United States v. Brian Fenner
23-2177
| 7th Cir. | Jul 25, 2025Background
- Brian Fenner (towing company owner) and Dennis Birkley (financier) operated a scheme abusing Indiana’s mechanic’s lien statute to acquire and resell vehicles from financially distressed owners.
- Fenner paid car owners’ bankruptcy fees, towed their vehicles, inflated lien amounts beyond statutory limits, and initiated sham auctions at improbable times and places, ensuring the vehicles could not be reclaimed by creditors.
- Birkley funded Fenner’s costs, won all the auctions (which never actually occurred), and obtained clean vehicle titles by falsely claiming legitimate sales.
- Together, they acquired about 100 vehicles and profited over $1 million. The fraud unraveled after a creditor sued, leading to a criminal investigation and conviction on 17 counts of fraud and money laundering in federal court.
- Fenner and Birkley appealed convictions and sentences, challenging evidentiary rulings, the use of certain statements, restitution amounts, and—Birkley alone—asserting an ex post facto constitutional violation.
Issues
| Issue | Fenner & Birkley's Argument | Government's Argument | Held |
|---|---|---|---|
| Admission of lay/expert summary testimony | Kanetzke and Graham gave improper expert testimony without qualification; opined on intent | Witnesses summarized admissible documents, performed basic arithmetic, and drew reasonable inferences | No abuse of discretion; testimonies qualified as lay summaries under Federal Rules |
| Admission of Birkley’s inculpatory statement (Confrontation Clause) | Birkley’s statement to law enforcement, used at trial, violated Sixth Amendment | Statement was non-testimonial, corroborated by Fenner’s own trial testimony and other evidence | No plain error; even if error, no prejudice or effect on trial fairness |
| Ex post facto constitutional claim (Birkley) | Conviction relied on mechanic’s lien statute enacted after scheme began | Convictions were for federal crimes; state statute’s 2012 and 2015 versions identical for relevant acts | No violation; convictions based on federal law, not retroactive application |
| Restitution calculation | Amounts erroneously based on full loan values and inflated liens | Calculations supported by evidence, victims’ actual losses, and statutory requirements | No plain error; amount supported and defense waived objections |
Key Cases Cited
- Bruton v. United States, 391 U.S. 123 (1968) (restricts use of nontestifying codefendant confessions at joint trials)
- Richardson v. Marsh, 481 U.S. 200 (1987) (no violation if confession incriminates only by inference, not directly)
- Gray v. Maryland, 523 U.S. 185 (1998) (redacted confessions that obviously refer to codefendant violate Bruton)
- United States v. Cirrincione, 780 F.2d 620 (7th Cir. 1985) (statements that are cumulative or fit defense theory not Bruton violations)
- United States v. Scheffer, 523 U.S. 303 (1998) (jury is the credibility assessor)
- United States v. Anderson, 866 F.3d 761 (7th Cir. 2017) (restitution in property crimes based on actual loss)
- Griffin v. United States, 76 F.4th 724 (7th Cir. 2024) (MVRA restitution covers all directly harmed victims)