Third Circuit: Bare Rule 29 Motions Do Not Preserve Later-Articulated Sufficiency Arguments, and MVRA § 3663A(b)(4) Does Not Permit Restitution for Victims’ Attorneys’ Fees

1. Introduction

James P. Abrams founded and ran EthosGen, a renewable-energy startup. To obtain investor funding, Abrams provided prospective investors and diligence reviewers with a series of falsified and altered documents—tax returns, contracts, purchase orders, intellectual property materials, and commissioning paperwork—often bearing forged signatures or misappropriated identifying information. He then diverted investor funds for personal use (including an attempted home purchase) and made false statements to investigators.

A federal jury convicted Abrams on 48 counts, including 18 counts of wire fraud, 1 count of mail fraud, 5 counts of aggravated-identity-theft, and additional counts for money laundering-related offenses, obstruction of justice, and false statements. The district court imposed a 72-month sentence and ordered roughly $1.1 million in restitution, later amending restitution to include certain victims’ attorneys’ fees.

On appeal, Abrams primarily attacked the sufficiency of the evidence for fraud and aggravated identity theft, argued instructional error (including under Dubin v. United States), asserted § 1028A vagueness, challenged the denial of a good-faith instruction, and contested restitution for attorneys’ fees under the MVRA.

2. Summary of the Opinion

• Convictions and sentence affirmed: The court upheld the fraud and aggravated-identity-theft convictions and rejected challenges to jury instructions and vagueness.
• Preservation clarified: Because Abrams made only a generalized Rule 29 motion (“I waive argument”), the Third Circuit reviewed later-developed sufficiency theories under plain-error review and found no “manifest miscarriage of justice.”
• Dubin applied: The court held the evidence satisfied Dubin because the misused identities/signatures were “at the crux” of the fraudulent conduct—i.e., they deceptively established “who” endorsed key documents needed to induce or unlock investment funding.
• Good-faith instruction: No abuse of discretion because the district court’s mens rea instructions (knowledge/intent to defraud) substantially covered the defense’s theory under Third Circuit precedent.
• Restitution narrowed: The court vacated the attorneys’ fees component of restitution, holding MVRA § 3663A(b)(4) does not allow restitution for attorneys’ fees.

3. Analysis

3.1 Precedents Cited (and How They Drove the Outcomes)

A. Preservation doctrine extended to Rule 29 sufficiency litigation

• United States v. Joseph: The centerpiece of the preservation holding. The court imported Joseph’s “issue vs. argument” distinction and its “exacting” preservation requirement (same legal rule/standard and same facts) into the Rule 29 context. Joseph supplied both the vocabulary (“issue” can contain multiple “arguments”) and the operational test for whether an appellate theory was truly presented below.
• United States v. Williams and United States v. Johnson: Williams had already held that when a Rule 29 motion raises specific grounds, unraised grounds are unpreserved; Johnson reiterated Williams left open whether a general Rule 29 preserves all sufficiency arguments. Abrams is the Third Circuit’s answer to that open question: a wholly general Rule 29 does not preserve all later-developed theories.
• Puckett v. United States, Freytag v. Comm'r, and United States v. Dupree: These cases grounded the court’s institutional rationale: preservation exists to give trial courts a fair first opportunity to decide; appellate “review” presupposes the issue was raised; judges are not obligated to invent arguments for parties.
• United States v. Grant, United States v. Abreu, and Spireas v. Commissioner of Internal Revenue: Demonstrated Joseph’s portability beyond suppression practice and even beyond criminal cases, supporting the move to apply Joseph’s framework to Rule 29 practice.
• Sister-circuit discussions: The opinion contrasted permissive approaches (e.g., United States v. Hammoude; United States v. Maez; United States v. Hoy; United States v. Chance; United States v. Graf) with a specificity-demanding approach (notably United States v. McDowell and United States v. Wadi in the Fifth Circuit), aligning the Third Circuit with the latter logic.

B. Fraud: property-object requirement and “economic harm” rejected

• Kousisis v. United States (and Kelly v. United States): These controlled Abrams’s attempt to reframe federal fraud as requiring intent to inflict net pecuniary harm or failure of “benefit of the bargain.” Kousisis foreclosed that: wire fraud does not require a defendant to seek to leave the victim economically worse off; the victim’s money/property being the object is sufficient.
• Neder v. United States and Bridge v. Phoenix Bond & Indem. Co.: Rebutted the defense theme that the investors were sophisticated, saw red flags, and thus did not rely. The court reiterated that reliance is not an element of federal mail/wire fraud.
• United States v. Coyle: Disposed of “victim negligence” as a defense: the victim’s failure to detect fraud does not excuse criminal fraud.
• United States v. Walker, United States v. Caraballo-Rodriguez, and United States v. Burnett: Supplied the appellate posture: extreme deference to the jury’s verdict; “bare rationality” suffices; and under plain-error review a sufficiency challenge succeeds only if affirmance would be a “manifest miscarriage of justice.”

C. Aggravated identity theft after Dubin

• Dubin v. United States: The court treated Dubin as the governing interpretation of § 1028A’s “during and in relation to” requirement—identity use must be “at the crux of what makes the conduct criminal,” typically bearing on “who” is involved. Applying that test, the court found Abrams’s misuses were not ancillary; the forged/misappropriated signatures and identifiers were essential to make documents appear endorsed by the relevant persons.
• United States v. Parviz: Used as a close factual analogue: forging a medical provider’s signature to secure a passport was “at the crux” because it deceived “who” was making the representation. That supported the conclusion that Abrams’s forged signatures on commissioning and manufacturing documents likewise went to “who” validated the conditions for funding.
• Instructional-plain-error landscape: The court emphasized the absence of a clear requirement that Dubin’s “crux” be given as a standalone element instruction, citing a circuit split between United States v. Ovsepian (Ninth Circuit) and United States v. Jackson (Fourth Circuit), and discussing United States v. Gladden and United States v. Omotayo as cases rejecting overly broad “facilitation” or “purpose/role/effect” instructions inconsistent with Dubin.
• Vagueness: Dubin itself rejected the concurrence’s vagueness view; the Third Circuit followed that, referencing post-Dubin rejections such as Gladden and district authority (e.g., United States v. Iannelli), and noting its nonprecedential United States v. Diarra.

D. Good faith instruction in fraud cases

• United States v. Leahy and United States v. Gross: These cases directly controlled. When the jury is instructed that the government must prove knowledge and intent to defraud, an additional “good faith” instruction is unnecessary because good faith negates the required mens rea.
• The court also referenced the elements as articulated in United States v. Cammarata (wire fraud) and United States v. Bryant (mail fraud).

E. Restitution and the attorneys’ fees question under the MVRA

• Lagos v. United States: The core interpretive method—reading “other expenses” in context with neighboring words and applying noscitur a sociis—was extended from Lagos’s investigation/proceedings limitation to the attorneys’ fees question. Lagos’s emphasis that the statute “says nothing” about “hiring private investigators, attorneys, or accountants” was treated as strongly indicative of congressional limitation.
• Canons and structure: The court invoked broader interpretive principles drawn from cases like Peter v. Nantkwest, Inc. (contextual reading of “expenses”) and structural/statutory-scheme reasoning (e.g., United States v. Andrews; Util. Air Regul. Grp. v. EPA), and applied ejusdem generis through authorities such as Southwest Airlines Co. v. Saxon, supported by the Fifth Circuit’s formulation in United States v. Koutsostamatis and the Supreme Court’s “radically different object” caution in Epic Sys. Corp. v. Lewis.
• Against “make whole” purposivism: The court acknowledged MVRA’s compensatory purpose as described in United States v. Diaz, but relied on Lagos’s warning that remedial purpose does not justify overbroad reading, and emphasized text primacy using Magwood v. Patterson and Touche Ross & Co. v. Redington.
• Circuit authority addressed: The court found the government overstated the consensus. It explained that United States v. Chan and In re Akebia Therapeutics, Inc. assumed without deciding; United States v. Sexton upheld under plain error without strong textual analysis; and only United States v. Afriyie squarely held attorneys’ fees could be included, driven by the Second Circuit’s stare decisis constraints rooted in United States v. Amato.

3.2 Legal Reasoning (How the Court Reached Its Results)

A. Rule 29 preservation: “issue” is not enough; the “argument” must be presented

The court’s doctrinal move is to treat Rule 29 like other motion contexts: preservation requires that the district court be put “squarely” on notice of the specific insufficiency theories so it can address them, and so the government can respond. A generalized “insufficient evidence” motion—especially one that “waive[s] argument”—does not do that.

Importantly, the court reconciled this with Criminal Rule 47(b), which requires a motion to “state the grounds,” and with Joseph’s equation of “ground” and “argument.” The court rejected the countervailing approach that general Rule 29 motions preserve “every objection” because it creates a perverse incentive: defendants would be rewarded for saying as little as possible at trial and saving “gotchas” for appeal.

B. Plain-error framework then becomes dispositive for the new appellate sufficiency theories

Once sufficiency theories are unpreserved, the appellate question becomes whether the record is “devoid of evidence” or the evidence is so tenuous that upholding the conviction would be “shocking.” That “manifest miscarriage of justice” bar is materially higher than ordinary de novo sufficiency review.

C. Fraud: intent can be inferred from repeated deception and fund diversion

Substantively, the fraud holding is straightforward: Abrams repeatedly altered and forged documents to overstate EthosGen’s finances and contracts, and then handled invested funds in ways suggestive of concealment and personal use while telling investors a different story. Those circumstances allow a rational jury to infer intent to defraud. Attempts to rely on investor sophistication, nonreliance, or risk tolerance fail because neither reliance nor victim prudence is an element of federal fraud.

D. Dubin applied: Abrams’s identity use was “at the crux” because it established “who” endorsed key representations

The court treated Abrams’s misappropriations and forgeries as paradigmatic post-Dubin aggravated identity theft: the identity information did not merely appear incidentally in paperwork; it supplied the deceptive authority that made the documents persuasive and unlocked funding. In the court’s formulation, the names/signatures were the “metaphorical keys that unlocked the cash drawer.”

E. Dubin-instruction plain error rejected due to unsettled law and circuit split

Even if some future Third Circuit case might require a Dubin-specific “crux” instruction, the court held any omission here was not “plain,” emphasizing the lack of precedential Third Circuit authority and the split between Ovsepian and Jackson.

F. MVRA: attorneys’ fees are not “other expenses” under § 3663A(b)(4)

The restitution analysis is the opinion’s other major doctrinal contribution. The court read “other expenses” contextually, following Lagos’s approach and applying interpretive canons to confine the residual phrase to items like lost income, childcare, and transportation—ordinary, attendance-related, out-of-pocket costs of participating in a criminal investigation/prosecution. Attorneys’ fees differ categorically in nature, function, and scale, and Congress’s explicit listing of other professional services elsewhere in § 3663A(b) reinforced the inference that legal fees were not silently included.

3.3 Impact

A. Criminal appellate practice in the Third Circuit: Rule 29 motions must be specific

• Defense counsel incentive shift: Abrams discourages the “say nothing” Rule 29 motion. To preserve de novo sufficiency review of specific theories (e.g., lack of proof on intent, materiality, property-object, identity-theft nexus), counsel should articulate them explicitly at the Rule 29 stage.
• Appellate posture consequences: Unpreserved theories face the Burnett/Olano “manifest miscarriage of justice” standard, which is far harder to satisfy than ordinary sufficiency review.
• Government and district court benefits: The opinion’s policy rationale emphasizes adversarial fairness—notice enables the government to respond (including potentially reopening proof) and enables the district court to correct errors early.

B. MVRA restitution: sharp limitation on fee-shifting to victims

• No attorneys’ fees under § 3663A(b)(4): Victims in Third Circuit cases should not expect restitution to include legal fees incurred to cooperate with federal investigations/prosecutions (absent some other statutory basis not addressed here).
• Litigation effects: Expect challenges to restitution requests to pivot to whether claimed items can be characterized as “lost income,” “transportation,” or similar participation costs—and away from professional-fee theories.
• Potential inter-circuit tension: The Third Circuit’s approach diverges from Afriyie’s bottom line and could deepen a circuit split on whether attorneys’ fees ever qualify as “other expenses” post-Lagos.

C. Post-Dubin identity theft: forged endorsements are a strong § 1028A fit

Abrams illustrates a practical boundary after Dubin: where a defendant forges or misappropriates a person’s signature/name to create false third-party validation (who endorsed, who executed, who authorized), the identity use is likely “at the crux.” By contrast, identity information that merely appears as a routine identifier within an otherwise “how/when” misrepresentation remains vulnerable under Dubin.

4. Complex Concepts Simplified

• Rule 29 motion: A defendant’s request, during trial, that the judge enter a judgment of acquittal because the government’s evidence is legally insufficient to convict.
• Preservation (issue vs. argument): Raising a broad “issue” (e.g., “insufficient evidence”) is not the same as raising the particular “argument” (e.g., “no evidence of intent,” “no proof of property-object,” “identity use not ‘at the crux’”). Abrams holds the specific argument must be presented to preserve it.
• Plain error (Olano): A limited appellate correction mechanism for unpreserved errors. In the sufficiency setting, it is extraordinarily demanding—reversal is reserved for “manifest miscarriage of justice.”
• Dubin’s “crux” test: Aggravated identity theft requires that the misuse of identity be central to what makes the underlying conduct criminal—commonly, deception about “who” is involved, not merely incidental identity details in paperwork.
• MVRA § 3663A(b)(4): A restitution provision that reimburses a victim for certain costs of participating in a criminal investigation or prosecution (lost income, child care, transportation, and similar expenses). Abrams holds attorneys’ fees do not fit within “other expenses.”
• noscitur a sociis / ejusdem generis: Interpretation rules that limit general words (“other expenses”) by the specific words around them (“lost income,” “child care,” “transportation”), preventing a catchall phrase from swallowing the statute.

5. Conclusion

United States v. James P. Abrams delivers two important Third Circuit clarifications. First, it tightens preservation in criminal sufficiency litigation: a generic Rule 29 motion does not preserve all later-developed insufficiency theories, pushing many appellate sufficiency claims into demanding plain-error review. Second, it construes the MVRA’s participation-expense provision narrowly, holding that § 3663A(b)(4) does not permit restitution for victims’ attorneys’ fees—an interpretation driven by text, context, and the Supreme Court’s reasoning in Lagos v. United States.

Substantively, the decision also reinforces how Dubin v. United States applies to forged endorsements: when misused identity information supplies the false authority that makes documents persuasive and triggers payment, it is “at the crux” of the fraud and supports § 1028A convictions.