Once again, we first address whether the decision applies retroactively on collateral review. Because the rule announced in Ali is substantive rather than procedural, the analysis set forth in Teague v. Lane does not apply. When new substantive rules are announced, there is a presumption that they will be applied retroactively. Courts have repeatedly held that a substantive change in the law resulting in the possibility that a person might have been convicted for conduct that is not illegal is properly applied retroactively on collateral review. Consequently, Ali should be applied retroactively on collateral review.
Most constitutional errors are amenable to harmless error analysis.
The Supreme Court itself has applied a harmless error analysis to a wide range of errors. We too have held that improper jury instructions resulting in the possibility that a defendant was convicted of conduct that is not illegal gets a harmless error review. The jury returned a special verdict form in each of the two counts of securities fraud specifically finding that the misrepresentations Bilzerian made were material. No rational juror could conclude, on the one hand, that the misrepresentations were material for two counts, but, on the other, those same misrepresentations were not material for other counts. We have considered Bilzerian's additional arguments and find them to be meritless in a summary order filed herewith.