In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3964

GEORGE H. RYAN SR.,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

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.

On Remand from

the Supreme Court of the United States

ARGUED JULY 20, 2012—DECIDED AUGUST 6, 2012

Before EASTERBROOK, Chief Judge, and WOOD and

TINDER, Circuit Judges.

EASTERBROOK, Chief Judge. George Ryan, formerly

Secretary of State and then Governor of Illinois, was

convicted of violating RICO (the Racketeer Influenced

and Corrupt Organizations Act), the mail-fraud statute,
2 No. 10-3964

the Internal Revenue Code, and a law forbidding lies to

federal investigators. His convictions and sentence were

affirmed on appeal. United States v. Warner, 498 F.3d 666,

rehearing en banc denied, 506 F.3d 517 (7th Cir. 2007),

cert. denied, 553 U.S. 1064 (2008).

The judge told the jury that it could convict Ryan of

mail fraud if he either accepted bribes or concealed

receipt of payments that created a conflict of interest. The

theory behind the second method of conviction was

that the state had an intangible right to Ryan’s honest

services, and that secret payments interfered with the

state’s enjoyment of that right even if Ryan did not

take the money in exchange for decisions over which

he had control on behalf of the state. The instructions

were accurate statements of the law under 18 U.S.C.

§1341 and §1346, as this court understood the mail-fraud

offense at the time. See United States v. Bloom, 149 F.3d

649 (7th Cir. 1998). But in Skilling v. United States, 130

S. Ct. 2896, 2932–33 (2010), the Supreme Court disagreed

with Bloom. It held that only bribery or kickbacks

can be used to show honest-services fraud. Id. at 2931.

Ryan then asked for collateral relief under 28 U.S.C.

§2255. He did not contest the lying or tax convictions

but did challenge the mail-fraud and RICO convictions.

RICO makes it a crime to operate an organization (here,

the state of Illinois) through a pattern of predicate

crimes. 18 U.S.C. §1962(d). The indictment alleged that

mail frauds constituted the predicate crimes; thus a

defect in the mail fraud convictions could vitiate the

RICO conviction as well. The United States agreed with
No. 10-3964 3

Ryan that his petition was timely—waiving any defense

under §2255(f)—and did not contend that there is any

difference between the sort of review available on a

petition under §2255 and the kind available on direct

appeal. Skilling arose on direct appeal, and the Court

remanded with instructions to determine whether the

error was harmless. 130 S. Ct. at 2934. See also Black v.

United States, 130 S. Ct. 2963, 2970 (2010). Ryan asked

the district court to engage in harmless-error analysis

under §2255 as well. The United States did not disagree

with Ryan that a harmless-error inquiry was appropriate, though it stoutly argued that the error was indeed harmless—as the district court held in a thorough

opinion. 759 F. Supp. 2d 975 (N.D. Ill. 2010).

At oral argument this court questioned whether the

same standard should be used on direct appeal and

collateral attack. We directed the parties to file supplemental memoranda concerning that subject. Once again

the United States failed to contend that the standards

differ. We concluded, however, that the standards are

materially different, and that on collateral review the

appropriate question is whether the evidence was sufficient to convict under the correct instructions. We

held that the record contains more than enough evidence to convict Ryan under the legal standards

articulated in Skilling and affirmed the district court’s

decision. 645 F.3d 913 (7th Cir. 2011).

The Supreme Court held Ryan’s petition for certiorari

until it decided Wood v. Milyard, 132 S. Ct. 1826 (2012),

which presented questions concerning a court’s power,
4 No. 10-3964

in a case concerning collateral review of a criminal conviction or sentence, to decide an appeal on a ground that

the prosecutor did not advance. The opinion in Wood

articulates several conclusions: (1) that a court of appeals is entitled to deny collateral relief on a procedural

ground that the prosecutor has forfeited by overlooking

it, but not on a ground that the prosecutor has waived;

(2) that the power to decide an appeal on a forfeited

ground should be used only in exceptional cases; and

(3) that a prosecutor’s considered decision to refrain

from raising a known procedural issue is waiver. The

Court then remanded Ryan’s case with instructions to

reconsider in light of Wood. 132 S. Ct. 2099 (2012).

We received position statements from the parties, see

Circuit Rule 54, and the appeal was reargued.

The United States asks us to reinstate our decision

of last year, telling us that, no matter what it said in

the memorandum filed after the first argument, it now

agrees with everything we wrote about the difference

between direct appeal and collateral review under §2255.

It maintains that the post-argument memorandum of

2011 forfeited, and did not waive, the legal principles

addressed in our opinion. The gist of the United States’

position in 2012 is that it just didn’t realize what a

strong procedural argument it had in 2011 and would

have asserted it vigorously had its lawyers then been

more astute. That does not distinguish our situation

from Wood, however; there, too, the state’s lawyers

adopted the court of appeals’ position after finally

waking up to the strength of the procedural defense.
No. 10-3964 5

The Supreme Court found a waiver in Wood because the

state knew about a potential defense and told the court

that it was not asserting it. That’s exactly what happened

here. The United States Attorney learned at oral argument that there was a potential procedural argument,

then informed the court that the argument was not

being asserted. Why a litigant comes to such a decision is irrelevant, and a mistake in reaching a decision

to withhold a known defense does not make that decision less a waiver. This court is neither authorized nor

inclined to delve into the deliberational process that

preceded a decision by the United States Attorney;

we must respect the decision announced in court. See,

e.g., In re United States, 398 F.3d 615 (7th Cir. 2005);

United States v. Zingsheim, 384 F.3d 867 (7th Cir. 2004). We

therefore turn to the harmless-error inquiry, framed as

if this were a direct appeal.

This does not mean that we have a direct appeal; the

real direct appeal was resolved in 2007. Ryan was sentenced to 78 months in prison on one RICO count.

This is the only sentence he is still serving. All of the

others—60-month sentences on seven mail-fraud convictions, 60-month sentences on three false-statement

counts, and 36-month sentences on four tax counts—ran

concurrently with each other and with the RICO sentence,

and all have expired. Section 2255 allows a person to

contest ongoing imprisonment, and it is the single

RICO sentence that underlies Ryan’s imprisonment

today. The jury was told that, to convict Ryan on the

RICO charge, it had to find a pattern of criminality including at least two acts of criminal mail fraud. The
6 No. 10-3964

jury convicted Ryan on seven mail-fraud counts, so if at

least two of these are valid after Skilling then the RICO

conviction is valid as well.

Ryan’s challenge to expired sentences may or may not

be moot as a technical matter. A collateral attack

begun while custody continues can continue afterward

to stave off collateral consequences. See Spencer v.

Kemna, 523 U.S. 1, 7–14 (1998). Ryan has not identified

any collateral consequences of the mail-fraud convictions (such as deprivation of the right to vote or hold

office) that would not equally be required by the RICO

conviction—not to mention the three false-statement

convictions and the four tax convictions, which have

not been challenged. Even on direct appeal, courts are

free to pretermit decision about convictions producing

concurrent sentences, when the extra convictions do

not have cumulative effects. As a practical matter, the

concurrent-sentence doctrine was abrogated for direct

appeal when Congress imposed a special assessment

of $50 (now $100) for each separate felony conviction.

See Ray v. United States, 481 U.S. 736 (1987); 18 U.S.C.

§3013(a)(2). A collateral attack under §2241, §2254, or

§2255 contests only custody, however, and not fines

or special assessments.

An attempt to decide on collateral review whether each

of the seven mail-fraud convictions was valid would

smack of an advisory opinion—something that no waiver,

however deliberate, can authorize. Ryan has not argued

that the district judge would have given a lower sentence on the RICO count had she believed, say, that
No. 10-3964 7

only four of the mail-fraud convictions represented

bribes, and the other three represented undisclosed

conflicts of interest. After all, a district judge may base

a sentence on established misconduct whether or not

that misconduct has led to a conviction. We therefore do

not think that Wood poses an obstacle to confining our

attention today to the validity of the RICO count,

though we add that, before Ryan’s mail-fraud sentences

expired, the district judge gave careful consideration

to each of the seven and found all of them valid

after Skilling.

The district judge told the jury that it could find

criminal mail fraud (for purposes of both RICO and the

seven stand-alone charges) if it found either (a) that

Ryan took bribes (private payment for official services

rendered, where the payment was designed to influence

those official acts) or (b) that Ryan accepted undisclosed

payments that created a conflict of interest, even though

he did not do anything in exchange. The first possibility

survived Skilling, and the second did not. Ryan maintains that the jury may have convicted him on (b) alone.

Whenever the law changes in this fashion after a jury’s

verdict, it is difficult to reconstruct what would have

happened if the instructions had been different; the

judge’s and the litigants’ understanding of the law at the

time is bound to influence how they present and argue

a case, as well as how the jury evaluates it. But Skilling

and Black said that harmless-error analysis remains possible, so we must reconstruct as best we can.

Mail-fraud convictions were reaffirmed on remand

in both Skilling and Black. See United States v. Skilling,
8 No. 10-3964

638 F.3d 480 (5th Cir. 2011); United States v. Black, 625 F.3d

386 (7th Cir. 2010). Like the district judge, we conclude

that at least two of them remain valid for Ryan too, in

the strong sense that the jury must have found bribery

and not just a failure to disclose a conflict of interest.

We have three principal reasons.

First, Ryan was convicted on four tax counts, which

involved omitting income from tax returns. Bribes are

“income” under the Internal Revenue Code; gifts from

friends are not income. The jury was so instructed. The

jury also was told that it should acquit Ryan if he

believed that the money he received was a gift, rather

than a payment for favors delivered in return, even if

his belief was wrong. By convicting on the tax counts,

the jury found that Ryan knowingly accepted payment

in exchange for official acts—that he was bribed, rather

than just that he failed to disclose gifts to the public.

Second, both sides argued this case to the jury as one

about bribery. The prosecutor produced evidence that

Lawrence Warner, Ryan’s co-defendant, provided him

and his family with extensive benefits. The district judge

summarized:

[T]he benefits flowing from Warner to Ryan included favorable construction and insurance

benefits to Ryan’s family members; investments

in Ryan’s son’s business; and favorable financial

treatment of Comguard, a business involving

Ryan’s brother. As Ryan himself notes, Warner

wrote a $3,185 check to pay for the band that

played at Ryan’s daughter’s wedding and held
No. 10-3964 9

two major fund-raisers for Ryan, raising a total

of $250,000. The government also provided circumstantial evidence that Ryan received cash

from Warner and others.

759 F. Supp. 2d at 997–98 (citations to the record omitted).

These payments underlay three of the mail-fraud convictions (Counts 2, 3, and 8). Ryan’s lawyers vigorously

argued that these benefits were tokens of friendship,

and that he did nothing in return for them. If some

of his acts assisted Warner, or Warner’s associates, that

happened only because Ryan concluded in the exercise of independent judgment that the public interest

required the actions favorable to Warner. The prosecutor

might have replied that, even if that was true, the jury

still should convict because Ryan did not disclose the

payments. But that’s not what the prosecutor argued.

He told the jury that it needed to find that Ryan received improper “benefits”—and in context these references to “benefits” meant “bribes.” In other words, the

prosecutor did not try to take advantage of the portion

of the instructions that Skilling later disapproved. Both

prosecution and defense presented this case to the jury

as a dispute about whether Ryan took bribes. The

verdict shows that the jury found in the prosecution’s favor.

The line of reasoning in the preceding paragraph persuaded the district judge—who also conducted the sixmonth trial and thus had the best perspective on what

practical issues influenced the verdict—as it also

persuades us. Ryan maintains, however, that the pros-
10 No. 10-3964

ecutor did not set this up as a binary choice: find bribery

and convict, or find gift (or mistake) and acquit. The

prosecutor told the jury that it did not need to find a

quid pro quo in order to convict. And that, Ryan maintains, means that the prosecutor was arguing that the

jury could convict based on secrecy rather than bribery.

We think that this misunderstands what the prosecutor meant by “quid pro quo.” A dispute developed

at trial about whether the prosecution had to show that

a particular payment from Warner to Ryan matched a

particular decision that Ryan made to confer benefits

on Warner. The prosecutor denied that matching was

necessary and contended that taking money in exchange for a promise (explicit or reasonably implied) to

deliver benefits in return is bribery; it isn’t necessary

to show that Warner’s paying for the band at the

wedding could be matched against a particular decision

Ryan made in exchange. The district judge told the jury

that the prosecutor was right about this. Thus when the

prosecutor denied that it was necessary to show a quid

pro quo, he was not arguing that it was unnecessary

to show bribery; he was arguing that Ryan’s lawyers

had defined bribery too narrowly. This aspect of the

prosecutor’s argument did not invite a conviction based

on nondisclosure, rather than the receipt of bribes.

Our third principal reason for finding the error in the

jury instructions harmless comes from analysis of the

arguments pro and con about particular counts. What

we have said so far is general, but there were detailed

submissions to the jury on each mail-fraud count (and
No. 10-3964 11

thus on each potential predicate crime under RICO). We

agree with the district judge’s analysis. Rather than

restate it, we reproduce the discussion concerning

Count 2, the first of the mail-fraud counts (759 F. Supp. 2d

at 998–99; citations omitted):

Count Two of the indictment charged that the

mailing of a check from the State of Illinois to

American Detail & Manufacturing Co. (“ADM”)

was in furtherance of the scheme to defraud. The

evidence at trial showed that Ryan intervened on

Warner’s behalf in order to get James Covert, head

of the Secretary of State’s vehicle-services division, to withdraw contract specifications that

might have caused ADM to lose a valuable vehicle registration stickers contract. At the time,

ADM was Warner’s client, and prior to Ryan’s direct intervention, Warner represented to Covert

that he had “authority to speak for Secretary Ryan”

and wanted ADM to retain the contract.

In ruling on the sufficiency of the evidence in

support of this count, the court noted that jurors

had been instructed that if Ryan had acted in good

faith—he claimed that his instructions to Covert

were motivated by legitimate law-enforcement

concerns—they should not convict him on this

count. The jurors convicted Ryan despite this

instruction, and the court observed that “Ryan’s

direct intervention on Warner’s behalf, and his

attempt to conceal his intervention by directing

Covert to withdraw the specifications quietly,
12 No. 10-3964

amply support the jury’s verdict with respect

to Count Two.”

Paragraph 3 of the summary indictment describes the Warner transaction, charging that it

was part of the scheme that Ryan “performed and

authorized official actions to benefit the financial interests of . . . Warner . . . . The official

actions Ryan performed and authorized included: Awarding, and authorizing the award of,

contracts and leases, and intervening in governmental processes related thereto and causing

contractual payments to be made to benefit the

financial interests of defendant Warner.” Paragraph 4 describes the receipt of benefits by Ryan,

explaining that “[i]t was further part of the

scheme that defendant Ryan and certain third

parties affiliated with Ryan received personal

and financial benefits from defendant Warner . . .

while defendant Ryan knew that such benefits

were provided with intent to influence and

reward Ryan in the performance of official acts.”

In order to convict Ryan on Count Two, the

jurors had to believe one of three theories: either

(1) Ryan concealed a conflict-of-interest related

to the ADM contract; (2) Ryan misused his office

for private gain in discussing the contract with

Covert; or (3) Ryan accepted benefits (bribes) from

Warner in exchange for his intervention. The

first theory does not stand on its own. The only

conflict of interest presented to the jury relating
No. 10-3964 13

to ADM was Ryan’s relationship with Warner

and Warner’s involvement in this contract. Therefore, if the jury found that Ryan concealed a conflict of interest (theory (1)), it necessarily had to

find that he had misused his office for private

gain (theory (2)), or that he had accepted benefits

from Warner in exchange for favors relating to

ADM (theory (3)). The misuse of office theory

(2) might stand alone if the jury believed that

Ryan decided for some illegitimate reason—

unrelated to the benefits Warner provided to

Ryan—to coerce Covert into withdrawing the

specifications. But the only motivations Ryan

had to interfere with this contract were for legitimate law-enforcement reasons, as the defense

suggested, or to compensate Warner for the

stream of benefits he provided, as the Government urged. The jury rejected the good faith motive. Accordingly, the jury could only have convicted him on this count if it believed that his

conduct was a response to the stream of benefits.

Ryan suggests that the only “private gain” he

received for his intervention in this transaction

was the approval of his friend. As explained

earlier, however, the jurors must have rejected

this argument; they were specifically instructed

that if the benefits Ryan received from Warner

were merely the proceeds of a friendship, they

could not be the basis for a conviction. The court

concludes that the jury must have found Ryan

accepted gifts from Warner with the intent to

influence his actions.
14 No. 10-3964

The Government did present the awarding of

contracts and leases in these terms. In closing,

the Government urged:

George Ryan, as a public official, had a duty

to provide honest services to the people of the

state of Illinois who had elected him. And

the evidence in this case has shown that he

repeatedly violated that duty. He violated

that duty by giving state benefits, like contracts and leases, to his friends—Warner,

Swanson, Klein—while at the same time

they were providing various undisclosed

financial benefits to him and his family and to

his friends. The benefits included free vacations, loans, gifts, campaign contributions,

as well as lobbying money that Ryan assigned

or directed to his buddies. In short, Ryan

sold his office. He might as well have put up

a ‘for sale’ sign on the office.

Further, the Government presented a valid “stream

of benefits,” “retainer,” or “course of conduct”

bribery theory when it explained that

this is not a case in which a public official

had a specific price for each official act that he

did, like a menu in a restaurant where you

pick an item and it has a particular price. The

type of corruption here—that type of corruption where you give me this, I will give you

that, is often referred to as a quid pro quo. The

corruption here was more like a meal plan
No. 10-3964 15

in which you don’t pay for each item on the

menu. Rather, there is a cost that you pay, an

ongoing cost, and you get your meals. And

for Warner, Swanson, and Klein it was not a

cash bar. This was an open bar during Ryan’s

terms as secretary of state and as governor.

While Ryan is correct that the Government also

suggested Ryan could be convicted based on a

conflict of interest, as explained earlier, that was

not a tenable independent theory that would

have supported conviction of Ryan on Count Two.

The district court went on to conclude that the other two

mail-fraud counts related to Warner (Counts 3 and 8) must

be analyzed identically. 759 F. Supp. 2d at 1000. And with

this we reach three, more than enough to sustain the

RICO conviction and sentence.

The district judge conducted a similar analysis for

each of the remaining mail-fraud counts, id. at 1000–04,

and the application of the mail-fraud theories to

finding predicate offenses under RICO, id. at 1004. Repetition in this opinion is unnecessary. We don’t consider these other four counts, but readers should not

infer that we disagree with any part of the district

court’s analysis. We just think it unnecessary, given

that the sentences for all seven mail-fraud convictions

have expired.

Our opinion last year held, 645 F.3d at 918–19, that the

evidence is sufficient to support a finding of mail fraud,

on all counts, under Skilling. The Supreme Court did not

instruct us to reconsider that portion of our decision.
16 No. 10-3964

The district court’s order denying Ryan’s motion for

relief under §2255 therefore is

AFFIRMED.

8-6-12