Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 5512--Rebecca R. Pallmeyer, Judge.
The opinion of the court was delivered by: Easterbrook, Chief Judge.
On Remand from the Supreme Court of the United States
Before EASTERBROOK, Chief Judge, and WOOD and TINDER, Circuit Judges.
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, 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 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 appro- priate, though it stoutly argued that the error was in- deed 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 supple- mental 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 suf- ficient to convict under the correct instructions. We held that the record contains more than enough evi- dence 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, in a case concerning collateral review of a criminal convic- tion 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.
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 argu- ment 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 deci- sion is irrelevant, and a mistake in reaching a decision to withhold a known defense does not make that deci- sion 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 sen- tenced 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 con- victions, 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 in- cluding at least ...