concurring.
I join the judgment of the court and am also pleased to join the basic reasoning of the well-written majority opinion. I write separately only because I cannot see the need for, nor do I agree with, the suggestion that the government should have limited its presentation in this court to an examination of the indictment. Ante at 124-125.
The government was justified in examining the instructions and the evidence at trial for two reasons. First, the appellant specifically argued that the instructions of the trial court permitted a verdict of guilty to be premised on the “intangible rights” theory condemned by the Supreme Court in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). Appellant’s Br. at 11-12. Secondly, the government correctly read our earlier post-McNally cases under section 2255 as doing more than focusing on the sufficiency of the indictment. For instance, in Messinger v. United States, 872 F.2d 217, 221 (7th Cir.1989), the court explained that “we must ... examine the indictment, the evidence, and the jury instructions to see if the jury necessarily had to convict Mes-singer for defrauding Cook County of its property right ... notwithstanding any intangible rights theory employed.” Similarly, in Lombardo v. United States, 865 F.2d 155 (7th Cir.1989), petition for cert. filed, April 3, 1989, the court stated that, “[ijn order to determine whether defendants’ convictions should be vacated, it is necessary to determine whether the indictment, jury instructions and evidence produced at trial required the jury to find that the defendants schemed to deprive the [victim] of a proteetible property right within the scope of McNally.” 865 F.2d at 158 (citing United States v. Wellman, 830 F.2d 1453, 1462 (7th Cir.1987)). Because the “jury instructions did not allow conviction based on the intangible rights theory alone nor as an alternative to the money or property requirement,” id. at 159, the court denied petitioners’ motion to vacate their convictions under section 2255. The same analysis was used by the court in Moore v. United States, 865 F.2d 149 (7th Cir.1989). In considering a petition for post-conviction relief under section 2255, the court stated that it was required to consider “the evidence, the indictment and the instructions.” 865 F.2d at 151. Because the jury could not have found a scheme to defraud the victim of intangible rights separate from a *127criminal scheme to obtain money or property, the court concluded that the jury’s verdict did not rest exclusively on the insufficient intangible rights ground. Id. at 154. Thus, the indictment, evidence, and instructions taken together did not require the court to “upset a conviction which was clearly based on loss of money or property.” Id.; see also United States v. Folak, 865 F.2d 110, 113 (7th Cir.1988) (section 2255 case in which court considered the indictment and the evidence introduced and concluded that “ ‘the government could not logically prove one scheme without proving the other since the elements of the two were identical’ ”) (quoting Wellman, 830 F.2d at 1463); Magnuson v. United States, 861 F.2d 166, 168 (7th Cir.1988) (section 2255 case in which court examined the indictment, the instructions, and the evidence in determining that the conviction ought to be vacated as resting on an intangible rights theory); cf. Ward v. United States, 845 F.2d 1459, 1463 (7th Cir.1988) (“The root difficulty of the government’s case is not that the case went to the jury on a completely different theory from the one argued in this court but that the theory now pressed has no support in the record.”).
With the exception of United States v. Keane, 852 F.2d 199 (7th Cir.1988), petition for cert. filed, January 14, 1989, our coram nobis cases follow the analysis employed in section 2255 cases. Indeed, United States v. Doe, 867 F.2d 986 (7th Cir.1989), does more than inquire only whether the indictment states an offense. After concluding that the indictment in Doe did charge an offense, the court went on to address the petitioner’s claim that he was entitled to relief because of erroneous jury instructions. Although the instructions were erroneous and may have required reversal on direct appeal, this case was before the court on writ of error coram no-bis. Thus, the court stated that it “must ask whether these instructions would have warranted relief under 28 U.S.C. § 2255.” 867 F.2d at 989. Such relief is warranted when “ ‘the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’ ” 867 F.2d at 990 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1977)). The court then reviewed the jury instructions and the evidence and concluded that “the jury could not have convicted Gorny unless it found he reduced tax assessments in return for bribes.” Id. Because the jury could not have convicted the petitioner merely because he defrauded Cook County of good government, the court concluded that the conviction (based on erroneous jury instructions) did not violate due process. For this reason, the defective instructions could not support a petition for a writ of error coram nobis. While the court did deny petitioner’s collateral attack in Doe, it clearly did more than merely inquire into whether the indictment charged an offense. See also United States v. Bonansinga, 855 F.2d 476, 479-80 (7th Cir.1988) (post-Keane cor-am nobis case in which court, after concluding that indictment did charge an offense, rejected argument based on erroneous jury instructions: “[w]hat is crucial is that the ‘scheme to defraud’ was not defined in such a way as to allow conviction for conduct which was not an offense”) (quoting Wellman, 830 F.2d at 1463) (court upheld conviction because it was satisfied that petitioner was convicted of conduct which, consistent with McNally, was in derogation of the mail fraud statute).
Nor do our cases suggest that, in order to obtain more than a review of the face of the indictment, the section 2255 petitioner must specifically plead a defect in the instructions or in the evidence. Cf. Bonansinga, 855 F.2d at 477, 479 (petitioner challenged indictment and jury instructions; court refused to vacate conviction in part because it accepted the government’s argument that “the only evidence introduced in support of Bonansinga’s intangible rights prosecution” unequivocally demonstrated Bonansinga’s participation in conduct clearly prohibited by the mail fraud statute as construed in McNally) (emphasis supplied). Moreover, while not all of these cases have found it necessary to emphasize the point, they have all recognized, as a fundamental element of their methodology, that the *128court’s task in a section 2255 proceeding is to ensure that the appellant was convicted because he engaged in conduct proscribed by the mail fraud statute. The instructions and the evidence were examined to answer this basic question, not to identify any procedural flaw that, on direct appeal, might have required a new trial. This approach is certainly compatible with the Supreme Court’s holding in Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). That case hardly suggests that a section 2255 inquiry must be limited to the indictment. It simply emphasizes that, on collateral attack, the appropriate inquiry is limited to “whether the claimed error of law was ‘a fundamental defect which inherently results in a complete miscarriage of justice,’ and whether ‘[i]t ... presents] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ ” Id. at 346, 94 S.Ct. at 2305 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)).
In its brief, the government argued that the indictment sufficiently charged an offense and that the jury instructions did not render the trial fundamentally unfair since it was impossible for the jury to find the existence of a scheme to deprive the City of intangible rights without also finding the existence of a scheme to deprive the City of property interests. See Appellee’s Br. at 19-24. This is substantially the same analysis that this court’s cases have employed in reviewing section 2255 attacks on pre-McNally mail fraud convictions. It is the analysis we should expect to see from the government in future cases as well.