United States v. Ahmet Keskes , 703 F.3d 1078 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1127
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A HMET K ESKES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cr-00797-1—Samuel Der-Yeghiayan, Judge.
A RGUED N OVEMBER 26, 2012—D ECIDED JANUARY 7, 2013
Before R OVNER, W ILLIAMS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. A jury convicted Ahmet Keskes
of six counts of wire fraud and five counts of mail
fraud arising out of his receipt and sale of stolen mer-
chandise over the Internet. The district court sentenced
him to 78 months’ imprisonment on each count to
run concurrently. Keskes timely appealed, arguing that
the district court erred in denying his motion for a
mistrial based on the prosecutor’s comment that a
2 No. 12-1127
judge had issued a search warrant for Keskes’s ware-
house and that the court erred in admitting testimony
about “gypsies” being thieves and testimony about state-
ments attributed to a man named “Robert.” (We intend
no disparagement by the use of the term “gypsy” through-
out this opinion. It is a term used by witnesses and
the lawyers at trial, and its use, as noted, is entwined in
one of the issues in this appeal. We use the term merely
to explain how it was used during the trial and to
address the claimed error.) Keskes also argues that even
if each of the alleged errors was harmless, the cumula-
tive errors denied him a fair trial. Finally, he argues
that the court erred at sentencing by relying on his
silence as a sign of a lack of remorse and by relying on
an inaccurate fact. Finding no error, we affirm.
I. BACKGROUND
Keskes was the owner, manager, and president of Asena
Corporation, a resale operation that sold goods on its own
website (www.asenashop.com), eBay, and Amazon.com.
Between 2006 and 2009, Keskes sold more than
$3.5 million in merchandise over the Internet. Bank
records indicate that during that time, Asena disbursed
more than $12.2 million but none of its checks was
written to any of the manufacturers of the products
Keskes sold. Instead, Keskes wrote 273 checks for a total
of $3.1 million to “Cash” and another $2.1 million to
dozens of individuals. To register to sell an item for sale
on eBay or Amazon.com, a seller has to set up an
account, which includes accepting the terms of the user
No. 12-1127 3
agreement; otherwise, the seller is not authorized to use
these websites. The user agreements prohibit the sale
of stolen items.
In 2009, FBI agents searched Keskes’s warehouse and
seized enough merchandise to fill 350 large cardboard
boxes. The items seized included approximately 70 Victo-
ria’s Secret perfumes, individually wrapped in plastic;
multiple toothbrushes from Bed Bath & Beyond;
multiple golf clubs with no head covers and no tool sets;
approximately 50 to 100 items from Toys “R” Us; approxi-
mately 100 items from Hobby Lobby; approximately
50 items manufactured by FURminator; and numerous
headlights from Sylvania Company, an auto-parts sup-
plier. Many of the items seized still had security tags
or store price tags on them. No documents were found
to suggest that Keskes had obtained the products from
liquidators or at closeout sales. Nor were any invoices
from the manufacturers of the products found. The ware-
house was full of empty boxes with shipping labels still
on them. None came from the manufacturers, liquidators,
or closeout companies. The return addresses on many
of the boxes did not exist or were not connected to a
legitimate supplier. Two packages that FedEx was
holding for Keskes contained a hodge-podge of unrelated
items such as life vests, Oral-B electric toothbrushes,
radios, a calculator, and cell phone devices. Many of
the items still had the security tags on them.
Representatives from seven different corpora-
tions—Limited Brands (the parent company of Victoria’s
Secret and Bath & Body Works), Hobby Lobby,
4 No. 12-1127
FURminator, Acushnet Golf Company, Callaway, Bed
Bath & Beyond, and Toys “R” Us—testified at trial
that Keskes was not an authorized retailer of their
products but sold large quantities of their new, popular
products for less than the wholesale price. In some
cases, Keskes sold the products below production costs.
He even sold approximately 744 items for one penny.
Yet he still had a substantial profit margin: he pur-
chased his inventory for approximately $732,000 and
sold it for $1.2 million. The suggested retail price, how-
ever, was approximately $1.73 million.
For example, in 2009, Keskes was selling a large
volume of Limited Brands’s most popular items,
including perfumes that are made exclusively for sale at
Victoria’s Secret, Bath & Body Works, and in a limited
quantity at military commissaries. The items were not
on closeout or near the end of their product cycles, and
they were not being liquidated. Keskes advertised
the merchandise as new, unopened, and never used.
Some of the merchandise still had store price stickers
and security tags on them. Some was still in its original
packaging. Joe Hajdu of Limited Brands testified that
the security tags are not attached to products until the
products reach the retail stores. He also testified that
the security tags on the items involved in Counts Seven
through Ten were still active. Security tags are to be
deactivated when customers purchase the product.
As another example, Keskes also advertised golf clubs
for sale as new, “like new,” or with “minor shop wear”
and without head covers. The individuals who pur-
No. 12-1127 5
chased clubs charged in Counts One through Five
testified that the clubs looked new and had no scratches
on them. One purchaser stated that if the club he had
purchased was lined up in a pro shop with new clubs,
he could not pick out the purchased club. Lisa Rogan, a
representative from Acushnet, testified that Acushnet
requires retailers to sell head covers with golf clubs
but most retailers keep the covers in the back room until
the time of sale—not on display to the public—because
the covers make it difficult to see the clubs. The FBI
found numerous golf clubs in Keskes’s warehouse but
no head covers.
Gordon Barnhill, a retired Chicago Police sergeant
who worked part-time for Keskes between 2006 and early
2009, and then full-time until September 2009, testified
at trial. Barnhill stated that he gradually came to learn
that Keskes obtained his products from “gypsies,” who
Barnhill described as “a group of people who make
their living through dishonest practices, theft, deceptive
practices, and fraud.” Barnhill testified that in late 2008
or early 2009, he concluded that Keskes was selling
stolen merchandise. This was based in part on the prices
that Keskes paid for the goods. Barnhill explained that
he kept working for Keskes because he was a good friend.
Barnhill described Keskes’s business practices and said
that Keskes received complaints that he was selling
stolen merchandise, including computers. Barnhill stated
that Keskes set the prices for the goods he purchased
and that he chose the price by determining what other
online retailers were charging and then going below
6 No. 12-1127
their prices. Barnhill testified that he observed “gypsies”
enter the warehouse with boxes or bags full of
merchandise and leave the merchandise on the floor.
On other occasions, merchandise arrived in cardboard
boxes shipped via FedEx or UPS. The merchandise was
organized in a “Helter Skelter,” “mixmosh” way with
“no set pattern.” Occasionally the merchandise came
with a handwritten note. Barnhill testified that he saw
price tags and security tags on the merchandise and
that some of the address labels on the boxes came from
residential areas and not commercial or business areas.
On several occasions, Keskes asked Barnhill to run
“warrant checks” on “gypsy people” and let Keskes
know if anyone had any outstanding warrants. Barnhill
did so, in violation of police department rules. Barnhill
told Keskes not to do business with someone who had
an outstanding warrant—and not to do business with
“gypsies” at all—but Keskes did not follow his advice.
In the winter of 2008, Barnhill spoke with Keskes about
the fact that Keskes was purchasing items with store
security tags and price tags still on them. Barnhill also
told Keskes that the handwritten invoices did not
appear legitimate and that the return address labels on
the shipments of products were not from legitimate
businesses and appeared to be written by “gypsies.”
Keskes told Barnhill not to worry about it and walked
away. On other occasions, Barnhill told Keskes that he
believed the items Keskes was selling were stolen.
Keskes told Barnhill not to worry or walked away. Then,
in August 2009, Barnhill confronted Keskes about
selling stolen merchandise, saying, “Ahmet, I know what
No. 12-1127 7
you’re doing, you have to stop, you have to think of
[your wife], you have to think of your kids.” Keskes
simply shrugged his shoulders and walked away.
The FBI had begun investigating Keskes in early 2006.
As part of its investigation, the FBI used a confidential
informant, Marek Sturgulewski, who testified at trial.
Sturgulewski had known Keskes for years but had not
kept in touch with him. From 2002 until 2006,
Sturgulewski worked at a restaurant where he became
acquainted with a group of people who identified them-
selves as “gypsies.” Sturgulewski understood “gypsies”
to refer to “an ethnic group that comes in mostly from
Eastern Europe.” He stated that the members of the
group talked about “going shopping” as a way to make
money and tried to cash checks at the restaurant that
were made out to fictitious names like SpongeBob.
(SpongeBob Square Pants is the title character in a
popular American animated television series that pre-
miered in 1999.) Sturgulewski met “Robert,” a man
who referred to himself as a “gypsy.”
Sturgulewski testified about a conversation he had
with Robert in late 2005 or early 2006. Robert told
Sturgulewski “that his family, his group, is going
around [the] United States for a few weeks to steal prod-
ucts from retail stores and resell it to buyers in the
Chicago area.” Robert said he was working with other
people and identified some of the stores they were
stealing from and some of the items they were stealing.
He also explained in detail how he and his group
managed to steal the items. Sturgulewski testified that
8 No. 12-1127
Robert mentioned that he knew Keskes, saying where
he was located in Streamwood, Illinois, and the name of
his store, Asenashop. Robert also told Sturgulewski that
Keskes was purchasing stolen products from Robert.
Robert explained that he shipped products by FedEx
or UPS or delivered them directly, and Keskes paid him
in return. Not long after this conversation, Sturgulewski
went to Keskes’s warehouse several times and observed
“groups of gypsies” enter the warehouse with bags,
stay inside for an hour or two, and then leave empty-
handed. Sturgulewski also followed some “gypsies”
to various stores, where he saw them stealing various
products.
On March 23, 2006, Sturgulewski contacted Keskes
by phone. Their recorded conversation was played for
the jury. Sturgulewski told Keskes, “I talked to some
people, and . . . they got some stuff. You know who
I’m talking about. . . . You know, I have some knowledge,
and I have some connections.” Keskes responded,
“I know,” and laughed. Sturgulewski explained that
“Robert told me. You know Robert?” Keskes said, “Yeah,
yeah, yeah.” Then Sturgulewski stated that “Robert
told me he went to Germany,” and Keskes said, “Yes,
I know.”
On April 21, 2006, Sturgulewski, equipped with a
recording device, met with Keskes at a restaurant.
Their recorded conversation was played for the jury.
Keskes stated that he can buy anything, provided that
he sets the price. Sturgulewski and Keskes discussed
that Keskes’s vendors did not like to be paid with
No. 12-1127 9
checks, and Sturgulewski said that “some of them, they’re
taking, taking checks. You remember Robert?” Keskes
answered, “Mm-hmm. . . . Yeah, but . . . he’s a, he’s a
trusted guy, you know?” Sturgulewski stated that his
“main concern is paying out the gypsies,” and Keskes
offered to write “empty checks” (checks without a
payee name) for them. Sturgulewski suggested that
Keskes write a check to a “second party” or a person
that did not exist, even to SpongeBob. Keskes responded,
“I mean, if they accept the checks, that’s all right.”
During their conversation the following ex-
change occurred:
Sturgulewski: Ahmet, did, you, did you ever
think of it . . . just imagine, one gypsy
family . . . just try to visualize
this . . . how much stuff they
can steal.
Keskes: I don’t know . . . . I don’t wanna look
at that way, I just . . . see . . . .
Sturgulewski: To me it’s just like overwhelming.
Keskes: I don’t know . . . I don’t know what
they do, how they do . . . I don’t
look at [it] that way. I look at,
I pay money and . . . .
Sturgulewski: It’s business, that’s it.
Keskes: I don’t care what, how they do, what
they do . . . I don’t . . . I don’t care,
because as long as . . . anybody
10 No. 12-1127
comes in. No tails, what’s going on
with that, and Gordon is in the front
and he is going to check, his ass is
on the phone.
A short while later Sturgulewski remarked, “[Y]ou don’t
check if it’s stolen or not stolen, you don’t, you
don’t . . . you get a[n] invoice, you pay,” and Keskes
responded, “[Y]eah.”
After that conversation, Sturgulewski began pur-
chasing products from persons he described as “gypsies”
and selling the products to Keskes. Sturgulewski
testified that Keskes told him what to purchase—high-
end electronics, brand name products, and sporting
goods. Sturgulewski received the products in cardboard
boxes and delivered them to Keskes’s warehouse. The
products included dog-training collars, Oral-B Sonic
toothbrushes, hard drives, cables, and computer print-
ers—all commingled in the boxes. Keskes set the price
and paid Sturgulewski in cash. Sturgulewski noticed
that some of the products in the warehouse still had the
store packaging, store labels, and price tags on them.
Sturgulewski stated that in July 2007, he had
obtained golf clubs from a person named “Andre” or
“Adam.” The jury watched a video recording of
Sturgulewski receiving several golf clubs from a variety
of manufacturers at Andre’s home. Andre removed
golf clubs from a closet, and he and his wife packed
them into a shipping box. None of the clubs had head
covers, some had price tags on them, and all of the
clubs were brand new. After Sturgulewski left Andre’s
No. 12-1127 11
home, Andre called him and instructed him to pay
Andre in the name of “Toni Kolas” if Sturgulewski
paid with a check. Asena’s bank records show that $43,160
in checks were written to “Toni Kolas” between 2006
and 2009.
II. DISCUSSION
A. Prosecutor’s Comment that a Judge Issued a Search
Warrant
Keskes first argues that the district court abused its
discretion in denying his motion for a mistrial. In his
opening statement, the prosecutor told the jury that “in
September of 2009, the FBI agents went to a judge, and
they obtained a search warrant . . . .” Keskes objected
and moved for a mistrial, arguing that the prosecutor’s
remark suggested that there had been a judicial finding
of guilt. The court offered to give a limiting instruction
to the jury, stating that the fact the government had
obtained a search warrant from a judge was merely
permission to search and does not denote the de-
fendant’s guilt, and that the jury would have to
decide whether the defendant is guilty or not guilty
based on the evidence solely presented at trial. Keskes
did not take the court up on its offer. The court took
Keskes’s motion under advisement and the prosecutor
continued with his opening statement, telling the jury
that the FBI had found approximately 300 boxes of mer-
chandise in Keskes’s warehouse, much of which was
still in the original packaging with security tags and in
new condition.
12 No. 12-1127
The district court ultimately denied the motion for a
mistrial, finding that the single, passing reference to the
judicial process was not prejudicial. It relied on United
States v. Hendrix, 509 F.3d 362 (7th Cir. 2007), where we
concluded that a single “statement from a witness that
a judge approved a search warrant for [the defen-
dant’s] apartment did not inappropriately strengthen
the prosecution’s case and was not unfairly prejudicial.”
Id. at 372. We contrasted the single statement with the
“extensive wiretap evidence” admitted in United States
v. Cunningham, 462 F.3d 708 (7th Cir. 2006). Hendrix,
509 F.3d at 372. In this case, however, the district court
noted that the prosecutor’s “passing comment” was
made in opening statement, which is not evidence. On
appeal, Keskes argues that the prosecutor’s remark im-
properly bolstered the case against him by presenting
an inadmissible judicial opinion of his guilt.
We review the denial of Keskes’s motion for a mistrial
for an abuse of discretion. United States v. Vargas, 689
F.3d 867, 873 (7th Cir. 2012), cert. denied, 2012 WL
5465562 (U.S. Nov. 6, 2012). “[T]he trial court ‘is in the
best position to determine the seriousness of the
incident in question, particularly as it relates to what
has transpired in the course of the trial.’ ” Id. (quoting
United States v. Clarke, 227 F.3d 874, 881 (7th Cir. 2000)).
We “ ‘must affirm unless we have a strong conviction
that the district court erred,’ and the error committed
was not harmless.” Id. (quoting Clarke, 227 F.3d at 881).
“The ultimate inquiry . . . is ‘whether the defendant
was deprived of a fair trial.’ ” Id. (quoting Clarke, 227
F.3d at 881).
No. 12-1127 13
Keskes was not deprived of a fair trial by the prosecu-
tor’s single, passing comment in opening statement that
the FBI had obtained a search warrant from a judge. The
comment was made in opening statement only; opening
statements are not evidence. Just moments before the
comment was made, the district court had instructed
the jury that “opening statements are not evidence.” The
prosecutor made no further reference to the judicial
process for obtaining a warrant. No evidence was
offered to show that the judge issued a warrant. And
the government did not argue—as Keskes does
here—that the issuance of the warrant was evidence
of Keskes’s guilt. Nor did the government argue that
the issuance of the warrant was evidence that the
items in Keskes’s warehouse were actually stolen. The
passing comment in the prosecutor’s opening statement
is even less troubling than the witness’s statement in
Hendrix, which we concluded would not have affected
the outcome of the trial. 509 F.3d at 373.
Furthermore, the court’s final charge to the jury in-
structed them that “[c]ertain things are not evidence and
I will list them for you. . . . [T]he opening statements
and closing arguments by the attorneys are not evi-
dence.” We presume that the jury followed the court’s
instructions. United States v. Villegas, 655 F.3d 662, 673
(7th Cir. 2011). Keskes has offered nothing to overcome
that presumption. The district court did not abuse its
discretion in denying Keskes’s motion for a mistrial.
But even if there was error, it was harmless in light of
the strength of the evidence against Keskes, the fact that
14 No. 12-1127
the comment was not evidence, and the fact that the
judge’s role in issuing the warrant was never mentioned
again. We “can say with fair assurance that the verdict
was not substantially swayed” by the prosecutor’s com-
ment that a judge had issued a search warrant for
Keskes’s warehouse. See United States v. Miller, 673
F.3d 688, 701 (7th Cir. 2012) (discussing harmless-
error analysis).
B. “Gypsies as Thieves” Evidence
Next, Keskes argues that the district court plainly
erred in admitting testimony from government wit-
nesses Sturgulewski and Barnhill about “gypsies” being
inveterate thieves in violation of Rules 401 and 403 of the
Federal Rules of Evidence. He asserts that the “gypsies as
thieves” testimony could only serve to prove his guilt
by guilt by association. Keskes acknowledges that his
Rule 401 and 403 objections were forfeited, and thus,
we review for plain error. United States v. Ambrose, 668
F.3d 943, 963 (7th Cir.), cert. denied, 133 S. Ct. 249 (2012).
Under the plain error standard, we consider whether
there was (1) an error, (2) that was plain, and (3) that
affected substantial rights. Id. On plain error review,
“[w]e could reverse only if exclusion of the evidence
‘probably would have resulted in an acquittal.’ ” United
States v. Collins, 604 F.3d 481, 487 (7th Cir. 2010) (quoting
United States v. Rangel, 350 F.3d 648, 650 (7th Cir. 2003)).
The defendant “must show that the evidence was so
‘obviously and egregiously prejudicial’ that the trial
court should have excluded it even without any
No. 12-1127 15
request from the defense.” Id. (citing United States v.
LeShore, 543 F.3d 935, 939 (7th Cir. 2008)).
Keskes concedes that in his recorded conversations
with Sturgulewski that were played at trial Keskes used
the term “gypsy” and acknowledged doing business
with “gypsies.” As the government argues, both Sturgu-
lewski and Barnhill described “gypsies” as thieves
and gave specific reasons why they thought the “gyp-
sies” provided Keskes with stolen merchandise. For
example, Sturgulewski testified that some of them tried
to cash checks that were made out to phony names
like SpongeBob. He also stated that he had followed a
group of “gypsies” to Indiana where he saw them
steal products from a Radio Shack store. Barnhill
testified that he had observed security tags and price
tags on the products at Asena dropped off by “gypsies.”
The government did not argue guilt by association or
use the “gypsies as thieves” evidence to prove that
Keskes knew the items provided to him were stolen.
Nor did it argue that Keskes was a bad person or guilty
of the charged offenses simply because he had dealt
with the “gypsies.” Instead, the government argued
that Keskes’s pattern of business dealings demonstrated
his knowledge that the merchandise was stolen. The
merchandise was delivered to Keskes in cardboard
boxes with fictitious return addresses, and the “gypsies”
brought boxes and bags of a hodge-podge of items,
many of which still bore store stickers or security tags.
The merchandise arrived in the original packaging and
was new and unopened. The golf clubs served as a
16 No. 12-1127
prime example of the stolen merchandise—none of the
clubs at Asena had head covers, and the evidence was
that retailers kept the head covers separate from the
clubs on display. And Keskes determined the prices he
would pay his suppliers. He paid them in cash or used
empty checks and checks with phony payee names. The
government did not emphasize the fact that Keskes
did business with “gypsies,” but rather, that he did
business with people who steal. The government’s argu-
ment was used to persuade the jury that Keskes had
the requisite knowledge that the merchandise was stolen.
The court instructed the jury that “[k]nowledge may
be proved by the defendant’s conduct and by all the
facts and circumstances surrounding the case. You may
infer knowledge from a combination of suspicion and
indifference to the truth.” This is commonly referred to
as an “ostrich” instruction. The facts and circumstances
established Keskes’s knowledge. Keskes received
repeated warnings from Barnhill that he was receiving
stolen goods and customers complained that Keskes
was selling stolen goods, but Keskes did nothing—he
told Barnhill not to worry, shrugged his shoulders,
and walked away. The jury heard the recorded conversa-
tion between Sturgulewski and Keskes in which Keskes
effectively said he did not care if the merchandise
he received was stolen—“I don’t care what, how they
do, what they do.” And when Sturgulewski said to
Keskes that “you don’t check if it’s stolen or not sto-
len,” Keskes replied, “[Y]eah.” Keskes was concerned
only if the “gypsies” had “tails,” meaning that they
No. 12-1127 17
were being followed by the police. And Special Agent
Brian Brusokas of the FBI testified that the boxes in
which products were shipped to Keskes had fake
addresses for the senders.
Moreover, Keskes sold products with active store
security tags and price tags. He sold new, popular, high-
theft products at far below retail or wholesale prices,
and at times even below production costs. Yet he made
a substantial profit. Keskes was not an authorized dealer
of the products he sold, but he sold thousands of
such products anyway, including branded products
manufactured for exclusive sale in certain retail stores.
And he never paid a manufacturer, liquidator, or
closeout business. He paid individuals: $2.1 million in
checks payable to named persons and $3.1 million in
checks to “Cash.” Thus, contrary to Keskes’s claim, the
evidence tending to prove that the items Keskes sold
had been stolen by “gypsies” was not limited to the
testimony of Sturgulewski and Barnhill.
Keskes also argues that the government witnesses
portrayed “gypsies” so reprehensibly that there is a
substantial risk the jury found him guilty because he
dealt with reprehensible people. The government did not
argue the evidence in this way. Rather, the evidence
that the “gypsies” beat up someone because he did not
pay tended to show that Keskes’s suppliers did not act
like legitimate business people—a legitimate business
person can resort to lawful means to obtain payment.
Keskes says that the evidence was not expressly argued
in this way in the government’s closing. Nonetheless,
18 No. 12-1127
the jury can draw reasonable inferences and use their
common sense in assessing the evidence.
Finally, Keskes complains that the witnesses offered
“offensive and stereotypical” descriptions of “gypsies”
related to their ethnicity. These descriptions did not
deprive Keskes of a fair trial. Keskes did not object to
the descriptions related to ethnicity, and the descrip-
tions were only a small part of a five-day trial. At a
pretrial conference, the government advised the court
and defense counsel that some of its witnesses would
use the term “gypsy” during their testimony because
that was how the witnesses knew the people. The pros-
ecutors said they would strive not to use the term. But
as the court recognized, “[Y]ou cannot stop witnesses
from testifying.” There was a discussion about the
parties suggesting a different term, but the defense pro-
posed none and did not object to use of the term “gypsy.”
Nor did the defense object to use of the term during
the trial. Moreover, defense counsel used the term at
least as often as the prosecutors did in opening state-
ment, cross-examination, and closing argument. It is
hard for Keskes to complain about the government wit-
nesses’ and attorneys’ use of a term that his own
attorney used freely.
The district court did not plainly err in admitting
the “gypsies as thieves” testimony. But even if there was
error, the circumstantial evidence of Keskes’s knowl-
edge that he bought stolen items from the “gypsies” is
so compelling that it cannot be said that Keskes
probably would have been acquitted without the
“gypsies as thieves” testimony.
No. 12-1127 19
C. Testimony About Robert’s Statements
Keskes argues that the district court erred in
admitting Sturgulewski’s testimony about Robert’s state-
ments as background information in violation of
Rule 403. Keskes submits that we review for plain er-
ror. The government responds that Keskes waived any
objection to Sturgulewski’s testimony about Robert’s
statements. The government also argues that Keskes’s
challenge lacks merit.
Prior to trial, the government filed a Santiago proffer,
see United States v. Santiago, 582 F.2d 1128 (7th Cir.
1978), overruled on other grounds by Bourjaily v. United
States, 483 U.S. 171 (1987), seeking the admission of Rob-
ert’s statements as coconspirator statements. Keskes
objected, but the district court ruled that the statements
were admissible. At trial, however, the prosecutor stated
that “we [the parties] have agreed, we have statements . . .
made by a guy named Robert to the defendant,” and
that it was seeking the admission of Robert’s state-
ments as background information to explain why the
informant Sturgulewski met with Keskes and what
Sturgulewski had in his mind at the time. The
prosecutor suggested that a limiting instruction would
be appropriate. Then the following exchange occurred
between the court and defense counsel:
Court: So what did you two agree?
Counsel: Your Honor, that would be satisfactory to
me in light of the previous ruling. We have
resolved some issues between us.
20 No. 12-1127
Court: Okay.
Counsel: So, that’s correct, your Honor, a limiting
instruction informing the jury that it is
not—that these statements are not to be
used for the truth of the matter
asserted . . . . In plain English, it’s hearsay,
but it’s not . . . being used for that purpose.
Then the prosecutor noted his understanding that
defense counsel “was going to withdraw his objections
to . . . [statements from another coconspirator]” because
the government was not going to introduce the
statements but was “just going to show a video”
recording of Sturgulewski meeting with “Andre,” identi-
fied in the Santiago proffer as “Co-Conspirator B.”
“ ‘[W]aiver occurs when a defendant intentionally
relinquishes or abandons a known right.’ ” United States v.
Hible, 700 F.3d 958, 961 (7th Cir. 2012) (quoting United
States v. Gaona, 697 F.3d 638, 641 (7th Cir. 2012) (internal
quotation marks omitted)). “[W]hen the defendant selects
[from among arguments] as a matter of strategy,
he . . . waives those arguments he decided not to pres-
ent.” United States v. Jaimes-Jaimes, 406 F.3d 845, 848
(7th Cir. 2005) (citation omitted).
Keskes agreed that the testimony about Robert’s state-
ments could be admitted for background purposes
along with a limiting instruction. Even though the
court had ruled that the statements were admissible as
coconspirator statements, Keskes did not have to agree
to their admission, whether as background information
or otherwise. Instead, he could have maintained his
No. 12-1127 21
objection to their admission for any purpose and then
raised the issue on appeal. But Keskes made a strategic
decision to agree to the statements’ admission as back-
ground information. Because of the parties’ agreement,
the statements came in for background purposes only
and could not be considered for their truth. If admitted
for their truth, Robert’s statements would have been
the only direct evidence that Keskes was buying and
necessarily selling stolen goods.
Furthermore, the government introduced a more ab-
breviated version of the testimony about Robert’s state-
ments than was set forth in the Santiago proffer. It
did not introduce, for example, testimony that Robert
said Keskes was selling a high volume of stolen
property, or that when certain vendors were on the
road stealing merchandise, they would access Keskes’s
eBay accounts and list items for sale on their own.
Keskes argues that the statements should have been
admitted in a more truncated way. Perhaps more detail
came in than was necessary to serve as background.
But defense counsel did not press for further trunca-
tion. Thus, Keskes waived, not merely forfeited, the
argument that the testimony about Robert’s statements
was inadmissible. His waiver precludes our review.
Hible, 700 F.3d at 961.
Even assuming that Keskes did not waive the
argument, we would review only for plain error because
he did not object at trial. Ambrose, 668 F.3d at 963. State-
ments that are not offered for the truth of the matter
asserted but rather to provide background and context
22 No. 12-1127
for a witness’s actions, thereby filling gaps in the
evidence, may be admissible. United States v. Penaloza,
648 F.3d 539, 544 (7th Cir. 2011). But such evidence “may
be inadmissible . . . if the danger of unfair prejudice
substantially outweighs its probative value.” Id. The
court admitted the testimony about Robert’s statements
not for the truth of the matters asserted, but as back-
ground information. The statements explained why
Sturgulewski approached Keskes and offered to provide
him with stolen merchandise, even though they had
not been in contact in years.
And the danger of unfair prejudice did not sub-
stantially outweigh the evidence’s probative value—the
risk of unfair prejudice was close to nil. First, the
district court gave a limiting instruction both
immediately before the statements were admitted and
again in the final jury instructions, indicating that the
statements should not be considered for their truth but
only as background information to understand why
Sturgulewski did certain things. In addition, the defense
could anticipate and prepare for the testimony about
Robert’s statements because the anticipated testimony
was set forth in the Santiago proffer. Finally, the testimony
about Roberts’s statements was only a very small part
of Sturgulewski’s extensive testimony and took up only
five pages of the 900-plus-paged trial transcript.
But even if the court erred in admitting the testimony
about Robert’s statements, despite the lack of objection
from the defense and based on the parties’ agreement
that the testimony was indeed admissible as back-
No. 12-1127 23
ground information, the error was harmless. Given the
abundance of circumstantial evidence that Keskes knew
he was selling stolen merchandise, he cannot show that
the exclusion of the testimony “probably would have
resulted in an acquittal.” Collins, 604 F.3d at 487 (quota-
tion and citation omitted).
Keskes also argues cumulative error. But because he
has not shown any trial error, he cannot show cumulative
error. United States v. Boling, 648 F.3d 474, 482-83 (7th
Cir. 2011).
D. Sentencing Issues
Keskes argues that the district court violated his
Fifth Amendment right to remain silent by equating his
silence at sentencing with a lack of remorse and conse-
quently increasing his sentence. Keskes did not object
at sentencing, so we review for plain error. United States
v. Winters, 695 F.3d 686, 689 (7th Cir. 2012). As noted,
“[f]or there to be plain error, there must be error, the
error must be clear or obvious, and the error must affect
the defendant’s substantial rights.” Id. If a plain error
occurred, we consider “whether that error affected
[the defendant’s] substantial rights by resulting in a
different sentence than he otherwise would have re-
ceived.” United States v. Durham, 645 F.3d 883, 900 (7th
Cir. 2011), cert. denied, 132 S. Ct. 1537 (2012); United
States v. Corona-Gonzalez, 628 F.3d 336, 341 (7th Cir. 2010).
“[S]ilence can be consistent not only with exercising
one’s constitutional right, but also with a lack of remorse.”
24 No. 12-1127
Burr v. Pollard, 546 F.3d 828, 832 (7th Cir. 2008). A lack
of remorse is a proper sentencing consideration
“because it speaks to traditional penological interests
such as rehabilitation (an indifferent criminal isn’t ready
to reform) and deterrence (a remorseful criminal is
less likely to return to his old ways).” Id. Sometimes it
can be “difficult to distinguish between punishing a
defendant for remaining silent and properly considering
a defendant’s failure to show remorse” in sentencing.
Id. (quoting Bergmann v. McCaughtry, 65 F.3d 1372, 1379
(7th Cir. 1995)).
The record shows that Keskes was not punished for
exercising his constitutional right to remain silent, but
rather that the district court considered his lack of
remorse in determining his sentence. Like the
defendants in Burr and United States v. Johnson, 903
F.2d 1084, 1090 (7th Cir. 1990), where we found no
Fifth Amendment violations, Keskes did not assert his
Fifth Amendment privilege at the sentencing hearing.
Had he done so, he would have alerted the court to the
fact that his silence should be viewed as an exercise of
his constitutional right rather than a lack of remorse.
And as in Johnson, 903 F.2d at 1090, where the court
explicitly recognized the defendants’ right not to acknowl-
edge their crimes, the district judge here expressly
stated that Keskes did not have to address the court
at sentencing.
Furthermore, the district court identified other factors
besides Keskes’s silence that reflected a lack of remorse:
“after being convicted at trial, [Keskes] has still refused
No. 12-1127 25
to acknowledge his responsibility for his crime and
argued in his sentencing memorandum that he did not
know the merchandise he received was stolen.” The
record supports these findings. The presentence report
indicates that Keskes stated that he intended to “prove
[his] innocence” and that he had never done anything
wrong in his life. And Keskes’s sentencing memorandum
begins by asserting that “[a] lack of knowledge about
how merchandise was obtained does not absolve him
of responsibility for aiding in the selling of stolen mer-
chandise online.” The refusal to recognize and accept
responsibility for his crimes supports a finding that
Keskes showed a lack of remorse. See id. (identifying
the defendant’s denial of guilt in his version of the
offense in the presentence report as one reason
justifying the sentence). The district court did not
violate Keskes’s constitutional right to remain silent and
did not plainly err in relying on his lack of remorse
at sentencing.
Keskes also maintains that the district court erred in
sentencing by relying on an inaccurate fact—improper
storage of the skin care products he sold could harm
the public. At sentencing the court said:
In considering the need in this case to protect
the public from the crimes of the defendant, I note
that the defendant’s offense did not involve vio-
lence. However, the public needs to be protected
from individuals capable of committing such
complex fraud as in the instant action. Costs
related to thefts are passed upon the public.
26 No. 12-1127
One retailer also indicates that the defendant sold
stolen products such as skin products which, if not
properly stored, could harm users and indicates that the
defendant placed the public’s health at risk.
(emphasis added). Keskes argues that although there
was evidence that he sold skin care products, there
was no evidence that they needed special storage
before sale to avoid harming the end user.
“A district court commits a significant procedural error
in sentencing when it ‘. . . select[s] a sentence based on
clearly erroneous facts[.]’ ” Corona-Gonzalez, 628 F.3d at
340 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
Keskes concedes that he did not object at sentencing, so
we again review for plain error. Id.
The district court had a victim impact statement from
a Limited Brands representative, stating that “[w]hen a
‘customer’ purchases stolen items from a fence (such
as skin care items) this creates a health concern directly
to the ‘customer.’ Any merchandise that a person would
apply directly to their body could cause injury if said
merchandise was not stored and controlled properly or
had expired.” Another Limited Brands representative
had visited Keskes’s warehouse in May 2009 and had
taken photographs on the premises, showing rooms
with empty, open boxes scattered on the floor, boxes of
products stacked on shelves, and products stacked
inside open cardboard boxes sitting on the floor or in
postal service crates. These products included skin
creams. In addition, Barnhill testified that he observed
people bring items into the warehouse in large bags
No. 12-1127 27
that they would drop on the floor in the shipping area and
that the items were organized in a “Helter Skelter” and
“mixmosh” way.
Given the scattered and apparently unorganized
storage of the products in the warehouse and the victim
impact statement, the record supports the district
court’s concern that Keskes created a risk to the
public’s health by selling certain products. Even without
evidence that Keskes’s own storage of skin products
was improper, the fact that Keskes bought stolen skin
creams from the thieves created a risk to the public. And
the record supports the inference that Keskes would
not have cared about any risk to the public’s health.
Thus, Keskes has not shown plain error.
Even assuming that the district court relied on a
clearly inaccurate fact, Keskes has not shown that the
error is “not only ‘palpably wrong,’ but also likely to
‘have resulted in a different sentence.’ ” Corona-Gonzalez,
628 F.3d at 341. In considering the need to protect the
public from Keskes’s crimes, the court mentioned the
risk to the public’s health only once and also referenced
the need to protect the public from individuals capable
of committing complex frauds and the fact that costs
related to thefts are passed on to the public.
III. CONCLUSION
For the foregoing reasons, we A FFIRM Keskes’s convic-
tion and sentence.
1-7-13