In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3964
G EORGE H. R YAN S R.,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 C 5512—Rebecca R. Pallmeyer, Judge.
A RGUED M AY 31, 2011—D ECIDED JULY 6, 2011
Before E ASTERBROOK, Chief Judge, and W OOD and
T INDER, Circuit Judges.
E ASTERBROOK, Chief Judge. George Ryan, a former
Governor of Illinois, is in federal prison following his
convictions for racketeering, mail fraud, tax evasion,
and lying to the FBI. The mail-fraud charge alleged that
Ryan defrauded Illinois of its intangible right to his
honest services by covertly acting in the interests of
some private supporters rather than as a fiduciary for
2 No. 10-3964
the state’s citizens. Ryan’s convictions and sentences were
affirmed on appeal. United States v. Warner, 498 F.3d 666,
rehearing en banc denied, 506 F.3d 517 (7th Cir. 2007)
(Posner, Kanne & Williams, JJ., dissenting), stay of man-
date denied, 507 F.3d 508 (2007) (Wood, J., in chambers;
Kanne, J., dissenting), cert. denied, 553 U.S. 1064 (2008).
After the Supreme Court held in Skilling v. United
States, 130 S. Ct. 2896 (2010), that the honest-services
form of the mail-fraud offense, see 18 U.S.C. §1346, covers
only bribery and kickback schemes, Ryan began a col-
lateral attack under 28 U.S.C. §2255. He contended
that the jury instructions were defective because they
permitted the jury to convict him on an honest-services
theory without finding a bribe or a kickback, and he
challenged several evidentiary rulings that had been
influenced by this circuit’s pre-Skilling understanding
of §1346. Asserting that the errors could not be shown to
be harmless under the standard used on direct appeal,
Ryan asked for a new trial. The district court concluded
that the errors are harmless under that standard and
denied Ryan’s petition. 2010 U.S. Dist. L EXIS 134912
(N.D. Ill. Dec. 21, 2010). He has appealed.
A collateral attack is timely if filed within one year
from the date on which the judgment became final. See
28 U.S.C. §2255(f). Ryan took more than two. But
§2255(f)(3) restarts the time when a “right has been
newly recognized by the Supreme Court and made retro-
actively applicable to cases on collateral review”. The
prosecutor conceded in the district court that Skilling
meets that standard. The Justices did not say in Skilling, a
No. 10-3964 3
case on direct appeal, whether their decision applies
retroactively on collateral review, but Fischer v. United
States, 285 F.3d 596 (7th Cir. 2002), and Ashley v. United
States, 266 F.3d 671 (7th Cir. 2001), hold that a district
court or court of appeals may make the retroactivity
decision under §2253(f)(3). The language of that subsec-
tion differs from 28 U.S.C. §2244(b)(2)(A), under which
a second or successive collateral attack may be
authorized only when “the claim relies on a new rule
of constitutional law, made retroactive to cases on col-
lateral review by the Supreme Court, that was previously
unavailable” (emphasis added). See Tyler v. Cain, 533
U.S. 656 (2001). Because the United States has waived
any limitations defense to Ryan’s position, we need not
decide whether Skilling applies retroactively on col-
lateral review, though Davis v. United States, 417 U.S. 333
(1974), and Bousley v. United States, 523 U.S. 614 (1998),
imply an affirmative answer. (We discuss Davis and
Bousley in more detail later.)
Although the prosecutor’s concession takes §2255(f) out
of the case, this remains a collateral attack, and the argu-
ments available on collateral review differ from those
available earlier. Ryan contended at trial and on appeal
(see 498 F.3d at 697–98) that §1346 is unconstitutionally
vague, an argument that Skilling rejected. He never
made the argument that prevailed in Skilling: that §1346
is limited to bribery and kickback schemes. Indeed,
Ryan himself proposed some of the instructions that
the judge gave, see 2010 U.S. Dist. L EXIS 134912 at *29 n.8,
and with respect to them he has waived and not just
forfeited the line of argument he makes now. See United
4 No. 10-3964
States v. Olano, 507 U.S. 725, 732–34 (1993) (discussing
how waiver differs from forfeiture). With respect to
arguments that were not made at trial, the appropriate
standard on collateral review for evaluating the content
of jury instructions is “cause and prejudice”. See Engle
v. Isaac, 456 U.S. 107 (1982); United States v. Frady, 456
U.S. 152 (1982). Collateral review is not just a rerun
of the direct appeal, in which a defendant can use hind-
sight to craft better arguments. Societal interests in the
finality of judgments, and in inducing parties to focus
their energies on the trial and initial appeal, limit the
scope of collateral review. See, e.g., Harrington v. Richter,
131 S. Ct. 770 (2011).
Ryan sees “cause” in this circuit’s pre-Skilling law. The
district court’s rulings and instructions followed the
understanding of §1346 articulated in United States v.
Bloom, 149 F.3d 649 (7th Cir. 1998). We concluded in
Bloom that a public official deprives the public of its
intangible right to his honest services, and thus violates
18 U.S.C. §§ 1341 and 1346, if he secretly misuses his
position, or the information derived from it, for personal
gain. It would have been pointless to argue otherwise,
Ryan contends, which in his view establishes “cause” for
the failure to ask at trial and on appeal for instructions
limiting §1346 to bribery and kickback schemes. (Ryan
also insists that by making a constitutional objection to
§1346, and contending that any honest-services offense
depends on federal rather than state-law standards, he
preserved the argument he advances now. The forfeiture
as we see it is that Ryan never made in the district court
or on appeal an argument that §1346 is best understood
No. 10-3964 5
to be significantly more limited than Bloom held. His
current argument that the jury instructions were defec-
tive because they did not track Skilling is novel. What
remains—as we discuss in more detail later—is a conten-
tion that he is not substantively culpable.)
There are two problems with an argument that Ryan
has “cause” for any default: one practical, one doctrinal.
The practical problem is that it would not have been
pointless to argue that §1346 is limited to bribery and
kickbacks. Both Ryan and Skilling were tried in 2006. Yet
while Ryan’s lawyers proposed instructions based on
Bloom—which was more favorable to defendants than
the law in some other circuits—Skilling’s lawyers con-
tended that §1346 is much narrower if not unconstitu-
tionally vague. Skilling asked the Supreme Court to
disapprove Bloom. That Court ruled in his favor. If
Ryan’s lawyers had done what Skilling’s lawyers did,
the controlling decision today might be Ryan rather than
Skilling. (Ryan’s petition for certiorari beat Skilling’s to
the Supreme Court.)
Nothing prevented Ryan from making the argu-
ments that Skilling did. Many other defendants in this
circuit contended that Bloom was wrongly decided.
Conrad Black was among them. See United States v. Black,
530 F.3d 596 (7th Cir. 2008). (Black’s arguments were
not identical to Skilling’s, but they came closer than
Ryan’s.) The Supreme Court heard Black’s case along
with Skilling’s. See Black v. United States, 130 S. Ct. 2963
(2010). Because Black had preserved an objection to
Bloom’s understanding of §1346, we inquired on remand
6 No. 10-3964
from the Supreme Court whether the errors were harm-
less. Black prevailed in part. See United States v. Black, 625
F.3d 386 (7th Cir. 2010). But that decision was a bona fide
rerun (on remand from the Supreme Court) of a direct
appeal. Ryan, who has resorted to collateral rather than
direct review, is not entitled to the same benefit.
Ryan’s doctrinal problem is that “cause” in the formula
“cause and prejudice” means some impediment to
making an argument. That the argument seems likely to
fail is not “cause” for its omission. So Bousley tells us. The
Supreme Court held in Bailey v. United States, 516 U.S. 137
(1995), that 18 U.S.C. §924(c), which at the time made it
unlawful to “use” a firearm in connection with a drug
transaction, reached only “active” use of the gun; most
courts of appeals, by contrast, had equated “use”
with “possess”. Kenneth Bousley had pleaded guilty
to a §924(c) charge rather than contest the eighth cir-
cuit’s understanding of §924(c). After Bailey, he filed a
motion under §2255 seeking relief from his conviction.
His guilty plea, however, meant that he had forfeited
his opportunity to make an argument along the lines
that the Justices adopted in Bailey. Bousley argued that
the adverse circuit law constituted “cause” for this de-
fault. The Justices replied:
While we have held that a claim that “is so novel
that its legal basis is not reasonably available to
counsel” may constitute cause for a procedural
default, Reed v. Ross, 468 U.S. 1, 16 (1984), peti-
tioner’s claim does not qualify as such. The argu-
ment that it was error for the District Court to
No. 10-3964 7
misinform petitioner as to the statutory elements
of §924(c)(1) was most surely not a novel one. See
Henderson, 426 U.S., at 645–646. Indeed, at the time
of petitioner’s plea, the Federal Reporters were
replete with cases involving challenges to the
notion that “use” is synonymous with mere “pos-
session.” See, e.g., United States v. Cooper, 942 F. 2d
1200, 1206 (CA7 1991) (appeal from plea of guilty
to “use” of a firearm in violation of § 924(c)(1)),
cert. denied, 503 U.S. 923 (1992). Petitioner also
contends that his default should be excused be-
cause, “before Bailey, any attempt to attack [his]
guilty plea would have been futile.” Brief for
Petitioner 35. This argument, too, is unavailing. As
we clearly stated in Engle v. Isaac, 456 U.S. 107
(1982), “futility cannot constitute cause if it means
simply that a claim was ‘unacceptable to that
particular court at that particular time.’ ” Id., at
130, n. 35. Therefore, petitioner is unable to estab-
lish cause for his default.
523 U.S. at 622–23 (footnote omitted). What the Court
said in Bousley is equally true of Ryan.
But the Justices added that a forfeiture is not con-
clusive when a person is innocent. This is where Davis
becomes important. That decision holds that col-
lateral relief under §2255 is available when opinions
released after a person’s conviction show that he is in
prison for an act that the law does not make criminal.
Section 2255(a) authorizes relief for a person whose
custody violates “the Constitution or laws of the United
8 No. 10-3964
States” (emphasis added). Davis had argued that
statutory exegesis after his conviction established his
innocence. The Justices wrote: “such a circumstance
‘inherently results in a complete miscarriage of justice’
and ‘present[s] exceptional circumstances’ that justify
collateral relief under §2255.” 417 U.S. at 346–47.
Bousley elaborated, holding that a prisoner is entitled
to relief if actually innocent:
To establish actual innocence, petitioner must
demonstrate that, “ ‘in light of all the evidence,’ ”
“it is more likely than not that no reasonable juror
would have convicted him.” Schlup v. Delo, 513
U.S. 298, 327–328 (1995) (quoting Friendly, Is
Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)). . . . It
is important to note in this regard that “actual
innocence” means factual innocence, not mere
legal insufficiency. See Sawyer v. Whitley, 505 U.S.
333, 339 (1992).
523 U.S. at 623–24. If Skilling establishes that Ryan
is innocent of mail fraud, then he is entitled to relief
notwithstanding his lawyers’ failure to anticipate its
holding. Jury instructions that misstate the elements of an
offense are not themselves a ground of collateral relief;
likewise with erroneous evidentiary rulings. See, e.g.,
Henderson v. Kibbe, 431 U.S. 145 (1977); Estelle v. McGuire,
502 U.S. 62 (1991); Gilmore v. Taylor, 508 U.S. 333 (1993);
Wilson v. Corcoran, 131 S. Ct. 13 (2010). (Unconstitutional
jury instructions are a different matter. See Middleton
v. McNeil, 541 U.S. 433 (2004). But Skilling is about
No. 10-3964 9
statutory interpretation.) Davis and Bousley afford relief
if a person is in prison for acts that the law does not
make criminal. That standard depends on the content of
the trial record, not the content of the jury instructions.
Ryan maintains that the prosecutor forfeited reliance
on the distinction between actual innocence and
defective jury instructions by filing a brief that ignores
Engle, Frady, Davis, and Bousley. On collateral review,
however, a court may elect to disregard a prosecutor’s
forfeiture, because the Judicial Branch has an independ-
ent interest in the finality of judgments. See, e.g., Day v.
McDonough, 547 U.S. 198 (2006) (holding a collateral
attack barred as late, despite the prosecutor’s erroneous
statement to the district court that the petition was
timely). Ryan’s trial lasted eight months, and his appeal
led to more than 100 pages of opinions by four judges
of this court. It would be inappropriate to treat this col-
lateral proceeding as a second direct appeal. It is not
as if the United States gave the game away; to the con-
trary, it argued that the errors in the instructions are
harmless because the record at trial establishes that
Ryan took bribes in exchange for official services. If he
did, then Skilling permits his conviction for mail fraud.
The right question under Davis and Bousley is whether,
applying current legal standards to the trial record, Ryan
is entitled to a judgment of acquittal. If yes, then the
mail fraud convictions must be vacated; if no, then they
stand. This is the approach we took to §924(c) prosecutions
after Bailey. See, e.g., Gray–Bey v. United States, 209 F.3d
986 (7th Cir. 2000); Young v. United States, 124 F.3d 794 (7th
10 No. 10-3964
Cir. 1997); Broadway v. United States, 104 F.3d 901 (7th Cir.
1997); Nuñez v. United States, 96 F.3d 990 (7th Cir. 1996).
It is equally applicable to mail-fraud prosecutions
after Skilling.
On the record at trial, a jury could have convicted Ryan
of mail fraud using the legal standard set by Skilling. He
is therefore not entitled to collateral relief.
The record shows compellingly—indeed, Ryan ad-
mits—that he received substantial payments from
private parties during his years as Secretary of State and
Governor. The failure to report and pay tax on this
income underlies the tax convictions. The debate at trial
on the racketeering and mail-fraud charges was whether
these payments were campaign contributions, plus
gifts from friends and well-wishers, or were instead
bribes designed to influence Ryan’s official actions. If a
reasonable jury could find that the payments were
bribes, then the mail-fraud convictions survive Skilling.
Our initial opinion summed up the core of the charges:
The story behind this case began in November 1990
when Ryan, then the Lieutenant Governor of
Illinois, won election as Illinois’s Secretary of
State. He was re-elected to that post in 1994.
Throughout Ryan’s two terms in that office, [Law-
rence E.] Warner [Ryan’s co-defendant] was one of
Ryan’s closest unpaid advisors. One of Ryan’s
duties as Secretary of State was to award leases
and contracts for the office, using a process
of competitive bidding for major contracts and
selecting leases based on the staff’s assessments
No. 10-3964 11
of multiple options. Improprieties in awarding
four leases and three contracts form the basis of
the majority of the RICO and mail fraud counts
against Warner and Ryan, as these leases and
contracts were steered improperly to Warner-
controlled entities. The result was hundreds of
thousands of dollars in benefits for Warner and
Ryan. These benefits included financial support
for Ryan’s successful 1998 campaign for Governor
of Illinois.
498 F.3d at 675. Ryan observes that the jury was not
required to determine whether Warner’s payments were
bribes or kickbacks. True enough; the question under the
instructions, based as they were on Bloom, was whether
Ryan had received a secret financial benefit. See also
United States v. Thompson, 484 F.3d 877 (7th Cir. 2007). But
there is no doubt that a properly instructed jury could
have deemed the payments bribes or kickbacks; the
inference that they were verges on the inescapable.
The district court’s opinion canvasses the evidence and
demonstrates why a reasonable jury could find that Ryan
sold his offices to the high bidders. 2010 U.S. Dist. L EXIS
134912 at *52–83. It is unnecessary for us to repeat the
exercise.
A FFIRMED
7-6-11