enhancement applied to the laundering guideline.
• Loss amount properly included both downstream third‑party investors and funds repaid after detection. Third‑party stock purchasers relied on Kirchner’s misrepresentations and suffered foreseeable pecuniary harm. The $850,000 Series C funds repaid after the Board discovered the fraud were not deductible under the Guidelines’ credit‑against‑loss rule.
• Even assuming any Guidelines miscalculation, no prejudice under plain‑error review. The district court expressly stated it would impose the same sentence based on § 3553(a), rendering any potential error non‑prejudicial under Molina‑Martinez v. United States.

IV. Detailed Analysis

A. Judicial Questioning and Due Process

1. Structural Error vs. Plain Error

Kirchner argued that the judge’s questioning of witnesses amounted to judicial bias and thus “structural error,” which would mandate automatic reversal without regard to preservation or prejudice. The panel rejected that classification.

The court drew on Weaver v. Massachusetts and Neder v. United States to emphasize that structural error is limited to a “very limited class” of fundamental defects that “affect[] the framework within which the trial proceeds” rather than being ordinary trial‑process errors. Examples include total denial of counsel, biased adjudicators with disqualifying interests, and certain jury‑selection or public‑trial violations.

Kirchner invoked the “biased trial judge” example cited in Neder, but the Fifth Circuit carefully cabined that category to cases like Tumey v. Ohio, where the judge (a mayor) had a direct, personal pecuniary interest in convicting defendants—an institutional, structural defect requiring automatic reversal. By contrast:

• Kirchner did not allege a Tumey‑type financial or institutional conflict.
• His complaint centered on how the judge conducted questioning in a particular trial and the alleged messages this sent to the jury—including sympathy for victims and skepticism of the defendant.

The panel concluded that judicial questioning of witnesses—however aggressive or tone‑deaf—does not automatically fall into the structural category, echoing prior Fifth Circuit practice in Saenz, Achobe, Perez‑Melis, and Cantu, all of which applied plain‑error review to claims of prejudicial questioning.

2. The Saenz Framework and Application to the Trial Record

The court relied heavily on United States v. Saenz, which articulates the governing approach to judicial questioning:

• A trial judge has “wide discretion over the tone and tempo” of trial and may question witnesses under Rule 614(b) of the Federal Rules of Evidence to clarify testimony or elicit helpful information for the jury.
• However, this power must be exercised consistently with “strict impartiality”; the judge may not blur the line between neutral arbiter and prosecutor.
• To determine whether due process is violated, the court examines the entire trial record, focusing on:
  • Context of the remarks and questions,
  • The person to whom remarks were directed,
  • The number and nature of interventions, and
  • The presence or absence of curative instructions.
• Constitutional error arises only when judicial conduct, “viewed as a whole,” amounts to an intervention that could lead the jury to a predisposition of guilt by confusing the functions of judge and prosecutor.

Applying these principles, the panel contrasted Kirchner’s case with Saenz, where the judge’s questioning constituted roughly 18% of a key government witness’s testimony and 23% of the defendant’s testimony in a compressed two‑day trial—effectively dominating the evidentiary narrative. In Saenz, the court found that level of involvement prejudicial.

In Kirchner:

• The trial spanned four days, and only four brief episodes of arguably problematic questioning were identified.
• The court’s interventions were limited in duration and did not come close to the percentage of total testimony at issue in Saenz.
• Importantly, the judge sometimes intervened against the Government—curtailing cross‑examination, warning the prosecutor against “testifying,” threatening contempt, and explicitly stating he would give the defense “a lot of leeway.” This undercut any inference that the judge had assumed the role of a second prosecutor.
• Most comments concerned collateral matters (effect on “working mom and pops,” sports tickets, the wisdom of buying a private jet) rather than the core elements of the offenses.

The panel candidly acknowledged that some comments could be viewed as having a “questionable tone,” but held that, “viewed as a whole,” they did not dominate the record or seriously impugn the fairness of the proceedings.

3. Curative Instructions and Overwhelming Evidence

Two additional considerations decisively undermined Kirchner’s due‑process argument:

1. Curative Instructions. Tracking United States v. Bermea, the judge gave emphatic instructions that:
   • The jury alone decided the facts.
   • Nothing the court said or did should be taken as a signal about what the verdict should be.
   • Jurors should not infer from any ruling that the judge favored one side or another.
   The Fifth Circuit has consistently treated such instructions as a powerful antidote to claims of judicial partiality, absent extreme circumstances.
2. Overwhelming Evidence of Guilt. Even if the questioning had crossed the constitutional line (which the panel held it did not), it was eclipsed by strong, independent evidence:
   • Multiple witnesses testified that Kirchner falsified documents and made material misrepresentations.
   • Kirchner himself admitted:
     • Doctoring bank records sent to investors.
     • Submitting a fake wire transfer to the Board.
     • Transferring $20 million of company funds to a personal account and using them for luxury purchases.
   • Documentary and expert evidence corroborated the breadth of commingling and misappropriation.
   This distinguished the case from Saenz, where the evidence was relatively “scant” and guilt hinged more sharply on the credibility of competing witnesses.

Under plain‑error review, Kirchner had to show not only a clear legal error but that it affected his substantial rights and seriously harmed the fairness, integrity, or public reputation of the proceeding. The combination of limited questioning, robust instructions, and overwhelming evidence made that showing impossible.

4. Normative Guidance to Trial Judges

Although finding no reversible error, the panel added an important cautionary note:

• The “line between clarification and advocacy can be thin.”
• In complex, high‑profile criminal trials, extended judicial questioning risks conveying favoritism.
• “Sometimes less is more. After all, the jury—not the court—determines guilt.”

This is not a new legal rule, but it is an explicit, appellate‑level reminder that even well‑intentioned efforts to clarify evidence must be moderated to avoid the appearance of partiality.

B. Wire Fraud: When Do Transfers “Further” the Scheme?

1. The Legal Framework

To prove wire fraud under 18 U.S.C. § 1343, the Government must show:

1. A scheme to defraud;
2. Use of interstate (or foreign) wire communications to further that scheme; and
3. Specific intent to defraud.

Fifth Circuit precedent makes several refinements highly relevant to Kirchner:

• The wire need not be an “essential element” of the scheme; it can be incidental or merely “a step in the plot.” (United States v. Barraza)
• A scheme to defraud is “complete” when the intended recipient(s) of the money receive it “irrevocably.” (United States v. Fatani)
• Acts occurring after the defendant controls the proceeds can still further the scheme if they are part of distributing proceeds or avoiding detection. (Fatani, quoting United States v. Allen)

2. Kirchner’s Argument and the Court’s Response

Kirchner’s sufficiency challenge targeted two counts (Counts 1 and 4), each based on a wire transfer from the Chase account (his exclusive‑control business account) to one of his personal accounts. He argued:

• Once investor funds were wired into accounts he solely controlled (e.g., Chase), the scheme was complete.
• Later transfers among accounts he already controlled could not further the scheme and were, at most, post‑fraud disposition of funds.

The panel rejected this characterization as inconsistent with both the factual record and governing law.

3. When Was the Scheme “Complete”? The Role of the Chase Account

The court’s key move was to distinguish between:

• Funds in the Chase account, which—though under Kirchner’s exclusive control—also paid legitimate company expenses, and
• Funds in purely personal accounts, used for luxury purchases and clearly outside Slync’s financial structure.

Because the Chase account was a hybrid—used for both legitimate operations and illicit diversions—the court held that investor funds did not become irrevocably Kirchner’s when they reached Chase. The scheme’s purpose was not merely to get money into an account he could access; it was to enrich himself personally and conceal the misuse from investors and corporate officers. That purpose was only fully achieved when:

• Funds were moved from Chase into personal accounts, and
• Then spent on personal luxuries (jet, stadium suite, golf membership, etc.).

Thus, the wires from Chase to personal accounts did more than shift proceeds among controlled pools; they effectuated and concealed the intended fraud.

4. Commingling and Concealment as “Furtherance” of the Scheme

The opinion emphasizes the intentional commingling of funds as a substantive part of the scheme:

• Money moved among SVB (joint‑controlled business), Chase (exclusive‑control business), and personal accounts.
• Legitimate business expenses were paid alongside personal expenses from different accounts.
• Kirchner’s own forensic accountant described it as:

  “Clearly, one of the most convoluted and commingled cases I've seen.”

Relying on Fatani and Allen, the court held that actions taken to conceal the fraud and maintain its facade qualify as furthering the scheme, even if they occur after the defendant initially acquires control of funds. Here:

• Transferring money out of a mixed‑use business account (Chase) into personal accounts served both to allow personal enjoyment of proceeds and to obscure the path of funds from corporate stakeholders.
• The panel expressly noted that without such commingling and transfers, “the whole scheme would fall apart,” echoing the language in Fatani.

Accordingly, the use of interstate wires for these transfers satisfied the “furtherance” element of wire fraud.

5. Distinguishing United States v. Ashley

Kirchner’s principal support came from United States v. Ashley, where the Fifth Circuit reversed a wire‑fraud conviction based on transfers from a business account to a personal account. In Ashley:

• The defendant had already received his clients’ funds into his business account, an account under his exclusive control.
• He paid personal expenses (credit card debts, gambling debts, legal fees, and casino expenditures) directly from that business account.
• The transfers from business to personal accounts were therefore deemed unnecessary to his enjoyment of the fraud proceeds; the money was already available “for his use” from the moment it entered the business account.

By contrast, in Kirchner:

• Kirchner deliberately did not pay most personal expenses directly from the Chase business account.
• Instead, he built a multi‑layer commingling system where funds moved among multiple accounts, obscuring their source and purpose.
• The panel concluded that these personal‑account transfers were not superfluous but “the very acts that completed and concealed the scheme.”

The opinion thus delineates an important doctrinal nuance:

• Ashley‑type situation: Where the business account is itself the vehicle and locus of personal spending, subsequent transfers to personal accounts may not further the scheme.
• Kirchner‑type situation: Where the business account remains partially legitimate and transfers are used to execute and hide personal diversion, those transfers can and do further the scheme and can be independent wire‑fraud predicates.

This clarification significantly guides prosecutors and defense counsel in assessing which wires are properly chargeable in complex financial schemes involving mixed‑use accounts.

C. Sentencing Guidelines: Grouping, Money Laundering, and Abuse of Trust

1. Guideline Grouping and Selection of the “Most Serious” Offense

Under the Guidelines’ grouping rules (U.S.S.G. §§ 3D1.1–3D1.4), when a defendant is convicted of multiple counts, the court often:

• Groups closely related counts, and
• Applies the offense level for the group with the “most serious” offense (i.e., the highest offense level).

Here, the potentially applicable offense guidelines were:

• § 2B1.1 (fraud), and
• § 2S1.1 (money laundering).

Kirchner argued that, if § 3B1.3’s abuse‑of‑trust enhancement applied only to the fraud but not to the laundering, the highest correct offense level would be:

• Fraud (with abuse of trust): level 37, versus
• Money laundering (without abuse of trust): level 36.

He contended that the district court erred by:

• Using § 2S1.1 as the primary guideline, and
• Imposing a § 3B1.3 enhancement “through” the money‑laundering guideline.

2. How § 2S1.1 Works: Underlying Offense and Chapter 3 Adjustments

Section 2S1.1 specifies that:

• The base offense level for money laundering is the offense level for the “underlying offense from which the laundered funds were derived.” Here, that underlying offense was wire fraud under § 2B1.1.
• But Application Note 2(C) states that Chapter 3 adjustments (including abuse of trust, § 3B1.3) “shall be determined based on the offense covered by this guideline”—i.e., the laundering conduct—“and not on the underlying offense.”

This structure produces a two‑step analysis:

1. Use the underlying offense (fraud) to set the base offense level under § 2S1.1(a)(1).
2. Then determine whether Chapter 3 enhancements (like abuse of trust) are warranted, but by reference to the laundering conduct itself, not merely the underlying fraud.

3. Applying Abuse of Trust to the Laundering Conduct

Kirchner argued that any abuse of his position as CEO related only to fraud—namely, misrepresenting Slync’s health and documents to induce investment—and not to his subsequent laundering (which he characterized merely as personal spending from his own accounts).

The Fifth Circuit disagreed, emphasizing the integrated nature of the scheme:

• The PSR defined Kirchner’s “scheme to defraud Slync and Slync investors” in broad terms, including:
  • Making false representations about Slync’s financial status,
  • Creating fake documents regarding bank accounts and use of funds,
  • Accepting investor money based on those misrepresentations, and
  • “Using investors’ funds for private use, such as purchasing a private jet, residence, vehicles, and jewelry.”
• In other words, the use of investor funds to buy personal luxuries was not an afterthought; it was part of the very scheme he sold to investors under the guise of legitimate corporate capital use.
• As CEO and co-founder, Kirchner:
  • Owed heightened obligations to investors and to the corporation, and
  • Exploited his trusted position to direct the flow of funds and to conceal their misuse.

Thus, the same abuse of trust that enabled the fraudulent fund‑raising also enabled the laundering transactions. The panel held that this conduct could properly support an abuse‑of‑trust enhancement as applied to the laundering counts under § 2S1.1 and § 3B1.3.

4. Clarifying United States v. del Carpio Frescas

Kirchner invoked United States v. del Carpio Frescas, which vacated a sentence where a § 3B1.3 enhancement had been applied solely by reference to the underlying fraud, not the laundering conduct. But the panel emphasized that del Carpio Frescas itself recognized:

“It is possible that one set of conduct could be relevant for assessing [Chapter 3 enhancements] in both a money laundering scheme and in the underlying crime that produced the dirty money.”

In del Carpio Frescas, the problem was that the abuse‑of‑trust finding focused exclusively on the underlying fraud, never tying the enhancement to how the defendant laundered funds. By contrast, in Kirchner:

• The PSR and record showed that the same abuse of trust—misusing CEO authority and access—permeated both the fund‑raising and the subsequent diversion and laundering.
• The Supreme Court’s and Guidelines’ structural concerns about double‑counting or misallocating enhancements were thus not implicated.

The panel therefore treated Kirchner as a case in which one integrated course of conduct legitimately supported an abuse‑of‑trust enhancement for both fraud (as the underlying offense) and laundering (as the covered guideline offense).

5. No Prejudice Under Molina‑Martinez

Even assuming arguendo that the district court miscalculated the Guidelines, Kirchner still had to show prejudice under plain‑error review. Molina‑Martinez v. United States held that, in many cases, an incorrect Guidelines range itself creates a reasonable probability of a different outcome. But Molina‑Martinez also recognized an important exception:

• If the sentencing judge clearly states that the same sentence would have been imposed irrespective of the Guidelines range, the inference of prejudice may be rebutted.

Here, the district judge explicitly:

• Grounded the sentence in the full § 3553(a) factors, and
• Declared that “even if we didn't have the [G]uidelines or my [G]uideline calculations are later shown to be incorrect, this is still the same sentence that I would have found to be appropriate.”

Given that express alternative rationale, the Fifth Circuit held that, even if there had been a Guidelines error, Kirchner could not demonstrate that it affected the outcome.

D. Loss Calculation: Third‑Party Stock Sales and Returned Funds

1. General Principles

Under § 2B1.1 of the Guidelines, “actual loss” is defined as:

“the reasonably foreseeable pecuniary harm that resulted from the offense.”

The sentencing court must make a reasonable estimate of loss based on available information and is granted “wide latitude” in doing so. Defendants bear the burden of producing evidence that PSR findings are “materially untrue, inaccurate or unreliable”; a bare objection is insufficient. (United States v. Zuniga)

2. The Three Categories of Loss

The PSR identified three categories of loss (totaling about $71.7 million):

1. All funds raised in the formal investment rounds (Series A, Series B, and Series C), on the theory that, absent Kirchner’s false statements and falsified documents, investors would not have invested at all.
2. Investments made by investors exercising stock‑purchase rights, because Kirchner continued to provide false financial information that induced those purchases.
3. Cofounders’ and early investors’ sales of common stock to third‑party purchasers, where those purchasers reviewed and relied upon Kirchner’s inflated and falsified information in deciding to buy shares.

3. Including Third‑Party Stock Purchasers (Category 3)

Kirchner argued that approximately $6 million from category (3) should not count because he “had nothing to do with” those later stock‑transfer transactions; they were merely private secondary trades between existing shareholders and new investors.

The Fifth Circuit rejected this argument. The PSR and trial testimony showed that:

• Third‑party purchasers (such as Brian Yee and ACME Capital) did review financial data supplied (or manipulated) by Kirchner.
• They relied on those misrepresentations in deciding to invest.

Given that:

• Those losses were “reasonably foreseeable pecuniary harm” resulting from the same fraudulent misrepresentations.
• The causal chain was not broken merely because money changed hands via secondary-market stock purchases rather than primary issuance.

The panel therefore held that inclusion of these losses was within the district court’s discretion and was not plainly erroneous.

4. The Double‑Counting Argument

Kirchner also claimed the court “double counted” the same money by:

• Including initial investments in Slync, and
• Including the proceeds to prior investors when they sold their shares to third parties.

The panel noted that Kirchner had not shown that:

• The money investors originally paid into Slync was the exact same money third parties later paid to acquire their shares, or
• That including both categories necessarily overstated the actual loss under the foreseeability standard.

Without concrete evidence—rather than abstract argument—that the PSR’s numbers were inaccurate or unreliable, Kirchner could not satisfy his burden. Under plain‑error review, this failure of proof was fatal.

5. Excluding Funds Repaid After Detection

Kirchner lastly argued that the $850,000 Series C investment should not be counted in the loss total because he ultimately repaid it. But Application Note 3(E)(i) to § 2B1.1 allows credits only for money returned before the offense was detected, defining “detection” as the earlier of:

• Discovery by a victim or a government agency, or
• The time the defendant knew or reasonably should have known that the offense was detected or about to be detected.

The record showed that:

• By spring 2022, employees and the Board were questioning Kirchner’s misrepresentations and falsified documents.
• The Board suspended him on July 24, 2022, explicitly citing misrepresentations and public allegations.
• Media investigations were published that same summer, prompting investor demands for repayment.
• Kirchner repaid the $850,000 only in August 2022, after the suspension and media exposure.

Board testimony confirmed that Kirchner was suspended “as a result of” the Board learning of his falsified financial information and sham wire transfers, not merely because of generic poor performance. Thus, the offense was clearly detected before the repayment, meaning no credit was allowed under the Guidelines. The court therefore properly included the $850,000 in the loss figure.

V. Simplifying Key Legal Concepts

1. Plain Error

When a defendant fails to object in the trial court, appellate review is limited to “plain error,” requiring four showings:

1. There was an error.
2. The error was plain (clear or obvious under current law).
3. The error affected the defendant’s substantial rights (usually meaning it likely affected the outcome).
4. The error seriously affected the fairness, integrity, or public reputation of judicial proceedings.

Failure at any step defeats the claim. That demanding standard dominates Kirchner, where no issue was preserved.

2. Structural Error vs. Trial Error

• Structural error refers to rare, fundamental defects (e.g., lack of counsel, biased judge with disqualifying interest, racial discrimination in grand jury selection, totally closed public trial) that infect the entire proceeding. They usually trigger automatic reversal without a need to prove prejudice.
• Trial error involves mistakes in the process of trial (e.g., some evidentiary rulings, judicial comments, jury instructions) that can be reviewed for harmlessness or plain error.

Kirchner makes clear that judicial questioning of witnesses—even if ill‑advised—is ordinarily trial error, not structural, absent something like the direct pecuniary interest seen in Tumey.

3. Wire Fraud Elements and “Furtherance”

To convict for wire fraud, the Government must prove:

• A deliberate scheme to cheat someone out of money or property.
• Use of the wires (e.g., emails, electronic transfers) in a way that advances or helps execute the scheme.
• Intent to defraud (not mere negligence or reckless optimism).

“Furtherance” is interpreted broadly:

• The wire need not be the first or last act in the scheme.
• It can be a step that maintains, conceals, or completes the scheme.
• Acts after the defendant initially obtains control of funds may still “further” the scheme if meant to distribute proceeds or avoid detection.

4. Abuse of Trust (Guidelines § 3B1.3)

The abuse‑of‑trust enhancement applies when:

• The defendant occupies a position of “public or private trust” characterized by professional or managerial discretion (e.g., CEO, high‑level executive, fiduciary), and
• The position significantly facilitates the commission or concealment of the offense.

In Kirchner, his role as CEO gave him special access to investor communications, corporate accounts, and internal controls—all of which he exploited to commit and hide both the fraud and the laundering.

5. Guideline Grouping and Offense Level

When defendants face multiple counts, the Guidelines often:

• “Group” counts that involve substantially the same harm, and
• Assign a single combined offense level based on the most serious count in the group.

An “offense level” is a numeric score reflecting the seriousness of the crime (plus enhancements/reductions), used with the defendant’s criminal‑history category to yield an advisory sentencing range.

6. Loss, Detection, and Repayment

• Actual loss is the reasonably foreseeable monetary harm caused by the offense.
• Defendants can sometimes receive a credit that reduces “loss” for money they return to victims, but only if repayment occurs before detection.
• Detection occurs when a victim or the government discovers the offense—or when the defendant knows or should know that detection has occurred or is imminent.

Kirchner’s repayment came only after the Board suspended him and public allegations surfaced; the fraud had clearly been detected by then.

VI. Likely Impact of United States v. Kirchner

1. Judicial Conduct and Trial Management

The opinion reinforces a line of Fifth Circuit authority that:

• Judges may ask questions to clarify complex testimony, especially in white‑collar and financial trials.
• However, extensive or one‑sided questioning that appears to favor one party risks due‑process problems.
• Strong curative instructions can mitigate such risks.

Practically, Kirchner warns district judges to keep judicial questioning brief, even‑handed, and focused on clarification. It also signals that appellate courts will examine the entire record and place substantial weight on curative instructions and the strength of the evidence.

2. Wire‑Fraud Charging in Complex Financial Schemes

The decision has notable implications for wire‑fraud prosecutions:

• It confirms that wires used to move funds from a business account under the defendant’s control to personal accounts can be charged as wire fraud when those transfers:
  • Help to complete the intended self‑enrichment, or
  • Conceal or sustain the scheme through commingling.
• It carefully distinguishes cases where the business account is itself the instrument of personal spending (Ashley) from those where personal accounts are used as the final repository and concealment tool (Kirchner).
• Prosecutors will likely cite Kirchner to support charging additional wire‑fraud counts based on account‑to‑account transfers within a defendant’s control—especially where commingling is used to hide misuse of corporate or investor funds.

3. Sentencing of White‑Collar and Startup Executives

For sentencing in complex financial crimes, Kirchner underscores:

• The broad applicability of the abuse‑of‑trust enhancement to executives who misuse their positions for both fraud and laundering activity.
• The permissibility of using third‑party losses (including secondary stock purchasers) in loss calculations when those investors relied on the defendant’s misrepresentations.
• The limited availability of loss credits for funds repaid after detection—an especially salient point in cases where defendants attempt to “make investors whole” only once exposure appears inevitable.

Given the prevalence of venture‑backed startups, layered investment rounds, and secondary share sales, Kirchner provides a roadmap for how courts may assess loss and enhancements in similar cases involving founders or executives who misuse investor funds.

4. Corporate Governance and Investor Protection

Although a criminal case, Kirchner has broader corporate‑governance implications:

• Boards and investors can expect courts to treat venture funds, pension‑backed investments, and secondary‑market purchasers as full victims of startup fraud.
• C‑suite executives are on clear notice that:
  • Commingling corporate and personal finances can be used as evidence of both fraud and money laundering.
  • Attempts to repay investors after detection will not necessarily mitigate sentencing exposure through lower “loss” calculations.

The opinion thus reinforces the importance of rigorous internal controls, transparent investor communications, and the strict segregation of corporate and personal funds.

VII. Conclusion

United States v. Kirchner is a significant Fifth Circuit decision at the intersection of criminal procedure, wire‑fraud doctrine, and federal sentencing. It holds that:

• Judicial questioning of witnesses—even if imperfectly phrased—does not constitute structural error absent extraordinary circumstances, and will be reviewed under the demanding plain‑error standard.
• Wire transfers from a business account under a defendant’s exclusive control to personal accounts can “further” a fraudulent scheme, particularly where commingling is designed to complete self‑enrichment and conceal the misuse of investor funds.
• The abuse‑of‑trust enhancement may apply to money‑laundering counts where the defendant’s misuse of a fiduciary or managerial role permeates both the fraud and the laundering.
• Loss calculations may include downstream investors and funds repaid after detection, so long as those losses are reasonably foreseeable and properly documented.

By affirming Kirchner’s conviction and sentence, the Fifth Circuit both clarifies existing precedent and sends a clear signal: startup executives who use their companies as vehicles for personal luxury spending, and who attempt to cloak that spending through elaborate account‑commingling and post‑hoc repayments, face substantial exposure not only for fraud but also for money laundering and enhanced sentences under the federal Guidelines.