United States of America v. James P. Abrams

U.S. COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
Nos. 24-1998, 24-3003
_______________________
UNITED STATES OF AMERICA
v.
JAMES P. ABRAMS,
Appellant
_______________________
On Appeal from the U.S. District Court
for the Middle District of Pennsylvania
Judge Malachy E. Mannion
No. 3:22-cr-00190-001
__________________________
Before: BIBAS, SCIRICA, and SMITH, Circuit Judges
Argued October 29, 2025
Decided January 30, 2026
__________________________
OPINION OF THE COURT
__________________________
SMITH, Circuit Judge.

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Characterizing himself as a “modern Icarus,” Op.
Br. at 4, James Abrams’s (“Abrams”) story is, indeed, a
cautionary tale. To cozen funds for a clean energy startup,
Abrams furnished prospective investors with forged
documents and false information that overstated the
company’s financial condition and business prospects. He
then diverted investor funds for personal use and lied to
investors to conceal his financial activities. And much like
the figure from Greek mythology with whom he identifies,
Abrams plummeted into the sea when a federal jury
convicted him on 48 criminal counts, including 18 counts
of wire fraud, 1 count of mail fraud, 5 counts of
aggravated-identity-theft, 1 count of money laundering, 12
counts of unlawful monetary transactions, 4 counts of
obstruction of justice, and 7 counts of making false
statements. The District Court imposed a 72-month prison
sentence and ordered him to pay approximately $1.2
million in restitution to the investors he defrauded.
On appeal, Abrams principally attacks the
sufficiency of the evidence supporting his fraud and
identity-theft convictions, pressing a host of arguments he
did not present to the District Court. We hold that a bare,
non-specific Rule 29 motion does not preserve every later-
articulated sufficiency argument, and that the District
Court did not plainly err in denying Abrams’s Rule 29
motion. And Abrams’s sole preserved argument, sounding
in instructional error, is squarely refuted by our precedent.

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Abrams separately contests a portion of the
restitution order, which awarded attorneys’ fees incurred
by the investors in the course of cooperating with the
Government’s investigation. On that narrow point, we
agree with Abrams. We hold that § 3663A(b)(4) of the
Mandatory Victims Restitution Act (“MVRA”) does not
authorize restitution for attorneys’ fees. We will thus
affirm the convictions and sentence in all respects, vacate
the attorneys’ fees component of the October 11, 2024,
order and the October 29, 2024, amended judgment, and
remand for entry of an amended judgment consistent with
this opinion.
I. Background
In June 2006, Abrams, along with his father,
William Abrams, founded EthosGen, a renewable energy
startup. Around 2011, after William left to work for
Rockwell Collins1—an aerospace manufacturer—Abrams
became EthosGen’s sole owner and operator. That was
about the same time that Abrams took interest in waste-
heat engines developed by Viking Heat Engines—a
1 William briefly worked for another aerospace
manufacturing company before moving to Rockwell
Collins. Rockwell Collins experienced numerous
acquisitions/mergers but was referred to as “Rockwell
Collins” or “Collins” for simplicity at trial.

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European firm whose technology converts waste heat from
biomass into electricity. Abrams approached Michael
Mastergeorge, his father’s supervisor at Rockwell Collins,
about potential commercial and military uses for the
conversion technology. By 2013, the three companies had
struck a basic arrangement: Viking would supply the
engines, Rockwell Collins would integrate them with
additional technology, and EthosGen would market and
sell the finished systems.
In 2017, Binghamton University Foundation’s
Koffman Southern Tier Incubator (“KSTI”) invited
EthosGen to make a presentation at a “pitch” event and
soon began preliminary due diligence as it considered a
potential investment. As that process unfolded, Abrams
supplied a series of altered or fabricated materials that
portrayed EthosGen as far more established than it
actually was. Abrams doctored the foundational “teaming”
agreement between EthosGen, Rockwell Collins, and
Viking to remove Viking and recast EthosGen as the
owner and inventor of the engines. He also forged the
signature of Michael Mastergeorge on the altered
agreement. Similarly, Abrams modified purchase orders
which Rockwell Collins had issued to Viking so that they
appeared to have been issued to EthosGen. Abrams also
submitted financial records that overstated the company’s
strength: he fabricated a 2016 federal tax return for
EthosGen using the personal information of accountant

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John Riccetti without authorization and submitted
accompanying financial statements that inflated
EthosGen’s assets and understated its liabilities.
EthosGen’s operational history was likewise
overstated. Abrams supplied a customer list representing
that EthosGen had installed roughly thirty systems—
including for the U.S. Navy. What the list actually
reflected was work largely performed by Viking or
Rockwell Collins. The reality was that EthosGen itself had
not sold a single engine.
To reinforce the impression that EthosGen had
performed work for the U.S. Navy, Abrams circulated a
contract that actually ran between the Navy (through the
Pacific Northwest National Laboratory, “PNNL”)2 and
Rockwell Collins. But the version he provided replaced
the name of Rockwell Collins with EthosGen. It also
removed references to Rockwell Collins personnel and
included a forged signature of PNNL’s representative
Kevin Ghirardo.
Abrams’s perfidies did not stop there. He produced
additional doctored financial records in an effort to
2 The PNNL is operated by Battelle Memorial Institute for
the U.S. Department of Energy. It is not a legal entity
itself.

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substantiate claimed revenue that EthosGen had never
realized. And he recast intellectual-property and other
documents to suggest EthosGen had rights it did not have
by presenting a license from Battelle Memorial Institute to
use and manufacture certain polymers, which had been
provided to another Abrams-owned entity, Innaventure, as
if Battelle had licensed to EthosGen instead. This, he
accomplished by including the forged name and signature
of Battelle representative Peter Christensen. As if to outdo
himself, Abrams edited an IP-development proposal
between Albemarle (a chemical company) and
Innaventure, to swap Innaventure for EthosGen. As a
fraudster he was prolific. What he lacked, though, was a
knack for the surreptitious that might have allowed him to
elude detection.
KSTI’s reviewers were not blind to the apparent
irregularities in these financial documents. KSTI Director
Daniel Mori expressed “significant concerns around the
accounting systems in place,” Appx668, and KSTI’s
finance expert Mike Driscoll described a portion of the
submissions as “on its face unreliable,” Appx649. Yet
despite acknowledging the investment as “very high risk,”
Appx562, KSTI proceeded to fund the project, awarding
$200,000 to purchase two engines, with a second $200,000
(second tranche) contingent on meeting specified
benchmarks. Three angel investors—Elizabeth Koffman
($200,000), Albert Nocciolino ($200,000), and Russell

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Hagen ($300,000)—also joined, bringing initial funding to
$900,000, which EthosGen deposited into a previously
empty bank account in early May 2018.3
Within days of the deposits, Abrams withdrew
$100,500, which he used to pay various debts. Soon
afterward, he moved $700,000 out of EthosGen’s account,
routed it through four other business accounts that he
controlled—each having at the time a near-zero balance—
and cycled the funds back, all “within the span of
approximately 32 minutes.” Appx712–716. An IRS agent
testified that the transfers resembled “layering,” a method
of obscuring the origin of funds through complex
transfers. Appx732. Abrams characterized the transfers as
a “mistake,” Appx756, borne out of uncertainty about
“what he wanted to do.” Appx720–21. Shortly thereafter,
he wired most of the remaining balance—approximately
$800,000—to a real estate IOLTA to purchase a residence
in South Carolina. Although Abrams insisted to bank
personnel that the property “would be used for business,”
the bank flagged the transaction as suspicious and closed
his accounts because “it appear[ed] he [was] using
investor funds for personal purposes.” Appx720–21. At
the same time, Abrams—undaunted—told investors that
3 The $700,000 from the angel investors was deposited
around May 4, 2018. KSTI deposited its first tranche
investment of $200,000 on May 15, 2018.

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the money had been used to “secure unit inventory.”
Appx698, 799, 839.
Release of KSTI’s second $200,000 tranche hinged
on attainment of three benchmarks: successful installation
and commissioning of two units; execution of a
manufacturing/pricing agreement with Rockwell Collins
for roughly 50 units; and hiring a CFO. To show he had
met those conditions, Abrams advised KSTI by email on
July 11, 2018 that EthosGen had “completed installation”
of a unit at the Bates Troy laundry facility and had
achieved “another successful install in [the] United
Kingdom in May.” Appx450. None of this was true. In
reality, the Bates Troy unit was merely a free
demonstration, and the U.K. unit had yet to be installed as
late as November 2018. When installation eventually did
occur, the engine failed and had to be removed.
In August 2018, Abrams sent KSTI a purported
“commissioning checklist”4 for M.G.H. Limited, a U.K.
4 A commissioning checklist is a document “used to verify
that all installation, testing, and configuration steps . . .
have been completed correctly before the project is handed
over to the client.” Liam Scanlan, What is a
Commissioning Checklist?, HINDSITE (Jan. 13, 2025),
https://www.hindsiteind.com/blog/what-is-a-

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recycler, bearing the name and signature of its managing
partner, Michael Harris. Appx451. Harris neither signed
the document nor authorized anyone to sign for him.
Abrams also supplied to KSTI what he described as a
Rockwell Collins manufacturing/pricing agreement
reflecting Mastergeorge’s signature;5 but Mastergeorge
denied having signed it and testified at trial that no
executed agreement existed. Abrams did satisfy the CFO
condition by hiring Linette Rayeski, yet he denied her
access to EthosGen’s bank account and furnished her with
forged tax returns.6 Relying on these representations,
KSTI released the second $200,000 tranche in August of
2018.
In early 2019, IRS agents questioned Abrams at his
South Carolina home about the suspicious fund
movements. During the interview and ensuing
investigation, Abrams made a number of false statements:
he asserted that EthosGen had paid Rockwell Collins for
commissioning-tool-understanding-its-importance-in-
modern-projects.
5 Inattentive to detail, Abrams misspelled Mastergeorge’s
name on the signature line, so it appeared as
“Mastegeroge.” Appx533; Op. Br. at 42.
6 Abrams terminated Rayeski in December 2018 after she
questioned the supposed “inventory” purchase and the
South Carolina residence.

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units installed on the U.S. Navy’s Golden Bear ship and at
Bates Troy; claimed his investors had agreed to pay him
$200,000 annually in guaranteed compensation and that
EthosGen still owed him $800,000, including for deferred
compensation; professed ignorance as to who had signed
the forged Rockwell Collins manufacturing agreement on
behalf of Michael Mastergeorge; and likewise said he did
not know who transmitted the forged Battelle contract to
KSTI’s diligence team.
Shortly thereafter, Abrams disclosed the ongoing
IRS investigation to KSTI. He acknowledged that he had
purchased a South Carolina residence with company funds
but claimed that he had already reimbursed the company.
He also executed a promissory note, but only for
$550,000—less than the amount withdrawn—and sought
investor approval for a $135,000 personal loan from
EthosGen, without revealing that it was intended to
retroactively cover some of the earlier withdrawal.
Eventually, a grand jury returned a 48-count
indictment charging Abrams with wire fraud (Counts 1–
18), 18 U.S.C. § 1343; mail fraud (Count 19), id. § 1341;
aggravated-identity-theft (Counts 20–24), id. §
1028A(a)(1); money laundering (Count 25), id. §
1956(a)(1); unlawful monetary transactions (Counts 26–
37), id. § 1957; obstruction of justice (Counts 38–41), id.
§ 1519; and making false statements to IRS special agents

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on February 5, 2019 (Counts 42–46), and on February 25,
2020 (Counts 47–48), id. § 1001(a)(2).
The case proceeded to a nine-day jury trial. At the
close of the Government’s case, Abrams moved for
judgment of acquittal under Federal Rule of Criminal
Procedure 29(a). In doing so, Abrams’s trial counsel stated
merely: “I move for judgment of acquittal on [R]ule
29[(a)]. I waive argument.” Appx809. The District Court
denied that motion because “the presentation of evidence
so far if believed by the jury would certainly satisfy the
government’s burden of proof beyond a reasonable
doubt.” Id. Later, during the charge conference, Abrams
did not object to the government’s proposed jury
instructions but requested a supplemental instruction on
the “good faith” defense—that the jury could not find him
guilty if it found that he had “an honestly held belief . . .
that by virtue of his relationships with others . . . he could
substitute his name or the name of Ethosgen for the actual
party.” Appx165–167. The District Court declined to give
the instruction because it was “not aware of any evidence
in [this] case that would support a good faith defense
instruction.” Appx825. After deliberating for
approximately three hours, the jury delivered a guilty
verdict on all counts.
At sentencing, the District Court calculated a total
offense level of 25 and a criminal history category of I,

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thereby yielding a Sentencing Guidelines range of 81–191
months. It then imposed 48 months of imprisonment on
each of Counts 1–19 and 25–48, with each term to run
concurrently with the others. As to Counts 20–24, the
District Court sentenced Abrams to concurrent sentences
of 24 months on each of the five counts, but with those 24
months to run consecutive to the 48 months already
imposed. The result: a total term of 72 months in prison.
Id. The District Court also ordered $1.1 million in
restitution to KSTI and the three angel investors.
After further briefing, the District Court amended
its judgment on October 11, 2024, to include restitution for
attorneys’ fees “directly and proximately caused by
[Abrams’s] crimes.” Appx13 (Oct. 11, 2024, Order).7
Abrams timely filed notices of appeal from the May 15
and October 11 orders on May 29 and October 25, 2024,
respectively.8
7 Based on submissions from the victims, which the Court
reviewed in camera, it ordered $91,588.00 to KSTI,
$4,175.00 to Albert Nocciolino, and $3,337.50 to
Elizabeth Koffman. The October 11 order resulted in an
Amended Judgment entered October 29, 2024.
8 The District Court had subject-matter jurisdiction over
Abrams’s federal criminal prosecution under 18 U.S.C. §

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Abrams now raises four sets of issues for our
review. First, he challenges the denial of his Rule 29
motion, arguing that the evidence was insufficient to
support the jury’s guilty verdict on the fraud counts
(Counts 1–19) and the aggravated-identity-theft counts
(Counts 20–24). Second, as to identity theft, he offers two
fallback arguments: that the District Court’s jury
instructions were inadequate under Dubin v. United States,
599 U.S. 110 (2023) and, failing that, that 18 U.S.C §
1028A is unconstitutionally vague. Third, he argues that
the District Court erred in refusing a good-faith instruction
on the fraud counts. Finally, he challenges the October 11,
2024, restitution order, asserting that attorneys’ fees are
not recoverable under the MVRA, 18 U.S.C. § 3663A, or,
alternatively, that the fees awarded were not “necessary.”
We address these arguments in that order.
II. Insufficient Evidence
Abrams challenges the sufficiency of the evidence
supporting both his fraud convictions (Counts 1–19) and
his aggravated-identity-theft convictions (Counts 20–24).
But first we must resolve a threshold question: whether
Abrams’s generalized Rule 29 motion preserved the
specific sufficiency arguments he presses now.
3231. We have appellate jurisdiction under 28 U.S.C. §
1291 and 18 U.S.C. § 3742(a).

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Concluding that it did not, we apply plain-error review.
We then address the fraud counts and, thereafter, the
aggravated-identity-theft counts, holding that the trial
record comfortably supports the jury’s verdicts in toto. We
will therefore affirm.
A. Standard of review
Abrams argues for de novo review, which is
ordinarily the standard we apply to sufficiency
challenges.9 Op. Br. at 26; Rep. Br. at 2; see United States
v. Rowe, 919 F.3d 752, 758 (3d Cir. 2019) (“Our review of
the sufficiency of the evidence is plenary[.]”). The
Government—urging us to extend our holding in United
States v. Joseph, 730 F.3d 336 (3d Cir. 2013)—responds
that plain-error review applies because the generalized
Rule 29 motion Abrams made at trial failed to preserve the
specific sufficiency arguments he now raises. We agree
with the Government. The logic and policy underlying
Joseph apply with equal force here. Accordingly, we hold
9 While this standard is “plenary” as to the district court’s
ruling, it is still highly deferential to a jury’s verdict. See
United States v. Porat, 76 F.4th 213, 218 (3d Cir. 2023)
(“[W]e must affirm [a] conviction if, considering the
evidence in the light most favorable to the government,
there is ‘substantial evidence from which any rational trier
of fact could find guilt beyond a reasonable doubt.’”).

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that a bare, non-specific Rule 29 motion for judgment of
acquittal does not preserve every specific sufficiency
argument a defendant may later pursue on appeal. Plain-
error review must therefore govern Abrams’s sufficiency
claims.
To explain why, we revisit our Joseph precedent.
There, we drew a careful distinction between “issues” and
“arguments,” observing that a single “issue” can
“encompass more than one” discrete “argument.” Joseph,
730 F.3d at 340. We then held that, to preserve a
suppression argument under Federal Rule of Criminal
Procedure 12, a party must raise the same argument in the
district court as the party later makes on appeal; “merely
raising an issue that encompasses the appellate argument
is not enough.” Id. at 337. We also described the level of
specificity required for preservation as “exacting.” Id. at
341. An argument on appeal is preserved if it depends on
(1) the same legal rule or standard and (2) the same facts
as the argument presented to the district court. Id. at 341–
42. Applying that framework, we concluded that the
defendant’s district-court challenge to probable cause as to
actus reus did not preserve a new appellate challenge to
probable cause as to mens rea. Id. at 343. As a result, we

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concluded that the mens rea argument had been waived.10
Id.
We have applied Joseph beyond the Rule 12
suppression setting. In United States v. Grant, we invoked
Joseph to decide whether to review de novo or for plain
error a defendant’s argument urging us to “exten[d] [] our
Court’s sentencing-package doctrine to vacated
sentences.” 9 F.4th 186, 199–200 (3d Cir. 2021). Although
the defendant broadly asked the district court for a full
resentencing on all his counts of conviction after his
sentence on two counts were vacated, we held that he
failed “to put the District Court or the Government on
notice” of, and thus preserve, his distinct sentencing-
package argument. Id. Similarly, in United States v. Abreu,
we applied Joseph to a dispute regarding the interpretation
of the U.S. Sentencing Guidelines. 32 F.4th 271 (3d Cir.
2022). We concluded that the argument there had been
preserved—“although [the defendant] frame[d] it slightly
differently” than he had done at trial—because it relied on
“both the same legal rule . . . and the same facts . . .
10 “[A] suppression argument raised for the first time on
appeal is waived (i.e., completely barred) absent good
cause.” United States v. Rose, 538 F.3d 175, 182 (3d Cir.
2008). By contrast, an unpreserved Rule 29 argument may
still be reviewed for plain error. See United States v.
Williams, 974 F.3d 320, 361 (3d Cir. 2020).

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presented in the District Court.” Id. at 275–76 (second
quotation from Joseph, 730 F.3d at 342). And in Spireas v.
Commissioner of Internal Revenue, we extended Joseph
into the civil realm, noting that there is “no basis” for
applying a different argument/issue distinction in civil and
criminal matters. 886 F.3d 315, 321 n.9 (3d Cir. 2018). We
made clear there that Joseph “provides the governing rule”
for the “threshold question of whether an argument was
made” in the district court for purposes of appellate
review. Id.
We have yet to fully resolve how Joseph should
apply to motions for judgment of acquittal made pursuant
to Federal Rule of Criminal Procedure 29. In Williams, we
“decline[d] to import Joseph wholesale” to the Rule 29
context because doing so was unnecessary to our decision
in that case. 974 F.3d at 361. Instead, we held that “when
a Rule 29 motion raises specific grounds, or arguments (in
the Joseph sense), all such arguments not raised are
unpreserved on appeal.” Id.11 Thus, the defendant’s Rule
29 motion at trial raising “a narrow factual argument
regarding the testimony of a witness” did not preserve a
distinct appellate argument concerning drug-quantity
calculations. Id. Williams, however, expressly left open
11 Most of our sister circuits have adopted the same, or
similar, standard. See id. at 361 nn. 27–28 (collecting
cases).

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whether “a broadly stated Rule 29 motion preserves all
arguments bearing on the sufficiency of the evidence.” Id.;
see also United States v. Johnson, 19 F.4th 248, 255 n.6
(3d Cir. 2021) (reaffirming that Williams did not hold that
“a ‘general’ Rule 29 motion preserves all sufficiency
arguments for appeal”). Confronted with that question
now, we hold that a general Rule 29 motion does not
preserve all sufficiency arguments later raised on appeal.12
Our cases underscore two animating principles of
preservation doctrine. First, a party must put the district
court “squarely” on notice of the point at issue, Johnson,
19 F.4th at 255 (citation omitted), thereby affording it “a
chance to ‘consider and resolve’” the matter in the first
instance. Id. (quoting Puckett v. United States, 556 U.S.
129, 134 (2009)); see also Grant, 9 F.4th at 199 (finding
that an appellate argument was not preserved where
12 We are not the first circuit to reach that conclusion. The
Fifth Circuit has held that “[t]o preserve de novo review .
. . a defendant must specify at trial the particular basis on
which acquittal is sought.” United States v. McDowell, 498
F.3d 308, 312 (5th Cir. 2007) (emphasis added); see also
United States v. Wadi, 153 F.4th 465, 474–75 (5th Cir.
2025) (holding that an argument was waived on appeal
where the defendant “generally moved for acquittal”, but
“failed to specify any particular basis for his insufficiency-
of-the-evidence contention in the district court”).

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“defense counsel’s argument . . . did not suffice to put the
District Court or the Government on notice [of] what [the
defendant] really sought”). That is so because the district
court “is ordinarily in the best position to determine the
relevant facts and adjudicate the dispute.” Puckett, 556
U.S at 134. Indeed, “[t]he very word ‘review’ presupposes
that a litigant’s arguments have been raised and considered
in the tribunal of first instance.” Freytag v. Comm’r, 501
U.S. 868, 895 (1991) (Scalia, J., concurring in part and
concurring in judgment).
Second, the presentation must be “sufficiently
particularized”—that is, framed as specific arguments—
because “even the most learned judges are not
clairvoyant” and need not “anticipate and join arguments
that are never raised by the parties.” Abreu, 32 F.4th at
274–75 (second and third quotations from United States v.
Dupree, 617 F.3d 724, 728 (3d Cir. 2010)); cf. Doeblers’
Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 n.8 (3d Cir.
2006) (“‘Judges are not like pigs, hunting for truffles
buried’ in the record.” (quoting Albrechtsen v. Bd. of
Regents of Univ. of Wis. Sys., 309 F.3d 433, 436 (7th Cir.
2002))). That requirement is “essential to the proper
functioning of our adversary system,” which “rel[ies] on
the litigants . . . to frame the issues for decision.” Dupree,
617 F.3d at 728.

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These tenets reflect a practical goal: to “encourage[]
litigants to directly identify for the district court the
purported grounds for error.” Johnson, 19 F.4th at 255; see
also Puckett, 556 U.S. at 134 (explaining that strict limits
on correcting unpreserved error “serve[] to induce the
timely raising of claims and objections” before the district
court). Thus, the “ultimate question is whether the part[y]
‘g[a]ve the District Court the opportunity to consider the
argument.’” Abreu, 32 F.4th at 275 (second alteration in
original) (quoting Dupree, 617 F.3d at 731). Nothing about
Rule 29 warrants an exception to that reasoning. As
elsewhere, requiring a defendant to “specify at trial the
particular basis on which acquittal is sought” ensures that
“the Government and district court are provided notice”
and can address arguments in the first instance. McDowell,
498 F.3d at 312; see also United States v. Kieffer, 991 F.3d
630, 639 (5th Cir. 2021) (Oldham, J. concurring in the
judgement) (“[A] general declaration of ‘insufficient
evidence!’ . . . does nothing to focus the district judge’s
mind on anything.”).
We acknowledge that several of our sister 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. United

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States v. Hammoude, 51 F.3d 288, 291 (D.C. Cir. 1995).13
But that line of authority rarely offers a justification. So
even if “the practice of allowing general Rule 29
objections is well accepted,” Marston, 694 F.3d at 135, it
is unclear why such a practice should carve out an
exception to the “ordinar[y]” rule that counsel must “make
13 See also United States v. Maez, 960 F.3d 949, 959 (7th
Cir. 2020) (“A motion under Rule 29 that makes specific
arguments waives issues not presented, but a general
motion preserves every objection.”); United States v.
Marston, 694 F.3d 131, 134 (1st Cir. 2012) (quoting
Hammoude and suggesting that “the same rule applies in
this circuit as well”); United States v. Chance, 306 F.3d
356, 371 (6th Cir. 2002) (finding that a defendant
preserved specific challenges to the sufficiency of the
evidence where “his Rule 29 motions were general in
nature”); United States v. Hoy, 137 F.3d 726, 729 (2d Cir.
1998) (holding that a Rule 29 motion “generally arguing
that the government presented insufficient evidence to
convict . . . preserve[s] [all] sufficiency claims for
appeal”); cf. United States v. Graf, 610 F.3d 1148, 1166
(9th Cir. 2010) (“A defendant need not state specific
grounds to support a Rule 29 motion . . . however, when a
Rule 29 motion is made on a specific ground, other
grounds not raised are waived[.]” (citations omitted)).

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specific objections which state the grounds for or scope of
the objection.” Id.
The Seventh Circuit has offered perhaps the most
developed justification for a position contrary to our
holding here. It reasons that Rule 29 “does not require
specificity” by contrasting it with its civil analogue, which
expressly requires that a motion for judgment as a matter
of law “specify the judgment sought and the law and facts
that entitle the movant to the judgment.” United States v.
Hosseini, 679 F.3d 544, 550 (7th Cir. 2012) (quoting Fed.
R. Civ. P. 50(a)(2)). Building on that premise, the Seventh
Circuit has explained that “a general [Rule 29] motion
preserves every objection” because “parties to a criminal
case—unlike civil parties—have no general obligation to
support [their] motions with specific reasons.” Maez, 960
F.3d at 959 & n.6 (citing Fed. R. Crim. P. 47 advisory
committee’s note to 1944 adoption). We decline to follow
that approach for two reasons.
First, while Rule 29 itself is silent on specificity,
Rule 47(b) is not: it provides that any motion “must state
the grounds on which it is based.” Fed. R. Crim. P. 47(b).
And in Joseph we explained that the terms “ground” and
“argument” are “synonymous” in “the degree of
specificity they entail.” 730 F.3d at 340. Read together,
those propositions mean what they say: a motion—
including one under Rule 29—must state the arguments on

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which it rests. “[M]erely raising an issue that encompasses
the appellate argument is not enough” to preserve it for
appeal. Id. at 337.
Second, the advisory committee note on which
Maez relies reaches only so far. It states that Rule 47(b)
“does not require that the grounds [i.e., arguments] upon
which a motion is made shall be stated ‘with
particularity.’” Fed. R. Crim. P. 47 advisory committee’s
note to 1944 adoption (emphasis added) (quoting Fed. R.
Civ. P. 7(b)(1)). We have never held—and do not hold
today—that an argument must be fully developed or
exhaustively briefed in the district court to be preserved.
Indeed, “[p]arties are free . . . to place greater emphasis
and more fully explain an argument on appeal than they
did in the District Court” or to “even, within the bounds of
reason, reframe their argument.” Joseph, 730 F.3d at 341.
But the argument itself must be presented in some form;
merely invoking only an overarching “issue,” which is
“broader in scope,” will not suffice. Id. at 340.
At all events, those same courts—like ours in
Williams—also hold that when a defendant chooses to
raise specific Rule 29 arguments in the district court, any
unraised sufficiency arguments are forfeited or waived.14
14 See Marston, 694 F.3d at 134 (“[W]hen a defendant
chooses only to give specific grounds for a Rule 29

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24
That asymmetry is difficult to justify.15 Indeed, we deemed
the Williams rule “sensible” precisely because it
motion, all grounds not specified are considered
waived[.]”); Chance, 306 F.3d at 369 (“[W]here the
defendant makes a Rule 29 motion on specific grounds, all
grounds not specified in the motion are waived.”);
Hosseini, 679 F.3d at 550 (“[A] defendant’s choice to raise
specific arguments and omit others in a Rule 29 motion
has consequences on appeal.”); United States v. Spinner,
152 F.3d 950, 955 (D.C. Cir. 1998) (“[W]e review an
appellant’s sufficiency-of-the-evidence challenge for
plain error when a motion for judgment of acquittal was
based on specific (and different) grounds.”); United States
v. Rivera, 388 F.2d 545, 548 (2d Cir. 1968) (“[W]here as
here a motion for acquittal is made on specified grounds .
. . we think that [non-specified] objection[s] ha[ve] been
waived.”).
15 Only the Second Circuit—more than half a century
ago—has offered a rationale for this distinction. See
Rivera, 388 F.2d at 548. There, the court suggested that
when a defendant “moves to acquit without specification”
a court “might assume [specific objections] to be included
among his unarticulated disagreements.” Id. By contrast,
when a defendant “does specify grounds for the motion
and omits mention of [other arguments] we must conclude
that he cannot be considered to have raised [them].” Id. In
other words, a barebones insufficiency motion is deemed

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25
“encourages litigants to directly identify for the district
court the purported grounds for error.” Johnson, 19 F.4th
at 255. A countervailing rule—treating a generic Rule 29
motion as preserving every later-articulated argument—
would invert that incentive, effectively penalizing
specificity at trial. See Kieffer, 991 F.3d at 638 (Oldham,
J., concurring in the judgement) (noting 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”).16 That result cannot be reconciled
to embrace every conceivable theory, but the moment a
defendant articulates particular grounds, his silence as to
any others is treated as waiver. That is a tenuous
assumption. It is also difficult to square with traditional
preservation principles and the policy bases underlying
them.
16 Even the First Circuit, despite its bottom-line holding,
acknowledged this perverse incentive. In Marston, the
court had to decide whether an “ambiguous [Rule 29]
motion” was general or specific, due to the different
standards it applies to each. 694 F.3d at 135. Because
defendant’s counsel first made a “purely [] general
objection to the government’s evidence” and then
followed with “specific objections,” it was unclear what
standard to apply. Id. The court observed that, in such
circumstances, there is “good reason” to classify the
motion as “general” to avoid “encourag[ing] general

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26
with our preservation jurisprudence and turns the
adversary process on its head. We therefore extend our
Joseph precedent and hold that a general Rule 29 motion
fails to preserve all specific sufficiency arguments for
appellate review.
Applying that rule here, Abrams did not preserve
the particular sufficiency arguments he now advances. His
Rule 29 motion was as general as they come. The entire
colloquy was short:
THE COURT: Now that you are going to rest,
are there motions?
[DEFENSE COUNSEL]: Yes. I move for
judgment of acquittal on [R]ule 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
objections without examples.” Id. It further recognized
that “penaliz[ing] the giving of examples, which might be
understood as abandoning all other grounds, discourages
defense counsel from doing so.” Id. Why that logic should
be confined to “examples” appended to an otherwise
general motion and not applied to the general/specific
distinction more broadly remains unexplained.

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27
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 [R]ule 29 motion is denied.
Appx809.
Because Abrams articulated no specific arguments,
we review his sufficiency claims only for plain error.
Williams, 974 F.3d at 361 & n.29 (stating that “plain-error
review is appropriate” for unpreserved Rule 29
arguments). That standard requires a showing that (1)
there was an “error”; (2) the error was “plain”; (3) the error
prejudiced or “affect[ed] substantial rights”; and (4) not
correcting the error would “seriously affect[] the fairness,
integrity or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 732 (1993) (quoting
United States v. Young, 470 U.S. 1, 15 (1985)). An
insufficiency claim succeeds under plain-error review
only where affirmance would produce “a manifest
miscarriage of justice—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) (citation omitted). Put

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28
differently, the defendant must “establish that the trial
judge and prosecutor were derelict in even permitting the
jury to deliberate.” Id. That is a high bar, and one that
Abrams cannot clear.
B. Fraud Counts
We begin with the wire and mail fraud counts
(Counts 1–19) because reversal of Abrams’s convictions
on these claims would obviate the need to address the
aggravated-identity-theft counts, which depend on fraud
as a predicate offense. See Op. Br. at 24.17 For the reasons
that follow, we conclude that the record amply supports
Abrams’s fraud convictions. Accordingly, there is no error
under Olano’s first prong, and we will affirm those counts
and proceed to consider the identity theft counts.
To satisfy the first prong of plain-error review under
Olano, Abrams must establish that “the record contains no
evidence, regardless of how it is weighted,” from which a
“rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United
States v. Walker, 657 F.3d 160, 171 (3d Cir. 2011)
(citations omitted). This is an “extremely high” burden to
meet. United States v. Serafini, 233 F.3d 758, 770 (3d Cir.
17 Abrams appears to apply each of his arguments to all 19
counts of fraud in the indictment.

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29
2000). Our review is “particularly deferential[:]” we “view
the evidence in the light most favorable to the prosecution”
and “must be ever vigilant not to usurp the role of the jury
by weighing credibility and assigning weight to the
evidence.” Walker, 657 F.3d at 171 (citation modified and
citations omitted).
Both federal fraud statutes at issue here criminalize
“any scheme or artifice to defraud, or for obtaining money
or property by means of false or fraudulent pretenses,
representations, or promises.” See 18 U.S.C. § 1343 (wire
fraud); id. § 1341 (mail fraud).18 The government must
prove: “(1) a scheme or artifice to defraud for the purpose
of obtaining money or property, (2) participation by the
defendant with specific intent to defraud, and (3) use of
the mails or wire transmissions in furtherance of the
scheme.” Nat’l Sec. Sys., Inc. v. Iola, 700 F.3d 65, 105 (3d
Cir. 2012). Abrams does not dispute that the third element
is met, so we focus exclusively on the first two elements.
See Op. Br. 52–56. Here, the record contains more than
sufficient evidence, viewed in the light most favorable to
the prosecution, from which a rational trier of fact could
18 Because both statutes contain this identical language, we
interpret them “in pari materia.” Porat, 76 F.4th at 218 n.3
(quoting Pasquantino v. United States, 544 U.S. 349, 355
n.2 (2005)).

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30
have found that both elements were met beyond a
reasonable doubt.
1. For the purpose of obtaining money or property
The first element of federal fraud requires that
“property must play more than some bit part in a scheme:
It must be an object of the fraud.” Kelly v. United States,
590 U.S. 391, 402 (2020) (internal quotation marks and
citation omitted). Put differently, “[o]btaining the victim’s
money or property must have been the ‘aim,’ not an
‘incidental byproduct,’ of the defendant’s fraud.” Kousisis
v. United States, 605 U.S. 114, 122 (2025) (quoting Kelly,
590 U.S. at 402, 404). Abrams does not dispute that his
scheme was aimed at obtaining money or property.
Instead, he now argues that his conviction fails because
“the Government did not allege []or prove that inflicting
economic harm on the investors was the object of
Abrams’s plan.” Op. Br. at 54.
Abrams maintains that federal fraud requires not
only an intent to obtain money or property, but also an
intent to make the victim worse off economically. Id. He
is wrong. While this case was pending, the Supreme Court
squarely rejected that position in Kousisis, holding that a
defendant may violate § 1343 “regardless of whether he
seeks to leave the victim economically worse off.” 605
U.S. at 124. Kousisis likewise forecloses Abrams’s related

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31
theory that the investors “received exactly what they paid
for”—i.e., “a risky investment tantamount to a lottery
ticket.” Op. Br. at 54 (first quotation from Porat, at 227
(Krause, J., concurring)). Again, economic or pecuniary
harm is not required under § 1343, Kousisis, 605 U.S. at
124 (“[T]he wire fraud statute . . . does not so much as
mention [economic] loss, let alone require it.”), and the
“benefit-of-the-bargain” line of cases Abrams cites in
support have been abrogated by Kousisis.19 Abrams
acknowledges as much in his Reply Brief. Rep. Br. at 20
n.4.
Equally unavailing is Abrams’s attempt to shift
blame to his victims. He contends that they were
“sophisticated investors” who “considered EthosGen’s
financial information unreliable[,]” yet proceeded in spite
of that with what they knew was a high-risk investment.
Op. Br. at 55. According to Abrams, they did not believe
or rely on his alleged lies and misrepresentations—
purportedly a “strong indication that no actionable federal
criminal fraud occurred.” Id. at 55–56; see also Rep. Br. at
20 (arguing that the investors “entered the relationship
with their eyes open and did not rely on any of his alleged
misrepresentations”). But “justifiable reliance . . . plainly
19 See, e.g., United States v. Takhalov, 827 F.3d 1307 (11th
Cir. 2016); United States v. Binday, 804 F.3d 558 (2d Cir.
2015).

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32
ha[s] no place in the federal fraud statutes.” Neder v.
United States, 527 U.S. 1, 24–25 (1999) (internal
quotation marks and citation omitted); see also Bridge v.
Phoenix Bond & Indem. Co., 553 U.S. 639, 648 (2008)
(“Using the mail to execute or attempt to execute a scheme
to defraud is indictable as mail fraud . . . even if no one
relied on any misrepresentation.”). And to the extent the
investors knowingly “signed off on an investment that
involved a high degree of risk,” that simply repackages the
already-rejected “benefit-of-the-bargain” theory. Op. Br.
at 55–56 (citation modified).20 Accordingly, Abrams’s
challenge to the “money or property” element fails. We
turn, then, to the next question: whether a reasonable jury
could infer from the evidence presented, the requisite
intent to defraud. We conclude that it could.
2. Specific intent to defraud
We have long recognized that “[j]uries may infer a
defendant's intent to defraud from circumstantial
20 To the extent that Abrams argues that the investors were
negligent in ignoring the many red flags surrounding
EthosGen, we “reject the relevance of those allegations,
even if true.” United States v. Coyle, 63 F.3d 1239, 1244
(3d Cir. 1995). “The negligence of the victim in failing to
discover a fraudulent scheme is not a defense to criminal
conduct.” Id. (citation omitted).

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33
evidence.” United States v. Cammarata, 145 F.4th 345,
367 (3d Cir. 2025) (citation omitted). Such inferences need
only bear a “logical or convincing connection to
established fact.” United States v. Caraballo-Rodriguez,
726 F.3d 418, 425 (3d Cir. 2013). And even where the
evidence “may be consistent with multiple possibilities,”
our role “is to uphold the jury verdict . . . as long as it
passes the ‘bare rationality’ test.” Id. at 432.
Abrams frames his “entire defense” as a claim of
honest belief—namely, that “due to the nature of his
personal and business relationships,” he believed he “had
implied consent to substitute his and EthosGen’s name for
other persons’/entities’ names on documents.” Rep. Br. at
20. The jury rejected that defense, returning guilty verdicts
on all nineteen fraud counts. We may not disturb that
determination unless the record is entirely “devoid of
evidence” from which fraudulent intent could be inferred.
Burnett, 773 F.3d at 135. That by no means describes the
condition of the record that is before us.
The evidence admitted at trial amply supplies the
“logical or convincing connection” required to support the
jury’s verdict. Caraballo-Rodriguez, 726 F.3d at 425.
Abrams altered business contracts, adding EthosGen
where it was not a signatory or excising references to other
contracting entities. He also inflated EthosGen’s financials

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34
to enhance its appearance to investors.21 He further
misrepresented that the first two units funded by the initial
tranche had been sold and installed when they had not.
That representation aligned with a condition for receiving
the second tranche. No evidence remotely suggests that
Abrams possessed “implied consent” to take those steps or
that he had a non-fraudulent purpose for doing so.
His handling of investor funds points in the same
direction. Shortly after he received the money from
investors, Abrams withdrew and distributed it among four
other business accounts “within the span of approximately
32 minutes.” Appx715. He then used funds to purchase a
personal residence while telling investors the funds were
used “to secure unit inventory.” Appx450, 716. Although
Abrams characterized the transfers as a “mistake” and
claimed the residence had business purposes, Appx720–
721, 756, an IRS agent who testified opined that the
pattern resembled money laundering. The jury was
entitled to credit that testimony. See Walker, 657 F.3d at
171 (stating that courts may not “usurp the role of the jury
21 Abrams himself acknowledges this. See Op. Br. at 8–9
(“Abrams provided information and EthosGen documents
that were not accurate—he inflated EthosGen’s cash-on-
hand, revenue stream, number of units/engines
successfully sold/installed and paid for . . . and intellectual
property portfolio.”).

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35
by weighing credibility and assigning weight to the
evidence” (citations omitted)).
On this record—much of which was not factually
contested at trial—a rational jury could find that Abrams
acted with intent to defraud, as shown by his repeated
misrepresentations and his handling of investor funds.
Because we discern no error under Olano’s first prong, the
fraud convictions must stand. We turn next to Dubin and
the aggravated-identity-theft counts.
C. Aggravated-Identity-Theft Counts
In addition to the fraud counts, the jury returned
guilty verdicts on five counts of aggravated-identity-theft,
18 U.S.C. § 1028A. Those convictions carry a mandatory
two-year term to run consecutively to any term of
imprisonment imposed on the underlying offense. See §
1028A(a)(1).22 On appeal, Abrams devotes the lion’s share
22 Abrams was sentenced to an additional two-year term
for each count, with all § 1028A sentences to run
“concurrently with each other.” Appx5. Thus, vacating
fewer than all counts would not affect Abrams’s aggregate
term of imprisonment. However, we must still analyze
each count separately. Under the “concurrent sentence
doctrine,” courts have “discretion to avoid resolution of
legal issues affecting less than all of the counts in an

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36
of his briefing to arguing that the evidence does not satisfy
the standard announced in Dubin, 599 U.S. at 131.23 We
disagree. As explained below, all of Abrams’s § 1028A
convictions are supported by sufficient evidence under
Dubin. Accordingly, there is no error under Olano.
indictment where at least one count will survive and the
sentences on all counts are concurrent.” Clark v. United
States, 76 F.4th 206, 209 n.2 (3d Cir. 2023) (citation
omitted). That doctrine will not apply, however, where, as
here, the district court imposes a special assessment for
each count of conviction, as required by 18 U.S.C. § 3013.
See United States v. Ross, 801 F.3d 374, 382 (3d Cir. 2015)
(explaining that in such cases “the sentences are not
concurrent, and the ‘concurrent sentence’ doctrine cannot
be used to avoid appellate review of each count of
conviction”) (citing Ray v. United States, 481 U.S. 736,
737 (1987)); see also Ryan v. United States, 688 F.3d 845,
849 (7th Cir. 2012) (“As a practical matter, the concurrent-
sentence doctrine was abrogated for direct appeal when
Congress imposed a special assessment of $50 (now $100)
for each separate felony conviction.”).
23 The Supreme Court issued Dubin on June 8, 2023, soon
after Abrams’s trial commenced. 599 U.S. 110. But
Abrams never invoked Dubin at trial, even though its
“guidance was available . . . before the Government’s first
witness even finished testifying.” Op. Br. at 31.

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37
1. Applicable legal standard under Dubin
Section 1028A(a)(1) imposes a mandatory two-year
additional sentence when a defendant “during and in
relation to any [predicate offense], knowingly transfers,
possesses, or uses, without lawful authority, a means of
identification of another person.”24 The statute requires the
Government to prove four distinct elements: (1) the
defendant knowingly transferred, possessed, or used; (2) a
means of identification of another person; (3) without
lawful authority; and (4) the defendant did so during and
in relation to a predicate crime. See, e.g., United States v.
Pierre, 825 F.3d 1183, 1194 (11th Cir. 2016). Abrams
contests only the fourth element. See Op. Br. at 27–49.
The Supreme Court has recently clarified what it
means to “use” another person’s means of identification
“in relation to” a predicate offense. In Dubin, the Court
held that a defendant does so only “when th[e] use is at the
crux of what makes the [defendant’s] conduct criminal.”
599 U.S. at 131. Being at the “crux” requires that the
identifying information be a “key mover in the
criminality,” id. at 123, not merely connected to the
offense by “a causal relationship, such as facilitation of the
offense or being a but-for cause of its success.” Id. at 131
24 Predicate offenses include both wire and mail fraud. See
§ 1028A(c)(5).

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38
(internal quotation marks and citation omitted). For fraud
and deceit offenses, the identifying information must be
used in a “fraudulent or deceptive” manner that typically
goes to “‘who’ is involved,” not simply “how” or “when”
the conduct occurred. Id. at 132. Thus the Court contrasted
routine overbilling scenarios— “[a] lawyer who rounds up
her hours from 2.9 to 3,” “a waiter who serves flank steak
but charges for filet mignon,” or “an ambulance service
that actually transported patients but inflated the number
of miles driven”—where the identifying information is
“ancillary to what ma[kes] the conduct fraudulent,” with
conduct like the “pharmacist who swipes information from
the pharmacy’s files and uses it to open a bank account in
a patient’s name,” where the misuse of identity is “integral
to” the fraud itself. Id. at 114, 117–18 (citation omitted).
In Dubin, the defendant was convicted of healthcare
fraud and aggravated-identity-theft after his company
submitted inflated claims to Medicaid, falsely claiming
that services rendered to an actual patient were performed
by a psychologist rather than by a psychological associate.
Id. at 114–15. Although the claims included legitimate
patient identifiers (name and Medicaid number), the
scheme’s core deceit concerned “how and when services
were provided, . . . not who received the services.” Id. at
132. The Court vacated the defendant’s aggravated-
identity-theft convictions because the patient’s identifying
information was merely an “ancillary feature” of the

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39
billing and “not at the crux of what made the underlying
overbilling fraudulent.” Id.
Abrams reads Dubin to require vacatur of his
aggravated-identity-theft convictions. As a preliminary
matter, he argues that § 1028A(a)(1) now demands proof
of pecuniary or reputational harm—what he labels “Judge
Easterbrook’s heuristic.” Op. Br. at 31–35. He derives that
view from a Seventh Circuit opinion, United States v.
Spears, 729 F.3d 753 (7th Cir. 2013), which he contends
Dubin “cite[d] . . . with approval.” Op. Br. 31–32; Rep. Br.
at 3–4. Abrams’s reading is, to put it kindly, a stretch.
Dubin cites Spears only to observe that some lower courts
had adopted “more restrained readings” of § 1028A.
Dubin, 599 U.S. at 116 & n.2. Dubin neither mentioned a
harm requirement nor adopted Spears’s reasoning. And
Spears itself addressed how to apply a separate aspect of
the § 1029A analysis—the “another person” element—in
a scenario where the defendant used identifying
information with the subject’s consent, noting only in
passing that “[t]he usual victim of identity theft may be out
of pocket . . . or may be put to the task of rehabilitating a
damaged reputation.” Id. at 755, 757 (emphasis added).
At all events, even if we were inclined to entertain
Abrams’s novel requirement, we decline to do so here
under plain-error review. Our Court has never endorsed a
harm element under § 1028A, and Abrams identifies no

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40
authority that clearly does so. Thus, any error in this
respect—assuming one exists—is hardly “clear or
obvious” as our precedent requires. United States v.
Dorsey, 105 F.4th 526, 530 (3d Cir. 2024) (explaining that
an error is plain when “the state of the law” demonstrates
that “the underlying legal proposition is not subject to
reasonable dispute” (internal quotations and citation
omitted)). We therefore set the proposed harm requirement
aside and ask whether—viewing the evidence “in the light
most favorable to the prosecution”—a reasonable jury
could find that Abrams’s use of another’s identifying
information was at the “crux” of his fraud. Walker, 657
F.3d at 171. The trial record supports such a finding on
each count.
2. Counts 20–22
For Counts 20–22, the “crux” of Abrams’s fraud
was in submitting falsified documents to deceive investors
into believing that EthosGen was far more financially
stable and operationally successful than it really was,
thereby inducing them to invest. Central to that fraud was
“who” attested to the representations in the documents, as
they would have carried no weight without such
endorsements.
First, to mislead investors into thinking the
company had generated revenue that it had not, Abrams

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41
altered EthosGen’s 2010 tax return to appear that it was a
2016 return. In doing so, he inserted the name and tax
preparer number of an accountant, John Riccetti, without
having obtained the accountant’s consent. Second, Abrams
forged a contract between PNNL and Rockwell Collins,
altering it to appear as if it was a contract between PNNL
and EthosGen, falsely using the name and signature of
PNNL representative Kevin Ghirardo. Third, Abrams
misrepresented that EthosGen possessed intellectual
property rights that it, in fact, did not. He did so by altering
a patent-license agreement between Battelle and
Innaventure, making it appear as if the agreement was
between Battelle and EthosGen and using the name and
signature of Battelle representative Peter Christensen. In
each of these instances, Abrams’s use of Ricetti’s,
Ghirardo’s, and Christensen’s means of identification was
itself “fraudulent or deceptive,” because it falsely implied
that those individuals had endorsed the altered documents.
Dubin, 599 U.S. at 132. That is, the deceit concerned who
had purportedly prepared the 2016 tax return or ratified the
contracts that favored EthosGen. Thus, Abrams’s deceitful
conduct falls cleanly within § 1028A and the framework
established by Dubin.
3. Counts 23–24
Abrams’s challenge to Counts 23 and 24 fails for
similar reasons. In order for KSTI to release the second

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42
$200,000 tranche of investment funds, EthosGen was
required to show that it had (1) successfully sold, installed,
and commissioned units at two customer sites; (2)
finalized a manufacturing and pricing agreement with
Rockwell Collins for roughly 50 units; and (3) hired a
CFO. Attempting to satisfy the first condition, Abrams told
investors that EthosGen had completed a “successful
install in United Kingdom in May.” Op. Br. at 18;
Appx450–451. That was false. The unit had not been
installed even by November 2018, and when installation
finally did occur, the unit failed and had to be “uninstalled
and returned.” Appx528–29. In an attempt to validate his
false claim, Abrams emailed a purported commissioning
checklist for “M.G.H. Limited” on August 1, 2018,
bearing the name and signature of Michael Harris,
M.G.H.’s managing partner. In fact, Harris had neither
signed the document nor had he authorized anyone to sign
on his behalf. Abrams had also forged Michael
Mastergeorge’s signature on a purported manufacturing
agreement between EthosGen and Rockwell Collins.
Relying on Abrams’s representations that the required
conditions had been met, the investors released the second
tranche. Op. Br. at 18–19.
Based on the foregoing facts, a rational jury could
reasonably conclude that the forged signatures of Harris
and Mastergeorge were the “key mover[s] in [Abrams’s]
criminality.” Dubin, 599 U.S. at 123. The forged

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43
signatures converted what were otherwise meaningless
documents into apparent third-party attestations that the
requirements for additional funding had been met. Thus,
unlike the “ancillary feature of the billing method” at issue
in Dubin, Abrams’s misuses of Harris’s and
Mastergeorge’s means of identification were the
metaphorical keys that unlocked the cash drawer. Id. at
132. The fraudulent use of those names and signatures
went to “who” was vouching for completion of the
conditions, and as such, was itself “fraudulent or
deceptive.” Id.
The Ninth Circuit’s decision in United States v.
Parviz offers a useful illustration. 131 F.4th 966 (9th Cir.
2025). In that case, the defendant obtained her child’s
passport by submitting a forged “medical exception” letter
bearing the signature of a medical provider to bypass a
requirement that the child appear in person. Id. at 968.
Although the provider “knew [the defendant] inten[ded] to
submit a letter from him in support of her attempt to get a
passport” and had discussed with her “some of the things
that she might say,” he neither authored the letter nor
authorized its use. Id. at 971–72 (internal quotation marks
omitted). The passport examiner approved the application
based on the letter, signed by someone who “held himself
out to be a medical provider.” Id. at 971. The court held
that the use of the provider’s signature was “central to the
fraudulent letter’s objective of establishing a medical

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44
excuse” and, therefore, at the “crux” of the offense
because the deception went to “‘who’ was making the false
representations in the letter.” Id. at 971–72
So too in the matter before us. Abrams forged the
signatures of Harris and Mastergeorge on the
commissioning checklist and manufacturing agreement,
respectively, in an effort to secure the second tranche of
funding. Although EthosGen might have had some limited
relationship with M.G.H. at that time, no unit had been
installed—let alone “successfully” installed—when
Abrams sent the checklist. Likewise, while EthosGen had
a business relationship with Rockwell Collins through the
teaming agreement, that relationship alone did not fulfill
the formal requirement for a manufacturing agreement,
which KSTI required before releasing the second tranche.
In fact, Mastergeorge explicitly declined to sign a nearly
identical agreement, stating that “[t]he business wasn’t big
enough to justify it.” Appx532. Investors released funds in
reliance on both documents, which appeared to bear the
signatures of individuals who possessed the authority to
validate their authenticity. A rational jury could thus
conclude that Harris’s and Mastergeorge’s signatures were
“central to the [checklist’s/agreement’s] objective” of
proving that the conditions for additional funding had been
met. Parviz, 131 F.4th at 971. Accordingly, Abrams’s
conduct falls squarely within Dubin’s “crux” formulation

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45
because the fraud turned on “‘who’ was making the false
representations in the [checklist/agreement].” Id. at 972.
In sum, the evidence supports the jury’s finding that
Abrams used—at the crux of his fraud—the means of
identification of another in a deceptive manner, satisfying
the government’s burden on all counts. We will therefore
affirm.
III. Alternative aggravated-identity-theft arguments
Setting sufficiency aside, Abrams presses two
fallback challenges to his § 1028A convictions. First, he
contends that the district court plainly erred by failing to
instruct the jury on Dubin’s “crux” holding. Op. Br. at 46–
49. Second, he argues that § 1028A is unconstitutionally
vague even as construed in Dubin. Id. at 49–51. Abrams
failed to raise either objection at trial, so we review for
plain error. See United States v. Stevens, 70 F.4th 653, 656
(3d Cir. 2023). Under that standard, his first argument fails
because any instructional omission in this instance was not
“plain,” and his second argument is foreclosed by Dubin
itself.
A. “Crux” jury instruction.
As relevant here, the District Court instructed the
jury that “[i]n order to find the defendant guilty of identity
theft,” the government had to prove beyond a reasonable

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46
doubt that “the defendant used or transferred or possessed
the means of identification [of another person] during and
in relation to the offenses of wire fraud charged in counts
one through 18 or mail fraud charged in count 19.”
Appx832–33. Abrams maintains the charge was deficient
because the instruction as to the “use” and “in relation to”
elements of the offense did not explain Dubin’s “crux”
requirement. Op. Br. at 46. Although a district court’s
“omission of an essential element of an offense in a jury
instruction ordinarily constitutes plain error,” United
States v. Haywood, 363 F.3d 200, 207 (3d Cir. 2004)
(citation modified and citation omitted), whether Dubin’s
“crux” refinement is itself an “essential element” of §
1028A is not plain. Accordingly, Abrams’s claim fails
under Olano’s second prong.
An error is “plain” only if it is “clear or obvious” in
light of “the state of the law while the case under review
is on appeal.” Dorsey, 105 F.4th at 530.25 To be sure, “the
25 Accordingly, while multiple cases cited by the parties
were decided after Abrams’s trial had concluded, these
cases are still relevant to our analysis. See also Henderson
v. United States, 568 U.S. 266, 273–74 (2013) (explaining
that an error may be plain “even if the trial judge’s
decision was plainly correct at the time when it was made
but subsequently becomes incorrect based on a change in
law”).

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47
lack of in-circuit case law on the specific question does not
doom a finding of plain error . . . so long as the Courts of
Appeals that have addressed the question have uniformly”
adopted an appellant’s position. United States v. Scott, 14
F.4th 190, 198 (3d Cir. 2021) (citation modified and
citations omitted). But even unanimity among a few
circuits may not suffice. See, e.g., United States v. Smith,
751 F.3d 107, 119 n.10 (3d Cir. 2014) (declining to reverse
for plain error where our Court had not reached the issue,
but three circuits had sided with the appellant). Here, our
survey of the field reveals neither clarity nor obviousness.
Dubin did not explicitly add a new element to §
1028A, nor did it mandate a “crux” instruction in every
case. And our Court has yet to address in a precedential
opinion whether Dubin requires such an instruction.26 So
26 Recently, in a nonprecedential opinion, a different panel
of this Court found no error, plain or otherwise, where a
district court provided instructions that were nearly
identical to what the District Court provided here. See
United States v. Weigand, No. 23-2159, 2025 WL
1554931, at *2 (3d Cir. June 2, 2025) (finding no error
where “the District Court instructed the jury that [the
defendant] could only be found guilty of aggravated
identity theft if he ‘used or possessed the means of
identification during and in relation to’ the wire fraud
offenses”); ECF No. 65 (28(j) letter discussing Weigand).

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48
we must look to our sister circuits to determine if “the
great weight of persuasive authority supports” requiring a
specific “crux” jury instruction. Scott, 14 F.4th at 198
(citation modified and citation omitted). It does not.
The two circuits to have squarely confronted the
issue are split. The Ninth Circuit held that an instruction
tracking only § 1028A’s statutory text was inadequate
“[g]iven the indeterminacy of the phrase ‘in relation to’”
and Dubin’s “adoption of a ‘narrower reading.’” United
States v. Ovsepian, 113 F.4th 1193, 1209 (9th Cir. 2024).27
The Fourth Circuit has taken the opposite view,
concluding that a separate “crux” instruction is not
required because Dubin “did not alter our understanding
of the elements of the aggravated-identity-theft offense or
require additional factual findings in each prosecution.”
While that opinion is nonprecedential, it adds further
support to the conclusion that it is not “clear or obvious”
that a “crux” jury instruction is necessary.
27 Importantly, Ovsepian did not involve plain error
review. That case involved a motion for relief under 28
U.S.C. § 2255, and although the defendant “procedurally
defaulted” on his Dubin argument by failing to raise it on
direct appeal, he was able to revive it for full consideration
“by demonstrating actual innocence.” Id. at 1200.

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49
United States v. Jackson, 126 F.4th 847, 868 (4th Cir.
2025).
The other decisions Abrams cites are not directly on
point. In United States v. Gladden, the Eleventh Circuit
rejected a jury instruction that expressly suggested “that
mere facilitation of the predicate offense is sufficient to
support a conviction”—a proposition that Dubin plainly
forbids. 78 F.4th 1232, 1248 (11th Cir. 2023); see Dubin,
599 U.S. at 131 (“[B]eing at the crux of the criminality
requires more than a causal relationship, such as
‘facilitation’ of the offense[.]” (citation omitted)).
Likewise, the Second Circuit held that a jury instruction
was “plainly incorrect” where it provided that the “in
relation to” element could be satisfied “merely by showing
that the means of identification had ‘a purpose, role, or
effect with respect to the crime’”—a formulation that
directly conflicts with Dubin. United States v. Omotayo,
132 F.4th 181, 196 (2d Cir. 2025) (citation omitted).
In short, whatever Dubin may ultimately require in
future cases,28 the absence of controlling Third Circuit
28 Notably, judicial committees in at least two circuits have
updated their model jury instructions for aggravated-
identity-theft to reflect Dubin’s “crux” requirement. See
Manual of Model Criminal Jury Instructions for the
District Courts of the Ninth Circuit § 15.9 (2022 ed.,

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50
authority and the split among our sister circuits means that
any instructional omission here was not plain. See United
States v. Cruz, 757 F.3d 372, 387 n.11 (3d Cir. 2014)
(noting that “there could be no plain error” where “we
have yet to decide” the issue and “[o]ther circuit courts are
split” (citation omitted)).
B. Void for vagueness
updated June. 2025) (“A means of identification is
[transferred, possessed, or used] ‘during and in relation to’
a crime when the means of identification is [transferred,
possessed, or used] in a manner that is fraudulent or
deceptive and is at the crux of what makes the conduct
criminal.”); Fifth Circuit Pattern Jury Instructions
(Criminal Cases) § 2.48C (2024) (“Identity theft is
committed when a defendant uses the means of
identification itself in a manner to defraud or deceive. It is
not enough to be a violation of this law that the use of a
means of identification was helpful or even necessary to
accomplish the charged conduct unless the accused used
that means of identification to deceive about the identity
of the person performing the actions or receiving the
benefits or services.”). We consider it unnecessary to
opine as to whether or not either circuit committee’s
formulation is appropriate.

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51
Abrams’s vagueness challenge is dead on arrival. He
leans entirely on Justice Gorsuch’s concurrence in Dubin,
which would deem § 1028A unconstitutionally vague. See
Dubin, 599 U.S. at 133–39 (Gorsuch, J., concurring). But
the majority explicitly rejected that view, emphasizing that
“[t]he concurrence’s bewilderment is not, fortunately, the
standard for striking down an Act of Congress as
unconstitutionally vague.” Id. at 132 n.10. Consistent with
Dubin’s holding, multiple courts have since declined to
find § 1028A unconstitutional. See Gladden, 78 F.4th at
1247 (“Under [Dubin’s] guidance, we decline to find that
Section 1028A is unconstitutionally vague.”); United
States v. Iannelli, 700 F. Supp. 3d 1, 4 (D. Mass. 2023)
(“[T]he Dubin Court cast significant doubt on future void-
for-vagueness challenges to 18 U.S.C. § 1028A(a)(1).”).29
We do likewise.
In sum, neither of Abrams’s alternative arguments
has merit. We therefore will affirm the § 1028A
convictions.
29 Albeit in a nonprecedential opinion, we recently rejected
an identical void-for-vagueness challenge to §
1028A(a)(1) in light of Dubin. United States v. Diarra,
No. 22-3232, 2025 WL 1862994, at *2 n.4 (3d Cir. July 7,
2025).

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52
IV. Good Faith defense
At trial, Abrams requested an instruction that the
jury could not find him guilty of wire or mail fraud if it
found that he acted in “good faith”—that is, he had “an
honestly-held belief . . . that by virtue of this relationships
with others, he had believed he could substitute his name
or the name of Ethosgen for the actual party” on
documents. Appx165–67; Op. Br. at 57. The District Court
declined to give the instruction. Appx825.
We review the refusal to give a requested jury
instruction for abuse of discretion. United States v. Leahy,
445 F.3d 634, 642 (3d Cir. 2006), abrogated on other
grounds by Loughrin v. United States, 573 U.S. 351
(2014). We ask (1) “whether the proffered instruction was
legally correct,” (2) “whether it was not substantially
covered by other instructions,” and (3) “whether its
omission prejudiced the defendant.” United States v.
Gross, 961 F.2d 1097, 1101 (3d Cir. 1992). Because the
District Court’s mens rea instructions for fraud already
covered the substance of the proposed charge, we need not
reach the issues of legal correctness or prejudice. We will
therefore affirm.
A district court does not abuse its discretion by
refusing to give a good faith instruction “where the
instructions given already contain a specific statement of

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53
the government’s burden to prove the elements of a
‘knowledge’ crime.” Leahy, 445 F.3d at 651 (citing
Gross, 961 F.2d at 1102–03). The reason is
straightforward: “If the jury found that the Defendant[ ]
had acted in good faith, it necessarily could not have found
that the Defendant[ ] had acted with the requisite scienter.”
Id. Thus, where the government must prove that a
defendant acted “knowingly and willfully” and the court
so instructs, a separate “good faith instruction [is] simply
a reiteration that the government must carry its burden.”
Gross, 961 F.2d at 1103.30
Here, the jury convicted Abrams of eighteen counts
of Wire Fraud, 18 U.S.C. § 1343, and one count of Mail
Fraud, id. at § 1341. Both offenses require knowledge and
30 Abrams’s request for the jury instruction itself treats the
good faith defense and the intent element for fraud as two
sides of the same coin. See Appx166 (“Good faith is a
defense because it is inconsistent with the requirement of
the offenses charged, that James Abrams acted with the
intent to defraud or knowingly[.]”); id. (“[I]f James
Abrams made an honest mistake or had an honest
misunderstanding about his ability to substitute his name
or the name of Ethosgen for others, then he did not act with
the intent to defraud or knowingly.” (emphases added)).

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54
an intent to defraud.31 Consistent with those elements, the
District Court instructed the jury that it could convict only
if it found that Abrams “knowingly devised a scheme to
defraud or to obtain money or property by materially false
or fraudulent pretenses, representations or promises or
willfully participated in such a scheme with knowledge of
its fraudulent nature” and that he “acted with the intent to
defraud.” Appx830–31. The Court went on to define
“intent to defraud” as acting “knowingly and with
intention or purpose to deceive or to cheat” and told jurors
that they “may consider among other things whether
[Abrams] acted with a desire or purpose to bring about
some gain or benefit to himself or someone else or with a
desire or purpose to cause some loss to someone.”
Appx832.
With the jury having been so instructed, a stand-
alone good-faith instruction “would have been
unnecessary and duplicative.” Leahy, 445 F.3d at 651–52.
31 See Cammarata, 145 F.4th at 367 (“To prove wire fraud,
the Government [must] show that [a] defendant willfully
participated in a scheme or artifice to defraud, with intent
to defraud.” (citation modified)); United States v. Bryant,
655 F.3d 232, 240 (3d Cir. 2011) (“To prove mail fraud,
the government must establish (1) the defendant’s
knowing and willful participation in a scheme or artifice
to defraud, (2) with the specific intent to defraud”).

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55
The District Court therefore did not abuse its discretion by
refusing Abrams’s request.
V. Restitution
In its May 15, 2024 Judgment, the District Court
ordered Abrams to pay $1.1 million in restitution to four
EthosGen investors under the MVRA. On October 11,
2024, the Court amended that judgment to include
attorneys’ fees “directly and proximately caused by
[Abrams’s] crimes,” invoking § 3663A(b)(4). Appx13.
Abrams appeals only the amended judgment, arguing first
that attorneys’ fees are categorically unrecoverable under
§ 3663A(b)(4) and, alternatively, that many of the fees
awarded were not “necessary.” Op. Br. at 61–69.
We review restitution orders under “a bifurcated
standard: plenary review as to whether restitution is
permitted by law, and abuse of discretion as to the
appropriateness of the particular award.” United States v.
Quillen, 335 F.3d 219, 221 (3d Cir. 2003) (quoting United
States v. Simmonds, 235 F.3d 826, 829 (3d Cir. 2000)).
Because we hold that attorneys’ fees are not recoverable
under 18 U.S.C. § 3663A(b)(4), we will vacate the
October 11, 2024 order and need not reach Abrams’s
alternative challenge.
Enacted in 1996, the MVRA requires defendants
convicted of certain offenses to pay restitution to their

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56
victims. Simmonds, 235 F.3d at 830. The statute builds on
the Victim and Witness Protection Act of 1982
(“VWPA”),32 which first authorized federal courts to order
restitution as part of a criminal sentence outside the
probation context. See S. Rep. No. 97–532, at 30 (1982),
as reprinted in 1982 U.S.C.C.A.N. 2515, 2536. Under the
VWPA, restitution is discretionary and may take account
of “the amount of the loss sustained by each victim” and
“the financial resources of the defendant.” 18 U.S.C. §
3663(a)(1)(B)(i). By contrast, the MVRA makes
restitution mandatory for specified crimes. See 18 U.S.C.
§ 3663A(a)(1).
The MVRA’s reach is broad. It applies, among other
things, to any fraud offense “in which an identifiable
victim or victims has suffered a physical injury or
pecuniary loss.” Id. § 3663A(c)(1)(B). A “victim”
includes any person “directly and proximately harmed as
a result of the commission of an offense for which
restitution may be ordered.” Id. § 3663A(a)(2). Once
victims are identified, the court “shall order restitution to
each victim in the full amount of each victim’s losses.” 18
U.S.C. § 3664(f)(1)(A); § 3663A(d). Here, the
Government sought—and the District Court awarded—
restitution for legal expenses incurred by the investors
under § 3663A(b)(4). That subsection requires a defendant
32 Pub. L. No. 97–291, 96 Stat. 1248 (1982).

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57
“in any case” to “reimburse the victim for lost income and
necessary child care, transportation, and other expenses
incurred during participation in the investigation or
prosecution of the offense or attendance at proceedings
related to the offense.” 18 U.S.C. § 3663A(b)(4).
Abrams does not dispute that his offenses fall within
the MVRA, that the fee-seeking entities are “victims,” or
that the challenged expenses were “incurred during
participation in the investigation or prosecution of the
offense” or in attending related proceedings. See Op. Br.
at 60–65. He argues instead that § 3663A(b)(4)’s residual
phrase—“other expenses”—cannot, as a matter of law,
encompass attorneys’ fees, particularly in light of Lagos v.
United States, 584 U.S. 577 (2018). Op. Br. at 61–65. We
agree. The plain text and context of § 3663A(b)(4) do not
authorize restitution for attorneys’ fees.
“As with any question of statutory interpretation,
we must begin with the statutory text.” Khan v. Att’y Gen.,
979 F.3d 193, 197 (3d Cir. 2020) (internal quotation marks
and citation omitted). Standing alone, the phrase “other
expenses,” is—literally—“capacious enough to include
attorney’s fees.” Peter v. Nantkwest, Inc., 589 U.S. 23, 30–
31 (2019) (collecting dictionary definitions and noting that
the word “expenses,” in isolation, “encompasses wide-
ranging” outlays). But the phrase does not appear in
isolation. It follows a set of concrete examples: “lost

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58
income,” “child care,” and “transportation.” 18 U.S.C. §
3663A(b)(4). So in interpreting “other expenses,” we must
consider the context in which it appears, as well as its
“place in the overall statutory scheme.” United States v.
Andrews, 12 F.4th 255, 261 (3d Cir. 2021) (quoting Util.
Air Regul. Grp. v. EPA, 573 U.S. 302, 320 (2014)); see also
Peter, 589 U.S. at 31 (construing “expenses” “alongside
neighboring words in the statute”).
That is precisely what the Supreme Court did in
Lagos. There, the Court construed the latter clause of §
3663A(b)(4)—which limits recovery to expenses
“incurred during participation in the investigation or
prosecution of the offense or attendance at proceedings
related to the offense”—to apply only to “government
investigations and criminal proceedings,” not private
investigations or civil proceedings. Lagos 584 U.S. at 579.
The Court arrived at that conclusion by examining “both
[the MVRA’s] individual words and the text taken as a
whole.” Id. at 581. Because the terms “investigation” and
“prosecution” are “directly linked,” the Court explained,
they likely are “of the same general type.” Id. And since
“prosecution” denotes a government criminal prosecution,
the pairing persuaded the Court that “investigation”
likewise refers to a government criminal investigation. Id.
By the same logic, “proceedings” means criminal
proceedings, not proceedings of any sort, including the
bankruptcy proceeding at issue there. Id.

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59
In support of its interpretation, the Court also
invoked the canon of noscitur a sociis—“the well-worn
Latin phrase that tells us that statutory words are often
known by the company they keep.” Id. at 582. It observed
that “lost income,” “child care,” and “transportation”
reflect the ordinary out-of-pocket costs a victim “would be
likely to incur when he or she . . . misses work and travels
to talk to government investigators, to participate in a
government criminal investigation, or to testify before a
grand jury or attend a criminal trial.” Id. By contrast, “the
statute says nothing” about expenses typical of private
investigations or noncriminal proceedings, such as “hiring
private investigators, attorneys, or accountants.” Id.
(emphasis added). From that contrast, the Court took
further support for its narrow reading, finding “company
that suggests limitation and the absence of company that
suggests breadth.” Id. Although Lagos did not squarely
address whether victims may recover attorneys’ fees
incurred incident to the government’s own investigation or
prosecution, its reasoning applies with equal force here. 33
Legal fees are fundamentally different from the
modest, attendance-related expenses enumerated in §
33 The Court also left open whether § 3663A(b)(4) would
cover attorneys’ fees “incurred during a private
investigation that was pursued at a government’s
invitation or request.” Id. at 585.

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60
3663A(b)(4), both in nature and in scale. Unlike lost
wages, child care, or transportation—which relate to a
victim’s ability to be present at investigative or court
proceedings—legal fees are charged for professional
advocacy and strategic advice, entail specialized expertise,
and need not be tethered to a victim’s time or travel. The
listed items are also the sort of incidental expenditures one
would expect to ordinarily total in the hundreds of dollars,
or occasionally in the thousands. Legal fees, by contrast,
are often orders of magnitude higher. That is the case
here—where the fees awarded were nearly $100,000—and
in other cases cited by the Government. See, e.g., United
States v. Afriyie, 27 F.4th 161, 165 (2d Cir. 2022)
($511,368.92 in restitution for legal fees); United States v.
Chan, 981 F.3d 39, 65 (1st Cir. 2020) ($170,476.36 in
restitution for legal fees). It would be unusual, to say the
least, for Congress to smuggle so substantial a category of
liability into a residual phrase appended to a subsection
that is already ancillary to § 3663A(b)’s primary, offense-
specific restitution provisions.34 Reading “other expenses”
34 Section 3663A(b) sets out offense-specific restitution
first, then a catchall. Subsection (b)(1) addresses property
offenses and provides for the return of property or its
value; (b)(2) addresses bodily injury and provides for
medical, therapy and rehabilitation expenses, plus lost
income; (b)(3) addresses death and provides for funeral
and related expenses. Then comes (b)(4), which applies in

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61
to encompass legal fees would be to “ascrib[e] to [it] a
meaning so broad that it is inconsistent with its
accompanying words”—precisely what noscitur a sociis
counsels against. Gustafson v. Alloyd Co., 513 U.S. 561,
575 (1995).
The related canon of ejusdem generis points the
same way. It instructs that “a general or collective term at
the end of a list of specific items” is ordinarily “controlled
and defined by reference to [those] specific classes . . . that
precede it.” Southwest Airlines Co. v. Saxon, 596 U.S. 450,
458 (2022) (internal quotation marks and citations
omitted). So understood, “other expenses” is confined to
expenses of the same or similar nature as “lost income,”
“child care,” and “transportation.” See United States v.
Koutsostamatis, 956 F.3d 301, 308 (5th Cir. 2020) (reading
§ 3663A(b)(4) to mean “lost income and necessary child
care, transportation, and other [similar] expenses”
(alteration in original)). Legal fees do not fit that mold:
they are not attendance-related expenses and “there is no
textually sound reason to suppose the final catchall term
should bear such a radically different object than all its
“any case” and authorizes reimbursement of incidental
participation costs—lost income, child care,
transportation, and like “other expenses.” 18 U.S.C. §
3663A(b)(1)–(4).

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62
predecessors.” Id. at 308 (quoting Epic Sys. Corp. v. Lewis,
584 U.S. 497, 513 (2018)).
Moreover, the MVRA expressly authorizes,
elsewhere in its text, reimbursement for defined
professional services a crime victim might need—
“necessary medical and related professional services,”
“necessary physical and occupational therapy and
rehabilitation,” and “necessary funeral and related
services.” See § 3663A(b)(2) and (3). By contrast, the
statute “says nothing” about attorneys’ fees—regardless of
the forum in which they are incurred. Lagos, 584 U.S. at
582. That omission, set against Congress’s specific
inclusions of other professional services, is telling. See
United States v. Nasir, 17 F.4th 459, 472 (3d Cir. 2021)
(“[E]xpressio unius est exclusio alterius: the expression of
one thing is the exclusion of the other.”) (en banc).35
35 The canon expressio unius est exclusio alterius applies
where it is “fair to suppose that Congress considered the
unnamed possibility and meant to say no to it.” Barnhart
v. Peabody Coal Co., 537 U.S. 149, 168 (2003). Given the
commonplace use of attorneys in legal matters, it is
reasonable to presume that Congress was aware that crime
victims might incur legal expenses in participating in a
prosecution yet chose not to list attorneys’ fees among the
enumerated professional services. It would be beyond

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63
Surprisingly, the Government acknowledges these
textual arguments yet offers no textual arguments to the
contrary. Resp. Br. at 55 (recognizing that “Abrams
discusses the text of the MVRA at length”). Instead, it
faults Abrams for not citing a decision “from this or any
court holding that the MVRA does not permit the recovery
of attorneys’ fees.” Id. But even if Abrams had cited
decisions from other circuits, we would not be bound to
follow them. And as the Government concedes, our Court
“has not addressed the issue directly.”36 Resp. Br. at 54.
That means the text of the statute is the whole ball game.
paradoxical for Congress to go to the trouble of explicitly
and delicately outlining particular professional services
that are compensable, only to then sweep in the entire
universe of unspecified professional services via a two-
word residual clause.
36 Two district courts within our Circuit (in addition to the
decision we are reviewing here) have held that recovery
for attorneys’ fees is permitted under § 3663(A)(b)(4).
See, e.g., United States v. Evans, No. 3-19, 2023 WL
7221350, at *4 (M.D. Pa. Nov. 2, 2023) (holding that a
victim under the MVRA was “entitled to restitution
including legal fees it incurred during the government's
investigation into Defendant's criminal conduct.”); United
States v. Dodd, 978 F. Supp. 2d 404, 422 (M.D. Pa. 2013)
(rejecting “a bright-line rule prohibiting restitution for
attorneys’ fees”).

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64
See United States v. Sherman, 150 F.3d 306, 313 (3d Cir.
1998) (“Statutory interpretation usually begins, and often
ends, with the language of the statute.”).
The Government further asserts that “[e]very court
to have addressed the issue has held that attorneys’ fees . .
. can be ‘other expenses’ recoverable under the MVRA.”
Resp. Br. at 54 (citing United States v. Afriyie, 27 F.4th
161, 166 (2d Cir. 2022); United States v. Chan, 981 F.3d
39, 66 (1st Cir. 2020); United States v. Sexton, 894 F.3d
787, 801 (6th Cir. 2018)). Not so. In Chan—and its
companion case, In re Akebia Therapeutics, Inc., 981 F.3d
32 (1st Cir. 2020)37—the First Circuit expressly declined
to decide the question, proceeding on the assumption that
attorneys’ fees could be “other expenses” under §
3663A(b)(4). See In re Akebia, 981 F.3d at 38 n.4
(“[B]ecause the defendants did not challenge attorney’s
fees as a category of expenses ripe for reimbursement . . .
37 Those cases involved the same securities fraud claims
brought against a defendant biostatistician, Schultz Chan,
who was ordered to pay restitution to his employer Akebia
Therapeutics, Inc. Chan, 981 F.3d at 47, 50. Both Chan
and Akebia challenged the restitution order at issue in
separate proceedings. Id. at 66 n.18. As the court noted,
“Akebia’s challenge to the restitution order [was] much
more thorough,” and it “address[ed] those arguments in a
separate opinion.” Id.

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65
we assume without deciding that attorney’s fees are proper
fodder for restitution[.]”). Sexton is likewise no
endorsement of the Government’s view. There, the Sixth
Circuit upheld a restitution order that included attorneys’
fees under plain error review because the defendant did not
dispute the restitution order at trial. 894 F.3d at 800–01.
As a result, the Sexton court reasoned that the district court
had made no specific factual findings, and it was “not clear
. . . how th[o]se fees were accrued,” and “hard to say that
the district court committed any error.” Id. at 801. While
Sexton noted that some legal fees may fall “within the
limits that the Supreme Court set in Lagos,” it did so by
relying on pre-Lagos circuit precedent38 without analyzing
the statutory text or the extent to which Lagos abrogated
that prior case. Id. at 800.
38 See United States v. Elson, 577 F.3d 713, 728 (6th Cir.
2009) (holding that “where a victim’s attorney fees are
incurred in a civil suit, and the defendant’s overt acts
forming the basis for the offense of conviction involved
illegal acts during the civil trial . . . such fees are directly
related to the offense of conviction and therefore are
recoverable as restitution under the MVRA”), abrogated
by Lagos, 584 U.S. 577.

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Only Afriyie squarely held that “‘other expenses’
may include attorneys’ fees.” 27 F.4th at 170.39 But Afriyie
turned on the Second Circuit’s standard for overruling
prior panel decisions. Another panel—prior to Lagos—
had held that attorneys’ fees were recoverable, as well as
“expenses (attorneys’ fees or otherwise)” incurred during
“the victim’s own investigation of the conduct underlying
the offense.” Id. at 167 (citing United States v. Amato, 540
F.3d 153, 159–63 (2d Cir. 2008)). Afriyie recognized that
Lagos abrogated Amato’s private-investigation holding
but concluded that Lagos was not so clearly “conflict[ing],
incompatibl[e], or inconsisten[t]” with Amato’s separate
attorneys’ fees holding as to free the panel from stare
decisis. Id. at 168; see also id. at 170 (acknowledging that
the Court was not “free to chart a new course”). Here, we
are not so constrained, and for the reasons already set
forth—grounded in the text and structure of §
3663A(b)(4)—we find Amato and Afriyie unpersuasive.
39 Although the Government does not cite it, the Ninth
Circuit once held that § 3663A(b)(4)’s reference to “other
expenses” could “authorize[] the award of investigation
costs and attorneys’ fees in some circumstances.” United
States v. Nosal, 844 F.3d 1024, 1046 (9th Cir. 2016).
Nosal, however, predates Lagos and has been abrogated.
See United States v. Sullivan, 159 F.4th 579, 589 (9th Cir.
2025) (recognizing Lagos’s partial overruling of Nosal).

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We, of course, acknowledge that the MVRA’s
animating purpose is “to compensate the victim for its
losses and, to the extent possible, to make the victim
whole.” United States v. Diaz, 245 F.3d 294, 312 (3d Cir.
2001) (citation omitted). But that purpose has limits. See
Lagos, 584 U.S. at 583 (explaining that “the broad general
purpose of [the MVRA] does not always require us to
interpret [it] in a way that favors an award”). Our task is
to apply the statute Congress enacted, not to revise it in
light of perceived remedial ends. See Magwood v.
Patterson, 561 U.S. 320, 334 (2010) (“We cannot replace
the actual text [of a statute] with speculation as to
Congress’ intent.”). Accordingly, the MVRA’s “remedial
purposes” cannot justify reading § 3663A(b)(4) “more
broadly than its language and the statutory scheme
reasonably permit.” Touche Ross & Co. v. Redington, 442
U.S. 560, 578 (1979).
In sum, we hold that § 3663A(b)(4) does not
encompass a victim’s attorneys’ fees as “other
expenses.”40 Accordingly, we will vacate the District
Court’s October 11, 2024 order and October 29, 2024
40 Because we hold that the MVRA does not authorize
restitution for attorneys’ fees, we do not reach Abrams’s
alternative argument that some of the attorneys’ claimed
fees were not “necessary” within the meaning of the
statute.

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amended judgment to the extent that they award attorneys’
fees.
VI. Conclusion
For the foregoing reasons, we will affirm Abrams’s
convictions on all counts. We will vacate the District
Court’s October 11, 2024 amended order and October 29,
2024 amended judgment insofar as they award attorneys’
fees under the MVRA and remand for entry of an amended
restitution judgment consistent with this opinion.
Counsel for Appellant
Jason F. Ullman [Argued]
Office of Federal Public Defender
Counsel for Appellee
Patrick J. Bannon [Argued]
Carlo D. Marchioli
Office of United States Attorney

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