The “Fenner-Birkley Framework” – Seventh Circuit Clarifies Bruton, Lay-Summary Testimony, and Restitution in Complex Fraud Cases

Introduction

United States v. Dennis Birkley (consolidated with United States v. Brian Fenner), No. 23-2177 & 24-1089, decided July 1, 2025 by the U.S. Court of Appeals for the Seventh Circuit, is a wide-ranging fraud appeal that touches on five doctrinal flash-points:

1. When a summary witness crosses the expert/lay divide under Rules 701-702;
2. How far an agent-summary witness may go when discussing a defendant’s intent;
3. The outer limits of the Bruton line of Confrontation Clause cases, especially on plain-error review;
4. Ex post facto challenges to predicate state statutes in federal fraud prosecutions; and
5. Computation of restitution under the Mandatory Victim Restitution Act (MVRA) in “lien-washing” auto fraud schemes.

The panel (Judges Easterbrook, Jackson-Akiwumi, and Kolar, opinion by Judge Kolar) ultimately affirmed the convictions, sentences, and $49,045.84 restitution orders entered by the Southern District of Indiana. While no single ruling is path-breaking in isolation, together they establish what practitioners will likely cite as the Fenner-Birkley Framework—a bundled set of clarifications on:

• Distinguishing “facial” from “inferential” incrimination for Bruton purposes in sophisticated white-collar trials;
• Determining when voluminous-record testimony remains lay opinion despite heavy arithmetic; and
• Calculating restitution for extinguished secured interests under MVRA.

Summary of the Judgment

The Seventh Circuit addressed five appellate issues:

1. Rule 701/702 – Whether FBI accountant Kathryn Kanetzke’s bank-record testimony was impermissible expert evidence. Holding: It remained lay testimony; district court did not abuse discretion.
2. Intent Testimony – Whether Special Agent Kathryn Graham’s statements about the defendants’ motive were improper. Holding: At worst harmless; any error non-prejudicial.
3. Bruton/Confrontation – Whether admitting co-defendant Birkley’s statement (naming Fenner) violated Fenner’s rights. Holding: Even if error, not “plain” and certainly not outcome-determinative; no relief on plain-error review.
4. Ex Post Facto – Whether reliance on a post-2015 Indiana mechanic’s-lien statute impermissibly altered criminal liability. Holding: No; federal charges remained unchanged.
5. Restitution – Whether the $49k award exceeded actual loss. Holding: Supported by record; no plain error.

Judge Jackson-Akiwumi concurred separately, joining the outcome but declining to endorse portions of the majority’s extended Bruton discussion, signalling potential intra-panel differences about how far the new articulation should reach.

Analysis

1. Precedents Cited and Their Influence

• Bruton v. United States, 391 U.S. 123 (1968) – Starting point for barring facially incriminating co-defendant confessions.
• Richardson v. Marsh, 481 U.S. 200 (1987) – Introduced the “inferential incrimination” exception.
• Gray v. Maryland, 523 U.S. 185 (1998) – Held that obvious redactions (“deleted, deleted”) still violate Bruton.
• Samia v. United States, 599 U.S. 635 (2023) – Approved neutral pronoun substitutions (“other person”) with limiting instructions.
• United States v. Stockheimer, 157 F.3d 1082 (7th Cir. 1998) – Allowed statement naming an “inner circle” because membership was not itself incriminating without more.
• United States v. Christian, 673 F.3d 702 (7th Cir. 2012) et al. – Define Rule 701/702 demarcations for agent-summary witnesses.
• Greer v. United States, 593 U.S. 503 (2021); Olano & Rosales-Mireles – Modern structure of plain-error review.
• United States v. Griffin, 76 F.4th 724 (7th Cir. 2024) – Scheme-wide restitution under MVRA.

Together these cases furnished the doctrinal scaffolding. The panel synthesized them into an expressly “holistic” test: whether a statement is facially or merely inferentially incriminating depends not only on its text but on (i) the complexity of the scheme, (ii) the defense strategy, and (iii) whether the co-defendant’s own testimony adopted the statement.

2. The Court’s Legal Reasoning

a. Lay vs. Expert Summary Testimony

Applying Rule 701, the panel emphasised that elementary arithmetic—even at scale—remains within the ken of the ordinary juror. Kanetzke’s work was described as “addition and subtraction across tens of thousands of pages,” tied solely to records already in evidence. Because she did not rely on specialised forensic-accounting methodologies or industry norms (unlike the Medicare expert in White), no Rule 702 qualification was required.

b. Intent Opinions by an Agent

Agent Graham’s testimony pressed the boundary by speculating why defendants hid certain facts. The panel acknowledged possible overreach but invoked harmless-error doctrine, noting (i) overwhelming independent evidence of concealment and (ii) robust cross-examination opportunities. This signals that intent commentary by summary agents will survive if cumulative and corroborated.

c. The Fenner-Birkley Bruton Analysis

Three steps underpin what practitioners can now call the Fenner-Birkley Framework for co-defendant statements introduced without objection:

1. Determine whether the statement is powerfully facially incriminating or only inferentially so in light of the entire evidentiary mosaic.
2. If ambiguity exists, gauge whether the defendant’s own trial strategy adopted or paralleled the statement—adoption dilutes prejudice.
3. On plain-error review, any error must survive the dual hurdles of “obviousness” (prong 2) and “reasonable probability of changed outcome” (prong 3); sophisticated-means fraud schemes rarely satisfy both because the jury’s verdict typically turns on many interconnected inferences.

Because Fenner himself described a “floor-plan” credit arrangement echoing Birkley’s remarks, the court held any Bruton error non-obvious and non-prejudicial—thereby clarifying that consistency with the defense theory severely undercuts plain-error relief.

d. Ex Post Facto Dismissal

The court reminded that a federal fraud conviction does not retroactively apply a state statute; the Indiana lien statute merely provided contextual evidence of deceit. The opinion thus draws a clean jurisdictional line: fraud-on-the-lien schemes prosecuted federally are insulated from state-statute timing arguments unless the federal offense definition itself changed.

e. Restitution Metrics

Relying on Griffin and Anderson, the panel upheld restitution equalling the face value of extinguished liens plus direct remediation costs. Two lessons surface:

1. Extinguishing a secured creditor’s lien is tantamount to theft of the collateral’s entire loan balance, not merely its market value.
2. Defendants who dispute PSR restitution tables must produce alternative calculations; simple denial is insufficient.

3. Likely Impact of the Decision

• Trial Strategy. Prosecutors in complex fraud cases may feel emboldened to present co-defendant statements without exhaustive neutral pronouns—if they can argue inferential incrimination and expect no contemporaneous objection.
• Defense Counsel. Must now lodge prompt Bruton objections or risk being boxed in by the Fenner-Birkley plain-error ceiling; tactical silence may later be deemed a strategic waiver.
• Summary Witnesses. The opinion limits Rule 702 challenges where witnesses merely compile voluminous records and perform straightforward math. Expert qualification will be required only for advanced financial analyses, industry benchmarking, or specialised methodologies.
• Restitution jurisprudence. Creditors holding extinguished liens can claim the full unpaid balance; defendants cannot argue hypothetical post-repossession recoveries unless they introduce concrete evidence.

Complex Concepts Simplified

• Bruton Problem – In joint trials, one defendant’s out-of-court confession can violate another’s right to confront witnesses if it directly names the co-defendant. The court must decide whether the statement incriminates on its face or only after linking to other evidence.
• Plain-Error Review – A four-part test applied when no trial objection was made. The appellant must show (1) an error, (2) that is obvious, (3) that probably affected the verdict, and (4) that seriously impacts judicial integrity.
• Rule 701 vs. Rule 702 – Lay opinions (701) come from personal perception and common reasoning; expert opinions (702) rely on specialised knowledge requiring qualification. A summary agent can remain “lay” if she merely organises and totals documents.
• MVRA Restitution – Mandatory for fraud; victims receive the value lost, not defendants’ gain. Losses include unpaid principal when liens are invalidated.

Conclusion

United States v. Birkley/Fenner weaves several doctrinal threads into a cohesive precedent for complex, multi-step fraud prosecutions. Its key contributions are threefold:

1. Clarifies Bruton’s reach under plain-error review, stressing a holistic, scheme-specific inquiry and the significance of defense adoption.
2. Reaffirms the boundary between lay and expert testimony, emphasizing that volume does not equal expertise where only basic arithmetic is employed.
3. Provides a template for restitution where fraudulent acts wipe out secured creditors’ interests.

While the concurring opinion counsels caution in over-extending the Bruton discussion, the majority’s articulation is poised to influence evidentiary litigation in white-collar trials nationwide. Defense lawyers must now object early and often, and prosecutors must calibrate summary-witness narratives and co-defendant statements with the Fenner-Birkley Framework squarely in mind.