In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________

Nos. 24-1910 & 24-2310
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,

                                v.

TONYA ROBINSON and ALBERT SMITH,
                                      Defendants-Appellants.
                    ____________________

         Appeals from the United States District Court for
       the Northern District of Indiana, South Bend Division.
        No. 3:21-cr-00064-JD-MGG — Jon E. DeGuilio, Judge.
                    ____________________

  ARGUED OCTOBER 27, 2025 — DECIDED DECEMBER 15, 2025
                ____________________

   Before EASTERBROOK, ROVNER, and SCUDDER, Circuit
Judges.
   SCUDDER, Circuit Judge. Tonya Robinson and Albert Smith
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, Robin-
son and Smith used their positions to enrich themselves
through a kickback scheme. They hired contractors to per-
form     fictional   maintenance     work     on     Housing
2                                       Nos. 24-1910 & 24-2310

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. We affirm the wire fraud
convictions but reverse the bank fraud convictions because
the government failed to identify a false statement that went
to a bank, as required by 

(2).
                                I
                               A
     The United States Department of Housing and Urban De-
velopment funds certain local housing authorities who pro-
vide affordable housing in communities. The Housing Au-
thority was one of those institutions. It acted as a landlord for
over 800 homes rented to residents in South Bend, Indiana.
The Housing Authority used employees to handle small
maintenance on the buildings. But it turned to outside con-
tractors for larger projects, like renovating its properties be-
tween tenants. And it would often use money from HUD to
fund those larger projects. Rather than receiving money in
one lump sum, the Housing Authority would file a draw-
down request on an ongoing, as-needed basis. HUD would
then electronically transfer money to the Housing Authority
if it approved of the distribution.
    The Housing Authority followed certain procedures when
working with outside contractors. It would first choose a con-
tractor for the project through a bidding process. The contrac-
tor would finish its work and submit an invoice to the Hous-
ing Authority. Employees would inspect the work, approve
the invoice, and submit the invoice internally for payment.
The Housing Authority bookkeeper would in turn draft a
check for the contractor and submit that check to the
Nos. 24-1910 & 24-2310                                     3

Executive Director for approval. The Executive Director
would approve the payment, and the bookkeeper would fi-
nally mail the check to the contractor.
    Around 2015 Executive Director Tonya Robinson and As-
set Director Albert Smith began deviating from these proce-
dures through a kickback scheme. The scheme worked in a
few steps. The contractors first submitted invoices for work
never completed, with Robinson and Smith taking steps to
help those invoices receive approval for payment. The con-
tractors then cashed the checks paying for these bogus in-
voices and split the money with Robinson and Smith. Several
contractors participated in the scheme.
    Robinson and Smith stayed under the radar until 2016.
That ended when a worker at the Four Winds Casino in South
Bend saw them gambling large sums of money and decided
to tip off law enforcement. The government quietly investi-
gated the Housing Authority’s operations until July 2019,
when it began executing search warrants and interviewing
witnesses. One contractor admitted bringing kickback pay-
ments to Smith. Federal charges then followed against Robin-
son, Smith, and others.
    Count 1 charged Robinson and Smith with conspiracy to
commit bank and wire fraud (

), Counts 2–7
charged them with bank fraud (

(2)), Counts 8
and 9 charged them with wire fraud (

), and
Count 10 charged them with federal program theft (

(a)(1)(A)).
                             B
   Robinson and Smith proceeded to trial. At the close of the
government’s case, Smith moved for a judgment of acquittal
4                                      Nos. 24-1910 & 24-2310

as to the wire fraud charges in Counts 8 and 9, and Robinson
did the same for Count 8. The district court took the motion
under advisement. Robinson and Smith then presented their
defense. The jury returned a mixed verdict as to Robinson, ac-
quitting her on Count 9 but convicting her on everything else.
It convicted Smith on all counts. Robinson and Smith renewed
their motion for a judgment of acquittal. The district court de-
nied the motion as to Count 8. And it did the same for Smith’s
conviction on Count 9. Robinson and Smith never challenged
their bank fraud convictions.
    The district court later sentenced Robinson to 108 months’
imprisonment on Counts 1–8 and 10 to be served concurrently
and ordered her to pay $3,236,949.97 in restitution. Smith re-
ceived a sentence of 135 months on Counts 1–9 and 120
months for Count 10 to be served concurrently, with restitu-
tion of $3,030,940 also imposed.
    Robinson and Smith now appeal.
                               II
                               A
    We begin with Robinson and Smith’s challenges to the suf-
ficiency of the evidence of their bank fraud convictions. Sec-
tion 1344(2) makes unlawful the execution or attempted exe-
cution of “a scheme or artifice … to obtain any of the moneys,
funds, credits, assets, securities, or other property owned by,
or under the custody or control of, a financial institution,
by means of false or fraudulent pretenses, representations, or
promises.” 

(2).
   The government offered a straightforward theory of crim-
inal wrongdoing at trial. It presented several invoices ap-
proved by the Housing Authority detailing work purportedly
Nos. 24-1910 & 24-2310                                         5

performed at various properties. The tenants at those proper-
ties then testified that the work described in the invoices
never occurred. The trial evidence also included six checks is-
sued by the Housing Authority to pay these fraudulent in-
voices. And the prosecution insisted that Robinson, Smith,
and their co-conspirators knowingly executed and attempted
to execute their kickback scheme when contractors presented
those checks to the bank for payment.
    Robinson and Smith never challenged their bank fraud
convictions below. We have traditionally applied the plain er-
ror standard to sufficiency-of-the-evidence challenges raised
for the first time on appeal. See United States v. Meadows,

, 854–55 (7th Cir. 1996). That standard requires
showing “(1) an error, (2) that was plain, (3) that affected [the
defendant’s] substantial rights, and (4) that seriously affected
the fairness, integrity, or public reputation of the proceed-
ings.” United States v. Jones, 

 (7th Cir. 2022).
All four prongs are necessary. See United States v. Page, 

 (7th Cir. 2024) (en banc). Judge Easterbrook con-
tends that the government forfeited the benefit of plain error
review by ignoring the specific elements of the doctrine. But
its brief invoked the standard in no uncertain terms, so we
will assess all four prongs.
                               B
    Starting with prong one, we have called it error 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.”
Meadows, 

 (cleaned up). That view used to make
sense because Rule 29(a) once included mandatory language,
providing that a court “on motion of a defendant or of its own
6                                       Nos. 24-1910 & 24-2310

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 permis-
sive 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.
    Judge Easterbrook’s concurrence suggests this textual
change may shield district courts from being reversed under
plain error review for failing to acquit a defendant on their
own motion. But we need not resolve that question because
the government expressly invoked Meadows for the proposi-
tion that district courts must take such corrective action in the
face of insufficient evidence. We treat this as a concession and
proceed with the remainder of the plain error analysis.
                               C
    Moving to prong two, we conclude that the district court
plainly erred by failing to acquit Robinson and Smith on the
bank fraud convictions. To commit bank fraud, “[t]he crimi-
nal must acquire (or attempt to acquire) bank property ‘by
means of’ the misrepresentation.” Loughrin v. United States,

, 362–63 (2014) (discussing 

(2)).
The “by means of” language, the Supreme Court has empha-
sized, “demands that the defendant’s false statement [be] the
mechanism naturally inducing a bank … to part with its
money.” 

. This requirement limits § 1344(2)’s scope
“to deceptions that have some real connection to a federally
insured bank.” Id. at 366. “[W]here no false statement will
ever go to a financial institution, the fraud is not the means of
obtaining bank property.” Id. at 365.
Nos. 24-1910 & 24-2310                                         7

   The government never identified a false statement that
went to any bank. To be sure, it presented evidence that Rob-
inson and Smith engaged in fraud in a general sense. For ex-
ample, one contractor testified that he and Robinson both cre-
ated false invoices for some kickback checks. The same wit-
ness suggested that Smith fabricated false invoices as well.
But nothing showed that the bank received these false state-
ments, so they cannot support the bank fraud convictions.
    The Supreme Court contemplated a scheme like this in
Loughrin. It explained that a swindler could sell a knock-off
Louis Vuitton handbag to an unsuspecting victim without
committing bank fraud even if the victim were to pay by
check. See id. at 361–62, 364–65. It reasoned that “[n]o one
would dream of passing on to the bank” any misrepresenta-
tion made to the victim about the bag’s authenticity. Id. at 364.
The bank’s involvement in that scheme would be “wholly for-
tuitous—a function of the victim’s paying the fraudster by
(valid) check rather than cash.” Id.
   The same is true here. Robinson and Smith engaged in a
scheme to defraud the Housing Authority and HUD. They
made false representations so that the Housing Authority
would cut checks to their co-conspirator contractors. But they
did not engage in bank fraud just because a victim paid by
check. Loughrin forecloses holding otherwise.
    The government resists this conclusion. It insists the Su-
preme Court’s handbag hypothetical is different because the
swindler completes his con the moment the victim hands him
the check, whereas Robinson and Smith had to wait to receive
kickback payments from their co-conspirator contractors. But
patience does not convert a kickback scheme into bank fraud.
8                                       Nos. 24-1910 & 24-2310

And the government never explains why the intermediate
step implies that a false statement went to the bank.
    The government also contends the checks implicitly rep-
resented that the Housing Authority authorized Robinson
and Smith to complete these transactions to fund the kickback
scheme. That representation would be false because the
Housing Authority only approved these transactions to pay
for purported work. But “a check is not a factual assertion at
all.” Williams v. United States, 

 (1982). Just as
the check paid to the handbag swindler did not represent that
the victim approved of receiving a fake Louis Vuitton, see
Loughrin, 573 U.S. at 364–65, so too did the Housing Author-
ity’s checks fail to communicate an institutional blessing of
the kickback scheme.
                                D
    Robinson and Smith satisfy prongs three and four of the
plain error test as well. The third prong requires showing that
the error affected substantial rights. See Jones, 

;
Fed. R. Crim. P. 52(b). An error affects substantial rights when
“a reasonable probability exists that, but for the error, the out-
come of the proceedings would have been different.” Page,

. This is true where, as here, the defendant
“would have been acquitted absent the error.” United States v.
Boswell, 

 (7th Cir. 2014).
    The fourth prong requires showing that the error seriously
affected the fairness, integrity, or public reputation of the pro-
ceedings. See Jones, 

. This effect “is usually
equated to causing a miscarriage of justice.” United States v.
Paladino, 

, 481 (7th Cir. 2005) (cleaned up). That
occurs when there is “a substantial risk of convicting an
Nos. 24-1910 & 24-2310                                         9

innocent person.” United States v. Maez, 

(7th Cir. 2020). This case fits the bill.
    We used to hold that “an error that results merely in a con-
current sentence” does not amount to a miscarriage of justice.
United States v. McCarter, 

 (7th Cir. 2005); see
also United States v. Baldwin, 

 (7th Cir. 2005).
But we have since overruled that position, including our hold-
ings in McCarter and Baldwin, because convictions themselves
can also result in adverse collateral consequences. See United
States v. Parker, 

 (7th Cir. 2007). Judge
Easterbrook’s concurrence suggests that our court may want
to revisit that position because our vacating Robinson and
Smith’s bank fraud convictions does not alter their term of im-
prisonment and instead only relieves them of the relatively
minor financial obligation of paying special assessments on
those convictions. Neither party raised this issue. So we will
wait for another day to grapple with Judge Easterbrook’s
broader point about the application of the plain error doctrine
to circumstances like these and, by extension, the ongoing
soundness of our holding in Parker.
   For these reasons, we reverse Robinson and Smith’s bank
fraud convictions.
                               III
                               A
    Robinson and Smith fare less well in their challenge to the
sufficiency of the evidence for their wire fraud convictions
under Count 8. Section 1343 punishes anyone who “transmits
or causes to be transmitted by means of wire … any writings,
signs, signals, pictures, or sounds for the purpose of execut-
ing” “any scheme or artifice to defraud” or to obtain “money
10                                        Nos. 24-1910 & 24-2310

or property by means of false or fraudulent pretenses, repre-
sentations, or promises.” 

. “To establish a vi-
olation of that statutory provision, the Government must
prove that [the defendant] (1) participated in a scheme to de-
fraud; (2) intended to defraud; and (3) caused an interstate
wire to be used in furtherance of the scheme.” United States v.
Gustafson, 

 (7th Cir. 2025).
    The government alleged that Robinson and Smith caused
an $80,000 drawdown to be transmitted from HUD to the
Housing Authority on September 22, 2017 to further the kick-
back scheme. It told the jury during closing argument that this
drawdown furthered the scheme by adding money to the
same bank account used to finance the kickback checks. The
trial evidence also showed that the Housing Authority paid
for a pending fraudulent invoice after completing the draw-
down. But the prosecution never tracked a specific draw-
down dollar to a kickback check.
                                 B
    Robinson and Smith dispute that the September 2017
drawdown furthered the kickback scheme. They raised this
challenge below, and the district court denied their motion for
a judgment of acquittal. We review the denial without defer-
ence, viewing the evidence in the light most favorable to the
government. See United States v. Jackson, 

(7th Cir. 2021). Our analysis “is limited, however, to the legal
question [of] whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” 

 (cleaned up). We will “overturn a dis-
trict court’s Rule 29 denial only if no rational trier of fact could
have found the defendant guilty, a burden for defendants that
Nos. 24-1910 & 24-2310                                        11

we have described as nearly insurmountable.” 

(cleaned up).
    Based on the evidence at trial, a rational jury could have
inferred that a portion of the September 2017 drawdown went
to pay for outstanding fraudulent invoices. The government,
for example, offered an invoice from a company named
D Fresh Contractors for $12,300 of work performed in South
Bend. That invoice appears to have been fraudulent based on
the tenant’s testimony. And the timing of the Housing Au-
thority’s actions suggests that it may well have used the Sep-
tember 2017 drawdown to cover the bill. It received the in-
voice on August 31, 2017. It completed its drawdown on or
about September 22, 2017. Then it wrote a $12,300 check to the
owner of D Fresh Contractors on November 9, 2017. He de-
posited the check and withdrew $12,300 on November 14,
2017. This evidence supports the inference that the drawdown
furthered the kickback scheme. See United States v. Grandi-
netti, 

 (7th Cir. 1989) (“A jury is permitted
to infer from one fact the existence of another essential to
guilt, if reason and experience support the inference.”
(cleaned up)).
    Robinson and Smith insist otherwise. They identify five
more drawdowns that occurred between September 22 and
November 14, 2017. And they contend these were equally
likely to have been the funding source for the kickback check
cashed on November 14. See United States v. Vizcarra-Millan,

, 507 (7th Cir. 2021) (“Where the jury is left with
two equally plausible inferences from the circumstantial evi-
dence, guilty or not guilty, it must necessarily entertain a rea-
sonable doubt.”). But the government provided additional in-
formation making the guilty inference more plausible. It
12                                     Nos. 24-1910 & 24-2310

demonstrated that between the September 2017 drawdown
and the next drawdown, the Housing Authority issued over
$150,000 in checks to the co-conspirator contractors, and those
contractors immediately cashed more than $90,000. So the
jury did not need to entertain a reasonable doubt as to
whether the September 2017 drawdown furthered the
scheme.
    Robinson and Smith also tell us that United States v.
Durham, 

 (7th Cir. 2014), stands for the proposi-
tion that a jury cannot assume that a wire furthers a scheme
to defraud when documentation of that wire’s purpose exists
and the government fails to introduce it at trial. They see that
rule applying here because a witness testified at trial that
HUD put the Housing Authority on “zero tolerance” for the
entire life of the scheme, meaning that the Authority had to
provide the agency with the scope of work for each draw-
down. In short, Robinson and Smith take issue with the gov-
ernment’s failure to provide the jury with records specifying
the scope of work for the September 2017 drawdown.
    But the jury did not have to believe that such a document
existed. After all, another witness could not remember if the
Housing Authority was on zero tolerance. And Robinson’s
counsel highlighted in his closing reasons to doubt the gov-
ernment witness’s credibility, including his failure to pre-
serve records for a HUD audit. Even more, Durham did not
require the government to introduce every existing piece of
documentary evidence of a wire’s purpose. It merely faulted
the government for forgetting to provide any purpose evi-
dence at all. 

. We have already identified evi-
dence sufficient for a reasonable jury to infer that the
Nos. 24-1910 & 24-2310                                          13

September 2017 drawdown furthered the kickback scheme.
So Durham does little to help Robinson or Smith.
   All of this leads us to affirm Robinson and Smith’s wire
fraud convictions on Count 8.
                                IV
    That brings us to Smith’s sentencing challenge. The dis-
trict court applied a two-level enhancement under U.S.S.G.
§ 3B1.3 because it concluded he had abused a position of trust.
Smith objected below and maintains his objection on appeal.
    Section 3B1.3 applies if a defendant “(1) occupied a posi-
tion of public or private trust; and (2) abused the position of
trust to significantly facilitate or conceal the commission of
the crime.” United States v. Bradshaw, 

 (7th
Cir. 2012). “The district court’s determination in each respect
is a factual one, which we review for clear error.” United States
v. Peterson-Knox, 

 (7th Cir. 2006). Under the
clear error standard, “the district court need only adopt a per-
missible view of the evidence.” United States v. Turnipseed, 

 (7th Cir. 2022). “Our task on appeal, therefore[,]
is not to see whether there is any evidence that might under-
cut the district court’s finding; it is to see whether there is any
evidence in the record to support the finding.” United States v.
Dickerson, 

 (7th Cir. 2022) (cleaned up).
    Ample evidence supports finding that Smith occupied a
position of trust within the Housing Authority. “[A] ‘position
of public or private trust [is] characterized by professional or
managerial discretion (i.e., substantial discretionary judg-
ment that is ordinarily given considerable deference)[.]’”
United States v. Tiojanco, 

 (7th Cir. 2002)
(quoting U.S.S.G. § 3B1.3, cmt. n.1). And Smith exercised
14                                      Nos. 24-1910 & 24-2310

plenty of discretion. In his role as Asset Director, he oversaw
building maintenance and renovation, which involved work-
ing with contractors and sometimes submitting their invoices
for payment. He also supervised the property managers, who
in turn occasionally approved invoices for payment.
    This evidence sufficed. See, e.g., United States v. Emerson,

, 559–60 (7th Cir. 1997) (affirming that a contract-
ing officer had a position of trust in part because he could in-
spect work sites and certify completion of work, even though
he was not authorized “to approve the payments of any in-
voices”); see also United States v. Deal, 

, 563–64
(7th Cir. 1998) (affirming that a comptroller who could ap-
prove invoices for payment had a position of trust despite the
fact that “he was required to submit the invoices that he ap-
proved to the general manager for final approval” because
“[n]o one who is entrusted with large amounts of money is
trusted completely”).
    Other evidence also supports the district court’s finding
that Smith facilitated the scheme by abusing his position of
trust. The jury heard testimony that he instructed the contrac-
tors on how to prepare fraudulent invoices. And one contrac-
tor suggested at trial that Smith started creating false invoices
as well. We see no clear error by the district court.
    Regardless, any possible error was harmless. “[D]istrict
courts can, in essence, inoculate their sentences against rever-
sal by giving us the information we need to determine, on ap-
peal, whether an error was harmless without resort to a re-
mand.” United States v. Caraway, 

 (7th Cir.
2023) (cleaned up). “Where a district court unambiguously
states that it would have imposed the same sentence regard-
less of any potential error, the error is harmless.” 

 The
Nos. 24-1910 & 24-2310                                        15

district court did that here by stating it would vary to the
same sentencing range even without the enhancement be-
cause of the 

(a) factors. Smith cannot get
around this.
   In the final analysis, we affirm Smith’s sentence.
                               V
    One final issue warrants our attention. It appears that the
district court made a minor clerical error in Robinson’s writ-
ten judgment. Both sides agree that the court intended to
make Robinson, Smith, and contractor Archie Robinson
jointly and severally liable for the $1,316,882.97 of restitution
involving Archie. But the district court omitted any mention
of Smith when recording (in Robinson’s judgment) that Rob-
inson and Archie were jointly and severally liable for that
amount. We believe this was unintended and therefore re-
mand for the limited purpose of clarifying the joint and sev-
eral nature of this restitution amount.
16                                       Nos. 24-1910 & 24-2310

    EASTERBROOK, Circuit Judge, concurring. The court vacates
defendants’ convictions for bank fraud under 

(2). My colleagues conclude, and I agree, that Loughrin
v. United States, 

, 362–66 (2014), undercuts these
convictions: the checks were genuine instruments, written on
real accounts; they did not misrepresent any fact material to a
bank’s decisions. The victims were the people of South Bend
(and the United States, which supplied much of the money),
rather than a bank.
    It is hard to blame the district judge, however, because de-
fense counsel did not draw Loughrin to his attention. Indeed,
counsel neither moved to dismiss the bank-fraud counts of
the indictment nor requested a judgment of acquittal under
Fed. R. Crim. P. 29. So the first question on appeal ought to be
whether defendants’ argument has been preserved for appel-
late review.
    Rule 29 is parallel to Fed. R. Civ. P. 50, which in civil cases
spells out when and how a defendant may move for judgment
as a matter of law, the civil equivalent to a judgment of acquit-
tal. Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 

 (2006), holds that proper use of Civil Rule 50 is essential
to preserve for appellate review an argument that the evi-
dence is insufficient. Shouldn’t the same be true about Rule
29?
    Unitherm observed that a timely 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 appel-
late presentation not informed by either an exchange of views
in the district court or a ruling by the judge—and, if the de-
fense argument had been made early in the case, perhaps the
Nos. 24-1910 & 24-2310                                         17

prosecutor could have responded with evidence that would
have shown a statutory violation.
   I recognize that decisions in this circuit have engaged in
plain-error review despite the absence of Rule 29 motions.
E.g., United States v. Meadows, 

 (7th Cir. 1996).
Many other circuits have done the same. E.g., United States v.
Luciano, 

 (1st Cir. 2003); United States v. Williams,

 (3d Cir. 2020); United States v. Jordan, 

 (6th Cir. 2008); United States v. Quintana-Torres,

 (9th Cir. 2000); United States v. Otuonye,

 (10th Cir. 2021); United States v. Green, 

, 1278–79 (11th Cir. 2016). But in the absence of a
Rule 29 motion one circuit asks only whether the record is
“devoid of evidence”, which it sees as a standard more rigor-
ous than plain error. United States v. Herrera, 

, 885
& n.* (5th Cir. 2002) (en banc). And at least one court of ap-
peals requires a Rule 29 motion as a condition of appellate re-
view, in the absence of a manifest miscarriage of justice
(which may turn out to be the Fifth Circuit’s approach by an-
other name). United States v. Chong Lam, 

, 200 &
n.10 (4th Cir. 2012).
    Some of these decisions predate Unitherm. As far as I can
see, none of the circuits that treats a Rule 29 motion as unnec-
essary has tried to reconcile its position with the Supreme
Court’s treatment of Civil Rule 50 in Unitherm. At oral argu-
ment defense counsel implied that criminal cases are not af-
fected by Unitherm because convictions are important to the
defendants. Yet the stakes in this appeal come to $600. De-
fendants’ custodial sentences are concurrent, and they were
convicted on multiple counts other than bank fraud. Only the
special assessment of $100 per bank-fraud count is at issue.
18                                      Nos. 24-1910 & 24-2310

The special assessment is enough to avert mootness, see Ray
v. United States, 

 (1987), but a modest monetary
judgment in a criminal prosecution may pale in comparison
to the stakes of civil litigation. In Unitherm the judgment was
$18 million. Most people strive to keep their records clean, but
that desire does not justify bypassing the rules for conducting
litigation. Courts routinely enforce Fed. R. Crim. P. 12(b), (h),
which specify the timing of certain motions by criminal de-
fendants.
    What one could say for making a distinction is that crimi-
nal judgments are subject to collateral attack, while civil judg-
ments are not. The omission of an essential Rule 29 motion
could lead to a contention under 

 that the law-
yer furnished ineffective assistance of counsel. That may re-
quire an evidentiary hearing to explore counsel’s thinking
and consume unnecessary time of both district judges and ap-
pellate judges, time that could be saved by resolving the sub-
ject on direct appeal. It isn’t clear that §2255 would be availa-
ble to our defendants, because §2255(a) makes that remedy
available only to a person claiming a right to be released—
and, as I’ve mentioned, the stakes here concern money rather
than custody. But simple rules often are the best rules, and a
rule allowing direct appellate review of evidentiary argu-
ments is simple and will prevent problems in cases that do
concern custody.
    We need not decide today whether Criminal Rule 29
should be treated differently from Civil Rule 50, because the
United States has ignored this subject. The prosecutor’s ap-
pellate brief does not cite Unitherm or contend that the ab-
sence of a Rule 29 motion is significant. To the contrary, the
brief concedes that review for plain error is appropriate. The
Nos. 24-1910 & 24-2310                                        19

norm of party presentation, see Clark v. Sweeney, No. 25–52
(U.S. Nov. 24, 2025); United States v. Sineneng-Smith, 

 (2020), leads me to accept the prosecutor’s concession.
   The prosecutor proceeds as if a shortfall in evidence auto-
matically 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 plain-error doctrine has four elements, each essential.
First, there must be an error. Second, the error must be “plain”
(clear or obvious). Third, the error must affect the defendant’s
“substantial rights.” Fourth, because Rule 52(b) is permissive
rather than mandatory, “even if a defendant meets the first
three threshold elements of plain error, we may grant relief,
in our discretion, only if the error had a serious effect on the
fairness, integrity, or public reputation of judicial proceed-
ings.” United States v. Page, 

 (7th Cir. 2024)
(en banc). Page restates law established by United States v.
Olano, 

 (1993), and multiple later decisions by the
Supreme Court. Under Greer v. United States, 

(2021), the defense bears the burden of persuasion on all four
elements but has not attempted to carry that burden (or even
acknowledge it) on this appeal. Yet the brief for the United
States ignores Greer, Olano, its other successors in the Su-
preme Court, and our en banc decision in Page.
    The first question under Olano and Page is whether the dis-
trict court committed an error. I can’t see one. Because the de-
fense 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. Given the holding of Johnson
v. United States, 

, 467–68 (1997), that the plain-er-
ror doctrine must be evaluated using the law established at
20                                       Nos. 24-1910 & 24-2310

the time of appeal, we cannot insist that the error be clear
when the district judge acted. Here, however, the judge did
not act at all, except by imposing sentence on the jury’s ver-
dict, and it is hard to call that an error. (Note how this assess-
ment overlaps the point about Rule 29 and Unitherm.) I recog-
nize that a failure to object to a factual error at sentencing does
not block plain-error review, see Davis v. United States, 

 (2020), but the absence of any engagement in the dis-
trict court about the sufficiency of the evidence seems to me a
basic problem.
   Our decision in Meadows said that district judges err by not
entering acquittals on their own motion. A former version of
Rule 29 may have imposed that burden on district judges, but
the current version does not. The rule now permits judges to
enter sua sponte acquittals but does not require that step. No
requirement, no error.
    If there was an error, it is plain given Loughrin. But I doubt
that it affects defendants’ substantial rights. Unwarranted
time in prison affects substantial rights, but a $600 penalty
does not. The only part of defendants’ sentences that is not
concurrent is the special assessment, and that modest sanc-
tion cannot be deemed “substantial” on any plausible under-
standing of the word. Defendants do not contend that the
bank-fraud convictions affected their offense level under the
Sentencing Guidelines, leaving only monetary stakes.
   Criminal convictions carry collateral consequences, but do
extra convictions add to these consequences? Collateral con-
sequences of defendants’ scheme, such as disqualification
from jury service and potentially losing the vote, will occur
because of felony convictions that we hold proper. Appellants
Nos. 24-1910 & 24-2310                                         21

do not contend that the bank-fraud convictions carry extra col-
lateral consequences.
   Finally, the bank-fraud convictions do not have “a serious
effect on the fairness, integrity, or public reputation of judicial
proceedings.” Defendants had a fair trial, and their punish-
ment is amply warranted. Vacating convictions based on ar-
guments never made in the district court does more to call the
judicial system into disrepute than would affirming these
scoundrels’ convictions.
    Still, because the United States has ignored the elements
of the plain-error doctrine and argued only that the evidence
is sufficient, the party-presentation principle dominates. The
prosecutor has forfeited the benefit of Olano and Page. This
leads me to join the court’s opinion in full.