dissenting:
Because the majority misperceives the proper standard of review for writs of error coram nobis, and because this misper-ception leads to an improper result in this case, I must respectfully write in dissent.
I.
I have no quarrel with the majority's rendition of the facts or with its analysis concerning the effect of McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), on the substantive law of mail fraud. There is no doubt that were these convictions before this court on direct appeal, they would have to be overturned. However, they are not. Appellants have already fully litigated their positions and have already had the benefit of direct appellate review. United States v. Mandel, 591 F.2d 1347 (4th Cir.1979) (vacating the convictions and remanding for a new trial); 602 F.2d 653 (4th Cir.1979) (en banc) (reinstating the convictions and affirming the district court), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980). This is a collateral attack through the extraordinary means of a writ of error coram nobis. The distinction between the review appropriate in these two very different types of proceedings is given wholly inadequate consideration by the majority and although treated more extensively by the court below, is applied incorrectly.
It has been black letter law since the Supreme Court recognized the coram nobis writ in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), that a reviewing court should grant the writ “only under circumstances compelling such action to achieve justice.” Id. at 511, 74 S.Ct. at 252. Coram nobis should be granted only “to correct errors of the most fundamental character where the circumstances are compelling to achieve justice.” Correa-Negron v. United States, 473 F.2d 684, 685 (5th Cir.), cert. denied, 414 U.S. 870, 94 S.Ct. 89, 38 L.Ed.2d 88 (1973).
The reason this rigorous burden of proof is placed on a coram nobis petitioner is obvious. All collateral attacks significantly, and detrimentally, impact on society’s interest in the finality of criminal convictions.
Inroads on the concept of finality tend to undermine confidence in the integrity of our procedures. Moreover, increased volume of judicial work associated with the processing of collateral attacks inevitably impairs and delays the orderly administration of justice. Because there is no limit on the time when a collateral attack may be made, evidentiary hearings are often inconclusive and retrials may be impossible if the attack is successful.
United States v. Addonizio, 442 U.S. 178, 184 n. 11, 99 S.Ct. 2235, 2239-40 n. 11, 60 L.Ed.2d 805 (1979) (citations omitted) (habe-as corpus); quoted in United States v. Dellinger, 657 F.2d 140, 144 (7th Cir.1981) (coram nobis); see also United States v. Keane, 852 F.2d 199, 201 (7th Cir.1988). This impact is amplified in a coram nobis petition. Unlike the habeas situation where there exists a significant incentive for the government to retry a successful petitioner so that he must serve out his sentence, in the coram nobis context,1 the *1077likelihood of retrial and the corresponding vindication of society’s interest in preserving a valid conviction is greatly diminished. United States v. Keogh, 391 F.2d 138, 148 (2d Cir.1968). The government is simply unlikely to allocate its precious prosecutorial resources to retry a defendant who will not be resentenced. Id. Thus, while it is clear that coram nobis and habeas corpus are roughly “similar” proceedings, United States v. Travers, 514 F.2d 1171, 1173 n. 1 (2d Cir.1974); United States v. Little, 608 F.2d 296, 299 (8th Cir.1979) (“substantially equivalent”), it is even more clear that the burden on a coram nobis petitioner is, and properly should be, greater than that placed on a habeas petitioner. Coram no-bis petitions that attempt to overturn convictions in which the petitioner has fully and exhaustively litigated his position should be granted only in the most egregious cases, where circumstances make clear that justice cannot tolerate letting the conviction stand. To grant coram nobis relief more freely would spawn criminal “re”-litigation without end. Keane, supra, at 206. Consequently, it is with these considerations in mind that we should review petitioner’s convictions.
II.
Four criteria must be met before coram nobis relief is appropriate:
(1) a more usual remedy is not available;
(2) valid reasons exist for not attacking the conviction earlier;
(3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and
(4) the error is of the most fundamental character. Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987).
The government concedes that because petitioners have served their sentences, a more usual remedy is not available; that because McNally was just recently decided, petitioners could not have contested their convictions any earlier; and, that sufficient adverse consequences remain from petitioners’ convictions to create a valid controversy for the purposes of Art. III. Both the court below and the majority have also concluded that the error present in this case is so fundamental that justice compels that these convictions be set aside. Both put great weight on the Second Circuit’s decision in United States v. Travers, 514 F.2d 1171 (2d Cir.1974). Both are mistaken.
In Travers, the petitioner was convicted of mail fraud for his involvement in a counterfeit credit card scheme. The only actions alleged by the government to have violated 18 U.S.C. §§ 1341, 1342 were the defrauded merchants’ mailing of the credit card receipts for the purpose of collecting for the goods and services purchased with the counterfeit cards. After Travers had served his sentence, the Supreme Court decided United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), holding that such mailings, made after the fraudulent use of the credit card has taken place, are not a part of a fraudulent credit card scheme because they occur after the scheme has reached fruition. Id. at 402, 94 S.Ct. at 649. Therefore, the Travers court found coram nobis relief appropriate in a case where the intervening change in law left no grounds for sustaining the conviction. Clearly, this is a situation where justice compels issuance of the writ because Travers had committed no crime. The Travers court expressly recognized this when it acknowledged that “Travers was convicted and punished for an act that the law does not make criminal,” and observed that “there was no sufficient evidence to support this conviction.” Id. at 1176, 1178 (quotations omitted) (emphasis added). Plainly, the Travers situation is not present here.
The government advances two valid theories as to why petitioners’ conduct is criminal even in light of McNally. The first posits that the state was deprived of the bribes given Mandel, which rightfully belonged to the State under a constructive *1078trust.2 At least three circuits have recognized this theory. United States v. Richerson, 833 F.2d 1147 (5th Cir.1987); United States v. Runnels, 833 F.2d 1183 (6th Cir.1987); Ingber v. Enzor, 841 F.2d 450 (2d Cir.1988). The second contends that the State was deprived of control over the allocation of the racing days that were shifted to the Marlboro Race Track in exchange for the bribes. These racing days are in essence a license to operate a very profitable business that produces significant revenues for the state.3 Neither the majority nor the court below found these theories invalid. Rather, both ruled that they were not relevant because the jury was not specifically instructed on them. However, they are relevant, extremely relevant, because this is not a direct appeal. This is a petition for eoram nobis relief. If either of these theories is valid, which both are, and if there is sufficient evidence to support the verdict, which there clearly is, then the petitioners are guilty of conduct still illegal under the mail fraud statute.4 This distinguishes this case from Travers and drastically redirects the analysis necessary to overturn these convictions. Because petitioners conduct is still illegal under post-McNally law, they complain merely of the improper instructions given at their trial.
Those instructions were clearly faulty in that they allowed for conviction of petitioners without a specific finding that the government was defrauded of a property interest. However, they also described a scheme for which a valid post-McNally conviction could be had.5 Furthermore, the evidence presented at trial was more than sufficient to sustain a verdict that the state had been deprived of property. I believe that for coram nobis purposes, this is more than sufficient to sustain these convictions.
The majority rejects this position, citing this Court’s decision in United States v. Alexander, 748 F.2d 185, 189 (4th Cir.1985), which held that when a jury considers alternate theories of liability, we must reverse the convictions if either theory is invalid unless we can say “with a high degree of probability” that the jury did not rely on the invalid theory. Id. at 189. I, of course, agree with this proposition and agree that in this case, a reviewing court could not ascertain with sufficient probability upon which theory the jury relied. *1079However, the tenets of direct appellate review do not apply in an identical fashion in coram nobis proceedings. Our role is not to reverse these convictions if they are in error, but to overturn them only if justice so compels.6
The majority characterizes the government’s position in this case as an appeal to this Court to “look beyond the improper instructions to the record to determine if adequate evidence of criminal activity existed on which to base a conviction under post-McNally standards.” Maj.Op. 1075. They rebuke that position as an attempt to ask this Court “to convict the defendants of crimes with which they were not charged.” Nothing could be further from the truth. The government is merely asking us to exercise the appropriate level of review, to examine this case as a whole and determine whether the error committed is of such fundamental nature that justice requires us to overturn these convictions.
III.
Marvin Mandel, then governor of Maryland, took bribes totalling at least $380,000 to manipulate the workings of state government, which had been entrusted to him by the people of Maryland, to divert extremely valuable racing days to his cohorts. His motive, their motive, was profit — profit proven to be at the expense of the people of the state of Maryland. Although their trial included an erroneous jury instruction, the proceedings were replete with evidence of bribery and manipulation. Their actions were and are patently illegal. My sense of justice does not compel me to set aside these convictions. Therefore, I must respectfully dissent.7
. My discussion of coram nobis addresses only the situation when the writ is sought after the petitioner's sentence has been served. Obviously, much of my analysis would not apply to writs sought before a petitioner begins to serve his sentence. See 3 C. Wright, Federal Practice *1077and Procedure: Criminal § 592 at 430 n. 15 (1982).
. The total amount received by Mandel has been conservatively estimated at ¶380,000.
. In 1978, 558 total racing days brought in revenues for the state of Maryland in excess of 20.7 million dollars.
. This Court's recent decision in U.S. v. Price, 857 F.2d 234 (4th Cir.1988), is not to the contrary. There we held only that 18 U.S.C. § 1341 did not protect “intangible rights such as good government or honest union management.” Id. at 235. No alternate theories of culpability were even discussed, let alone rejected. The Supreme Court’s recent decision in Carpenter v. U.S., — U.S. -, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987), demonstrates that these alternate theories are completely compatible with McNally.
. The indictment, which was read to the jury, in part charged:
(a) To defraud the citizens of the State of Maryland, and its governmental departments, agencies, officials and employees, both executive and legislative, of their right to the conscientious, loyal, faithful, disinterested and unbiased services, actions and performance of official duties of MARVIN MANDEL, in his official capacities as Governor of the State of Maryland, free from bribery, corruption, partiality, willful omission, bias, dishonesty, deceit, official misconduct and fraud;
(d) To obtain, directly and indirectly, money, property and other things of value, by means of false and fraudulent pretenses, representations, and promises, and the concealment of material facts, relating to the Marlboro Race Track, the Bowie Race Track, the Security Investment Company, Ray’s Point, Inc., and to other matters.
Likewise, the instructions also prominently mentioned property:
The words scheme or artifice, as used in the mail fraud statute, mean any plan or course of action intended to defraud others, or to obtain money or property by means of false or fraudulent pretenses, representations or promises. ...
A scheme to defraud, within the meaning of the statute, may be defined as the intentional use of false or fraudulent representations for the purpose of gaining a valuable undue advantage or working some injury to something of value held by another.
Thus, the idea that petitioners had defrauded the state out of property, or a property interest, was presented to the jury. Either of the government’s theories, i.e. the property lost was the bribes or the racing days, is compatible with these instructions.
. Writs of coram nobis have traditionally been reserved for situations where there has been a complete breakdown in the legal system. In Morgan, the Supreme Court gave an illustrative list of such breakdowns: insanity of a defendant, a conviction on a coerced guilty plea, failure to advise of the right of counsel, prosecuto-rial misconduct, a conviction based on perjured testimony. Id. at 508-10, 74 S.Ct. at 250-52. In fact, Morgan involved a 19-year old man who was not advised of his right to counsel and was convicted without any representation. Certainly, Travers, where a man was convicted for actions that were not illegal, also fits this mold. Id. at 511-12, 74 S.Ct. at 252-53. These are the types of errors that justice compels a court to remedy through coram nobis. An erroneous instruction is simply not in this league, especially when there was manifest evidence present of the petitioners’ guilt.
. Because I would uphold the mail fraud convictions that are the predicate acts for petitioners’ RICO conviction under 18 U.S.C. § 1962, I would affirm the RICO conviction as well.