3. Analysis
3.1 Precedents Cited
A. Preservation doctrine extended to Rule 29 sufficiency motions
The Court’s key doctrinal move is to extend the logic of United States v. Joseph, 730 F.3d 336 (3d Cir. 2013), into the Rule 29 setting.
In Joseph, the Third Circuit distinguished “issues” from “arguments” and held that preservation requires raising the same argument (same legal rule/standard and same facts),
not merely the broader issue category.
The opinion synthesizes and relies on later applications of Joseph:
- United States v. Grant, 9 F.4th 186 (3d Cir. 2021) (failure to put court/government on notice of a distinct sentencing-package argument).
- United States v. Abreu, 32 F.4th 271 (3d Cir. 2022) (argument preserved when it relied on the same rule and same facts despite reframing).
- Spireas v. Commissioner of Internal Revenue, 886 F.3d 315 (3d Cir. 2018) (Joseph’s issue/argument distinction applies in civil and criminal matters).
The Court also builds from United States v. Williams, 974 F.3d 320 (3d Cir. 2020), which held that when a Rule 29 motion raises specific grounds, unraised grounds are unpreserved.
Williams had left open the question whether a “broadly stated” Rule 29 motion preserves everything; Abrams answers that question in the negative.
United States v. Johnson, 19 F.4th 248 (3d Cir. 2021), is cited to underscore that Williams did not already decide the “general motion preserves all” issue.
For the institutional rationale, the Court cites:
- Puckett v. United States, 556 U.S. 129 (2009) (preservation gives trial court first chance to resolve).
- Freytag v. Comm’r, 501 U.S. 868 (1991) (Scalia, J., concurring) (“review” presupposes prior presentation).
- United States v. Dupree, 617 F.3d 724 (3d Cir. 2010) (judges not clairvoyant; litigants must frame issues).
- Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812 (3d Cir. 2006) (judges not “hunting for truffles”).
The Court engages a circuit split over whether general Rule 29 motions preserve all sufficiency arguments, discussing decisions such as:
United States v. Hammoude, 51 F.3d 288 (D.C. Cir. 1995); United States v. Maez, 960 F.3d 949 (7th Cir. 2020);
United States v. Marston, 694 F.3d 131 (1st Cir. 2012); United States v. Chance, 306 F.3d 356 (6th Cir. 2002);
United States v. Hoy, 137 F.3d 726 (2d Cir. 1998); and United States v. Graf, 610 F.3d 1148 (9th Cir. 2010).
Abrams adopts a Fifth Circuit–style preservation requirement: defendants must specify the basis for acquittal to preserve de novo review, citing
United States v. McDowell, 498 F.3d 308 (5th Cir. 2007), and United States v. Wadi, 153 F.4th 465 (5th Cir. 2025).
The Court also critiques the asymmetry in circuits that treat “general” motions as preserving everything but treat “specific” motions as waiving unmentioned grounds, discussing
United States v. Rivera, 388 F.2d 545 (2d Cir. 1968), and highlighting the strategic perverse incentive noted by Judge Oldham in United States v. Kieffer, 991 F.3d 630 (5th Cir. 2021) (concurring).
B. Fraud and the irrelevance of reliance / pecuniary harm
The opinion anchors fraud doctrine in Supreme Court and Third Circuit authority:
- Nat’l Sec. Sys., Inc. v. Iola, 700 F.3d 65 (3d Cir. 2012) (elements of wire fraud).
- Neder v. United States, 527 U.S. 1 (1999) and Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008) (no reliance requirement for federal fraud statutes).
- Kelly v. United States, 590 U.S. 391 (2020) (property must be an object of the fraud).
- Kousisis v. United States, 605 U.S. 114 (2025) (wire fraud does not require intent to cause economic harm; “benefit-of-the-bargain” limitations abrogated).
- United States v. Coyle, 63 F.3d 1239 (3d Cir. 1995) (victim negligence is not a defense).
In rejecting Abrams’s “investors got what they paid for” framing, the Court emphasizes that Kousisis v. United States forecloses a requirement that the defendant aim to leave victims worse off.
C. Aggravated identity theft after Dubin
The interpretive center for 18 U.S.C. § 1028A is Dubin v. United States, 599 U.S. 110 (2023),
which requires that the misuse of another’s “means of identification” be at the “crux” of what makes the predicate conduct criminal—typically a deception about “who” is involved.
The Court’s application of Dubin is illustrated by:
- United States v. Parviz, 131 F.4th 966 (9th Cir. 2025) (forged medical-provider signature central to passport fraud; deception about “who” made representations).
For the instructional-error dispute post-Dubin, the Court notes a split:
- United States v. Ovsepian, 113 F.4th 1193 (9th Cir. 2024) (statutory-text instruction inadequate given Dubin’s narrowing).
- United States v. Jackson, 126 F.4th 847 (4th Cir. 2025) (Dubin did not add elements requiring extra factual findings in each case).
It also references other post-Dubin instruction cases to show where courts found specific instructions wrong when they allowed “mere facilitation”:
United States v. Gladden, 78 F.4th 1232 (11th Cir. 2023), and United States v. Omotayo, 132 F.4th 181 (2d Cir. 2025).
For plain error principles, the Court relies on United States v. Scott, 14 F.4th 190 (3d Cir. 2021), United States v. Cruz, 757 F.3d 372 (3d Cir. 2014),
and a “plainness” formulation from United States v. Dorsey, 105 F.4th 526 (3d Cir. 2024).
The vagueness argument is rejected as foreclosed by the Dubin majority’s response to Justice Gorsuch’s concurrence; the Court also cites
United States v. Iannelli, 700 F. Supp. 3d 1 (D. Mass. 2023).
D. Good faith instruction doctrine
The “good faith” instruction analysis follows Third Circuit law that a separate instruction is unnecessary when mens rea instructions already require knowing, willful fraud intent:
United States v. Leahy, 445 F.3d 634 (3d Cir. 2006), and United States v. Gross, 961 F.2d 1097 (3d Cir. 1992).
The opinion notes that Leahy was abrogated on other grounds by Loughrin v. United States, 573 U.S. 351 (2014), but not on the relevant “good faith” point.
E. MVRA attorneys’ fees and Lagos’s interpretive method
The restitution holding is built around textual canons and the Supreme Court’s approach in Lagos v. United States, 584 U.S. 577 (2018),
which limited § 3663A(b)(4) to government investigations/criminal proceedings and noted the statute “says nothing” about “hiring private investigators, attorneys, or accountants.”
The Court also relies on:
- Peter v. Nantkwest, Inc., 589 U.S. 23 (2019) (meaning of “expenses” depends on statutory context).
- United States v. Andrews, 12 F.4th 255 (3d Cir. 2021) and Util. Air Regul. Grp. v. EPA, 573 U.S. 302 (2014) (context and statutory scheme).
- Gustafson v. Alloyd Co., 513 U.S. 561 (1995) (noscitur a sociis).
- Southwest Airlines Co. v. Saxon, 596 U.S. 450 (2022) and Epic Sys. Corp. v. Lewis, 584 U.S. 497 (2018) (ejusdem generis; residual clause shouldn’t radically differ from listed items).
- United States v. Koutsostamatis, 956 F.3d 301 (5th Cir. 2020) (reading “other expenses” as “other similar expenses”).
- United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) and Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003) (expressio unius and its limits).
- United States v. Sherman, 150 F.3d 306 (3d Cir. 1998) (text often begins and ends interpretation).
- United States v. Diaz, 245 F.3d 294 (3d Cir. 2001) (MVRA’s make-whole purpose has limits).
- Magwood v. Patterson, 561 U.S. 320 (2010) and Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) (courts apply enacted text, not remedial aspirations).
The opinion also distinguishes other circuits’ attorneys’ fee decisions—especially the Second Circuit’s United States v. Afriyie, 27 F.4th 161 (2d Cir. 2022)—as heavily shaped by stare decisis constraints
from United States v. Amato, 540 F.3d 153 (2d Cir. 2008), rather than a fresh post-Lagos textual analysis. It notes that United States v. Chan, 981 F.3d 39 (1st Cir. 2020) and In re Akebia Therapeutics, Inc., 981 F.3d 32 (1st Cir. 2020)
assumed without deciding that attorneys’ fees qualify, and that United States v. Sexton, 894 F.3d 787 (6th Cir. 2018) resolved the issue under plain-error posture without a detailed textual treatment.
3.2 Legal Reasoning
A. The new preservation rule: a general Rule 29 motion is not a blank check
The Court’s preservation holding is both doctrinal (grounded in Rule text and Joseph’s framework) and policy-driven (adversarial process and trial-court primacy).
Textual anchor: While Rule 29 itself does not specify how detailed an acquittal motion must be, the Court points to Federal Rule of Criminal Procedure 47(b),
which provides that a motion “must state the grounds on which it is based.” In United States v. Joseph, the Court treated “ground” as synonymous with the level of specificity
entailed by an “argument.” Together, these propositions yield a direct rule: to preserve a sufficiency theory, the defendant must identify it as a ground/argument in the Rule 29 motion.
Preservation purposes: The Court re-emphasizes two classic functions:
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Notice and first-instance adjudication: Preservation must put the district court “squarely” on notice and give it the first chance to correct error.
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Adversarial framing: Courts need not anticipate unmade arguments; litigants must frame issues for decision.
Incentives and symmetry: The opinion rejects a regime that rewards silence. If a bare motion preserved all sufficiency theories, then defense counsel would be incentivized to “say as little as possible”
to retain maximum appellate flexibility, while counsel who offered concrete grounds would risk “waiving” unstated ones. The Court treats that asymmetry as inconsistent with preservation doctrine’s logic.
Application to Abrams: Abrams’s motion was “as general as they come,” with no stated grounds and an explicit waiver of argument. The result was plain-error review for later sufficiency theories.
B. Plain-error review as a sufficiency backstop
Under United States v. Olano, 507 U.S. 725 (1993), plain error requires (1) error, (2) plainness, (3) effect on substantial rights, and (4) a serious effect on fairness/integrity.
For sufficiency claims, the Court uses the Third Circuit’s “manifest miscarriage of justice” formulation from United States v. Burnett, 773 F.3d 122 (3d Cir. 2014):
the record must be “devoid of evidence of guilt” or so thin that conviction is “shocking.”
C. Fraud: intent and the legal irrelevance of reliance, investor sophistication, or “lottery ticket” framing
Abrams’s substantive fraud challenges faltered for two reasons:
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Legal error about required harm: After Kousisis v. United States, wire fraud does not require an intent to make the victim economically worse off.
That holding defeats “benefit-of-the-bargain” arguments and undercuts attempts to recharacterize deception as merely inducing a risk-laden but voluntary bargain.
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Misplaced reliance arguments: Neder v. United States and Bridge v. Phoenix Bond & Indem. Co. foreclose any requirement of justifiable reliance.
Even if KSTI viewed documents as “unreliable” yet proceeded, victim negligence is not a defense (United States v. Coyle).
On intent, the Court emphasizes that fraudulent intent can be inferred from circumstantial evidence and repeated falsehoods. The record contained abundant evidence:
forged signatures, altered contracts to insert EthosGen, fabricated financials and tax returns using an accountant’s information, false representations about installations,
and suspicious rapid transfers consistent with layering. Under the deferential sufficiency lens, those facts readily support intent to deceive for money.
D. Aggravated identity theft: Dubin’s “crux” test satisfied
Abrams focused heavily on Dubin v. United States. The Court accepted Dubin’s framework but found it dispositive in the Government’s favor.
Unlike Dubin’s overbilling scenario—where the deception was about “how and when” services were provided—Abrams’s use of other people’s identifiers and signatures was itself deceptive about “who” endorsed key documents.
For Counts 20–22, the identifying information (accountant John Riccetti; PNNL representative Kevin Ghirardo; Battelle representative Peter Christensen) was used to make fabricated or altered documents appear authenticated.
That is “at the crux” of the fraud because those third-party attestations supply credibility and purported authority.
For Counts 23–24, forged signatures (Michael Harris on a commissioning checklist; Michael Mastergeorge on a manufacturing/pricing agreement) were used to satisfy preconditions to unlock KSTI’s second tranche.
The “crux” point is practical: without the apparent “who” (authorized signatories), the documents would not perform their intended function—triggering release of funds.
The Court analogized to United States v. Parviz, where a forged provider signature was central to fraud because it deceived about who made the representation.
E. Dubin instruction: not “plain” error amid split authority
The Court did not decide that a Dubin “crux” instruction is never required; it held only that, in this case and posture, any omission was not “plain.”
With the Ninth Circuit (United States v. Ovsepian) and Fourth Circuit (United States v. Jackson) in conflict, and no binding Third Circuit precedent requiring the instruction,
the error could not be “clear or obvious” under the “state of the law” standard.
F. MVRA restitution: “other expenses” excludes attorneys’ fees
The restitution holding is a clean textual interpretation of 18 U.S.C. § 3663A(b)(4).
The Court acknowledges that “expenses” can be broad in isolation (Peter v. Nantkwest, Inc.), but insists that context controls.
Three interpretive moves drive the conclusion:
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Noscitur a sociis: “Other expenses” is colored by its neighbors—“lost income,” “child care,” “transportation”—which are modest, attendance-related, out-of-pocket participation costs.
Attorneys’ fees are qualitatively different (professional advocacy/advice) and often vastly larger.
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Ejusdem generis: The catchall should be limited to “other similar expenses.” Attorneys’ fees are not of the same class as wages, child care, or transportation.
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Expressio unius / structural context: The MVRA expressly authorizes certain “professional services” elsewhere (medical, therapy, funeral services) but does not mention legal services.
Post-Lagos v. United States, the Supreme Court’s observation that the MVRA “says nothing” about “attorneys” supports a limited reading.
The Court also resists a purely purposive “make-whole” gloss: remedial aims do not permit courts to extend mandatory restitution beyond what “language and the statutory scheme reasonably permit” (Lagos; Touche Ross & Co. v. Redington).
3.3 Impact
A. Criminal trial practice in the Third Circuit: Rule 29 motions must be argued—at least in outline
The most immediate impact is procedural. After United States v. Abrams, defense counsel in the Third Circuit cannot safely rely on a generic Rule 29 motion to preserve all sufficiency issues.
If counsel wants de novo appellate review of particular theories (e.g., intent, materiality, interstate wires, identity-theft nexus), counsel must state the grounds at trial.
Practical consequence: appellate sufficiency litigation will be stratified into (i) preserved grounds (de novo) and (ii) unpreserved grounds (plain error / “manifest miscarriage”).
The new rule therefore increases the cost of trial-level silence and may change how defense counsel allocates time at the close of the Government’s case.
B. Fraud law: investor skepticism and lack of reliance remain no defense; Kousisis controls harm arguments
The opinion reinforces—now with explicit reference to Kousisis v. United States—that federal fraud liability does not require intended economic harm.
It also restates, with Neder v. United States and Bridge v. Phoenix Bond & Indem. Co., that reliance is not an element.
That combination further limits defense strategies based on victim due diligence, sophistication, or risk awareness.
C. Identity theft: Dubin narrows overbilling cases, but forged endorsements remain classic § 1028A
Abrams provides a clear post-Dubin exemplar: when the identity misuse consists of forged signatures or inserted identifiers to falsely convey authorization/attestation,
the identity use is likely at the “crux” of the fraud because the deception is about “who.”
This helps cabin Dubin’s narrowing so it does not spill into traditional forgery-and-endorsement fact patterns.
D. MVRA restitution: attorneys’ fees are categorically unavailable under § 3663A(b)(4) in the Third Circuit
The restitution holding is a significant constraint on victim recovery in federal criminal cases within the Third Circuit.
Even where victims incur substantial legal bills cooperating with prosecutors (subpoenas, document review, witness prep, attendance), those fees are not recoverable as MVRA restitution under § 3663A(b)(4).
The decision increases the importance of alternative mechanisms (e.g., civil recovery, fee-shifting statutes where applicable, negotiated resolutions, or forfeiture/remission processes) to address legal-cost burdens.