The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 23-2177 & 24-1089
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN FENNER and DENNIS BIRKLEY,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:18-cr-00333 — Richard L. Young, Judge.
____________________
ARGUED SEPTEMBER 13, 2024 — DECIDED JULY 1, 2025
____________________
Before EASTERBROOK, JACKSON-AKIWUMI, and KOLAR, Cir-
cuit Judges.
KOLAR, Circuit Judge. After a jury convicted Brian Fenner
and Dennis Birkley at their joint trial, they appeal asking for
a new one. They both argue the jury heard testimony that the
Federal Rules of Evidence precluded. Fenner alone challenges
the government’s use of an inculpatory statement Birkley
made to law enforcement, on the ground that its admission
2 Nos. 23-2177 & 24-1089
violated his rights under the Confrontation Clause of the
Sixth Amendment of the United States Constitution. They
also both claim the district court erred in its restitution calcu-
lation at sentencing and Birkley alone brings an ex post facto
challenge.
Many of these perceived errors went unobjected to at trial.
Because the district court did not abuse its discretion in the
evidentiary rulings it was asked to make, and our plain error
review imposes a high bar for those it never considered, we
affirm.
I. Background
On January 31, 2023, a jury convicted Brian Fenner and
Dennis Birkley of seventeen counts, all stemming from one
overarching fraud. 1 Like many fraud schemes, underlying the
intricate machinations of this ploy is clear-cut malfeasance.
Under Indiana’s mechanic’s lien statute, an individual
who does work on, tows, or stores a car at the owner’s request
establishes a lien on the vehicle for the value of their services.
Ind. Code §9-22-6-2(a)–(b). If the owner cannot pay the lien,
the mechanic has two paths for compensation. Other credi-
tors, such as the company that financed the vehicle, can pay
off the lien. If the creditors decline, the mechanic can put the
vehicle up for auction. Ind. Code §9-22-6-2(c), (g).
The statute details the auction procedure. Ind. Code §9-22-
6-2(c)–(e), (g). The mechanic lienholder must advertise the
1 The convictions include one count of conspiracy to commit mail and
wire fraud (Count 1), seven counts of wire fraud (Counts 2, 3, 5, 6, 8, 11,
14), six counts of mail fraud (Counts 4, 7, 9, 10, 12, 13) and three counts of
money laundering (Counts 15–17).
Nos. 23-2177 & 24-1089 3
auction in the newspaper, wait some time before holding the
sale, and notify the owner and creditors of the sale. Id. If either
the owner or creditors pay the mechanic’s lien and claim pos-
session of the car, the auction is off. Id. Otherwise, the sale oc-
curs. Id. And critically for this scheme, the new buyer receives
title for the vehicle free and clear of all pre-sale liens. Id. The
sale extinguishes all prior interests. Id.
Fenner ran a towing company. He began a program where
he marketed his towing services to attorneys representing fi-
nancially distressed car owners on the brink of bankruptcy.
Fenner would pay for the cost of bankruptcy, namely court
and attorney fees, in exchange for the owner letting Fenner
tow their vehicle to his lot. Fenner would charge not only for
towing, but also storage, maintenance, and other administra-
tive expenses. He would then obtain a mechanic’s lien on the
vehicle and sell it if neither the owner nor any creditor paid it
off. For car owners expecting to lose their vehicle in impend-
ing bankruptcy proceedings anyway, Fenner offered a good
deal.
Unbeknownst to the car owners, Fenner was not acting
alone. Birkley was financing Fenner’s costs—his marketing,
towing, storage, and administration. Indeed, Birkley not only
funded Fenner’s bank account, he wrote checks from it. For
instance, Birkley would pay the debtors’ bankruptcy attor-
neys using checks from Fenner’s bank account, sealed with a
rubber stamp of Fenner’s signature.
Importantly, none of the above constituted the charged
fraud. The impropriety arose from a three-part deception.
First, Fenner and Birkley conspired to disincentivize other
lienholders (i.e. creditors) from paying off Fenner’s liens.
They did so by inflating the value of Fenner’s liens beyond the
4 Nos. 23-2177 & 24-1089
reasonable costs contemplated under the mechanic’s lien stat-
ute. In one email exchange, Birkley asked Fenner, “How are
we going to make money,” to which he replied with a set of
somewhat arbitrary costs, like multiplying the towing cost of
$500 by 2.95 for no explicable reason and pondering “[w]hat
else can we charge for.” They also towed cars located across
the country to Fenner’s Indiana lot, making it harder for cred-
itors to recover them.
If the creditors chose not to pay the inflated liens, then
Fenner and Birkley moved on to the second part of their
scheme—selling the vehicles at sham auctions. Recall, the In-
diana statute still required Fenner to publicly advertise and
hold an open auction. But while Fenner appeared to schedule
sales, they never actually occurred. He set the auctions for
preposterous hours, like 1:30 am on Christmas Eve, Christmas
Day, and New Year’s Eve, to ensure that nobody showed up.
And when some people did try to attend auctions scheduled
at the more reasonable hour of 6:30 am, they testified to find-
ing a padlocked parking lot with no signs of activity or at-
tendees. Documentary evidence corroborated the fiction. In
one instance, Fenner shipped vehicles to Birkley’s business in
Wisconsin four days before they were set to be auctioned off,
suggesting Fenner never intended to hold a true sale.
Unsurprisingly, Birkley, the only person in on the scheme,
summarily “won” every sale. This too was a lie. At every auc-
tion, Birkley conveniently bought the vehicles for the cost of
the mechanic’s lien, ensuring that other creditors received
zero proceeds. Except Birkley never paid Fenner a dime. No
money changed hands.
With the procedures papered over, Birkley executed the
final stage of the scheme. He filed for clean titles with the
Nos. 23-2177 & 24-1089 5
Indiana Bureau of Motor Vehicles (BMV). To obtain them, he
needed to lie in the applications. Birkley falsely claimed that
he received the vehicles after legitimate auctions and had paid
the auction prices in cash. He also lied about his company’s
involvement in the scheme before the auction, making it ap-
pear as though he purchased the cars in an arm’s length trans-
action.
All in all, Birkley “bought” around 100 vehicles this way,
which he and Fenner then flipped for just over one million
dollars.
The scheme caught up with them when one of the credi-
tors, a Ford subsidiary, sued. The Indiana Superior Court en-
joined Fenner and Birkley from continuing their scheme be-
cause they violated the mechanic’s lien statute by failing to
follow notice and timing procedures. Sperro LLC v. Ford Motor
Credit Co. LLC, 64 N.E.3d 235, 247–49 (Ind. Ct. App. 2016). The
BMV then tipped off law enforcement, who eventually in-
dicted Fenner and Birkley for seventeen federal offenses.
Testimony at trial from four government witnesses is rele-
vant for this appeal. First, Special Agent Kathryn Graham
summarized a large volume of admissible business records.
Graham opined that the reason Fenner scrubbed Birkley’s in-
volvement in his initial overtures to bankruptcy attorneys and
on the BMV applications was to conceal Birkley’s involve-
ment in the scheme. She also believed that “the effect” of Fen-
ner paying one of the bankruptcy attorneys with Birkley’s
money was to conceal Birkley’s participation. And she testi-
fied that finding checks for Fenner’s bank account on Birkley’s
property indicated that Birkley “maintained these checks to
use them for whatever was needed.” Birkley objected to Gra-
ham’s testimony as improper opinion testimony as to Fenner
6 Nos. 23-2177 & 24-1089
and Birkley’s motives and intent. The objection was over-
ruled.
Second, FBI forensic accountant Kathryn Kanetzke was
called to summarize Fenner and Birkley’s bank records. The
government did not qualify her as an expert witness. Ka-
netzke reviewed “over tens of thousands” of pages of bank
records for Fenner and Birkley’s businesses. Using a spread-
sheet Fenner and Birkley created, she traced the flow of
money through bank accounts, expense sheets, and emails.
From this review, she testified that Birkley was funding the
bankruptcy attorney fees and petitions, not Fenner. She also
told the jury that Birkley never actually paid Fenner for the
cars and received at least some vehicles before the purported
auction dates. At the close of her testimony, Kanetzke
summed up that Fenner and Birkley received “gross receipts
of approximately $1 million” from their scheme. The trial
judge overruled Fenner and Birkley’s objection that Kanetzke
offered unnoticed expert testimony.
Finally, the government introduced an out-of-court state-
ment that Birkley made during a pre-indictment interview
with law enforcement. Here, Birkley admitted to two law en-
forcement officials, who testified at trial, that he paid the
bankruptcy fees. When pressed why he used Fenner’s account
to pay them, Birkley said he wanted to conceal his involve-
ment. Turning to the auctions, Birkley told the officers he at-
tended one auction, that “it was really a prearranged deal that
they already had that he would get the vehicles” and that
“[t]here was really no purchase, and there was no money ex-
changed.”
Fenner did not object to this testimony. At the close of trial,
the district judge included a limiting instruction that the jury
Nos. 23-2177 & 24-1089 7
“may not consider the statement of defendant Birkley as evi-
dence against Fenner.” Fenner agreed with this instruction.
The jury convicted Fenner and Birkley on all counts.
The district court sentenced Fenner and Birkley to 70
months and 60 months in prison, respectively, and ordered
$49,045.84 in restitution jointly and severally. The restitution
calculation tracked the figure in the presentence report, which
summed up the claimed losses of creditors who held liens on
vehicles fraudulently sold by Fenner and Birkley. The credi-
tors’ losses were supported with exhibits submitted to the dis-
trict court. Three creditors sought restitution for the remain-
ing values of the car loans they held, which were lost once the
BMV granted Birkley clean title. Another requested the loan
value minus a partial settlement payment it had received. The
final creditor sought reimbursement for costs to recover its ve-
hicle from Fenner’s lot. Fenner agreed with the restitution fig-
ure while Birkley objected.
II. Analysis
There are five issues on appeal. Fenner and Birkley argue
that the district court abused its discretion on two evidentiary
calls—allowing Kanetzke to give expert testimony without
qualification and Graham to testify to Fenner and Birkley’s
intent. Fenner separately contends that Birkley’s unredacted
inculpatory statement to law enforcement violated his Sixth
Amendment right to confront witnesses. Finally, Birkley ar-
gues he was convicted and sentenced in violation of the Ex
Post Facto Clause of the Constitution and Fenner and Birkley
both challenge the restitution calculation. We address the ar-
guments in turn.
8 Nos. 23-2177 & 24-1089
A. Kanetzke’s Testimony
We review a district court’s decision to admit or exclude
evidence for an abuse of discretion. United States v. Lopez, 870
F.3d 573, 577 (7th Cir. 2017).
As a summary witness, Kanetzke was required to “draw
conclusions from the evidence presented at trial.” Id. (citation
omitted). Everyone agrees that the underlying documents Ka-
netzke summarized—bank records, communications, and
spreadsheets of sales—were admissible. The only question is
whether Kanetzke’s summary opinions crossed over into ex-
pert testimony at trial.
Rule 701 of the Federal Rules of Evidence, which circum-
scribes lay witness testimony, says “[i]f a witness is not testi-
fying as an expert, testimony in the form of an opinion is lim-
ited to one that is: (a) rationally based on the witness’s per-
ception; (b) helpful to clearly understanding the witness’s tes-
timony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within
the scope of Rule 702.” Fed. R. Evid. 701. Rule 702 then out-
lines the more rigid demands of expert testimony, namely
that a qualified expert in a subject area may generate an opin-
ion so long as “(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue; (b) the testimony
is based on sufficient facts or data; (c) the testimony is the
product of reliable principles and methods; and (d) the ex-
pert’s opinion reflects a reliable application of the principles
and methods to the facts of the case.” Fed. R. Evid. 702.
The distinction is not between “expert and lay witnesses,
but rather between expert and lay testimony.” United States v.
Nos. 23-2177 & 24-1089 9
Christian, 673 F.3d 702, 709 (7th Cir. 2012) (citation omitted).
As illustration, a medical doctor is not a per se expert wit-
ness—she may offer lay testimony when relaying that she saw
the traffic light turn red but veers into expert territory when
opining on the medical injuries resulting from the car acci-
dent. Similarly, a law enforcement officer’s “testimony is a lay
opinion if it is ‘limited to what he observed or to other facts
derived exclusively from a particular investigation.’” United
States v. Gaytan, 649 F.3d 573, 582 (7th Cir. 2011) (quoting
United States v. Oriedo, 498 F.3d 593, 603 (7th Cir. 2007))
(cleaned up). Testimony becomes expert—and subject to Rule
702’s qualifying procedures—when an officer “brings the
wealth of his experience as an officer to bear on those obser-
vations and makes connections based upon that specialized
knowledge.” United States v. Malagon, 964 F.3d 657, 662 (7th
Cir. 2020). Here, Kanetzke confined her testimony to the doc-
uments and communications in the closed record of the inves-
tigation that led to the charges in this case.
Deploying basic arithmetic of addition and subtraction,
even repeatedly, is often within the realm of lay, not expert,
testimony. See United States v. Davis, 53 F.4th 833, 848–49 (5th
Cir. 2022) (collecting cases from sister circuits holding the
same). While the “volume of math” Kanetzke performed was
large, the method was simple. Id. In forming her opinions that
Birkley was funding Fenner’s bank account, she noted Birkley
never paid cash for the vehicles at auction, and Fenner and
Birkley raked in over one million dollars through the scheme.
This was Kanetzke performing rudimentary math. To reach
the revenue figure, Kanetzke added up the total reported
sales of the 100-plus vehicles sold. Her opinion that Birkley
funded the operation came by observing Birkley deposit tens
of thousands of dollars in Fenner’s bank account, and Fenner
10 Nos. 23-2177 & 24-1089
issuing checks to various bankruptcy attorneys for similar
amounts shortly after. And she concluded Birkley did not pay
Fenner for the vehicles because he never listed the purported
auction price as an expense, nor did bank records show him
paying Fenner the purchase prices. Her testimony, cabined to
this particular investigation, required attention to detail; it did
not require expertise beyond the ken of a lay person.
That simplicity is in marked contrast to the case Fenner
and Birkley principally rely on. In that case, United States v.
White, trial testimony discussing the “structure of the Medi-
care program generally,” the meaning of “reasonable costs”
within that field, and the witness’s understanding of “various
Medicare concepts” was expert in nature. 492 F.3d 390, 399–
400 (6th Cir. 2007). Kanetzke’s testimony put numbers to-
gether from the documents she reviewed. Elementary level
math is the definition of “lay testimony result[ing] from a pro-
cess of reasoning familiar in everyday life.” United States v.
Thomas, 970 F.3d 809, 813 (7th Cir. 2020) (quoting Fed. R. Evid.
701 Committee Note on Rules—2000 Amendment (quotations
omitted)). The trial court did not abuse its discretion.
B. Graham’s Testimony
Like Kanetzke, Graham testified as a lay summary witness
subject to Rule 1006. See Fed. R. Evid. 1006 (allowing admis-
sion of “a summary, chart, or calculation offered to prove the
content of voluminous admissible writings, recordings, or
photographs that cannot be conveniently examined in court,
whether or not they have been introduced into evidence”).
Summary witnesses may testify to what “the Government’s
evidence shows,” but cannot offer implausible or speculative
inferences from those records. United States v. Pree, 408 F.3d
Nos. 23-2177 & 24-1089 11
855, 869 (7th Cir. 2005) (allowing summary witness to assume
a plausible inference from the record evidence).
Summary witnesses should tread carefully when opining
on a defendant’s intent. See United States v. Guzzino, 810 F.2d
687, 699 (7th Cir. 1987); United States v. Jackson, 569 F.2d 1003,
1011 n.17 (7th Cir. 1978). In United States v. Lopez, we found no
error in the witness’s testimony, but in doing so, highlighted
that she did not “offer any testimony or opinion as to why [the
defendant]” did what he did or “the intent behind” his ac-
tions. 870 F.3d at 577. At the same time, we have also under-
scored that “even lay opinion testimony as to the mental state
of another is indeed” admissible from non-expert witnesses.
United States v. Locke, 643 F.3d 235, 239–40 (7th Cir. 2011) (quo-
tations omitted and citations omitted).
Fenner and Birkley take issue with much of Graham’s tes-
timony. Most of it was clearly proper, summarizing the con-
tent of voluminous financial documents and communications
from and between Fenner and Birkley. Contrary to their con-
tentions, Graham never concluded that Fenner inflated the
value of his liens—she identified specific documents showing
Fenner sometimes listed the cost to tow a vehicle as over dou-
ble the amount he actually paid for that service. But she never
opined that these costs were “fake” or “illegal.” It was left for
the jury to consider whether they reflected the “reasonable
value” of services provided under the mechanic’s lien statute.
Ind. Code §9-22-6-2(a)–(b).
One challenge is perhaps a slightly closer call. On direct,
Graham repeatedly testified to Fenner and Birkley’s motiva-
tion. Evaluating her testimony on the whole, she believed the
reason why Birkley, who was financing the bankruptcy attor-
ney fees, never directly reached out to the attorneys was to
12 Nos. 23-2177 & 24-1089
hide his involvement and cast the later “auction sales” as the
result of an arm’s length transaction.
Even if the district court did abuse its discretion in allow-
ing this testimony, such error was harmless because “it did
not have a substantial influence on the verdict.” United States
v. Medrano, 83 F.4th 1073, 1078 (7th Cir. 2023) (citation omit-
ted). That is, the prosecution’s case would not have been “sig-
nificantly less persuasive” without Graham’s concealment
testimony. United States v. Curtis, 781 F.3d 904, 911 (7th Cir.
2015).
The evidence of concealment was overwhelming. Exten-
sive and detailed documents showed that Birkley financed
the entire operation, while Fenner presented as the frontman.
One of Birkley’s employees testified about gaining access to
Fenner’s bank accounts, signing checks in his name, and rout-
ing funds from Birkley’s account to appear as coming from
Fenner. Not only did defense counsel have free rein to cross-
examine Graham on her testimony, Fenner testified to his al-
ternative “non-concealment” reason for omitting Birkley
from the documents. See Christian, 673 F.3d at 711–12 (high-
lighting importance of cross-examination in harmless error
analysis). Fenner claimed that erasing Birkley’s involvement
was a matter of “professionalism” because it was Fenner’s
company that did the outreach, towing, and “auctions.” The
jury did not buy that alternative. Instead, it made a different
and compelling inference from the record evidence—that
Fenner and Birkley wanted to hide Birkley’s involvement in
the “auction” activity.
Nos. 23-2177 & 24-1089 13
C. Birkley’s Statement to Law Enforcement
For the first time on appeal, Fenner argues that Birkley’s
unredacted statement to law enforcement violated his Sixth
Amendment rights. 2 Because Fenner failed to object at trial,
we review for plain error only. Fed. R. Crim. P. 52(b); United
States v. Haas, 37 F.4th 1256, 1264 (7th Cir. 2022). Fenner must
show that (1) there was an error, (2) the error was clear or ob-
vious, and (3) there is “a reasonable probability that, but for
the error, the outcome of the proceeding would have been dif-
ferent.” Greer v. United States, 593 U.S. 503, 507–08 (2021) (ci-
tation omitted). If those three requirements are satisfied an
appellate court retains discretion to grant relief if the error
had a “serious effect on ‘the fairness, integrity, or public rep-
utation’” of the trial. Id. at 508 (quoting Rosales-Mireles v.
United States, 585 U.S. 129, 135 (2018) and citing United States
v. Olano, 507 U.S. 725, 735–37 (1993)). The defendant “faces a
‘difficult’ burden” to satisfy all four elements. United States v.
Page, 123 F.4th 851, 864 (7th Cir. 2024) (en banc) (quoting
Greer, 593 U.S. at 508). For the sake of completeness, we ad-
dress several prongs, but we emphasize our holding rests on
our conclusion that there is no “reasonable probability” the
admission of the statement affected Fenner’s conviction, and
that even if it did, that would not constitute a serious effect on
the fairness of the trial.
To determine if there was an error under prong one, we
must begin with the substantive law at play. The Sixth
Amendment’s Confrontation Clause “forbids the introduc-
tion of out-of-court ‘testimonial’ statements unless the
2 Only Fenner can raise this challenge, as Birkley’s statement was un-
disputedly admissible against him.
14 Nos. 23-2177 & 24-1089
witness is unavailable and the defendant has had the chance
to cross-examine the witness previously.” Samia v. United
States, 599 U.S. 635, 643 (2023). Normally, an instruction di-
recting the jury not to consider a witness’s out-of-court testi-
mony against his codefendant is sufficient to mitigate any
harm. Id. at 644. However, a “narrow exception” to this pre-
sumption exists “when the facially incriminating confession
of a nontestifying []defendant is introduced at their joint trial,
even if the jury is instructed to consider the confession only
against the []defendant” who made the statement. Richardson
v. Marsh, 481 U.S. 200, 207 (1987) (citing Bruton v. United States,
391 U.S. 123, 135–36 (1968)).
The prototypical scenario, established in Bruton v. United
States, occurs when a nontestifying defendant confesses to
committing a crime and explicitly names his codefendant as
an accomplice. 391 U.S. at 124–25. The “risk that the jury will
not, or cannot, follow [limiting] instructions is so great, and
the consequences of failure so vital to the [co]defendant,” that
such unredacted confessions are constitutionally inadmissi-
ble. Id. at 135. But critically, only confessions that “expressly
implicat[e]” the codefendant as a conspirator fall under this
rule. Id. at 124 n.1. A confession that does “not incriminat[e]
on its face, and [does] so only when linked with evidence in-
troduced later at trial,” may be introduced at a joint trial sub-
ject to a limiting instruction. Richardson, 481 U.S. at 208. The
question for the reviewing court is whether the confession is
a “vivid” statement that the two defendants committed a
crime together or only damaging to the codefendant through
“inferential incrimination.” Id.
“But inference pure and simple cannot make the critical
difference” without more. Gray v. Maryland, 523 U.S. 185, 195
Nos. 23-2177 & 24-1089 15
(1998). The admissibility of the statement “must depend in
significant part upon the kind of, not simple fact of, inference.”
Id. at 196. Accordingly, the Supreme Court has repeatedly
considered the appropriateness of “confessions” from nontes-
tifying defendants that the government modified or redacted
to omit the codefendants’ names. See, e.g., Richardson, 481 U.S.
at 203–04 (no Bruton violation when confession omitted “all
indication that” codefendant was involved in crime); Gray,
523 U.S. at 196 (Bruton violation when redacted confession
said that “Me, deleted, deleted, and a few other guys” com-
mitted the offense because the “prominent” blanks were “fa-
cially” incriminating); Samia, 599 U.S. at 651–53 (no Bruton vi-
olation when codefendant’s name changed to a “neutral ref-
erence[] to some ‘other person’” in nontestifying defendant’s
confession).
Together, Bruton and its progeny make clear that we must
not myopically train our gaze on the explicit naming of a
codefendant in the statement but rather decide holistically if
the statement was “facially incriminating” against the code-
fendant (meaning it cannot be introduced), or one that re-
quires “linkage” to other “evidence introduced later at trial”
to gain incriminating value (meaning it is admissible with the
offer of a limiting instruction). Richardson, 481 U.S. at 207–09;
Samia, 599 U.S. at 650.
Drawing that line is not always easy. On one end, a direct
confession akin to “I committed the crime with John” would
be inadmissible even with an instruction. But “navigat[ing]
these murky waters” requires a “delicate determination” of
“case-by-case consideration rather than a brightline rule.”
United States v. Green, 648 F.3d 569, 575–76 (7th Cir. 2011).
16 Nos. 23-2177 & 24-1089
United States v. Stockheimer is instructive. 157 F.3d 1082 (7th
Cir. 1998). In that case, which involved an organization en-
gaged in a complex fraud scheme, the government introduced
a defendant’s statement that we assumed clearly implicated
two other codefendants’ involvement in the organization. Id.
at 1086–87. Nonetheless, we found no Bruton violation be-
cause participating in the organization was not facially in-
criminating, but damning only “in conjunction with other ev-
idence introduced at trial” about the organization’s malfea-
sance. Id. 3 And in other instances, we have concluded that an
inculpatory statement that fell short of full-blown confession
“to the crimes with which [the nontestifying defendant] was
charged” and that was consistent with the codefendant’s
“theory of defense” was not “powerfully” incriminating.
United States v. Briscoe, 896 F.2d 1476, 1501–03 (7th Cir. 1990);
see also United States v. Cirrincione, 780 F.2d 620, 632–33 (7th
Cir. 1985) (no Bruton violation when statements from nontes-
tifying defendants were “obviously not confessions,” “fit [the
codefendant]’s trial strategy,” and “were merely cumulative
of other evidence”); United States ex rel. Cole, 752 F.2d 1210,
1215–17 (7th Cir. 1985) (nontestifying defendant’s statement
that codefendant was at the scene of the crime did not violate
Bruton since codefendant admitted the same at trial).
3 The government did redact the codefendants’ names from the state-
ment in Stockheimer to refer only to “an inner circle of persons that were
members of [the organization].” 157 F.3d at 1086. Still, we read the deci-
sion as turning not on the redaction—we “assume[d] the jury immediately
concluded that [the codefendants] belonged to the inner circle” de-
scribed—but the fact that membership in the “inner circle” was only in-
criminating in conjunction with evidence of the organization’s fraudulent
activities. Id. at 1086–87.
Nos. 23-2177 & 24-1089 17
Birkley attended a pre-indictment meeting, with his coun-
sel present, presumably to explain his side of the story. There,
he admitted three things: (1) he wanted to conceal his financ-
ing of the operation, (2) he did not pay Fenner for the cars,
and (3) the auctions were prearranged affairs. That story
largely matched Fenner and Birkley’s defense theory at trial.
Briscoe, 896 F.2d at 1502–03 (no Bruton violation when admis-
sions were not in dispute and consistent with defense theory).
Indeed, Fenner testified that he had a “floor plan” arrange-
ment with Birkley where he advanced Birkley the vehicles—
on credit—and only received his share of the compensation
after Birkley sold them. That arrangement mirrors Birkley’s
statement. We strain to see Fenner’s issue with letting the jury
hear about the prearranged auctions and lack of exchanged
money “since he admitted” this in his own testimony. Cirrin-
cione, 780 F.2d at 633.
None of the above should be taken as blanket approval of
the government’s decision to keep Fenner’s name in Birkley’s
statement. While the statement did not admit to the charged
crimes, its suggestions that there were no genuine sales sup-
ported the government’s theory of liability. We have never
held that a statement short of express acceptance of liability is
immune from a Bruton challenge. See United States v. Jett, 908
F.3d 252, 275 (7th Cir. 2018) (drawing line between “sugges-
tive” statements and those so “facially and ‘powerfully in-
criminating’ as to be considered” confessions (quoting United
States v. Volpendesto, 746 F.3d 273, 291 (7th Cir. 2014)). But
while the unredacted statement could have proved at odds
with Fenner’s theory, it is not clear that is how the trial played
out. And we must decide the case on the record, and defense,
before us. We need not draw the precise line between sugges-
tive statements and those facially and powerfully
18 Nos. 23-2177 & 24-1089
incriminating in this case. All that would reveal is whether
there was “error,” and that is unnecessary to resolve this ap-
peal.
Moving to the second prong, we stress any error must be
“clear or obvious.” Molina-Martinez v. United States, 578 U.S.
189, 195 (2016). Mistakes that rest on “‘subtle, arcane, debata-
ble, or factually complicated’ distinctions fall outside that
set.” United States v. Brasher, 105 F.4th 1002, 1007 (7th Cir.
2024) (quoting United States v. Hopper, 11 F.4th 561, 572 (7th
Cir. 2021)). Misevaluating the facially versus inferentially in-
criminating value of Birkley’s statement, a “subtle” line-
drawing exercise in the first instance, is doubly hard in the
context of a multi-year fraud where no single act was the
smoking gun. Green, 648 F.3d at 575. More simply, guilt did
not rise or fall on proof of a discrete event subject to straight-
forward evidence, like a bank robbery. Cf. Jett, 908 F.3d at 259–
60, 274–75 (defendant admitting he was “joyriding ... fleeing”
was not a confession that he was conspiring to commit a bank
robbery). Additionally, Fenner adopted much of Birkley’s
statement when he testified to the “floor plan” agreement,
softening our view of its incriminating value. Briscoe, 896 F.2d
at 1502–03 (no Bruton violation when statement was con-
sistent with codefendant’s “theory of defense”).
The government needed to prove multiple actions, innoc-
uous in isolation but collectively illicit. The government’s the-
ory, laid plain in its closing, makes the multi-step nature of
the inquiry clear:
Why does [the fact that there were no auctions] matter?
Because if there is no purchase, they don’t get the
bank’s lien washed off. If they don’t get the bank’s lien
washed off, they don’t have clean title to the vehicle. If
Nos. 23-2177 & 24-1089 19
they don’t have clean title to the vehicle, they can’t re-
sell the vehicle for a profit. 4
Only if the jury pieced each of these inferences together could
they arrive at a guilty verdict.
In this “factually complicated” scenario, Brasher, 105 F.4th
at 1007 (quoting Hopper, 11 F.4th at 572), Fenner faces a high
burden to show that any “error was so plain the trial judge
and prosecutor were derelict” in allowing it. Page, 123 F.4th at
866 (quoting United States v. Frady, 456 U.S. 152, 163 (1982) (ci-
tation omitted)).
Moving to the third prong, which we find dispositive and
constitutes part of our plain error holding,5 even if there was
error and that error was plain, there is no reasonable proba-
bility that the error affected the jury’s verdict against Fenner.
Greer, 593 U.S. at 507–08. To reiterate, Birkley told law en-
forcement (1) he wanted to conceal his financing of the oper-
ation, (2) he did not pay Fenner for the cars, and (3) the auc-
tions were prearranged affairs. First, as noted in section II.B,
the documentary and witness evidence of Birkley’s conceal-
ment was overwhelming. The second and third admissions
were similarly obvious from other evidence presented. Birk-
ley’s extensive financial documents omitted any line-item ex-
pense for purchasing the hundred-odd vehicles from Fenner,
standing in sharp relief to Birkley’s meticulous record-
4 The intricate multi-year deception led the district court to apply a
“sophisticated means” enhancement at sentencing, referring to the
scheme as “more than just your average fraud.”
5 As discussed infra, we also hold any error does not affect the “fair-
ness, integrity, or public reputation” of judicial proceedings. Rosales-Mire-
les v. United States, 585 U.S. 129, 143 (2018).
20 Nos. 23-2177 & 24-1089
keeping of bona fide expenses, like towing and storage costs.
Plus, Fenner testified that his “floor plan” agreement with
Birkley meant Birkley would not pay him for the cars until
after Birkley sold them. He admitted there was no money ex-
changed at the time of the transfers.
Strong evidence also supported that the auctions were fab-
rications. Multiple witnesses attempted to attend several auc-
tions only to find locked parking lots and buildings with the
lights off. Documents exchanged between Fenner and Birkley
revealed that Fenner transferred vehicles to Birkley four days
before they were set to be sold. And remember, Fenner sched-
uled some of the purported auctions for preposterous hours
on Christmas Eve, Christmas, and New Years Eve. The gov-
ernment’s searing cross-examination of Fenner on these top-
ics no doubt swayed the jury. When Fenner was cross-exam-
ined on why he never brought up having a business relation-
ship with Birkley in prior sworn testimony, 6 and chose to
raise the “floor plan” defense for the first time at trial, he of-
fered the rather weak response that he was “not asked” about
his relationship with Birkley. It is a “fundamental premise of
our criminal trial system ... that the jury is the lie detector” and
was entitled to find Fenner’s explanation not credible. United
States v. Scheffer, 523 U.S. 303, 313 (1998).
Finally, we also hold that any potential error would not
compel our review to correct the “fairness, integrity, or public
reputation” of judicial proceedings. Rosales-Mireles, 585 U.S.
6 Fenner agreed to sit for a deposition in a separate civil suit that pre-
ceded the criminal trial. Sperro LLC v. Ford Motor Credit Co. LLC, 64 N.E.3d
235, 238 (Ind. Ct. App. 2016). On Fenner’s cross at trial, the government
introduced parts of this prior testimony without objection.
Nos. 23-2177 & 24-1089 21
at 143 (2018). Appellate courts are to exercise the power to
overturn verdicts on plain error review “sparingly.” Jones v.
United States, 527 U.S. 373, 389 (1999). Several considerations
weigh against its use here. First, review and reversal would
require a new trial, which imposes a relatively heavy cost.
Rosales-Mireles, 585 U.S at 140, 142–43. Second, the argued er-
ror was born out of counsel’s failure to object, not the trial
judge’s misbehavior. Id. at 140, 144 (suggesting errors stem-
ming from decisions the trial court “is charged in the first in-
stance with determining” are more apt for review than “trial
strategies” that retrospectively appear erroneous). More im-
portantly, “in most circumstances, an error that does not af-
fect the jury’s verdict does not significantly impugn the ‘fair-
ness,’ ‘integrity,’ or ‘public reputation’ of the judicial pro-
cess.” United States v. Marcus, 560 U.S. 258, 266 (2010). Fen-
ner’s admitted testimony largely reinforced Birkley’s state-
ment, minimizing our concern that Birkley’s statement
swayed the jury. Fenner had a colorable reason for failing to
object—to buttress his own testimony as corroborative—di-
minishing our appetite to review any “error” that was quite
possibly a deliberate choice from counsel.
And we must also remember that Bruton is grounded in
the Sixth Amendment’s right to confront—i.e. cross-exam-
ine—witnesses. See generally Crawford v. Washington, 541 U.S.
36, 42–50 (2004) (opportunity to cross-examine witnesses es-
sential to Sixth Amendment). That right, save “the excep-
tional cases in which counsel is ineffective,” includes “the
lawyer’s [tactical] decision to forgo cross-examination.” Tay-
lor v. Illinois, 484 U.S. 400, 418 (1988). Outside of ineffective
assistance of counsel claims, which are best left for collateral
review, Massaro v. United States, 538 U.S. 500, 504–05 (2003), a
defendant faces a steep hill to climb when attempting to
22 Nos. 23-2177 & 24-1089
establish a constitutional violation based upon a decision to
choose one trial strategy at the expense of another. In cases of
later-challenged omissions, we first ask whether the omission,
say failing to cross-examine, was intentional—in which case
we will not review it as waived—or negligent—in which case
we review only for plain error. United States v. Gibbs, 130 F.4th
619, 622 (7th Cir. 2025). The government has not argued
waiver, so we have proceeded under plain error review.
But in weighing our discretion to grant relief based on the
fairness, integrity, and public reputation of the courts, we find
it relevant that Fenner did not lodge an objection premised on
a trial right vested to him. This is analogous to a decision not
to cross-examine a witness. Take a situation where Birkley
was a testifying witness instead of a codefendant who exer-
cised his right not to testify. Fenner could have either opted
to take his statement as it was, perhaps thinking it did no
harm to, or perhaps even corroborated, his defense. Or, Fen-
ner could have decided to cross-examine Birkley. Here, Fen-
ner had good reason to leave Birkley’s statement undisturbed,
received a fair trial, and had a relatively weak defense. We see
no reason to question the fairness or integrity of the convic-
tion. Because we find the district court did not make multi-
ple—plain or preserved—errors at trial, we necessarily reject
Fenner and Birkley’s cumulative error argument. United
States v. Groce, 891 F.3d 260, 270–71 (7th Cir. 2018).
D. The Remaining Alleged Errors
Birkley alone advances an ex post facto argument. It does
not hold water. The Constitution forbids a state from “passing
ex post facto laws—those that ‘retroactively alter the definition
of crimes or increase the punishment for criminal acts.’” Nel-
son v. Town of Paris, 78 F.4th 389, 395 (7th Cir. 2023) (quoting
Nos. 23-2177 & 24-1089 23
Collins v. Youngblood, 497 U.S. 37, 43 (1990)). We review de novo
whether a law is both retroactive and punitive. United States
v. Arojojoye, 753 F.3d 729, 736 (7th Cir. 2014).
Birkley believes his conviction violates the Ex Post Facto
Clause because the Indiana mechanic’s lien statute intro-
duced at trial became effective January 1, 2015, when the al-
leged conspiracy had begun in August 2013. The version in
effect from 2013 to 2015 was identical with respect to the pro-
cedural requirements for a mechanic lienholder wishing to
auction a vehicle. Ind. Code Ann. §9-22-6-2 (2012 version).
Birkley’s argument fails because he was neither convicted
nor “sentenced pursuant to the suspect provision,” the me-
chanic’s lien statute. Sides v. City of Champaign, 496 F.3d 820,
826 (7th Cir. 2007). It is true that part of the fraud involved the
statute, including showing that Birkley lied on the BMV ap-
plications. But his convictions and sentence are the product of
seventeen violations of federal, not Indiana law.
Finally, we affirm the district court’s restitution calcula-
tion. The Mandatory Victim Restitution Act (MVRA) requires
defendants “make restitution to the victim of the offense.” 18
U.S.C. §3663A(a)(1). Because wire and mail fraud convictions
are offenses that “involve[] as an element a scheme [to de-
fraud], conspiracy, or pattern of criminal activity,” a court
must order restitution to “any person directly harmed by the
defendant’s criminal conduct in the course of” their fraud. Id.
§3663A(a)(2); United States v. Griffin, 76 F.4th 724, 749 (7th Cir.
2024). The purpose is to “fully compensate these victims for
their losses.” Griffin, 76 F.4th at 749 (citation omitted). “[R]es-
titution for victims of the overall scheme is required.” United
States v. Meza, 983 F.3d 908, 918 (7th Cir. 2020) (quotations and
citation omitted).
24 Nos. 23-2177 & 24-1089
In cases “involving stolen property,” sentencing courts
must “order return of the property to the victim,” or if that is
not possible, “compel the defendant to pay the value of the
property less the value of any property already returned.”
United States v. Anderson, 866 F.3d 761, 765 (7th Cir. 2017) (cit-
ing 18 U.S.C. §3663A(b)).
The government must establish the restitution amount by
a preponderance of the evidence. United States v. Robl, 8 F.4th
515, 527 (7th Cir. 2021). In arriving at the correct figure, a court
“may rely on information provided in the presentence report
‘so long as it is well supported and appears reliable.’” Id. at
529 (quoting United States v. Scalzo, 764 F.3d 739, 745 (7th Cir.
2014)). The defendant has the burden to show that the pro-
posed restitution amount in the presentence report is “inac-
curate or unreliable, and a simple denial of its accuracy does
not discharge this burden.” Griffin, 76 F.4th at 750 (quoting
Scalzo, 764 F.3d at 745).
The district court did not plainly err in its restitution as-
sessment. 7 Three creditors submitted losses for the value of
7 While Fenner’s brief (which Birkley adopts) argues for plain error
review, he may have waived this argument outright. We have previously
addressed when a litigant waives versus forfeits an argument for appeal.
United States v. Hernandez, 44 F.4th 1053, 1057–58 (7th Cir. 2022). “Waiver
occurs when a party intentionally relinquishes a known right and forfei-
ture arises when a party inadvertently fails to raise an argument in the
district court.” United States v. Flores, 929 F.3d 443, 447–49 (7th Cir. 2019).
Waived issues cannot be appealed but forfeited arguments are reviewable
for plain error. United States v. Harris, 102 F.4th 847, 851 (7th Cir. 2024). A
defendant performs a “textbook waiver” of a sentencing error when he
expressly tells the court he does not object to the relevant factual finding.
United States v. Coffin, 23 F.4th 778, 780–81 (7th Cir. 2022). Fenner’s conduct
is on all fours with the defendant in Harris, who waived his argument
when he “was ‘expressly invited’ to object, and ‘expressly declined’ to do
Nos. 23-2177 & 24-1089 25
the unpaid car loans on the vehicles before Fenner and Birkley
extinguished their property interests through the fraudulent
titling process ($34,663.70). Another creditor’s reported loss
was also an unpaid loan minus a partial settlement it received
($8,392.14). And the final creditor’s loss was the cost to pay
off Fenner’s inflated lien and tow its vehicle from Fenner’s lot
in Indiana back to Abilene, Texas ($5,990.00).
The four creditors that lost the value of their liens on vehi-
cles had a right to recover the amount owed on those cars, but
for the defendants’ direct actions. To the extent Fenner argues
the loan values should reflect the amount the creditors could
have realistically expected to recover from distressed debtors,
we hold that the district court’s decision on this nuanced
point was not plain error. See United States v. Eaden, 37 F.4th
1307, 1315 (7th Cir. 2022) (district court’s restitution calcula-
tion that depended on, but failed to parse out the amount of
illegally inflated profits from legal profits was not plain er-
ror). Neither Fenner nor Birkley proposed an alternative
amount for the “true” value of the liens beyond their “simple
denial[s] of [their]” accuracy on appeal. United States v. Fen-
nell, 925 F.3d 358, 362 (7th Cir. 2019) (quotations omitted). De-
spite Fenner’s bare protest, it is quite possible the creditors
so, confirming that he had no objection and expressly affirming the accu-
racy of [the restitution amounts] in the PSR.” 102 F.4th at 852 (quoting
United States v. Lewis, 823 F.3d 1075, 1079 (7th Cir. 2016)). That matches
Fenner’s proceeding, and “[t]hat was waiver.” Lewis, 823 F.3d at 1079.
Nonetheless, because Birkley’s objection is concededly subject to plain er-
ror review and the government has waived its waiver argument against
Fenner on appeal, we review both claims for plain error. United States v.
Stapleton, 56 F.4th 532, 541 (7th Cir. 2022).
26 Nos. 23-2177 & 24-1089
would have recovered the remaining value of their liens
through subsequent sales or from the debtor directly. In any
event, the restitution amount “must be based on actual losses”
and can only be reduced by actual money returned to the
property holder, not “speculative” adjustments. United States
v. Burks, 678 F.3d 1190, 1198–99 (10th Cir. 2012) (value of in-
surance policy for vehicle, not alleged fair-market value of
car, was proper restitution amount).
The fifth victim was also properly compensated. That
creditor chose to pay the inflated mechanic’s lien and bring its
vehicle back to Texas. The district court properly pegged res-
titution to the cost of Fenner’s fraudulent services and reme-
dial towing cost. It is irrelevant that some of the mechanic’s
lien consisted of real towing costs because the vehicle never
would have been towed from Abilene to Indiana if not for
Fenner’s fraud. Cf. United States v. Navarrette, 667 F.3d 886,
889–91 (7th Cir. 2012) (where “the only effect of the fraud is to
transfer business between two sellers whose prices and qual-
ity are the same,” a court must segregate real services from
inflated costs); see also United States v. Coriarty, 300 F.3d 244,
253–54 (2d Cir. 2002) (when lost money in fraud consisted of
“commingling” of legitimate expenses and fraud, restitution
could encompass entire valuation). The creditor was due re-
covery of the money it had to pay to return to the position it
was in before Fenner and Birkley needlessly brought the ve-
hicle across the country.
III. Conclusion
For the foregoing reasons, the convictions and judgments
as to Fenner and Birkley are AFFIRMED.
Nos. 23-2177 & 24-1089 27
JACKSON-AKIWUMI, Circuit Judge, concurring in part. I join
the majority opinion in every respect except for the analysis
in Section II.C. That section concerns the government’s use at
trial of an inculpatory statement Fenner’s co-defendant Birk-
ley made to law enforcement. Fenner argues that the use of
Birkley’s statement violated Fenner’s rights under the Sixth
Amendment’s Confrontation Clause. I agree with my col-
leagues’ ultimate conclusion in Section II.C., which is that
Fenner has failed to meet his burden under the third prong of
plain error review to show he was harmed by the admission
of Birkley’s statement given the overwhelming evidence
against Fenner. See ante, at 19–21. That conclusion is clear and
dispositive, in my view. I do not join the rest of Section II.C.,
which goes beyond the question of harmlessness into a dis-
cussion of the Supreme Court’s Bruton jurisprudence and as-
pects of the trial record I see differently than my colleagues.
See ante, at 13–19, 21–22.