Third Circuit: A General Rule 29 Motion Does Not Preserve Specific Sufficiency of the Evidence Arguments for Appeal

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided the case of United States v. Abrams, Nos. 24-1998, 24-3003 (3d Cir. 2026), holding that a bare, non-specific motion for judgment of acquittal under Federal Rule of Criminal Procedure 29 does not preserve every sufficiency of the evidence argument a defendant may later want to raise on appeal. This is an important decision for criminal defense lawyers practicing in federal court because it means that if you do not articulate your specific sufficiency challenges at trial, meaning provide the reasons for the sufficiency challenge at time time you move for a new trial or judgment of acquittal in the trial court, you will be limited to plain error review on appeal, which is an extremely difficult standard to meet.

The Facts of United States v. Abrams

The defendant in this case was convicted at a nine-day jury trial on 48 criminal counts, including wire fraud, mail fraud, aggravated identity theft, money laundering, unlawful monetary transactions, obstruction of justice, and making false statements. The charges arose from a scheme in which the defendant solicited investors for his clean energy startup by providing forged documents and false financial information. He then diverted investor funds for personal use, including purchasing a residence in South Carolina. The District Court imposed a 72-month prison sentence and ordered approximately $1.2 million in restitution.

The Rule 29 Motion at Trial

At the close of the government's case, the defendant moved for judgment of acquittal under Rule 29(a). The entire colloquy was remarkably brief:

THE COURT: Now that you are going to rest, are there motions?

DEFENSE COUNSEL: Yes. I move for judgment of acquittal on Rule 29(a). I waive argument.

GOVERNMENT COUNSEL: Subject to the pending stipulation, there's more than enough evidence in the record to justify all 48 counts in the indictment for a myriad of Title 18 offenses.

THE COURT: It's clear that the presentation of evidence so far if believed by the jury would certainly satisfy the government's burden of proof beyond a reasonable doubt, and so the Rule 29 motion is denied.

That was it. The defendant made no specific arguments about which elements of which offenses the government had allegedly failed to prove. He failed to identify any particular weaknesses in the evidence. He simply made a bare motion for an acquittal, with argument expressly waived.

On appeal, the defendant then raised a host of specific sufficiency arguments he had never presented to the trial court, including challenges to whether the government had proven the "money or property" element of fraud and whether the evidence established specific intent to defraud.

The Third Circuit's Holding on Preservation

The Third Circuit held that because Abrams made only a general, non-specific Rule 29 motion, he had not preserved his specific sufficiency arguments for appellate review. The Court applied plain error review instead of the de novo standard that ordinarily applies to sufficiency challenges.

The Court grounded its analysis in United States v. Joseph, 730 F.3d 336 (3d Cir. 2013), which drew a careful distinction between “issues” and “arguments.” Under Joseph, a single “issue” can encompass more than one discrete “argument.” To preserve a specific argument for appeal, a party must raise the same argument, not merely the same broader issue, in the district court. Merely raising an issue that encompasses the appellate argument is not enough.

The Court had previously applied this framework to Rule 29 motions in United States v. Williams, 974 F.3d 320, 361 (3d Cir. 2020), holding that when a Rule 29 motion raises specific grounds, all arguments not raised are unpreserved. But Williams expressly left open the question of whether a broadly stated Rule 29 motion, meaning one that raises no specific grounds at all, preserves all sufficiency arguments. In United States v. Johnson, 19 F.4th 248, 255 n.6 (3d Cir. 2021), the Court reaffirmed that Williams did not hold that a general Rule 29 motion preserves all sufficiency arguments.

In Abrams, the Court squarely decided that open question: a general Rule 29 motion does not preserve all sufficiency arguments later raised on appeal. This holding was driven by two principles of preservation doctrine. First, a party must put the district court “squarely on notice” of the point at issue, giving the court a chance to consider and resolve the matter in the first instance. Second, arguments must be sufficiently particularized and framed as specific arguments because judges “are not clairvoyant” and need not “anticipate and join arguments that are never raised by the parties.”

The Court acknowledged that several other circuits have held (often with little analysis) that a broadly stated Rule 29 motion without specific grounds preserves the full array of sufficiency challenges for appeal. The Third Circuit declined to follow that approach, finding it inconsistent with preservation principles and noting that it would create a perverse incentive for defense lawyers to say as little as possible in the district court in order to save their best arguments for appeal. The Court cited Judge Oldham's concurrence in United States v. Kieffer, 991 F.3d 630, 638-39 (5th Cir. 2021), which observed that this double standard “encourages defendants to say as little as possible in the district court and to save their good arguments as 'gotchas!' for appeal.”

What Happens Under Plain Error Review

Because Abrams had not preserved his sufficiency arguments, the Third Circuit reviewed them only for plain error under United States v. Olano, 507 U.S. 725 (1993). That standard requires a showing that (1) there was an error, (2) the error was plain, (3) the error affected substantial rights, and (4) not correcting the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings. An insufficiency claim succeeds under this standard only where affirmance would produce a '“manifest miscarriage of justice,” meaning the record must be devoid of evidence of guilt or the evidence must be so tenuous that a conviction is shocking. United States v. Burnett, 773 F.3d 122, 135 (3d Cir. 2014). That is an extremely high bar. Unsurprisingly, the Third Circuit found no plain error in Abrams, noting that the evidence of fraud was overwhelming.

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