Rule 29 and Rule 33 Motions: Post‑Trial Lifelines in Federal Criminal Cases

DeFi Education Fund
6 minutes ago
7 min read

On August 6, 2025, a Manhattan jury delivered a partial verdict in United States v. Roman Storm, finding Storm, one of the Tornado Cash protocol developers, guilty of conspiring to operate an unlicensed money-transmitting business under 18 U.S.C. § 1960. However, the jury did not reach a unanimous decision on two remaining charges—conspiracy to commit money laundering under 18 U.S.C. § 1956 and conspiracy to evade sanctions under 50 U.S.C. § 1705. Because the jury hung on two counts, the judge declared a partial mistrial on those charges. While prosecutors spent three weeks trying to prove their case against Storm on those charges, mostly through circumstantial evidence, many observers see the jury’s inability to come to a decision on them as proof of the weaknesses in the government’s theory of liability overall. The judge who presided over the trial noted that the “stability of the verdict is very much in play . . . [o]f all of the counts of conviction, the 1960 is perhaps the most interesting of the legal issues that it raises, and Mr. Storm has every incentive to stay here and fight [rather] than to flee,” clearly implying that the sole count of conviction will be subject to attack in post-trial motions.

What are post-trial motions? And how if at all do they relate to an appeal of a criminal conviction? We wrote this blog to answer these questions and provide context on what’s next for Storm.

What is a Motion for Judgment of Acquittal (Rule 29)?

In a Rule 29 motion, the defendant asks the judge to overturn a conviction on the grounds that the evidence is legally insufficient, meaning that even when viewing the evidence in the light most favorable to the prosecution, no rational juror could find guilt beyond a reasonable doubt. It may be filed at three points: after the government rests, after all the evidence is presented, or within 14 days of a guilty verdict. The judge must view the evidence in the light most favorable to the prosecution and ask only whether a rational juror could find guilt beyond a reasonable doubt given that view of the evidence. Rule 29 is therefore a narrow legal sufficiency test, not a chance to reweigh facts or assess witness credibility. If granted post-verdict, the court must set aside the conviction and enter an acquittal.

Why it’s powerful

A Rule 29 motion is not a separate cause of action but a procedural tool to challenge the sufficiency of the evidence. A successful Rule 29 motion ends the case outright. Double-jeopardy rules bar retrial on the same charges, leaving the government only the option to appeal the Rule 29 judgment of acquittal or grant of a new trial. While Rule 29 acquittals are rare, Storm's case presents unusual circumstances: the jury refused to convict on the most serious counts, leaving a single conviction on one of the more technical provisions of the criminal code. In this setting, Rule 29 is more than a formality—it directly tests whether even that remaining count can survive.

When it’s used

Defense counsel routinely move for a judgment of acquittal when the government rests, renew it after all evidence is in, and often file again post-verdict. Even when denied, the motion preserves sufficiency challenges for appeal. Defendants may bring a post-verdict motion even if none was made earlier, which is why a Rule 29 motion has become standard in federal criminal trials.

Rule 29 motions are typically made:

Mid-trial — after the prosecution rests, the defense may argue the government has failed to present legally sufficient evidence during its case-in-chief. A judge may defer ruling until after the jury deliberates.
End of trial — after the close of evidence at trial but before the jury deliberates.
Post-verdict — within 14 days of a guilty verdict, the defense can move to set it aside.

Why it matters here

Storm’s defense team has indicated they intend to file post-trial motions by the September 30th deadline—the question now is whether Judge Failla will see this as one of those rare cases where Rule 29 demands acquittal. One reason for optimism is that Storm’s defense team is being led by Brian Klein of Waymaker LLP, who has already secured an acquittal under Rule 29 in another SDNY crypto prosecution.

Rule 29 in Action – United States v. Eisenberg (Mango Markets)

In United States v. Avraham Eisenberg, a jury convicted Eisenberg, a Mango Markets trader, of commodities fraud, commodities manipulation, and wire fraud. After trial, the judge granted Eisenberg’s Rule 29 motion based on lack of venue, holding that no rational juror could find the offenses took place in New York. Though the government alleged ties to New York—such as a Manhattan-based technology vendor—the court found this insufficient to establish venue. That ruling resulted in acquitting Eisenberg of the wire fraud conviction and vacating his convictions for commodities fraud and manipulation, though the government is now appealing. The case demonstrates that Rule 29 can succeed even in high-profile crypto prosecutions when the government’s theory of liability rests on shaky foundations. Venue has also been flagged as a potential weak point in the government’s case against Storm, and is likely to be a central issue in his Rule 29 motion.

What is a Motion for a New Trial (Rule 33)?

In a Rule 33 motion, the defendant asks the court to vacate a guilty verdict and order a new trial “if the interests of justice so require.” Unlike Rule 29, which tests whether the evidence is legally sufficient, Rule 33 asks a judge to weigh the credibility of witnesses, consider newly discovered evidence, and assess whether trial errors unfairly affected the verdict. Two filing windows apply: motions based on trial errors must be filed within 14 days of the verdict, while those based on newly discovered evidence may be filed within three years.

Why it’s powerful

A successful Rule 33 motion does not result in a full acquittal outright; instead, it vacates the conviction and grants a new trial before a different jury. That second opportunity can be critical for correcting injustices that occurred the first time around. Courts have granted new trials in a wide range of circumstances, such as when improper arguments, misconduct, or evidentiary errors undermined the fairness of the proceedings. By giving judges discretion to intervene when a verdict is compromised, Rule 33 acts as a crucial check against wrongful convictions. It ensures that convictions rest on a fundamentally fair trial, not tainted by error or prejudice.

How courts evaluate Rule 33 motions

A judge is sometimes described as acting like a “thirteenth juror,” using their discretion to weigh the credibility and weight of the evidence. But even if the judge doubts aspects of the government’s case, a new trial is appropriate only if the evidence “preponderates heavily” against the verdict, meaning that it would be unjust to let it stand. If the concern is trial fairness rather than evidentiary sufficiency, Rule 33 provides the proper remedy—though appellate courts caution that a new trial should not be granted lightly.

Common grounds for a Rule 33 motion

Defendants use Rule 33 to correct a variety of trial‑level problems. Common grounds include:

Newly discovered evidence – evidence found after trial that could have led to acquittal.
Juror misconduct – jurors lying, conducting private research, or violating deliberation rules.
Prosecutorial misconduct – improper closing arguments, suppression of exculpatory evidence, or other serious errors that prejudiced the trial.
Erroneous jury instructions – instructions misstating law or omitting essential elements of the charges.
Cumulative trial error – accumulated errors that, taken together, undermined the integrity of the verdict to create a miscarriage of justice.

Why it matters here

Like Rule 29 motions, a Rule 33 motion is rarely granted, but it provides an essential safeguard against unfair trials. In Storm’s case, there has been little suggestion of juror or prosecutorial misconduct, but raising Rule 33 keeps open the possibility of revisiting the verdict if new evidence surfaces or the court concludes the trial was compromised. The Second Circuit recently emphasized in United States v. Archer that a judge may not set aside a verdict unless the evidence “preponderates heavily against the verdict.” That standard is demanding, yet Rule 33 still authorizes new trials “in the interests of justice,” ensuring the court has a tool to act if fundamental fairness is at stake.

Why file both motions?

Defense attorneys often file both Rule 29 and Rule 33 motions to preserve all potential arguments. A Rule 29 motion focuses on whether the evidence legally supports the conviction; a Rule 33 motion allows the judge to consider fairness and newly discovered evidence. If a Rule 29 motion is granted, the judge must make a conditional ruling on the Rule 33 motion to specify whether a new trial would be ordered if the acquittal is reversed. Filing both motions ensures that if the court denies the acquittal, it could still grant a new trial—and it preserves issues for appeal.

When Will Storm File Post-Trial Motions?

Judge Katherine Polk Failla set a briefing schedule: Storm’s attorneys must file post-trial motions by September 30, the government’s response is due October 31, and replies are due November 19. During this time, prosecutors will also decide whether to retry the unresolved counts.

Implications for the Tornado Cash case and beyond

Rules 29 and 33 are powerful tools that can reshape a case in extraordinary circumstances. Storm’s situation exemplifies their unique utility. By testing both the legal sufficiency and the fairness of the verdict, rulings on such motions can also provide precedent for future cases. Successful Rule 29 or 33 motions are rare, but in cases like this, they may offer developers and the broader crypto community a critical check on novel prosecutions and a roadmap for future challenges.

Additional Resources:

The following blog post was authored by Tyler Rihn, a legal intern with the DeFi Education Fund.