In United States v. Robinson, No. 24-2310 (7th Cir. Dec. 15, 2025), the Seventh Circuit reverses in part a conviction for bank fraud on sufficiency-of-the-evidence grounds, while a concurring judge argues that a change in Fed. R. Crim. P. 29 warrants reconsideration of the plain-error standard to challenges raised for the first time on appeal.
Defendants “held leadership roles at the Housing Authority of South Bend, an institution dedicated to providing affordable housing in the local community. Instead of helping their tenants, Robinson and Smith used their positions to enrich themselves through a kickback scheme. They hired contractors to perform fictional maintenance work on Authority properties and then took a cut of the payments for those projects. A jury convicted them of wire fraud and bank fraud, among other federal crimes.”
The defendants did not challenge their bank fraud convictions in the district court. Yet on appeal, for the first time, defendants argued that the bank fraud convictions were infirm because the government failed to identify a false statement that went to a federally-insured bank, an element of a violation under 18 U.S.C. § 1344(2).
The Seventh Circuit tosses the bank-fraud convictions. It notes that under circuit case law, the court of appeals reviews for plain-error (under Fed. R. Crim. P. 52(b)) when a district court fails “of its own motion to order a judgment of acquittal” under Federal Rule of Criminal Procedure 29(a) where “the evidence is insufficient to sustain a conviction,” citing United States v. Meadows, 91 F.3d 851, 854–55 (7th Cir. 1996).
The panel majority allows that a drafting change in Rule 29 since Meadows might warrant a stiffer standard of review.
“Rule 29(a) once included mandatory language, providing that a court ‘on motion of a defendant or of its own motion shall order the entry of judgment of acquittal’ absent sufficient evidence. Fed. R. Crim. P. 29(a) (1996) (emphasis added). But Rule 29(a) changed in 2002 and now uses permissive language, saying that a court ‘may on its own consider whether the evidence is insufficient to sustain a conviction.’ Fed. R. Crim. P. 29(a) (emphasis added). District courts do not obviously err by declining to exercise a discretionary power.” Nevertheless, as the government failed to raise the standard-of-review issue, the panel treats it as a “concession.” (The concurring opinion also cites the “party presentation” doctrine.)
Judge Easterbrook, concurring, says that the 2002 redraft of Rule 29 ought to prompt reconsideration of Meadows. The opinion notes a parallel to Fed. R. Civ. P. 50, which governs judgment as a matter of law in a civil case.
“[A] timely [Rule 50] motion in the district court is essential to obtain the views of the judge, who knows the record and can put the argument in context . . . . That is equally true in a criminal case. We have an appellate presentation not informed by either an exchange of views in the district court or a ruling by the judge—and, if the defense argument had been made early in the case, perhaps the prosecutor could have responded with evidence that would have shown a statutory violation.”
The concurring opinion notes some further softness in the government’s presentation.
“The prosecutor proceeds as if a shortfall in evidence automatically demonstrates plain error. In other words, the brief for the United States equates ‘plain error’ under Fed. R. Crim. P. 52(b) with ‘error’. That isn’t remotely correct . . . . The first question under [circuit authority] is whether the district court committed an error. I can’t see one. Because the defense never asked the judge to dismiss the indictment or enter a judgment of acquittal, the district court didn’t have even the opportunity to commit an error.”
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