Valparaiso University Law Review
Volume 50
Number 1
Issue 1

How Frank Easterbrook Kept George Ryan in
Prison
Albert W. Alschuler
University of Chicago

Recommended Citation
Albert W. Alschuler, How Frank Easterbrook Kept George Ryan in Prison, 50 Val. U. L. Rev. 7 (2015).
Available at: http://scholar.valpo.edu/vulr/vol50/iss1/3

This Article is brought to you for free and open access by the Valparaiso
University Law School at ValpoScholar. It has been accepted for inclusion
in Valparaiso University Law Review by an authorized administrator of
ValpoScholar. For more information, please contact a ValpoScholar staff
member at scholar@valpo.edu.

pp.7-87

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

Memoir
HOW FRANK EASTERBROOK KEPT GEORGE
RYAN IN PRISON
Albert W. Alschuler*
TABLE OF CONTENTS
I.
II.
III.
IV.
A.
B.
C.
V.
A.
B.
VI.
A.
B.
C.
VII.
A.
B.
C.
VIII.
IX.
A.
B.
C.
X.
A.
B.
XI.

INTRODUCTION.......................................................................................... 7
THE EYE OF THE BEHOLDER: TWO VIEWS OF JUDGE EASTERBROOK....... 8
THE GOALS OF THIS MEMOIR AND HOW IT WILL PROCEED ................. 16
THE PROSECUTION AND CONVICTION OF GEORGE RYAN ..................... 20
The “Intangible Right of Honest Services” .............................................. 20
Indictment and Trial ................................................................................ 24
Jury Deliberations, Verdict, and Appeal .................................................. 27
THE ROUTE BACK TO THE SEVENTH CIRCUIT ........................................ 31
The Supreme Court Decides Skilling ...................................................... 31
Ryan Returns to the District Court ......................................................... 32
THE ARGUMENT FROM HELL ................................................................. 38
Judge Easterbrook Emerges ...................................................................... 38
I Get Hit by a Truck ................................................................................. 40
The Government Gets Hit by the Truck .................................................. 49
JUDGE EASTERBROOK OPINES ................................................................. 53
Concocting Something Else: A Fantasy Forfeiture ................................. 53
Disregarding and Concealing the Government’s Waiver ........................ 58
Possible Explanations .............................................................................. 63
A MINI-VICTORY IN THE SUPREME COURT AND A NEW ARGUMENT ... 65
JUDGE EASTERBROOK OPINES AGAIN .................................................... 67
Another Concocted Waiver ...................................................................... 67
Poor at Counting ..................................................................................... 70
At Long Last: The Court Addresses the Issues Briefed by the Parties .... 75
LARGER LESSONS AND SOME PROPOSALS FOR REFORM ........................ 81
Decent Procedure in an Adversary System ............................................. 81
Correcting Errors ..................................................................................... 85
CONCLUSION ........................................................................................... 87
I. INTRODUCTION

This Memoir tells the story of my unsuccessful representation of
former Illinois Governor George H. Ryan in the U.S. Court of Appeals for
*

Julius Kreeger Professor Emeritus of Law and Criminology, the University of Chicago.

7

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

8

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

the Seventh Circuit. It describes how, in opinions authored by Judge
Frank Easterbrook, the court made six rulings in favor of the government
the government had not sought. All of these rulings were questionable or
worse, and the court afforded Ryan no opportunity to address most of
them until after Judge Easterbrook’s opinions had been published.
In addition, this Memoir documents eight falsehoods told by Judge
Easterbrook in written opinions and statements from the bench. These
falsehoods included statements that the trial court gave instructions it did
not give, that both the defendant and the government made arguments
they did not make, that litigants in the Supreme Court made arguments
they did not make, that the defendant and the government waived or
forfeited arguments they did not waive or forfeit, that the Supreme Court
said things it did not say, and that several of the defendant’s sentences
had expired when they had not expired.
This Memoir notes that Judge Easterbrook’s appearance on the panel
that heard Ryan’s appeal was not the result of random assignment. It
shows that the government played no part in producing his falsehoods. It
describes his bullying of counsel on both sides and urges his colleagues to
recognize the problem his conduct poses for their court.
II. THE EYE OF THE BEHOLDER: TWO VIEWS OF JUDGE EASTERBROOK
Judge Frank Easterbrook’s reputation is a paradox. Widely praised
by legal academics, he is often disparaged by the lawyers who practice
before him. Legal scholars have written that there are only two
“superstars” among active American judges not on the Supreme Court—
Easterbrook and his colleague on the U.S. Court of Appeals for the
Seventh Circuit, Richard Posner. 1 Two of these scholars ranked
Easterbrook and Posner with the late Henry Friendly and Learned Hand,
declaring that these judges’ opinions “dominate and define the legal
‘canon.’”2 With Justice Scalia in attendance, Judge Easterbrook recently
gave the first Scalia Lecture at the Harvard Law School. 3 When
See Stephen J. Choi & G. Mitu Gulati, Choosing the Next Supreme Court Justice: An
Empirical Ranking of Judge Performance, 78 S. CAL. L. REV. 23, 74 (2004); Mitu Gulati & Veronica
Sanchez, Giants in a World of Pygmies? Testing the Superstar Hypothesis with Judicial Opinions in
Casebooks, 87 IOWA L. REV. 1141, 1143 (2002); Margaret V. Sachs, Superstar Judges as
Entrepreneurs: The Untold Story of Fraud-on-the-Market, 48 U.C. DAVIS L. REV. 1207, 1211 (2015)
(“Within the ranks of sitting federal circuit judges, Frank Easterbrook and Richard Posner
stand out as the ‘superstars’ in multiple respects.”).
2
Gulati & Sanchez, supra note 1, at 1143.
3
Lana Birbrair, Judge Easterbrook Delivers Inaugural Scalia Lecture: Interpreting the
Unwritten
Constitution,
HARVARD
LAW
TODAY
(Nov.
20,
2014),
http://today.law.harvard.edu/judge-easterbrook-delivers-inaugural-scalia-lectureinterpreting-unwritten-constitution-video/ [http://perma.cc/9AY5-S2DB].
1

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

9

Swarthmore awarded him an honorary degree in 2012, the college’s
president proclaimed, “[Y]our wise leadership of the seventh-circuit
Court of Appeals has made you one of the nation’s most influential and
respected judges.”4 The Wikipedia entry about Judge Easterbrook notes
that one University of Chicago lecturer referred to him as “the world’s
greatest living jurist.”5
The only bar association evaluation ever conducted of Seventh Circuit
judges is now getting old.6 It occurred in 1994 when Judge Easterbrook
had been on the bench for nine years.7 This evaluation by the Chicago
Council of Lawyers criticized Judge Easterbrook more severely than any
other judge on the court.8 Although the report praised his intelligence,
breadth of knowledge, writing style, and work ethic, it faulted his
treatment of lawyers, his willingness to decide cases on grounds not
addressed by the parties, and his misstatements of law and fact.
On the first point (mistreatment of lawyers), the Council declared that
Judge Easterbrook “has consistently displayed a temperament that is
improper for a circuit judge.”9 It noted:
Lawyers reported that Judge Easterbrook goes well
beyond asking pointed questions; rather, he "attacks"
lawyers in an attempt to establish that the advocate has
not understood the case or that the judge's knowledge is
superior to that of the advocate. Such behavior often
continues well after the judge has made his point; Judge
Easterbrook has gone so far as to cause attorneys to break
down, unable to continue effectively.10

Easterbrook Awarded Honorary Degree by Swarthmore College, U. OF CHICAGO NEWS (June
4, 2012), http://www.law.uchicago.edu/news/easterbrook-awarded-honorary-degreeswarthmore-college [http://perma.cc/S3HM-LRP4].
5
Frank H. Easterbrook, WIKIPEDIA, https://en.wikipedia.org/wiki/Frank_H._
Easterbrook [https://perma.cc/9YG6-ZNSL] [hereinafter Easterbrook, WIKIPEDIA].
6
See Chicago Council of Lawyers, Evaluation of the United States Court of Appeals for the
Seventh Circuit, 43 DEPAUL L. REV. 673 (1994).
7
See id. at 747.
8
The Council saw “no point in rating judges with life tenure” in the same way it rated
candidates for the bench. It offered “only a narrative description of their performance.” Id.
at 676. On my reading, however, the Council viewed twelve of the fifteen judges it evaluated
positively and most of these judges very positively. It sharply criticized only three—Judges
Coffee, Posner, and Easterbrook. The Council’s criticism of Judge Easterbrook was more
severe than that it offered of Judges Coffee and Posner.
9
Id. at 760.
10
Id.
4

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

10

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

Lawyers described Easterbrook as “arrogant and intolerant” 11 and
contended that he “displays a contempt for attorneys and, to some extent,
the litigants as well.”12 Lawyers said that they “rarely feel like they have
received a fair hearing.”13 Complaints about the judge’s demeanor were
“resounding”14 and “consistent,”15 proceeding even from attorneys who
praised other aspects of his work. 16
On the second point (disregard of the parties’ presentations), the
Council noted, “Judge Easterbrook is one of the court’s chief practitioners
of deciding issues that have not been briefed by the parties.” 17 His dicta
are “extensive and free-wheeling,” and he invokes them as authority in
later decisions.18
On the third point (misrepresenting facts and law), attorneys
described Judge Easterbrook’s use of precedent as “unreliable and
inappropriate.”19 They also claimed that he “mischaracteriz[es] the record
below in order to reach certain results.”20 Judge Easterbrook “can
communicate a lack of respect for the facts of a case and for precedent.” 21
The Council concluded, “[P]articularly when he disregards the facts or the
law, [Judge Easterbrook] acts like the worst of judges.” 22
My sense is that Judge Easterbrook’s reputation among practitioners
is no better today than it was in 1994. A blogger still insists that
Easterbrook “makes advocates appearing before him wet themselves in
fear.”23 The judge himself told an interviewer in 2013 that he has in his
chambers “a little political cartoonish thing that was given to me by my
law clerks that has me, on the bench, pressing ‘the button,’ which I
sometimes use metaphorically, that opens a trapdoor under the lawyer,

Id.
Chicago Council of Lawyers, supra note 6, at 747.
13
Id. at 760.
14
Id. at 747.
15
Id. at 709.
16
Id. at 760.
17
Id. at 756.
18
Chicago Council of Lawyers, supra note 6, at 758.
19
Id. at 757.
20
Id. at 758.
21
Id. at 747.
22
Id. at 761. See also Anthony D’Amato, The Ultimate Injustice: When a Court Misstates the
Facts, 11 CARDOZO L. REV. 1313, 1325–47 (1990) (complaining that Judge Easterbrook
repeatedly misrepresented the record in Branion v. Gramly, 855 F.2d 1256 (7th Cir. 1988)).
23
David Lat, Star Witnesses: Judges Posner, Easterbrook and Bauer Testify Against Hal Turner,
ABOVE THE LAW (Mar. 3, 2010, 7:00 PM), http://abovethelaw.com/2010/03/star-witnessesjudges-posner-easterbrook-and-bauer-testify-against-hal-turner/ [http://perma.cc/X9V9SDHW].
11
12

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

11

and shooting a lawyer down the 27 floors . . . . ”24 As this Memoir will
show, the characteristics that prompted the bar’s criticism of Judge
Easterbrook—his disdain for lawyers, for the principle of party
presentation, and for truth telling—have not abated.
Efforts to explain why academics and practitioners view Judge
Easterbrook differently may suggest that the two groups have different
outlooks.25 My guess, however, is that the values of the two groups do
not differ much or explain much. More significant is the fact that some
lawyers feel the sting of Judge Easterbrook’s abuse personally. Even when
academics are aware of Judge Easterbrook’s conduct on the bench and
have reservations about it, they can imagine that it reflects the judge’s
unwillingness to suffer fools gladly.
The principal reason for the differing perceptions of practitioners and
academics may be neither differing outlooks nor differing personal
experiences. It may be instead that practitioners know things academics
do not know. An academic who is impressed by an engaging, wellwritten opinion cannot easily determine whether this opinion
misrepresents the record of the case before the court or the arguments of
counsel. He is also unlikely to know whether the opinion falsifies
precedent. Most cases cited by a court of appeals are unfamiliar to most
academic readers, although they are usually well known to the lawyers
who filed the briefs.
This Memoir will dissect two opinions by Judge Easterbrook that on
first reading might strike you as convincing and nicely done. 26 It will tell
the story of my representation of George H. Ryan, a former Illinois
governor serving a sentence for mail fraud who sought a new trial
following the Supreme Court’s decision in Skilling v. United States.27 The
Memoir will describe six rulings in favor of the government set forth in
Judge Easterbrook’s opinions although the government had not sought
them. Violating standards articulated by the Supreme Court, the Seventh
Circuit gave Ryan no opportunity to address several of these rulings until
after the opinions had been published. I hope to convince you that the
government had good reason for not endorsing these rulings; all of them
were preposterous.
This Memoir will also describe eight falsehoods told by Judge
Easterbrook in written opinions and in statements from the bench. By
Interviews with United States Court of Appeals Judges: Judge Frank H. Easterbrook, 5 SCRIBES
J. LEGAL WRITING 1, 1 (2013).
25
The practitioners’ explanations may imply that professors are pedants, and the
professors’ may imply that practitioners are plumbers.
26
See Ryan v. United States, 688 F.3d 845 (7th Cir. 2012); Ryan v. United States, 645 F.3d
913 (7th Cir. 2011), vacated and remanded, 132 S. Ct. 2099 (2012).
27
561 U.S. 358 (2010).
24

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

12

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

falsehoods, I do not mean minor misunderstandings or
misinterpretations; I mean whoppers. Anyone who checks can confirm that
these statements were false, and I encourage skeptical readers to check.
This Memoir will also describe Judge Easterbrook’s abusive demeanor on
the bench.
For the most part, my narrative will proceed chronologically, but I will
take Falsehood Number Seven out of order and tell you about it now. I offer
this example out of order (1) so that you can see what I’m talking about
and (2) so that I can discuss at the outset whether the judge’s
misrepresentations should be regarded as innocent, negligent, grossly
negligent, reckless, or deliberate. Describing this falsehood will inform
you not only about one of Judge Easterbrook’s misstatements of the record
but also about one of the legal rulings he concocted—a ruling Ryan had
no opportunity to address until he filed a petition for rehearing.
The misrepresentation I am about to describe appeared in Judge
Easterbrook’s second opinion in the Ryan case. By the time of this opinion,
it was clear that the instructions given to the jury at Ryan’s trial were
flawed. These instructions marked several paths to conviction. They told
the jury to convict if Ryan failed to disclose a conflict of interest, if he
violated any of a number of state laws, or if he accepted bribes. After
Ryan’s conviction, the Supreme Court held in Skilling that failing to
disclose a conflict of interest is no crime and that state-law violations do
not establish the federal crime of depriving the public of its right to honest
services. The statute that Ryan allegedly violated outlawed only schemes
to give or receive bribes or kickbacks.28
The erroneous jury instructions did not automatically entitle Ryan to
a new trial. The error would be harmless if the jury found that Ryan had
in fact accepted bribes. Judge Easterbrook’s opinion for the Seventh
Circuit concluded that the jury must have found bribery, and it offered
three reasons for this conclusion. The first one was:
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

28

See Skilling, 561 U.S. at 411–12.

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

13

acts—that he was bribed, rather than just that he failed to
disclose gifts to the public.29
That reads well, don’t you think? It seems entirely convincing. But
every statement is a fabrication. The government never claimed that Ryan
failed to pay taxes on the payments it alleged were bribes. Ryan was
indeed convicted of tax violations, but they concerned other payments
entirely. The alleged bribes had nothing to do with the tax counts. When
Judge Easterbrook noted that bribes are income and gifts are not and then
declared, “The jury was so instructed,” he made it up. No instruction
resembling the instruction he described had been given. When Judge
Easterbrook added that the jury was told to acquit if Ryan mistakenly
believed the money he received was a gift rather than payment for services
rendered, he again deceived his readers.30
The government had not misled Judge Easterbrook. It had not
claimed that Ryan’s tax convictions bore on whether the jury found that
he took bribes.
Judge Easterbrook’s misrepresentation was especially astonishing
because this was not the first time he had made it, and my co-counsel and
I had complained to him and his colleagues about his earlier fabrication.
In his first Ryan opinion, he wrote:
The record shows . . . that [Ryan] received substantial
payments from private parties during his years as
Secretary of State and Governor. The failure to report and
pay tax on this income underlies the tax convictions. The
debate at trial on the racketeering and mail-fraud charges
was whether these payments were campaign
contributions, plus gifts from friends and well-wishers, or
were instead bribes . . . .31
This statement had no bearing on the issues Judge Easterbrook
discussed in his first Ryan opinion. My co-counsel and I nevertheless
decided to note its falsity in our petition for rehearing en banc, hoping
(foolishly) that underlining the judge’s penchant for confabulation would
make his colleagues more attentive to other, more consequential
misstatements. Quoting the passage recited above, we wrote, “The panel
See Ryan, 688 F.3d at 849–50.
See Trial Transcript at 22922–27 (Mar. 10, 2006), United States v. Warner (N.D. Ill. 2006)
(No. 02 CR 505) (the trial court’s tax instructions). A full transcript of the instructions in
Ryan’s case is available from the author.
31
Ryan v. United States, 645 F.3d 913, 918 (7th Cir. 2011), vacated and remanded, 132 S. Ct.
2099 (2012).
29
30

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

14

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

exhibited as little regard for the facts as it did for the law.”32 We then
explained:
In fact, the tax charges focused on Ryan’s alleged use of
campaign funds for personal expenses (a use that was
lawful but that constituted income), his receipt of a
consulting fee from the Phil Gramm presidential
campaign, and a few other alleged payments . . . . None
of these payments were alleged to be bribes. All of the
mail fraud charges of which Ryan remains convicted
concern benefits he and others (mostly others) received
from Lawrence Warner and Harry Klein. . . . Only these
benefits are now alleged to be bribes, and none played
any part in the tax charges.33
If someone accused you of falsifying facts in a document circulated to
your co-workers, you might feel chagrined (especially if the accusation
was accurate), but you are not Judge Easterbrook. When Ryan’s case
returned to him a year later, he concocted the same nonsense. Judge
Easterbrook probably had forgotten the correction, if he ever noticed it,
and this time his misstatement constituted the court’s leading argument
on the central issue in the case. Our petition for rehearing following the
second opinion complained about this misstatement and others,34 but the
court denied the petition without correcting any of its errors.
What could Judge Easterbrook have been thinking? The most
charitable and most likely explanation is that, because Ryan had not
challenged his tax convictions after Skilling, Judge Easterbrook knew
nothing at all about the tax charges. Without bothering to check, he
imagined that these charges concerned the payments alleged to be bribes,
and, again without checking, he guessed what jury instructions the court
would have given if the charges had concerned these payments.
On these assumptions, I consider the word “falsehood” appropriate.
Judge Easterbrook did not write: “Here’s my guess,” or “Here’s what I
think probably happened.” An appellate judge is in a position to know
what charges have been filed and what instructions have been given, and
a tentative or qualified statement concerning these facts would have
tipped readers off that something was amiss. So Judge Easterbrook made
32
Ryan’s Petition for Rehearing with Suggestion of Rehearing En Banc at 5, Ryan v.
United States, 645 F.3d 918 (7th Cir. 2011) (No. 10-3964), vacated and remanded, 132 S. Ct. 2099
(2012).
33
Id.
34
See Ryan’s Petition for Rehearing with Suggestion of Rehearing En Banc at 5–9, Ryan v.
United States, 688 F.3d 845 (7th Cir. 2012) (No. 10-3964).

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

15

the sort of firm pronouncement one expects in a judicial opinion. This
pronouncement would have led readers to believe he had examined the
record himself or else had relied on a party’s uncontested description of
this record. By offering an unqualified statement when he knew he was
guessing, Judge Easterbrook deliberately deceived his readers.
Perhaps, on the assumption I’ve made about his mental state, one
could characterize Judge Easterbrook’s misstatements as reckless rather
than purposeful.35 If one is extremely charitable, one might even call these
misstatements grossly negligent rather than reckless.36 Whatever the
appropriate label might be, this Memoir will show that Judge Easterbrook
persistently presents wildly inaccurate, made-up statements as
unquestionable statements of fact.37
The Wikipedia entry about Judge Easterbrook mentions the Chicago
Council of Lawyers’ criticism of his demeanor, but it observes that “the
Council did not specify authorship, so the criticism is anonymous.”38 The
entry adds:
[T]his review by the Council was never repeated, lending
partial support to the defenders of Easterbrook and
Posner that the report was an opportunity for anonymous
venting by lawyers who were unhappy with the results
of Seventh Circuit decisions, in no small part thanks to the
decisions of Reagan appointees Easterbrook and Posner.
Posner has recently commented about the report, “You
have here some anonymous people who are talking to the
Chicago Council of Lawyers. How much credence
should we put on these people? They can be sore losers.
They can be crybabies.” 39

Judge Easterbrook probably did not know when he insisted that certain jury instructions
had been given that they had not been given. He probably imagined that they had been. If
believing that a made-up statement is likely to be true makes a charge of lying inappropriate,
you might prefer a different word—perhaps “confabulating.” Cf. New York Times Co. v.
Sullivan, 376 U.S. 254, 279–80 (1964) (declaring that a reckless disregard for the truth can
qualify as “actual malice”).
36
Cf. MODEL PENAL CODE § 2.02 (AM. LAW INST., Proposed Official Draft 1962) (defining
recklessness and criminal negligence). If Judge Easterbrook failed even to advert to the
possibility that his guesses might be wrong, one could plausibly describe him as grossly
negligent. If he realized that his guesses might be wrong and nevertheless offered them as
fact, “reckless” would be a better word.
37
Even if one were to characterize Judge Easterbrook’s misstatements as grossly negligent
at the time he made them, these misstatements would have become something worse when
he left them uncorrected after lawyers noted them in petitions for rehearing.
38
Easterbrook, WIKIPEDIA, supra note 5.
39
Id.
35

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

16

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

Because a judge must pick a winner and a loser in every case, the lawyers
who criticized Judge Easterbrook probably had lost as many cases before
the judges they praised as they had before him. They evidently did not
cry whenever they lost. Eight of the fifteen judges they evaluated had
been appointed by President Reagan, and the lawyers reviewed most of
these judges favorably. The reason these critics remained anonymous was
apparent: they suspected that revealing their identities would lead to
unprovable retaliation against them and their clients.
I am in a different position from these critics. I have retired, and I can
be sure that I will never again appear before the United States Court of
Appeals for the Seventh Circuit. I can afford to say out loud what
practicing lawyers can only whisper. To the charge of being a sore loser
and a crybaby, I plead guilty. I think that lawyers should be sore losers
and whiners when judges cheat.
III. THE GOALS OF THIS MEMOIR AND HOW IT WILL PROCEED
This Memoir may contribute to the study of judicial reputation by
showing how a judge whose reputation in the academy is ace-high can in
fact be a terrible judge. The Memoir also will draw some general lessons
about fair procedure in an adversary system, and it will propose some
reforms. My main purpose, however, is not to contribute to the study of
judicial reputation, to draw general lessons about the adversary system,
or to propose institutional reforms. It is to tell the truth about Judge
Easterbrook.
I have several reasons for complaining publicly about this judge’s
conduct. First, I hope that this Memoir will bring a pardon closer for
George Ryan. Ryan deserves a pardon, not because he’s a saint, but
because his government has treated him badly. Senator Dick Durbin
encouraged President Bush to release Ryan from prison after he had been
there less than a year,40 and the case for clemency is much stronger now.
Ryan is eighty-one, and he’s completed his sentence. As this Memoir will
show, he was almost certainly punished for conduct that is not a crime.
In my fantasy world, Judge Easterbrook himself might recognize that
his work in Ryan’s case was imperfect, and he might write the President
to support a pardon. The judges who joined Judge Easterbrook’s
opinions, Judges Diane Wood and John Tinder, might join him or else
write letters of their own. But I know that the odds of such judicial
redemption in the real world are probably negligible.
40
See Durbin to Ask Bush to Commute Ryan Sentence, HUFF. POST (May 25, 2011),
http://www.huffingtonpost.com/2008/12/01/durbin-to-ask-bush-to-com_n_147485.html
[http://perma.cc/6ZMW-XCZX].

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

17

Even if a pardon for Ryan is a pipe dream, this Memoir may lead
Judge Easterbrook to hesitate before making up law, facts, and grounds of
decision that no one else has imagined. At a minimum, it may prompt
him to check some citations.
Most importantly, I hope that this Memoir will encourage Judge
Easterbrook’s colleagues to rein him in. Like almost everyone else, these
colleagues sometimes seem intimidated by Judge Easterbrook’s personal
forcefulness and apparent intellectual power. When the judge speaks
with confidence and an apparent mastery of detail about a subject one
knows nothing about, one is likely to assume that he knows what he’s
talking about. The odds, however, are that he doesn’t. If questioned or
challenged, he is likely to double down and push his bluff farther (“Right.
I understand that. That’s what the D.C. Circuit held in Frady and which
the Supreme Court reversed.”41), but the questioner should not yield.
Judge Easterbrook’s colleagues should view everything he says with
skepticism and should recognize the serious problem his conduct poses
for their court.
Even if this Memoir produces no change in Judge Easterbrook’s
behavior or the performance of his court, the taxpayers who pay Judge
Easterbrook’s salary should know the kind of service he provides in
return. Although the Constitution guarantees an Article III judge life
tenure,42 it is instructive to consider how falsehoods like his would fare in
professions other than his. Would a journalist who made similar
misstatements keep his job? Would an academic who showed no greater
regard for the truth get tenure? Would a corporate executive who
misstated crucial facts in a business report be given a second chance?
Before I review Judge Easterbrook’s conduct, I will describe the
principal crime with which Ryan was charged and the course his case took
before it reached Judge Easterbrook. This Memoir will proceed for twenty
pages before Judge Easterbrook appears at center stage again, but it would
be difficult to compress into less space a case that began with a 114–page
indictment and continued through a six-month trial, eighteen days of
troubled jury deliberations, a Seventh Circuit decision that led three
judges to dissent from the court’s denial of rehearing en banc, a
transformation of the applicable law by the Supreme Court after Ryan
began serving his sentence, and a post-conviction proceeding that
generated a fifty-eight page opinion in the district court.

41
See Oral Argument at 3:19, Ryan v. United States, 688 F.3d 845 (7th Cir. 2012) (No. 103964), vacated and remanded, 132 S. Ct. 2099 (2012), http://media.ca7.uscourts.gov/sound/
2011/migrated.orig.10-3964_05_31_2011.mp3 [http://perma.cc/S247-27LF].
42
See U.S. CONST. art. III, § 2.

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

18

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

This Memoir will note Judge Easterbrook’s unexpected appearance on
the panel that decided Ryan’s post-Skilling appeal—an appearance that
was not the product of random assignment. It will describe an oral
argument that consisted in large part of Judge Easterbrook’s demand that
counsel discuss four Supreme Court decisions that neither party had cited
and that I, at least, could not recall.
Judge Easterbrook declared that these decisions precluded Ryan from
challenging in post-conviction proceedings the instructions that had
directed his conviction for non-criminal conduct. In fact, none of the
decisions offered any support for this proposition; they bore no
resemblance to his description. In dozens of cases, the Supreme Court, the
Seventh Circuit, and other courts have allowed post-conviction challenges
to instructions directing conviction for non-criminal conduct.
Judge Easterbrook similarly browbeat the government’s lawyer at
argument for failing to notice that Ryan’s post-conviction petition was
barred by the statute of limitations. He evidently overlooked a Seventh
Circuit decision holding that petitions like Ryan’s are not barred. That
decision was directly on point, and its author was Judge Easterbrook.
After recounting the argument in Ryan’s case, this Memoir will
describe Judge Easterbrook’s first opinion. This opinion offered a ground
of decision that not only had not been advanced by the government but
that no judge had mentioned at argument. Judge Easterbrook declared
that Ryan had forfeited his objections to the undisclosed-conflicts
instruction and the other instructions directing his conviction for noncriminal conduct. He did not mention that Ryan had objected to these
instructions at every stage of the proceedings. He also did not mention
the government’s express waiver of any claim that Ryan had forfeited his
objections.
As we pointed out at the earliest opportunity (in our petition for
rehearing), disregarding the government’s express waiver was unlawful,
but the court did not correct its error. In an effort to distinguish Ryan’s
case from Skilling and another case decided the same day, Black v. United
States,43 Judge Easterbrook made a series of statements about how the
defendants in Skilling and Black had preserved their claims. Like most of
what Judge Easterbrook said in his initial opinion, these statements had
no element of truth.
The Supreme Court vacated Judge Easterbrook and his colleagues’
first Ryan decision and remanded the case for reconsideration in light of
Wood v. Milyard.44 In Wood, the Supreme Court declared once again that
561 U.S. 465 (2010).
Ryan v. United States, 132 S. Ct. 2099 (2012) (remanding for reconsideration in light of
Wood v. Milyard, 132 S. Ct. 1826 (2012)).
43
44

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

19

an appellate court may not disregard the government’s waiver of a
procedural defense.
In his opinion on remand, however, Judge
Easterbrook did not acknowledge his improper disregard of the
government’s concession that Ryan had made appropriate objections to
the district court’s instructions. Instead, he falsely attributed to the
government a sweeping waiver it had not made.
Judge Easterbrook’s second opinion announced that the court would
refuse to review four of Ryan’s mail fraud convictions at all (convictions
that at least one member of the panel apparently was unwilling to affirm).
Again, Ryan was afforded no opportunity to address the court’s ruling
until after it was made; neither the government nor any judge at either of
the two arguments in Ryan’s case had indicated that the court might
refuse to review his convictions. Judge Easterbrook justified his refusal to
review the four convictions by declaring that Ryan’s sentences on these
convictions had expired, but they had not expired. Even if they had, none
of the three doctrines Judge Easterbrook mentioned would have supplied
even arguable justification for refusing to review his convictions.
Because the court agreed to review three other mail fraud convictions,
Judge Easterbrook turned at last to the question the parties had briefed in
the Seventh Circuit more than a year before—the question of harmless
error. In addressing this question, however, Judge Easterbrook once more
disregarded the parties’ arguments and confronted Ryan with a ruling
that the government had not sought and that neither Judge Easterbrook
nor any other judge had mentioned at argument. This Memoir already
has noted his ruling that, by convicting on the tax counts, the jury must
have found that Ryan took bribes. Judge Easterbrook set forth two
additional reasons for judging the instructional errors in Ryan’s case
harmless, but in presenting these reasons, he continued to misstate the
record.
Unless you represent prisoners or the government in post-conviction
proceedings, this Memoir is likely to teach you lots of law you don’t know.
You will learn about direct review, collateral review, § 2255, waiver,
forfeiture, harmless error, plain error, cause and prejudice, retroactivity,
mootness, vested good time, the custody requirement, the concurrent
sentence doctrine, and the different statutes of limitations that apply to
first and second post-conviction petitions. In other words, this Memoir
will inundate you with “lawyers’ law,” defined as “law of no interest to
anyone but lawyers.” Even if you are a lawyer, you may find some of this
law challenging. Challenging law provides the best opportunity for
judicial flimflam. Examining Judge Easterbrook’s falsehoods about such
things as whether one party waived or forfeited another party’s waiver or
forfeiture can get tedious, but, in criticizing the performance of a widely

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

20

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

respected judge, I think it prudent to be thorough and to leave as little as
possible to rebuttal. This Memoir will quote at length from Judge
Easterbrook’s opinions and from the oral argument in Ryan’s case, and it
will describe in some detail the precedents Judge Easterbrook falsified.
The Memoir will conclude by arguing for two propositions: (1) that a
judge should never rest a decision in whole or in part on a ground the
parties have had no prior opportunity to address and (2) that whenever a
judge learns before his court issues its mandate that an opinion he has
joined contains a clear error, he should act to correct this error. He should
do so even if the error does not seem outcome-determinative or important.
IV. THE PROSECUTION AND CONVICTION OF GEORGE RYAN
At the end of a six-month trial, a federal jury convicted George Ryan
of tax violations, false statements to the F.B.I., mail fraud, and
racketeering.45 The racketeering conviction depended on the mail fraud
convictions; if they fell, it would too. In the proceedings that came before
Judge Easterbrook, we did not challenge Ryan’s tax and false statement
convictions but focused on the racketeering and mail fraud charges.
A. The “Intangible Right of Honest Services”
Honest services fraud is a type of mail fraud. The mail fraud statute
forbids devising any scheme to defraud and then placing something in the
mail for the purpose of executing the scheme. 46 This statute, enacted in
1872, was aimed, not at dishonest government officials, but at swindlers
who used the mails to peddle things like phony western mining stock. 47

45
Apart from his legal troubles, Ryan is best remembered for declaring a death penalty
moratorium in 2000 and then emptying Illinois’ death row in 2003. He pardoned four deathrow inmates on grounds of innocence and commuted the sentences of 167 others. Before
Ryan became Governor, he had been Secretary of State, Lieutenant Governor, Speaker of the
Illinois House of Representatives, a five-term member of the House, and Chair of the
Kankakee County Board. Altogether Ryan held elective office for thirty-six years and
statewide elective office for twenty. He never lost an election and was the longest serving
elected official in Illinois history. See JAMES L. MERRINER, THE MAN WHO EMPTIED DEATH
ROW: GOVERNOR GEORGE RYAN AND THE POLITICS OF CRIME 1, 7 (2008); Illinois Governor
George H. Ryan, NAT’L GOVERNORS ASS’N, http://www.nga.org/cms/home/governors/
past-governors-bios/page_illinois/col2-content/main-content-list/title_ryan_george.html
[http://perma.cc/JRT6-P8FX].
46
See 18 U.S.C. § 1341 (2012).
47
The sponsor of the statute declared that it would “prevent the frauds which are mostly
gotten up in the large cities . . . by thieves, forgers, and rapscallions generally, for the purpose
of deceiving and fleecing the innocent people in the country.” See McNally v. United States,
483 U.S. 350, 356 (1987) (quoting CONG. GLOBE, 41st Cong., 3d Sess. 35 (1870) (remarks of
Rep. Farnsworth)).

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

21

Federal prosecutors pressed courts to stretch the statute, and,
particularly in the 1970s, they did. By 1987, nearly every federal court of
appeals held that the statute outlawed deprivations of the intangible right
of honest services.48 In 1987, however, the Supreme Court held in McNally
v. United States49 that the statute outlawed only deprivations of property,
not of an ill-defined intangible right to honest services.
Defendants who had been convicted of mail fraud in the years before
McNally then sought post-conviction relief. They noted that the juries that
convicted them had been directed to convict on the basis of conduct that
was not a crime. The prosecutors who had pleaded for honest-services
instructions before McNally then maintained that the erroneous
instructions had made no difference. In almost every case, they argued
that it would have been impossible to deprive the alleged victim of honest
services without also depriving this person of property.50
While the Justice Department argued to the courts that honestservices instructions made no difference, it complained to Congress that
McNally had deprived it of an important tool in its fight against
government corruption.51 Congress promptly responded by enacting a
new section of the mail fraud statute that read in full, “For the purposes
of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme
or artifice to deprive another of the intangible right of honest services.” 52
The federal courts of appeals rejected arguments that this statute was
unconstitutionally vague.53 They agreed that accepting a bribe or
kickback deprived the public of its right to honest services, and they said
that other things did too. As the Supreme Court later observed in Skilling,
however, the courts were in “considerable disarray” about what the other
things were.54

See id. at 362–64 (Stevens, J., dissenting).
480 U.S. 350 (1987).
50
Examples include United States v. Mandel, 862 F.2d 1067, 1073–74 (4th Cir. 1988), in
which the Fourth Circuit set aside the conviction of a former governor of Maryland because
the court could not say “‘with a high degree of probability’ that the jury did not rely on the
legally incorrect theory” and Messinger v. United States, 872 F.2d 217, 221 (7th Cir. 1989), in
which the Seventh Circuit concluded that “the jury necessarily had to convict Messinger for
defrauding Cook County of its property right . . . notwithstanding any intangible rights
theory employed.”
51
See Mail Fraud: Hearing on H.R. 3089 and H.R. 3050 Before the Subcomm. on Crim. Just. of
the House Comm. on the Judiciary, 100th Cong. 8–11 (1988) (statement of John C. Keeney, Acting
Assistant Att’y Gen. for the Crim. Division of the Dep’t of Just.).
52
18 U.S.C. § 1346 (2012).
53
See, e.g., United States v. Hausmann, 345 F.3d 952, 958 (7th Cir. 2003); United States v.
Gray, 96 F.3d 769, 776–77 (5th Cir. 1996); United States v. Bryan, 58 F.3d 933, 941 (4th Cir.
1995).
54
See Skilling v. United States, 561 U.S. 358, 405 (2010).
48
49

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

22

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

An opinion by Judge Easterbrook supplied the Seventh Circuit’s basic
standard. He wrote in United States v. Bloom,55 “An employee deprives his
employer of his honest services only if he misuses his position (or the
information he obtained in it) for personal gain.” 56
Judge Easterbrook might have regarded Bloom’s “personal gain”
requirement as a significant limitation, but a doctrine that would allow a
dishonest employee to avoid conviction by saying, “Please pay the money
to my sister,” could not last long. After Bloom, the Seventh Circuit
changed the operative word from “personal” to “private.” 57 It explained,
“By ‘private gain’ we simply mean illegitimate gain, which usually will go
to the defendant, but need not.”58 In Ryan, an instruction told the jury to
convict if the defendant “misus[ed] his official position . . . for private gain
for himself or another.”59 It thus directed conviction if Ryan misused his
official position to benefit any friend or political supporter. The Bloom
standard found no favor outside the Seventh Circuit. 60
The First Circuit took an especially expansive view of honest services
fraud, one that the government successfully urged the district court to
approve in Ryan’s case. In United States v. Woodward61 and United States v.
Sawyer,62 the First Circuit upheld the convictions of a legislator and a
lobbyist who had lavishly entertained him. The well-entertained
legislator had supported almost all of the lobbyist’s agenda. The court
explained:
A public official has an affirmative duty to disclose
material information to the public employer . . . . When
an official fails to disclose a personal interest in a matter
over which she has decision-making power, the public is
deprived of its right either to disinterested decision

149 F.3d 649 (7th Cir. 1998).
Id. at 656–57.
57
See United States v. Sorich, 523 F.3d 702, 707–08 (7th Cir. 2008).
58
Id. at 709.
59
See Separate App’x of Pet’r-Appellant, Vol. 2 at A-000421, Ryan v. United States, 645
F.3d 913 (7th Cir. 2011) (No. 10-3964), vacated and remanded, 132 S. Ct. 2099 (2012) (transcript
of jury instructions).
60
See, e.g., United States v. Inzuna, 638 F.3d 1006, 1017–18 (9th Cir. 2009) (declining to
follow Bloom); United States v. Welch, 327 F.3d 1081, 1107 (10th Cir. 2003) (declining “to
become the first court [outside the Seventh Circuit] to embrace Bloom’s pleading
requirements”); United States v. Panarella, 277 F.3d 678, 691–93 (3d Cir. 2001) (complaining
that Judge Easterbrook’s opinion falsely described Seventh Circuit precedent and substituted
one ambiguous standard for another).
61
149 F.3d 46 (1st Cir. 1998).
62
85 F.3d 713 (1st Cir. 1996).
55
56

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

23

making itself or, as the case may be, to full disclosure as
to the official's potential motivation . . . .63
The court acknowledged that the entertainment it criminalized “may not
be very different, except in degree, from routine cultivation of friendship
in a lobbying context.”64
Punishing officials who have failed to disclose conflicts of interest
may sound like a fine idea. When an official makes a decision despite a
conflict of interest, shouldn’t he at least make the conflict known? But the
idea’s appeal may fade as one examines it.
The jury instructions in Ryan told the jury that it was unlawful for an
official to fail to disclose “a material personal or financial interest, also
known as a conflict of interest, in a matter over which he has decisionmaking power,”65 and they defined materiality as having “the natural
tendency to influence or [being] capable of influencing [a] decision.”66
They thus defined a conflicting interest in the only way it can be defined—
as any interest that might divert an official from faithful service to the
public.
When a public official’s decision will benefit a member of his family,
he has a conflict of interest. When his decision will benefit a business
partner or good friend, he again has a conflict. When his decision will
benefit an important political supporter, he has a conflict. When his
decision will benefit a lobbyist who has taken him on golf outings, he once
more has a conflict. When this official’s action will benefit anyone at all
who has done any favor for which he is grateful, he has a conflict of
interest. Conflicts are ubiquitous. Show me a public official without
conflicts of interest, and I will show you an official without any social life,
work life, family life, religious life, or political life.
No official could compile a list of all his conflicts, and, if he could, he
would not know where to post it. How does one go about disclosing a
conflict of interest to a disembodied public employer? Would a “my
conflicts” section on the official’s Facebook page be sufficient? When no
official ever has or ever could disclose every conflict, criminalizing
undisclosed conflicts looks like a way to enable prosecutors to pick their
targets.67 Campaign finance laws, gratuities prohibitions, and ethical
Id. at 724 (internal citation omitted).
Woodward, 149 F.3d at 55.
65
Separate App’x of Pet’r-Appellant, Vol. 2, supra note 59, at A-000420 (jury instructions).
66
Id.
67
Cf. United States v. Kincaid-Chauncey, 556 F.3d 923, 949–50 (9th Cir. 2009) (Berzon, J.,
concurring) (“The conflict of interest theory, unhinged from an external disclosure standard,
places too potent a tool in the hands of zealous prosecutors who may be guided by their own
political motivations . . . [and who] might also feel political pressure to pursue certain state
63
64

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

24

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

codes forbidding the creation of some conflicts of interest offer a better
way of minimizing corruption. 68 In Skilling, the Supreme Court would
repudiate every lower court’s view of honest services fraud, but when
George Ryan’s trial began on September 19, 2005, Skilling lay almost five
years in the future.
B. Indictment and Trial
Prosecutors regard the mail fraud statute as “our Stradivarius, our
Colt 45, our Louisville Slugger, our Cuisinart.” 69 The trial of George Ryan
shows why. An early section of the indictment in Ryan’s case was headed
“Laws, Duties, Policies and Procedures Applicable to Defendant
RYAN.”70 None of the laws and policies listed in this section were federal
laws. They included provisions of the Illinois Constitution, Illinois
criminal laws, non-criminal state regulations, a policy memorandum of
the Illinois Secretary of State’s office, and George Ryan’s announced
personal policy of not accepting gifts worth more than $50. An instruction
in Ryan’s case declared that any violation of law by the defendant to
produce private gain for himself or another established the central
element of honest services fraud.71 Any law violation constituted the
“misuse of office” required by Bloom. As interpreted in the Seventh
Circuit, the mail fraud statute thus transformed minor state
misdemeanors and non-criminal regulatory violations into federal
felonies.
The indictment alleged a single scheme to defraud that began when
Ryan was elected Secretary of State and ended when he left the Governor’s
office twelve years later.72 One hundred twenty-eight numbered
paragraphs set forth the scheme. Paragraph after paragraph began with
the words “[i]t was a further part of the scheme” and recited unattractive
conduct.73 Ryan was said to have known that state facilities were being
used for political purposes, to have been present when an associate told
or local officials.”). Even when prosecutors are not partisan and are not subject to outside
pressure, they are likely to view a governor in the same way a big game hunter views a cape
buffalo.
68
See ZEPHYR TEACHOUT, CORRUPTION IN AMERICA: FROM BENJAMIN FRANKLIN’S SNUFF
BOX TO CITIZENS UNITED 284–87 (2014); Albert W. Alschuler, Criminal Corruption: Why Broad
Definitions of Bribery Make Things Worse, 84 FORDHAM L. REV. 463, 484–85 (2015).
69
Jed S. Rakoff, The Federal Mail Fraud Statute (Part I), 18 DUQ. L. REV. 771, 771 (1980).
70
Separate App’x of Pet’r-Appellant, Vol. 1 at A-000068–71, Ryan v. United States, 645
F.3d 913 (7th Cir. 2011) (No.10-3964), vacated and remanded, 132 S. Ct. 2099 (2012) (second
superseding indictment).
71
Id. at A-000421 (jury instructions).
72
See id. at A-000075 (second superseding indictment).
73
Id.

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

25

employees to “clean up” these facilities before an investigation, to have
awarded low-digit license plates to campaign contributors, to have
favored friends and benefactors in the award of government contracts, to
have reassigned or dismissed employees investigating misconduct by
drivers-license examiners, to have violated his personal pledge not to
accept gifts worth more than $50, to have shared confidential information
about the location of a new state prison with a friend who used this
information to make a profit, and to have accepted a secret political
consulting fee. Some of Ryan’s alleged misconduct would have violated
criminal or civil regulations, and some would not.74
The trial judge rejected Ryan’s argument that the indictment alleged
many schemes rather than one,75 and her judgment that everything done
during Ryan’s time in office was part of one grand plot guided her in
conducting the trial and receiving evidence. For four and one-half months
of a trial that lasted almost six months, the government presented
evidence to support its allegations.76 Then, at the end of the trial, the judge
held that proving all the alleged aspects of the grand scheme was
unnecessary.
Formally, the act forbidden by the mail fraud statute is mailing. The
Supreme Court has held that any mailing by anyone “incident to an
essential part of the scheme” is sufficient.77 The mailer need not be the
defendant or any of his confederates.78 Prosecutors generally can multiply
the number of charges and convictions indefinitely. After setting forth

74
This list of charges might affect you in the same way it might have affected the jury. It
might cause you to think poorly of George Ryan and make you care less about whether the
courts treated him fairly. As you continue to read this Memoir, however, notice how many
of the charges fade away. The district court held the evidence insufficient to support two
mail fraud charges. See United States v. Warner, No. 02-CR-506, 2006 WL 2583722, at *12–13
(N.D. Ill. Sept. 7, 2006). The Seventh Circuit ultimately refused to review three more—
apparently because at least one member of the panel doubted they could be sustained. The
jury was not asked to make a yes-or-no judgment about most of the charges, and you will
see how insubstantial the surviving charges are. George Ryan probably did not banish from
his thoughts and actions the impulse to aid friends and supporters, but there is little reason
to believe he took bribes or sacrificed the public interest. Of course George Ryan’s virtue or
lack of it is irrelevant to the issues discussed in this Memoir. Few Americans excuse or
minimize police brutality because its victims were lawbreakers themselves, and this Memoir
is about Judge Easterbrook, not Governor Ryan.
75
See United States v. Warner, No. 02-CR-506, 2004 WL 1794476, at *21 (N.D. Ill. Aug. 11,
2004).
76
The presentation of evidence by Ryan and his co-defendant took less than one month.
The remainder of the trial consisted of closing argument, jury instructions, and jury
deliberations.
77
Schmuck v. United States, 489 U.S. 705, 710–11 (1989).
78
See id. at 707, 714–15 (holding that mailings by an unwitting car dealer were enough).

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

26

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

one scheme to defraud, the indictment presented nine mail-fraud charges.
Each of these charges alleged a mailing in furtherance of the scheme.
Although every mailing charged in the indictment was alleged to
have furthered the grand scheme, it also allegedly furthered a small part
of this scheme. One count concerned Ryan’s alleged sharing of
confidential information concerning the new state prison. Another
concerned his approval of a state lease of property from Harry Klein, who
had hosted Ryan and his wife during a number of one-week stays at
Klein’s vacation home in Jamaica. The other seven counts all concerned
leases and contracts that benefited Ryan’s co-defendant Lawrence
Warner. Warner was a long-time family friend and political supporter
who had done favors for Ryan and members of his family. (I offer a list of
Warner’s favors in a footnote.)79 The trial judge told the jury that finding
any of these “included” schemes would be enough. The issue would be
whether some of the dirt thrown at the wall had stuck. 80
79
Warner hosted two political fundraisers for Ryan, which raised $75,000 and $175,000.
In McCormick v. United States, the Supreme Court held that campaign contributions may be
treated as bribes only when “the payments are made in return for an explicit promise or
undertaking by the official to perform or not to perform an official act.” 500 U.S. 257, 273
(1991). The government did not claim that Ryan made an explicit promise to Warner, and
none of its evidence suggested that he did. But see United States v. Blagojevich, 794 F.3d 729,
735 (7th Cir. 2015) (Easterbrook, J.) (apparently rejecting the argument that McCormick
requires an explicit quid pro quo while ignoring that decision’s explicit statement to the
contrary). Warner, an insurance adjuster, adjusted an insurance claim for free after Ryan’s
apartment flooded on Christmas Day. The two fundraisers and the insurance adjustment
were the only benefits Warner provided to Ryan himself.
But Warner did several favors for people close to Ryan. He adjusted an insurance claim
for a Ryan son-in-law, shared lobbying fees with two people who were friends of Ryan, lent
money to a business partly owned by Ryan’s brother, lent money to Ryan’s son’s cigar
business, lent money to a Ryan son-in-law, and paid for the band at the wedding of one of
Ryan’s daughters. I believe I’ve now listed everything.
You can see why the government did not mention Warner’s supposed bribes in its tax
charges. See supra Part II. If a friend adjusted an insurance claim for you, would you
recognize the value of his services as income? If he lent $6,000 to your son’s cigar business,
would you pay income taxes on the loan? If he gave your daughter a wedding present,
would you report the value of the gift as income on your return?
80
Here’s the relevant instruction. See (a) whether you can make sense of it; and (b)
whether you think my paraphrase is fair:
Proof of several separate or independent schemes will not establish the
single scheme alleged in Counts 2 through 10 unless one of the schemes
which is proved is included within the single scheme alleged in those
counts. If, therefore, you find beyond a reasonable doubt that there
were two or more schemes to defraud and that the defendant was a
member of one or more of these schemes to defraud, and you further
find beyond a reasonable doubt that the proved scheme to defraud was
included within the charged scheme to defraud, you should find that
defendant guilty of the particular count you are considering, provided
that all other elements of the mail fraud charge have been proved.

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

27

The indictment’s allegations concerning the use of state facilities for
political purposes, the cover-up of their political use, the award of lowdigit license plates to contributors, the re-assignment of employees
investigating misconduct by license examiners, and the receipt of a secret
political consulting fee were not the subject of specific mail-fraud charges.
The jury had no opportunity to render a yes-or-no verdict on any of these
allegations.
American courts ordinarily exclude “other acts” evidence.81 This
evidence is rejected because jurors should not be tempted to convict the
defendant for being a bad person; they should judge the accusation of a
particular wrongful act at a particular time.82 In separate trials of the
schemes alleged in the individual mail fraud counts, evidence of the other
little schemes would have been inadmissible. But evidence of the schemes
on which the jury was not asked to render a verdict hovered over the jury’s
deliberations. By throwing a mass of charges of unattractive conduct into
a churning cauldron, prosecutors invited jurors to judge Ryan’s character
rather than his guilt or innocence of particular charges.
C. Jury Deliberations, Verdict, and Appeal
Despite a conflict of interest instruction broad enough to convict
almost anyone and a cauldron of disparaging evidence, the jury in Ryan’s
case had difficulty reaching a verdict. After a week of deliberations, Juror
Ezell sent the judge a note “complaining that other jurors were calling her
derogatory names and shouting profanities.”83 The note was co-signed by
the jury’s foreperson. The judge responded by directing the jurors to treat
each other with respect.84 Two days later, a note signed by eight jurors
asked whether Ezell could be removed from the jury because she was
refusing to engage in meaningful deliberation. Again the judge advised
the jurors to treat each other with respect. 85

If, on the other hand, you find that there were two or more schemes to
defraud and that the defendant was not a member of any proved scheme
included within the charged scheme to defraud, you should find that
defendant not guilty of that count.
Separate App’x of Pet’r-Appellant, Vol. 2, supra note 59, at A-000419–20.
81
See FED. R. EVID. 404(b).
82
See Edward J. Imwinkelreid, Undertaking the Task of Reforming the American Character
Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 FORDHAM
URB. L.J. 285, 289–92 (1994).
83
See United States v. Warner, 498 F.3d 666, 675 (7th Cir. 2007).
84
Id.
85
See id. at 676.

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

28

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

Following Ryan’s conviction, Juror Peterson acknowledged that she
had violated the court’s instructions by bringing a published article into
the jury room and reading part of it aloud. The article declared that any
juror unwilling to “meaningfully deliberate” could be removed from the
panel.86
A few hours after the court’s second admonition of the need for
respect, the Chicago Tribune reported to court officials that Juror Pavlick
had given untruthful answers on his jury questionnaire by concealing two
criminal convictions. The judge halted the jury’s deliberations, conducted
an investigation, and removed Pavlick from the panel. 87
Further investigation by the Tribune and the U.S. Attorney’s Office
revealed that five other jurors and two alternates had given false
responses on their questionnaires. One alternate had not revealed a D.U.I.
conviction; another alternate and three sitting jurors, including Ezell, had
not revealed arrests; and two jurors had not revealed that they had filed
for bankruptcy.88 After questioning the suspected jurors individually, the
judge dismissed Ezell and the alternate who had not disclosed his D.U.I.
conviction. The judge concluded that the information withheld by the
other five would not have warranted their exclusion from the jury for
cause if this information had been known before trial. 89 No one was
surprised when, after the reconstituted jury convicted Ryan, Ezell told the
press that the result would have been different if she had remained on the
panel.90
The jury that convicted Ryan included four jurors who might have
feared prosecution for making false statements to the government and for
perjury.91 These jurors had been subjected to interrogation by the judge
in the presence of the lawyers. The judge said of one of the jurors who
See id. at 677–78.
See id. at 681.
88
See id. at 676.
89
See Warner, 498 F.3d at 666–67, 684–85.
90
See David Heinzmann & Richard Wronski, Different View, Different Result?:
Disappointment
and
Frustration,
CHI.
TRIB.
(April
18,
2006),
http://articles.chicagotribune.com/2006-04-18/news/0604180301_1_fellow-jurors-georgeryan-jury [http://perma.cc/C8H5-4CNZ].
91
Before questioning the jurors, the trial judge asked counsel for their views on whether
the jurors should be given the Miranda warnings. The chief prosecutor then consulted the
U.S. Attorney and reported that his office would not use against the jurors any statements
they made during the judge’s interrogation. The prosecutor did not, however, grant the
jurors immunity from prosecution for the apparently false statements on their
questionnaires, and the jurors were not advised of the limited immunity the prosecutor had
afforded. See Warner, 498 F.3d at 708–09 (Kanne, J., dissenting). The jurors tried Ryan for an
offense that several of them were suspected of committing themselves. Moreover, the jurors’
statements, unlike Ryan’s, were made under oath so that their false answers could have been
prosecuted as perjury. See id. at 707.
86
87

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

29

remained on the panel, “Grilling Mr. Casino is one of the most distasteful
things I have done in this job.”92 The jurors had seen a juror whom they
knew to be pro-defense dismissed. The reconstituted jury had two new
members and ten who already had deliberated for eight days. After the
judge instructed them to disregard the prior deliberations and begin
anew, they deliberated for ten days before convicting Ryan on all counts. 93
The trial judge set two of the jury’s mail fraud convictions aside. One
concerned a lease upon which Lawrence Warner had received a
commission, and the judge wrote, “[T]here is no evidence that Ryan
steered this contract to Warner.”94 The other vacated conviction
concerned Ryan’s disclosure of confidential information about the new
state prison to a friend. The judge concluded that the government’s
evidence was “equally consistent with the inference that the disclosure
was inadvertent as it is with the inference that it was purposeful.” 95
The jurors’ conviction on counts for which the evidence was weak or
nonexistent suggested that they might not have carefully analyzed the
mail fraud charges one-by-one. The statements of some jurors and the
prosecutor reinforced this impression. When a newspaper reporter asked
which allegations had been most influential, Juror James Cwick replied,
“There was a whole lot of stuff out there. You could pretty much take your
pick.”96 He added, “Each box, each piece of evidence was a brick. . . . And
if you put all the evidence together, it was a house.”97 Juror Kevin Rein
explained, “It wasn’t a smoking gun. . . . [I] went into deliberations with
a feeling something was probably not on the up-and-up—and after 5½
months [of trial] you have an idea.”98 Patrick Collins, the chief prosecuting
attorney,99 told the press, “This case was tried witness by witness, piece of
evidence by piece of evidence, and it was only by looking at the totality of

Id. at 708.
Id. at 706.
94
United States v. Warner, No. 02-CR-506, 2006 WL 2583722, at *12 (N.D. Ill. Sept. 7, 2006).
95
Id. at *13.
96
James Janega & Tom Rybarczyk, Small Details Painted Picture of Corruption, CHI. TRIB.
(Apr. 18, 2006), http://articles.chicagotribune.com/2006-04-18/news/0604180302_1_twojurors-deliberations-lawrence-warner [http://perma.cc/88V7-AWPJ].
97
Susan Kuczka, Tom Rybarczyk & Ted Gregory, Inside the Ryan Jury Room: Cooped Up
for
Weeks,
Strangers
Became
a
Team,
CHI.
TRIB.
(Apr.
19,
2006),
http://articles.chicagotribune.com/2006-04-19/news/0604190208_1_deliberations-jurorsgeorge-ryan [http://perma.cc/LT26-5H29].
98
Janega & Rybarczyk, supra note 96.
99
And, I am proud to say, a former student of mine.
92
93

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

30

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

the case that the true picture could be shown to this jury.” 100 At the end
of the trial, the wall looked muddy.101
The Seventh Circuit affirmed Ryan’s conviction.102 Most of Judge
Diane Wood’s opinion for the court concerned the irregular jury
deliberations. As the opinion drew to a close, however, it rejected Ryan’s
argument that the honest-services statute was unconstitutionally vague
and his argument that, even if valid, the statute did not criminalize
undisclosed conflicts of interest and state-law violations.103 A dissenting
opinion by Judge Michael Kanne focused on the improper jury
deliberations.104
Judge Richard Posner and Judge Ann Williams joined Judge Kanne in
dissenting from the Seventh Circuit’s denial of rehearing en banc.105 These
judges jointly wrote an opinion declaring that “a cascade of errors” had

100
Matt O’Connor & Rudolph Bush, Ryan Guilty: A Juror’s View, CHI. TRIB. (Apr. 18, 2006),
http://articles.chicagotribune.com/2006-04-18/news/0604180306_1_probe-of-judicialcorruption-guilty-verdicts-ryan [http://perma.cc/Y2DX-5K5Y].
101
The trial judge, however, dismissed the suggestion that the dirt might have influenced
the jury. While the trial was underway, and before I became one of Ryan’s lawyers or had
any communication with him or members of his defense team, I published a short article
critical of the prosecution. See Albert W. Alschuler, The Mail Fraud & RICO Racket: Thoughts
on the Trial of George Ryan, 9 GREEN BAG 2D 113, 113 (2006). After Skilling, the trial judge
gently criticized my article as well as my later argument in her court:
Four years ago, in writing about Ryan’s prosecution, Professor
Alschuler (who was not then one of Ryan’s lawyers) asserted that “the
mail fraud and RICO statutes unfairly stack the deck” in large part
because the Government was allowed to present “every allegation of
criminal and non-criminal misconduct by Ryan and Warner that
prosecutors have collected,” and if “some of the dirt they have thrown
as the wall has stuck, [the jury] is likely to find the defendants guilty of
the principal charges against them.” . . . At oral argument on the
motions before this court, Alschuler argued again that “[a]ll of this
evidence went into one churning cauldron.” Skilling, however, did not
invalidate the honest services mail fraud statute, nor did it invalidate
RICO. Skilling limited prosecutions under these statutes to bribery and
kickback schemes—the very theory of prosecution under which Ryan
was convicted. . . . Ryan’s prosecution . . . . targeted conduct that
remains at the core of honest services fraud.
Ryan v. United States, 759 F. Supp. 2d 975, 980 (N.D. Ill. 2010). Neither the jurors nor the
prosecutor seemed to see the trial in the same way before Skilling that the trial judge did
afterwards.
102
United States v. Warner, 498 F.3d 666 (7th Cir. 2007).
103
See id. at 698–99.
104
See id. at 705 (Kanne, J., dissenting). Judge Kanne wrote, “I have no doubt that if this
case had been a six-day trial, rather than a six-month trial, a mistrial would have been swiftly
declared. It should have been here.” Id. at 715.
105
United States v. Warner, 506 F.3d 517, 518 (7th Cir. 2007) (Posner, Kanne, & Williams,
JJ., dissenting from denial of rehearing en banc).

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

31

rendered Ryan’s trial “a travesty.”106 The Supreme Court denied
certiorari.107 On November 7, 2007, Ryan entered prison to begin serving
his six-and-one-half year sentence.108
V. THE ROUTE BACK TO THE SEVENTH CIRCUIT
A. The Supreme Court Decides Skilling
Congress enacted the honest services statute in 1988, but the Supreme
Court did not consider its meaning or constitutionality until twenty-one
years later. In 2009, the Court heard arguments in two cases that
presented issues under the statute.109 In one of these cases, Weyhrauch, I
submitted an amicus curiae brief arguing for the standard the Court later
adopted in Skilling.110 No party had proposed this standard, and no court
had yet endorsed it. In the other case, Black, the defendant’s lawyer
argued that the statute was unconstitutionally vague, but the government
objected that he had not properly raised this question. 111 Skilling, which
was argued three months later, did present the issue.
When the Court decided Skilling in June 2010, three justices declared
that they would hold the statute unconstitutionally vague,112 and the
remaining justices acknowledged that the defendant’s “vagueness
challenge has force.”113 The majority concluded, however, that the statute
could be saved from a “vagueness shoal” by confining it to a “solid core”
that every lower court had recognized.114 It declared, “[H]onest-services
fraud does not encompass conduct more wide-ranging than the
paradigmatic cases of bribes and kickbacks.”115 “[N]o other misconduct
falls within [the statute’s] province.” 116 The Court not only rejected the
Id. at 520.
Warner v. United States, 553 U.S. 1064 (2008).
108
Catrin Einhorn, Ex-Gov. Ryan of Illinois Reports to Prison, N.Y. TIMES (Nov. 8, 2007),
http://www.nytimes.com/2007/11/08/us/08ryan.html?_r=0
[http://perma.cc/G3BSMD4E].
109
Tr. of Oral Arg., Weyhrauch v. United States, 561 U.S. 476 (2010) (No. 08-1196),
http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1196.pdf
[http://perma.cc/ZQD2-MKF5]; Tr. of Oral Arg., Black v. United States, 561 U.S. 465 (2010)
(No. 08-876), http://www.supremecourt.gov/oral_arguments/argument_transcripts/08876.pdf [http://perma.cc/4UWZ-VUVE].
110
See Brief of Albert W. Alschuler as Amicus Curiae at 19–20, Weyhrauch v. United States,
561 U.S. 476 (2010) (No. 08-1196). Skilling quoted this brief. See Skilling v. United States, 561
U.S. 358, 411 (2010).
111
Tr. of Oral Arg., Black v. United States, supra note 109, at 24–28.
112
See Skilling, 561 U.S. at 415 (Scalia, J., joined by Thomas and Kennedy, JJ., concurring).
113
Id. at 405 (majority opinion).
114
Id. at 407.
115
Id. at 411.
116
Id. at 412.
106
107

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

32

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

government’s argument that the statute criminalized failing to disclose a
conflict of interest but also warned Congress that a statute embracing this
standard might be held unconstitutional.117
B. Ryan Returns to the District Court
The Winston & Strawn law firm in Chicago had represented Ryan at
trial and on appeal without charge.118 The firm’s CEO, former governor
James R. Thompson, was close to Ryan,119 and although the firm’s pro bono
representation of a defendant without funds120 who faced complex, wideranging charges was in the best tradition of the legal profession, it brought
Thompson and his firm considerable criticism.121 According to the press,
representing Ryan cost Winston & Strawn $20 million in expenses and
lawyers’ time.122
After Skilling, the defense team at Winston asked me to take the lead
in representing Ryan in a post-conviction proceeding under 28 U.S.C. §
2255, a statute that enables federal prisoners to obtain relief from unlawful

Id. at 411 n.44.
See Susan Chandler, Ryan a Pro Bono Problem, CHI. TRIB. (July 19, 2006),
http://articles.chicagotribune.com/2006-07-19/business/0607190154_1_winston-strawnillinois-governor-firm [http://perma.cc/C4ZA-CLYQ].
119
Ryan had been Lieutenant Governor for eight of the fourteen years of the Thompson
administration. Illinois Governor George H. Ryan, supra note 45.
120
Ryan’s only significant asset was the house in Kankakee he and his wife had purchased
in 1965 for $34,000. See Jodi Wilgoren, Trial Shows Former Illinois Governor in Two Lights, N.Y.
TIMES (Sept. 29, 2005), http://www.nytimes.com/2005/09/29/us/trial-shows-formerillinois-governor-in-two-lights.html?_r=0 [http://perma.cc/L3UW-HKJQ]. This house still
had its Formica countertops and avocado kitchen appliances. Ryan’s conviction caused the
loss of his pension, including the portion he had earned before his alleged criminal conduct.
See Ryan v. Bd. of Trs. of Gen. Assembly Ret. Sys., 924 N.E.2d 970, 975 (Ill. 2010). He did
recover the $235,500 he had contributed to the pension fund over the years, and he did retain
the pension payments he had received before his conviction. Ray Long, Ex-Gov. Ryan Denied
Pension, CHI. TRIB. (Feb. 19, 2010), http://articles.chicagotribune.com/2010-02-19/news/ctmet-george-ryan-pension-20100219_1_state-and-governor-ex-gov-pension [http://perma.
cc/WJ7S-KSNP]. Ryan was seventy-three at the time he entered prison. Michael Conlon,
Former Illinois Governor Ryan Enters Prison, REUTERS (Nov. 7, 2007), http://www.reuters.
com/article/2007/11/07/us-illinois-governor-idUSN0754401620071107 [http://perma.cc/
2M8G-JTEP].
121
See, e.g., Eric Zorn, Ryan Comedown Takes Thompson Too, CHI. TRIB. (Nov. 8, 2007),
http://articles.chicagotribune.com/2007-11-08/news/0711071146_1
[http://perma.cc/
L9NG-W83V] (declaring that a “misguided display of loyalty has deeply tarnished
Thompson’s legacy” and that “a new generation knows Thompson best as the chief defender
and supporter of a man who personifies the cozy and crooked way politics is too often
practiced in Illinois”).
122
Chandler, supra note 118; see also MERRINER, supra note 45, at 21.
117
118

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

33

confinement after their appeals have been concluded. 123 I readily agreed
to do so.124
The jurors’ statements to the press indicated that they might not have
paid close attention to the phrasing of particular instructions, but a federal
rule of evidence would have made even an abject confession of
disregarding the instructions inadmissible. 125 Any suggestion that jurors
might not have followed their instructions to the letter seems to cause
judges to bristle.126 But the presumption (or fiction) that the jury parsed
the instructions with care and followed them perfectly gave Ryan a strong
case.
With rare exceptions, new rulings on issues of criminal procedure
cannot be the basis for setting aside a conviction after the appellate process
has been concluded. These rulings do not apply retroactively. 127 The
Supreme Court has said, however, “New substantive rules generally apply
retroactively. This includes decisions that narrow the scope of a criminal
statute [i.e., decisions like Skilling] . . . . Such rules apply retroactively
because they “necessarily carry a significant risk that a defendant stands
convicted of ‘an act that the law does not make criminal.’”128
That the jury found Ryan guilty of noncriminal conduct was not
merely a significant risk; it was a near certainty. Some instructions did
invite the jury to convict Ryan if he took bribes (although Ryan contended
that these instructions also directed conviction for things that were not
bribes).129 The bribery instructions, however, did not stand alone. A
123
See 28 U.S.C. § 2255 (2012) (“A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United States . . . may move the court
which imposed the sentence to vacate, set aside or correct the sentence.”).
124
I was surprised when the host of a Chicago talk radio program asked me about my fee,
but I saw no reason not to answer the question. I advised the Winston team that, although I
believed in the justice of Ryan’s case, I hesitated to devote the amount of time the case would
require without compensation. I proposed to cut my customary fee of $500 per hour in half,
noting that $250 per hour was less than the amount Winston billed for the work of a firstyear associate. Governor Thompson agreed to this proposal. I kept track of my hours and
submitted statements, and, for a time, some friends of George Ryan paid these charges. I
ultimately collected $25,000, all of it for services in the district court. By then, however,
Ryan’s friends had done their share. My subsequent representation in the Seventh Circuit
and the Supreme Court was pro bono. Although the Ryan family invited me to send them a
bill at the conclusion of the case, I declined to do so.
125
See FED. R. EVID. 606(b).
126
See, e.g., Shannon v. United States, 512 U.S. 573, 585 (1994) (referring to “the almost
invariable assumption of the law that jurors follow their instructions”).
127
See Teague v. Lane, 489 U.S. 288, 310 (1989).
128
Schriro v. Summerlin, 542 U.S. 348, 351–52 (2004).
129
See Ryan v. United States, 759 F. Supp. 2d 975, 986–90 (N.D. Ill. 2010). In retrospect,
although the bribery instructions were defective, raising the issue was a mistake. The judges
of the Seventh Circuit have little patience for arguments that appear to be secondary, and

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

34

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

general instruction based on Bloom told the jury to convict if Ryan misused
his office for private gain for himself or anyone else.130 Other instructions
told the jury to convict if Ryan violated any of a number of Illinois laws to
produce gain for himself or another.131 Finally, an instruction told the jury
to convict if Ryan failed to disclose a material conflict of interest.132
If no one could tell which of the various grounds for conviction the
jury had chosen, Ryan would have been entitled to a new trial under any
of the possible standards of review.133 But Ryan’s case was much stronger
than that. From before the trial began until it ended, Ryan’s case had a
recurring theme. Ryan insisted that the government had no evidence of
bribery, and the government insisted that it did not need any.
Before jury selection began, the government exhibited some
newspaper clippings to the court.134 These clippings quoted Ryan as
saying, “[T]hey haven’t got one witness that said they gave me a corrupt
dollar . . . .”135 The government asked the court to preclude the defense
from arguing that corrupt dollars were necessary: “What is clearly
improper would be for the defense to argue or suggest to the jury that
‘corrupt dollars’ for contracts or other specific quid pro quo evidence is a
prerequisite to a finding of guilt on the particular mail fraud charges
here.”136 “Specific quid pro quo evidence” is what defines bribery under
federal law.137 Citing the First Circuit’s rulings in Sawyer and Woodward,
the government declared, “Other circuits . . . have upheld public
corruption prosecutions rooted in . . . the failure of a public official to
disclose a financial interest or relationship affected by his official

our claim that Ryan could be excused for failing to object to two of the bribery instructions
led to some remarkable Easterbrook flimflam. See infra Part VII.
130
Separate App’x of Pet’r-Appellant, Vol. 2, supra note 59, at A-000421 (jury instructions).
131
Id.
132
Id. at A-000420.
133
The appropriate standard was disputed. See infra Part IX.A.
134
See Separate App’x of Pet’r-Appellant, Vol. 1, supra note 70, at A-000163–67 (exhibits
attached to United States Motion for Pretrial Ruling on Jury Instructions).
135
Id. at A-000163 (a photocopy of Ryan Confident He Will be Exonerated at Upcoming Trial,
CHICAGO SUN-TIMES, July 22, 2005).
136
Id. at A-000157 (United States Motion for Pretrial Ruling on Jury Instructions).
137
See United States v. Sun-Diamond Growers, 526 U.S. 398, 404–05 (1999) (“[F]or bribery
there must be a quid pro quo—a specific intent to give or receive something of value in
exchange for an official act.”); Evans v. United States, 504 U.S. 255, 268 (1992) (“[T]he offense
is completed at the time when the public official receives a payment in return for his
agreement to perform specific official acts.”); McCormick v. United States, 500 U.S. 257, 273
(1991) (declaring that campaign contributions may be treated as bribes only when “the
payments are made in return for an explicit promise or undertaking . . . to perform or not to
perform an official act”); id. at 283 (Stevens, J., dissenting) (agreeing that “the crime does
require a ‘quid pro quo’”).

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

35

actions.”138 Although Ryan responded that the other circuits’ rulings did
“not conform to the controlling Seventh Circuit law on honest services
mail fraud as articulated in Bloom,”139 he lost.
At trial, Ryan’s counsel cross-examined prosecution witnesses by
asking such questions as: “[W]ere you ever aware of anybody ever giving
any money to George Ryan to affect his decisions as secretary of state?”
and “[D]id you ever observe or see George Ryan do anything that
indicated to you that he had ever received any money or benefit from
anyone to influence or affect his judgment?” Every witness answered
“no.”140 Of the eighty-three witnesses the government called, none
“testified that George Ryan took anything from anybody to perform his
official acts.”141
Occasional passages of the government’s argument to the jury seemed
to accuse Ryan of bribery. The prosecutor said that he “sold his office”
and that he “might as well have put up a ‘for sale’ sign.” 142 He declared
that the “type of corruption here” was like a meal plan or open bar.143 The
prosecutor, however, did not refer to the bribery instructions even once
and never asked the jury to convict on the basis of these instructions.
Instead, he quoted the conflict of interest instruction in full and called it
“the heart of the matter.”144
Ryan’s former chief-of-staff, Scott Fawell, testified that Ryan
purported to pay for his Jamaican vacations by writing checks to his host
and taking cash back. Fawell explained that the host, Harry Klein, owned
currency exchanges regulated by Ryan’s office and that Ryan did not want
Klein’s hospitality known.145 Of all the evidence the government
presented over the course of Ryan’s lengthy trial, the “cash back”
testimony seemed to me the most damaging.146

138
Separate App’x of Pet’r-Appellant, Vol. 1, supra note 70, at A-000158 (United States’
Motion for Pretrial Ruling on Jury Instructions); see also supra notes 61–64 and accompanying
text (describing the rulings in Sawyer and Woodward).
139
Separate App’x of Pet’r-Appellant, Vol. 1, supra note 70, at A-000173 (Ryan’s Response
to United States’ Motion for Pretrial Ruling on Jury Instructions).
140
See, e.g., Separate App’x of Pet’r-Appellant, Vol. 2, supra note 59, at A-000369, A-000371,
A-000376, A-000377, A-000378, A-000380–81 (trial transcript).
141
Id. at A-000413 (closing argument of Ryan’s counsel).
142
Id. at A-000392 (closing argument of government counsel).
143
Id. at A-000396.
144
Separate App’x of Pet’r-Appellant, Vol. 2, supra note 59, at A-000417.
145
See id. at A-000417 (trial transcript).
146
The chief prosecutor apparently took the same view. See MERRINER, supra note 45, at
174 (“[Patrick] Collins mentioned again what particularly seemed to stick in the craw of the
U.S. attorney’s office, Ryan’s getting cash back from Harry Klein for his bogus checks for
Jamaican vacations. ‘As a prosecutor, when you get somebody falsifying information, that’s
your bread and butter to show the jury that they knew what they were doing is wrong.’”).

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

36

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

Fawell’s testimony gave the government a strong case that Ryan had
concealed a conflict of interest, and no one claimed the testimony showed
more than that.147 Although the government emphasized Ryan’s approval
of a lease of one of Klein’s properties, it argued only that the cash-back
arrangement concealed “a classic conflict of interest,” not that it concealed
a bribe:
That’s what this instruction is about, folks. And that is
the heart and soul not only of the South Holland [Klein]
situation, but each and every Warner situation, because
[of] that flow of benefits I talked to you about. George
Ryan was operating under a conflict of interest every time
he dealt with Larry Warner, because benefits were
flowing from Larry Warner. He had a duty to disclose
them . . . and he didn’t.148
The Supreme Court has said, “[F]or bribery there must be a quid pro
quo—a specific intent to give or receive something of value in exchange for
an official act.”149 The government acknowledged that it had not shown
any quid pro quo:
How did George Ryan reciprocate this longtime
friendship [with Warner]? Government business is how
he did it. . . . Was it a quid pro quo? No, it wasn’t. Have
we proved a quid pro quo? No, [we] haven’t. Have we
charged a quid pro quo? No, we haven’t. We have
charged an undisclosed flow of benefits back and forth.
And I am going to get to the instructions in a minute,
folks, but that’s what we have charged. . . . We have
charged an undisclosed flow of benefits, which, under the
law, is sufficient . . . .150

147
Fawell was among the government witnesses who testified that he had never seen Ryan
accept anything from anyone to influence or affect his judgment. See Separate App’x of Pet’rAppellant, Vol. 2, supra note 59, at A-000368 (trial transcript).
148
Id. at A-000417–18.
149
United States v. Sun-Diamond Growers, 526 U.S 398, 404–05 (1999).
150
Separate App’x of Pet’r-Appellant, Vol. 2, supra note 59, at A-000416. The government
in fact conceded its failure to show a quid pro quo several times:
[I]t’s important to remember that it is not necessary for us to prove a
quid pro quo. I used that term before, I think. In other words that was
I give you this, you give me that; it doesn’t have to be that sort of
relationship.

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

37

In the Seventh Circuit, Judge Kanne noted that Ryan’s case was “the
most high profile case in Chicago in recent memory.” 151 My co-counsel
and I recognized that media hostility and public opinion could affect even
the august federal courts. On the merits, however, it was difficult to
imagine a stronger case for post-conviction relief than Ryan’s. There was
no reason for the jury ever to have considered whether Ryan took bribes.
The instructions marked an easier path to conviction; the government had
urged the jury to take this path; and there was no reason to doubt that the
jury took it.
When, however, our post-conviction petition returned the case to the
judge who had presided over Ryan’s six-month trial, we lost.152 Judge
Rebecca Pallmeyer’s fifty-eight page typescript opinion argued in essence
that, because the only remaining charges against Ryan concerned his
relationships with Lawrence Warner and Harry Klein, his convictions
must have rested on the “stream of benefits” they gave him. Rejecting
Ryan’s claim that the bribery instructions were defective, it said that the
jury could not have convicted Ryan of receiving these benefits from
Warner and Klein improperly without finding that they were bribes. The
jury might indeed have found that Ryan failed to disclose a conflict of
interest, but it could not have made this finding without concluding at the
same time that he took bribes.153
The defense . . . has repeatedly attempted to focus you on corrupt
payments of money or cash bribes, but that’s not the case that we have
charged here. What the government’s case is about is that George Ryan
received these financial benefits for himself and steered other benefits
to third parties, benefits that were not disclosed to the public.
Id. at A-000407.
Now, did Ryan have a conversation with Anthony DeSantis in which
they discussed: Well, you pay me for this, and I’ll give a low-digit plate?
No, they didn’t do that. However, when Ryan had the opportunity to
help DeSantis, a man who was interested in a low-digit plate, did he do
it? Yes, he did. . . . You don’t have to have a quid-pro-quo conversation
here.
Id. at A-000400.
151
United States v. Warner, 498 F.3d 666, 705 (7th Cir. 2007) (Kanne, J., dissenting).
152
See Ryan v. United States, 759 F. Supp. 2d 975, 978 (N.D. Ill. 2010) (denying motion to
vacate, set aside, or correct Ryan’s sentence). Dissenting from the Seventh Circuit’s earlier
denial of rehearing en banc, Judges Posner, Kanne, and Williams wrote:
Imagine how a district judge who has spent six months presiding at a
trial . . . feels about the prospect of granting a mistrial and thus
condemning herself . . . to the agony of trying the same case over
again. . . . [C]an a defendant who moves for a mistrial at the end of a
six-month trial hope for a fair shake?
United States v. Warner, 506 F.3d 517, 524 (2007) (Posner, Kanne, & Williams, JJ., dissenting
from the denial of rehearing en banc).
153
See Ryan, 759 F. Supp. 2d at 999.

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

38

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

In our view, Judge Pallmeyer’s reasoning was fallacious. A rabbit
went into the hat when she said that the jury must have convicted Ryan of
receiving benefits improperly. Under the instructions, Ryan would have
been obliged to disclose the conflicts of interest created by these benefits
even if they were legitimate, unconditional gifts. What mattered under
the instructions was not that the benefits were received as bribes but that
the conflicts they created were undisclosed when Ryan later acted to
benefit Warner and Klein. We expected to discuss the merits of Judge
Pallmeyer’s ruling when we argued the case to the Seventh Circuit, but it
was not to be.
VI. THE ARGUMENT FROM HELL
A. Judge Easterbrook Emerges
In the Seventh Circuit, when a panel of judges has heard a defendant’s
direct appeal from his conviction, that panel ordinarily hears any appeal
growing out of a post-conviction proceeding brought by the same
defendant.154 Judge Easterbrook was not a member of the panel that had
heard Ryan’s direct appeal, and our post-Skilling appeal was assigned
initially to the panel that had. This panel denied an emergency motion
requesting Ryan’s release on bond or, in the alternative, an order
transferring him to a facility near his home where he could be released
during the day. Doctors had concluded that Lura Lynn Ryan, Ryan’s wife
of fifty-five years and the mother of his six children, had only weeks to
live, and the order would have enabled him to be by her bedside. 155
See UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT, PRACTITIONER’S
HANDBOOK FOR APPEALS TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT 10 (2014), https://www.ca7.uscourts.gov/Rules/handbook.pdf [http://perma.cc/
AJ8L-GDZD] (“An exception to this procedure [of randomly assigning panels] occurs when
a previously argued case is on the docket for a subsequent hearing. In this situation the
original panel may be reconstituted to hear the second appeal.”); OPERATING PROCEDURES
FOR THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT 110 (2015),
https://www.ca7.uscourts.gov/Rules/rules.pdf [http://perma.cc/9MV4-PQSW] (“Briefs
in a subsequent appeal in a case in which the court has heard an earlier appeal will be sent
to the panel that heard the prior appeal . . . unless there is no overlap in the issues
presented.”). Technically, our petition under 28 U.S.C. § 2255 began a new civil action
challenging the legality of George Ryan’s imprisonment; it was not a part of the original
criminal proceedings. Nevertheless, Collins T. Fitzpatrick, the Circuit Executive of the
Seventh Circuit, confirmed that a panel that has heard a defendant’s direct appeal ordinarily
hears any subsequent appeal from a ruling in a § 2255 proceeding brought by the same
defendant. Telephone Interview with Collins T. Fitzpatrick (Mar. 24, 2015) [hereinafter
Fitzpatrick Interview].
155
See Sophia Tareen, Ex-Ill. Gov. George Ryan’s Wife Dies at Age 76, SEATTLE TIMES (June 29,
2011), http://www.seattletimes.com/nation-world/ex-ill-gov-george-ryans-wife-dies-atage-76/ [http://perma.cc/2HM4-6GUG].
154

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

39

On the morning of my argument, the clerk’s office revealed that the
panel had changed. It would include only one of the judges who had
heard Ryan’s direct appeal—Diane Wood, a long-time colleague of mine
on the University of Chicago Law School faculty and a former student.
The other judges would be John Tinder and Frank Easterbrook, who was
then Chief Judge of the Seventh Circuit. Although Judge Easterbrook was
also a long-time colleague on the Chicago faculty, his appearance on the
panel did not come as a welcome surprise. In a later telephone interview,
Collins T. Fitzpatrick, the Circuit Executive of the Seventh Circuit,
confirmed that when a vacancy occurs in a previously selected panel, he
selects a replacement without using a randomized process.156

Fitzpatrick Interview, supra note 154. Fitzpatrick also confirmed that Ryan’s bail motion
would have been considered by the panel assigned to his case rather than by the court’s
motions panel.
Lawyers and scholars have questioned whether the assignment of judges to cases in the
courts of appeals is as random as the courts say it is. See Adam S. Chilton & Marin K. Levy,
Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals 4 (Dec. 17, 2014);
Sachs, supra note 1, at 1208 (noting that, after Rule 23(f) of the Federal Rules of Civil
Procedure became effective, every one of the Seventh Circuit’s first seventeen opinions
interpreting the rule was authored by either Judge Easterbrook or Judge Posner); Petition for
a Writ of Certiorari at 33, Motorola Mobility LLC v. AU Optronics Corp., 135 S. Ct. 2837 (No.
14-1122) (“The Court Should Grant Review to Disapprove of the Seventh Circuit’s NonRandom Assignment Process”); J. Robert Brown, Jr. & Allison Herren Lee, Neutral
Assignment of Judges at the Court of Appeals, 78 TEX. L. REV. 1037, 1041–42 (2000) (“[A]ll federal
circuits purport to rely on the random assignment of judges to panels. In fact, however,
substantial amounts of discretion erode the randomness of those systems.”). Cf. Dane
Thorley, Randomness Pre-considered: Recognizing and Accounting for “De-Randomizing” Events
When Utilizing Random Judicial Assignment (July 9, 2015), http://papers.ssrn.com/
sol3/papers.cfm?abstract_id=2628782 [http://perma.cc/H7GF-4ZWD] (explaining why
nominally random systems may not produce random assignments).
Apart from cases in which earlier arguments have occurred, the Seventh Circuit claims
to assign judges to panels randomly. See PRACTITIONER’S HANDBOOK, supra note 154, at 10.
Judges, however, seem able to game the system. Fitzpatrick, the Circuit Executive, reported
that he examines the briefs in every case, determines how much time to allow for argument,
and prepares the argument calendar. After he circulates the calendar to the judges, the
judges advise him of disqualifying conflicts of interest and of times they are unavailable to
hear argument. After that, a computer randomly assigns the judges to panels. A judge who
wishes to avoid a particular case apparently can do so by reporting his unavailability on the
day argument is scheduled, and a judge who wishes to hear a particular case apparently can
increase the chance of hearing it by reporting, “The only day I’m available that week is
Friday.”
I do not claim that Seventh Circuit judges steer cases to or from themselves by inventing
scheduling conflicts; I merely note that they have the ability to do it. Fitzpatrick observes
that judges are advised long in advance of the weeks when arguments will occur, that they
are discouraged from scheduling other activities during these weeks, and that scheduling
conflicts are in fact infrequent. When conflicts arise sufficiently in advance, moreover, judges
typically advise Fitzpatrick of these conflicts before he prepares the argument calendar.
Fitzpatrick Interview, supra note 154.
156

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

40

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

Might Chief Judge Easterbrook have discouraged the judges initially
assigned to the case from continuing with it? Might he have indicated that
he was available as a replacement? Judge Easterbrook has written a
surprisingly high proportion of the Seventh Circuit’s opinions in both mail
fraud cases and cases presenting issues of post-conviction procedure.
Perhaps our case interested him, and perhaps he saw it as a vehicle for
making a point.
B. I Get Hit by a Truck
Before I reached the second sentence of my argument, Judge
Easterbrook announced that the government, Judge Pallmeyer, and I had
missed the boat entirely:
Mr. Alschuler:

Good morning and may it please the court. The
jury instructions in this case marked four paths to
conviction for honest services fraud, and three of
them told the jury to convict for conduct that is
not criminal.

Judge Easterbrook:

Mr. Alschuler, I am puzzled why we are talking
about jury instructions in this case. Your brief
proceeds as if this were a re-run of the direct
appeal, but of course it isn’t. It’s a collateral
attack and my understanding of the Supreme
Court’s opinions in Davis and Bousley is that they
don’t allow challenges to jury instructions—
belated challenges to jury instructions. They
allow the person in prison to argue that he has
been convicted of something the law does not
make criminal. In other words that on the
evidence at trial in light of the later statutory
interpretation the only proper judgment is a
judgment of acquittal. But I don’t understand
you to be arguing that on the evidence at trial the
only proper judgment was a judgment of
acquittal so I wonder what we have got here if
anything.

Mr. Alschuler:

First, the government has not suggested that
these issues are not properly before this court. I
think it has waived any point based on the cases
cited by the court and, second, it is a

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

41

constitutional violation—Section 2255 affords
relief to anyone who is in prison in violation of
the Constitution or laws of the United States.
Judge Easterbrook:

Well, Mr. Alschuler do you disagree with what I
have said, I believe, is the holding of Bousley and
Davis?

Mr. Alschuler:

Well, I don’t recall the holding of Bousley and
Davis, and they were not cited by the government
and I—

Judge Easterbrook:

No, oddly—oddly they haven’t been. The
argument you’re making is an argument that the
Supreme Court rejected nine to nothing in United
States v. Frady, which said that collateral attack
absolutely cannot be used to challenge the jury
instructions.

Mr. Alschuler:

Well, we are not simply challenging the jury
instructions, Your Honor.

Judge Easterbrook:

No, you are challenging the rulings on evidence
too.

Mr. Alschuler:

No, we are saying that George Ryan was
convicted—

Judge Easterbrook:

Look, Mr. Alschuler,

Mr. Alschuler:

—in violation of the Constitution.

Judge Easterbrook:

Mr. Alschuler—Mr. Alschuler, trying to talk over
a question from the bench won’t do you any
good. The arguments that you are making look
like the kind of arguments that the Supreme
Court squarely said in Frady cannot be raised on
collateral attack. Now, am I misunderstanding
Frady?

Mr. Alschuler:

My recollection—I read Frady once upon a time
and my recollection of the case is dim. We are
saying that George Ryan was convicted in
violation of the Constitution. It is—

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

42

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

Judge Easterbrook:

Right. I understand that. That’s what the D.C.
Circuit held in Frady and which the Supreme
Court reversed.

Mr. Alschuler:

No, the Supreme Court has said—

Judge Easterbrook:

It has said that incorrect jury instructions are not
themselves a violation of the Constitution. They
are a violation of a statute maybe but not of the
Constitution. And the Supreme Court has said
more often than I care to remember that just
getting the law wrong does not entitle one to
collateral attack.

Mr. Alschuler:

Again, we are suggesting more than that the
District Court got the law wrong. The law is that
if the jury instructions permitted conviction on
the basis of an invalid theory—permitted
conviction of somebody who may be innocent—
then that is a constitutional violation. It is a
violation—

Judge Easterbrook:

Okay, if that is your argument, it is inconsistent
with both Frady and Engle v. Isaac. Now, if you
have got an argument that your position is
compatible with those cases, I’d love to hear it.

Judge Wood:

Which I think means if you are arguing in fact
that going beyond details like jury instructions is
this a situation where the record simply could not
under any circumstance support finding that
George Ryan has committed the offense that the
Supreme Court has now recognized in Skilling.
Maybe that is where you need to go.157

I then did as I was told. Abandoning my effort to explain why
instructions directing conviction for noncriminal conduct differ from
157
Oral Argument at 0:28-4:50, Ryan v. United States, 645 F.3d 913 (7th Cir. 2011) (No. 103964), vacated and remanded, 132 S. Ct. 2099 (2012), http://media.ca7.uscourts.gov/sound/
2011/migrated.orig.10-3964_05_31_2011.mp3 [http://perma.cc/S247-27LF] [hereinafter
Oral Argument]. All citations of the argument in this Memoir are to the recording on the
Seventh Circuit website. An unofficial written transcript of the argument appears as
Appendix H in Petition for a Writ of Certiorari at 186a–214a, Ryan v. United States, 132 S. Ct.
2099 (2012) (No. 11-499).

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

43

other erroneous instructions, why they do violate the Constitution, and
why they plainly are subject to challenge in post-conviction proceedings,
I spent the remainder of my argument explaining why “the record simply
could not under any circumstance support finding that George Ryan has
committed the offense that the Supreme Court has now recognized in
Skilling.” Judge Wood, however, did not invite me to argue the
insufficiency of the evidence because she had any sympathy for this
argument. She soon declared, “I don’t see why it was not entirely
permissible for the jury to infer that there was an exchange going on.”158
At the conclusion of my argument, feeling like a law student who has
totally botched his first moot court argument, I followed the textbook
advice every first-year law student receives and requested permission to
address the seemingly decisive cases in a supplemental brief.159
One can understand why instructions misstating the elements of a
crime might seem at first glance to raise only a question of statutory
construction, but a judge would have three ways of correcting this
misunderstanding. First, he could recognize that the constitutional
requirement of proof of guilt beyond a reasonable doubt demands proof
of guilt of a crime.160 Instructing a jury to convict someone of grand larceny
upon proof beyond a reasonable doubt that he entered a store with a
shopping bag would not satisfy the constitutional requirement. Second,
the judge could look up the law. The Supreme Court, the Seventh Circuit,
and other courts have held in countless cases that directing conviction for
noncriminal conduct violates the Constitution. Third, the judge could ask
a question at argument and allow counsel to answer it.
I cannot fully describe the jumble of thoughts that raced through my
mind as I stood helpless at the podium before the onrushing truck.
Among them were:
What on earth is this man talking about? I’ve read dozens
of cases in which the Supreme Court, the Seventh Circuit,
and other courts have considered in post-conviction
proceedings (i.e., in “collateral attacks”) whether

Oral Argument, supra note 157, at 6:22.
Id. at 16:19.
160
See United States v. Gaudin, 515 U.S. 506, 510 (1995) (noting that the Constitution
“require[s] criminal convictions to rest upon a jury determination that the defendant is guilty
of every element of the crime with which he is charged, beyond a reasonable doubt”);
Whalen v. United States, 445 U.S. 684, 690 (1980) (noting the “constitutional right to be
deprived of liberty as punishment for criminal conduct only to the extent authorized by
Congress”); In re Winship, 397 U.S. 358, 364 (1970) (“[W]e explicitly hold that the Due Process
Clause protects the accused against conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is charged.”).
158
159

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

44

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

erroneous instructions produced convictions for
noncriminal conduct. What about all those cases after
McNally? What about all those cases after other Supreme
Court decisions narrowing the scope of criminal statutes?
None of those cases said that the prisoner was limited to
arguing the insufficiency of the evidence. Had I missed
something? When the Supreme Court held that rulings
narrowing the scope of criminal statutes apply
retroactively because of the risk that a defendant might
have been convicted of noncriminal conduct, what did it
mean? Could it have meant anything other than that
prisoners may object in post-conviction proceedings to
instructions that produced their imprisonment for
conduct that isn’t a crime? Why would it matter that the
evidence was sufficient to convict the defendant of a
genuine crime if the jury had in fact convicted him of
something else? Didn’t Skilling itself say that allowing a
jury to convict for noncriminal conduct violates the
Constitution? I have a dim recollection of Bousley, Davis,
Frady, and Engle v. Isaac, but weren’t those cases about the
defendants’ procedural defaults—their failures to make
objections at the right time? I guess they weren’t. There
was no procedural default in our case, and Judge
Easterbrook says the cases are about what issues are
cognizable in post-conviction proceedings. Should I say
something about procedural default? This can’t be
happening.
Research after the argument quickly transformed my panic and
confusion to indignation. All of Judge Easterbrook’s overbearing
assertions were false.
Falsehood Number One:
Davis and Bousley . . . don’t allow challenges to jury
instructions—belated challenges to jury instructions.
They allow the person in prison to argue that he has been
convicted of something the law does not make criminal.
In other words that on the evidence at trial in light of the
later statutory interpretation the only proper judgment is
a judgment of acquittal.161

161

Oral Argument, supra note 157, at 1:03–1:27.

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

45

There is nothing in either of the opinions cited by Judge Easterbrook
that a rational reader could construe or misconstrue as precluding
challenges to jury instructions in post-conviction proceedings. Neither
case involved or mentioned jury instructions at all.
In Bousley v. United States, 162 a prisoner pleaded guilty to using a
firearm during a drug transaction. The Supreme Court later held in Bailey
v. United States163 that “use” required active employment of the firearm.
Chief Justice Rehnquist’s opinion for the Supreme Court included two
holdings. The Court first held that Bailey applied retroactively. The
prisoner’s claim could be heard in a § 2255 proceeding because “decisions
of this Court holding that a substantive federal statute does not reach
certain conduct . . . necessarily carry a significant risk that a defendant
stands convicted of ‘an act that the law does not make criminal.’”164
The Court then considered the significance of the prisoner’s
procedural default. He had not argued at trial or on appeal that “use”
meant active use. Instead, he had pleaded guilty. Such a procedural
default ordinarily precludes post-conviction relief, but the Court held that
one of two recognized exceptions to the procedural default rule might
apply. If the prisoner could show that “the constitutional error” in his case
(note those words) had “probably resulted in the conviction of one who is
actually innocent,” the procedural default would be excused.165
Unlike the prisoner in Bousley, Ryan had argued at trial and on appeal
that the honest services statute did not reach the conduct that the Supreme
Court later held it did not reach. The government had never suggested a
default of his claim that the statute did not reach undisclosed conflicts or
state regulatory violations. The procedural default ruling in Bousley did
not bear at all on whether a prisoner who has not defaulted may challenge
jury instructions directing his conviction for noncriminal conduct.
(Indeed, Bousley did not require even a prisoner who had defaulted to
show that “on the evidence at trial in light of the later statutory
interpretation the only proper judgment is a judgment of acquittal.”
Probable conviction of one who was actually innocent was enough to
excuse the default.) How anyone could read Bousley as saying that Ryan
could not challenge the jury instructions in his case and could argue only
the insufficiency of the evidence is beyond me.

523 U.S. 614 (1998).
516 U.S. 137 (1995).
164
Id. at 620 (quoting Davis v. United States, 417 U.S. 333, 334 (1974)).
165
Id. at 623. The Supreme Court also excuses a default when a prisoner can show “cause”
for his default and “actual prejudice” resulting from the asserted error. See United States v.
Frady, 456 U.S. 152, 167 (1982); Wainwright v. Sykes, 433 U.S. 72, 84 (1977).
162
163

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

46

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

Judge Easterbrook mentioned Davis in the same breath as Bousley, and
my first guess was that Davis was a “procedural default” case too. But I
was thinking of the Davis v. United States that appears in volume 411 of the
United States Reports.166 That Davis is in fact a procedural default case
arising under § 2255. At the end of the argument, however, when Judge
Easterbrook agreed that the parties could file supplemental briefs, he
revealed that he had in mind a different Davis v. United States—one that
also arose under § 2255 and that the Supreme Court decided a year later.
This Davis appears in volume 417 of the United States Reports.167
In the Davis case Judge Easterbrook had in mind, the prisoner was
serving a sentence for failing to report for induction into the armed forces
when a ruling by the Ninth Circuit in another defendant’s case made clear
that the order requiring him to report was invalid. The prisoner had
consistently maintained that the order in his case was invalid; he had not
defaulted this claim. The government nevertheless maintained that the
prisoner was not entitled to relief under § 2255 because his claim was “not
of constitutional dimension.”168
Without considering whether the prisoner’s claim was of
constitutional dimension, the Supreme Court ruled in his favor. 169 The
Court noted that § 2255 authorizes relief when a sentence was imposed
“in violation of the Constitution or laws of the United States,”170 and it held
that Davis was entitled to relief even if the error in his case was nonconstitutional. If the order requiring him to report was invalid, his
“conviction and punishment are for an act that the law does not make
criminal. There can be no room for doubt that such a circumstance
inherently results in a complete miscarriage of justice.”171 Not a word of
Davis suggests that instructions directing conviction for noncriminal
conduct cannot be considered in post-conviction proceedings. Not a word
suggests that prisoners are limited to arguing the insufficiency of the
evidence to support their convictions under an appropriate standard.
Falsehood Number Two: Although Judge Easterbrook initially invoked
Bousley and Davis, he soon began talking about Frady and Engle v. Isaac.

Davis v. United States, 411 U.S. 233 (1973).
Davis v. United States, 417 U.S. 333 (1974). I knew that Judge Easterbrook did not have
in mind the Davis v. United States that appears in volume 512 of the United States Reports or
the Davis v. United States that appears in volume 160. See Davis v. United States, 512 U.S. 452
(1994); Davis v. United States, 160 U.S. 469 (1895).
168
Davis, 417 U.S. at 342.
169
See id. at 341–42 (“The sole issue before the Court in the present posture of this case is
the propriety of the Court of Appeals’ judgment that a change in the law of that Circuit after
the petitioner’s conviction may not be successfully asserted by him in a § 2255 proceeding.”).
170
Id. at 342–43 (quoting 28 U.S.C. § 2255) (emphasis added by the Court).
171
Id. at 346.
166
167

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

47

The judge declared, “The argument that you’re making is an argument
that the Supreme Court rejected nine to nothing in United States v. Frady
which said that collateral attack absolutely cannot be used to challenge the
jury instructions.” When I stubbornly persisted, “[W]e are saying that
George Ryan was convicted . . . in violation of the Constitution,” Judge
Easterbrook replied, “Right. I understand that. That’s what the D.C.
Circuit held in Frady and which the Supreme Court reversed. . . . It has
said that incorrect jury instructions are not themselves a violation of the
Constitution. They are a violation of a statute maybe but not of the
Constitution.”172 And when I still insisted, “The law is that if the jury
instructions permitted conviction of the basis of an invalid theory—
permitted conviction of somebody who may be innocent—then that is a
Constitutional violation,” he answered, “Okay, if that is your argument, it
is inconsistent with both Frady and Engle v. Isaac. Now, if you have got an
argument that your position is compatible with those cases, I’d love to
hear it.”173
Judge Easterbrook appeared to know United States v. Frady174 very
well. He recalled the Supreme Court’s vote (nine to nothing) and which
court the Supreme Court reversed (the D.C. Circuit). Apparently the D.C.
Circuit had said just what I was saying—that directing conviction for
noncriminal conduct violated the Constitution—but it had been
unanimously reversed by the Supreme Court. The Supreme Court had
declared both that invalid jury instructions “are not themselves a violation
of the Constitution” and that “collateral attack absolutely cannot be used
to challenge the jury instructions.”175 Judge Easterbrook seemed so
familiar with Frady and was so sure of his position that I did not think he
could be wrong. But he was—strangely and totally wrong.
Unlike Bousley and Davis, Frady did concern jury instructions. A
prisoner alleged in a § 2255 proceeding that the instructions at his murder
trial improperly directed the jury to presume malice.176 The difficulty was
that the prisoner had not presented this claim at trial; like the prisoner in
Bousley, he had defaulted. The D.C. Circuit held that the prisoner’s default
could be excused because the instructional error was plain, but the
Supreme Court reversed. It held that the standard for excusing
procedural default in a § 2255 proceeding is not “plain error.” Instead, the

172
173
174
175
176

Oral Argument, supra note 157, at 2:17–3:35.
Id. at 3:50–4:21.
456 U.S. 152 (1982).
Oral Argument, supra note 157, at 2:21.
Frady, 456 U.S. at 157–58.

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

48

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

prisoner must show “cause” for his default and “actual prejudice”
resulting from the error.177
That was all there was to Frady. The Court did not indicate that it
would have had any difficulty at all considering the prisoner’s claim if his
default could have been excused or if, like Ryan, he had never defaulted.
It did not say or in any way hint that invalid “jury instructions are not
themselves a violation of the Constitution” and “that collateral attack
absolutely cannot be used to challenge the jury instructions.” 178
(Incidentally, the vote in Frady was not nine to nothing. Only five justices
joined the majority opinion.179 Judge Easterbrook gets almost nothing
right.)
Engle v. Isaac180 was similar. A state prisoner alleged in a federal
habeas corpus proceeding that jury instructions had improperly imposed
on him the burden of establishing his claim of self-defense by a
preponderance of the evidence. The Supreme Court acknowledged that
the prisoner had stated “a colorable constitutional claim”181 but held that
he had defaulted by failing to challenge the allegedly erroneous
instructions at trial. Moreover, this prisoner had not established “cause”
for his default. Nothing in Engle v. Isaac remotely suggested that
instructions directing conviction for noncriminal conduct do not violate
the Constitution or that prisoners may not challenge these instructions in
§ 2255 proceedings. In fact, the Supreme Court has clearly and repeatedly
held that instructions directing conviction for noncriminal conduct do
violate the Constitution and may be considered in post-conviction
proceedings.182

See id. at 167–68.
Oral Argument, supra note 157, at 2:15–3:26
179
Justice Blackman concurred in the result; Justice Brennan dissented; and Chief Justice
Burger and Justice Marshall did not participate.
180
456 U.S. 107 (1982).
181
Id. at 122.
182
For example, in O’Neal v. McAninch, a prisoner claimed in a federal habeas corpus
proceeding that confusing jury instructions might have led to his conviction without the state
of mind required by an Ohio statute. 513 U.S. 432, 432–33 (1995). The Supreme Court
reversed the Sixth Circuit’s denial of relief because that court had required the prisoner to
assume the burden of showing that the instructional error was prejudicial. Id. at 435–36. The
proper harmless error standard, the Court said, was whether there was “grave doubt” about
whether the error was injurious. Id. at 436.
Middleton v. McNeil was a federal habeas corpus proceeding in which three jury
instructions had correctly stated the California doctrine of “imperfect self defense” while a
fourth misstated it. 541 U.S. 433, 438 (2004). The Supreme Court noted that the prisoner had
a constitutional right to proof beyond a reasonable doubt of every element of the offense
charged and that instructions misstating a state’s substantive criminal law could violate that
right. Id. at 437. After reviewing the record, however, it held that there was no “reasonable
177
178

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

49

Judge Easterbrook is the kind of judge who cites twenty- and thirtyfive-year-old cases that neither party mentioned, and even after a lawyer
has conceded that he is unprepared to discuss these cases, he demands to
know “if you have got an argument that your position is compatible with
those cases.”183 Additionally, he asks questions that he refuses to allow a
lawyer to answer and then declares, “Mr. Alschuler, trying to talk over a
question from the bench won’t do you any good.”184 What is worse, Judge
Easterbrook’s bullying rests on stuff he just makes up. The truth is not in
him.
When I returned to the counsel table, the argument in Ryan was not
over. Judge Easterbrook was about to demonstrate that he is an equalopportunity bully.
C. The Government Gets Hit by the Truck
Here’s how the government’s argument began:
Ms. Barsella:

May it please the court. I’ll begin by just saying
that the government did not make a specific
reference at all to the issue that Judge
Easterbrook brought up, and we do apologize for
that. Obviously any forfeiture on our part does
not bind the court and, if the court does want to

likelihood” that the jury had applied the instructions in a way that violated the Constitution.
Id. at 437–38.
In Hedgpeth v. Pulido, a federal habeas corpus petitioner claimed that a misstatement of
California law permitted his felony murder conviction even if he joined the felony after the
murder had been committed. 555 U.S. 57, 59 (2008). A federal district court agreed, holding
that the constitutional error was not harmless. Id. Although the Ninth Circuit affirmed, it
declared that there was no need even to inquire whether the error was harmless because the
error was “structural.” Id. at 59–60. The Supreme Court concluded that the error was not
structural and was subject to harmless error review. Id. at 62.
In Waddington v. Sarausad, the Supreme Court once more resolved a claim on federal
habeas corpus that a misstatement of state criminal law violated the Constitution by
directing conviction for noncriminal conduct. 555 U.S. 179, 191 (2009). It held that there was
no “‘reasonable likelihood’ that the jury applied the instruction in a way that relieved the
State of its burden of proving every element of the crime beyond a reasonable doubt.” Id.;
see also Henderson v. Kibbe, 431 U.S. 145, 147 (1977); Buggs v. United States, 153 F.3d 439,
444 (7th Cir. 1998) (Because “this court has stated numerous times that a conviction for
engaging in conduct that the law does not make criminal is a denial of due process,” a preBailey instructional error “had consequences of constitutional magnitude . . . [and] is
cognizable on collateral review.”).
183
Oral Argument, supra note 157, at 4:14.
184
Id. at 2:44.

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

50

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

have additional briefing on those points, we will
be happy to submit them.
Judge Easterbrook:

Ms. Barsella, I have a question not only about this
subject which the government seems quite
mysteriously to have forfeited, and it is very
strange because this is a subject that was
important enough to the United States that the
Solicitor General took it to the Supreme Court in
Frady, and now, the United States having won
Frady, the U.S. Attorney in Northern Illinois just
ignores it. But I don’t understand why we are
here at all. This petition was filed more than two
years after Ryan’s conviction became final and
appears to be untimely. But with respect to that
issue it seems like the United States has not
forfeited. The United States has waived, and I
don’t get it. 2255(f)(3) says that the time restarts
if the Supreme Court makes a new decision and
“if that right has been newly recognized by the
Supreme Court and made retroactively
applicable to cases on collateral review.” What
decision of the Supreme Court has made Skilling
retroactively applicable to cases on collateral
review?

Ms. Barsella:

I believe below we did look at that issue, and it
was determined that when a statute is now newly
interpreted so as to make one interpretation no
longer law that we believe that (f)(3) did allow
the 2255—

Judge Easterbrook:

But that’s not what the statute says. The statute
says that the decision has to be made
“retroactively applicable to cases on collateral
review.” Now what you seem to have thought,
and I won’t press this further because this is
something the government—untimeliness is an
affirmative defense which seems to have been
waived. What you seem to be thinking here is
that, if you’re confident that the Supreme Court
will declare it retroactive, then we just don’t
bother with details like the Supreme Court

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

51

actually declaring it retroactive. And that is
certainly not how this court has interpreted
2255(f)(3) in the past.
Ms. Barsella:

I do apologize for the fact that we misinterpreted
that. We thought that in light—

Judge Easterbrook:

Did you misinterpret it, or is this just a
Department of Justice wide position?

Ms. Barsella:

No, it isn’t. When we analyzed this below in the
District Court, we were satisfied he could raise it
in light of the Supreme Court’s decision in
Skilling, and we were obviously mistaken.185

Falsehood Number Three: “[T]hat is certainly not how this court has
interpreted § 2255(f)(3) in the past.”186
The government was not mistaken. Ryan’s petition was timely. A
Seventh Circuit decision was directly on point, and it said just what Ms.
Barsella said it did. This decision had been written by Judge Easterbrook.
His confident assertions were flatly inconsistent with one of his own
opinions.
A federal statute permits a prisoner who has never before filed a
federal post-conviction petition to file such a petition within a year of a
Supreme Court decision recognizing a new right if this right has been
“made retroactively applicable to cases on collateral review.” 187 When the
prisoner has previously filed a federal post-conviction petition, however,
it is not enough that a new right has been “made retroactively applicable
to cases on collateral review.” Rather, to file a second, third, or fourth
petition, “a new rule of constitutional law” must have been “made
retroactive to cases on collateral review by the Supreme Court.”188
Judge Easterbrook’s opinion for the Seventh Circuit in Ashley v. United
States189 italicized the words by the Supreme Court just as I have. The court
held that, although a prisoner who files a second post-conviction petition
must show that a new rule of constitutional law has been made retroactive
by the Supreme Court, a prisoner filing a first petition need not.190 “To treat

Id. at 16:51–19:45.
Id. at 19:12.
187
28 U.S.C. § 2255(f)(3) (2012).
188
Id. § 2255(h)(2) (emphasis added).
189
266 F.3d 671 (7th Cir. 2001).
190
See id. at 673 (“[A]n initial petition may be filed within a year of a decision that is ‘made
retroactively applicable to cases on collateral review[.]’ A second petition, by contrast,
185
186

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

52

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

the first formulation as identical to the second is not faithful to the
difference in language. . . . District and appellate courts, no less than the
Supreme Court, may issue opinions ‘holding’ that a decision applies
retroactively to cases on collateral review.” 191 Moreover, a district court
may make its determination of retroactivity in the same proceeding in
which it considers whether a prisoner is entitled to relief. 192 Ryan’s postconviction petition was his first (and only) petition. It clearly was
timely.193
Judge Easterbrook berated the government for overlooking two
apparently dead-bang winning arguments. It was “odd,”194 “strange,”195
and “mysterious”196 that it had mentioned neither Frady nor the statute of
limitations. On both points, he reduced the government’s apparently
bungling counsel to abject apology. And on both points, Judge
Easterbrook had made up the law, had seen no need to check the
authorities on which he relied, had assumed the incompetence of the
lawyers on both sides (and of the district judge), and had gotten every
proposition wrong.
As the argument proceeded, Judge Easterbrook continued to
browbeat the government’s lawyer: “Why are you back to arguing
harmless error? That’s the approach that both Engle v. Isaac and Frady
expressly reject.”197 “You’re contradicting Frady again, but go ahead.”198
Then it was time for my rebuttal. Despite the court’s direction to
address only the sufficiency of the evidence, I decided to give our
principal argument one last shot. During the badgering of Ms. Barsella, I
had paged through our brief and found the place where it quoted a
statement of Skilling that was clearly inconsistent with Judge
Easterbrook’s bluster. I began my rebuttal by reading this sentence to the
court: “Skilling says that ‘Constitutional error occurs when a jury is
depends on ‘a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court.’”).
191
Id.
192
See id. at 673–74 (explaining that “[j]ust as a district court possesses jurisdiction to
determine its own jurisdiction, it must possess the authority to determine a precondition to
the timeliness of an action”).
193
An early draft of our brief for the Seventh Circuit included a footnote that cited Ashley
and explained why Ryan’s petition was timely. When we sought permission to file a brief
of 20,000 words, however, declaring that fewer words would not allow us to present Ryan’s
case adequately, the Court allowed us a brief of 17,000 words. We then eliminated the
footnote on timeliness along with other explanatory material that might have been helpful
to the court but that did not bear on any contested issue.
194
Oral Argument, supra note 157, at 2:16.
195
Id. at 17:25.
196
Id. at 17:30.
197
Id. at 20:18.
198
Id. at 21:54.

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

53

instructed on alternative theories of guilt and returns a verdict that may
rest on an invalid theory.’” 199 I will not soon forget the look of contempt
on Judge Easterbrook’s face as I read this sentence.
VII. JUDGE EASTERBROOK OPINES
A. Concocting Something Else: A Fantasy Forfeiture
The prosecutors and Ryan’s lawyers submitted their supplemental
briefs to the Seventh Circuit at the same time. Ours concluded:
The parties have fairly and responsibly briefed and
argued this case, focusing on the sorts of instructional
issues that this Court and others have addressed in
countless post-conviction proceedings. The Court should
decide this case on the basis of the issues they have
presented. Instructions that direct conviction without
proof beyond a reasonable doubt of conduct that the
legislature has made criminal violate the Constitution,
and allegations of this sort are cognizable in section 2255
proceedings. The “cause and prejudice” standard has no
application to non-defaulted objections.
When
instructions have directed conviction for noncriminal
conduct and the petitioner has not defaulted his
objections, the question before a habeas corpus court is
whether the instructional error was harmless. 200
Disregarding our plea to decide the case on the basis of the issues
submitted by the parties, Judge Easterbrook invented a new ground of
decision—one that not only had not been advanced by the parties but that
neither he nor anyone else had mentioned during argument. Judge
Easterbrook’s opinion for the Seventh Circuit concluded that Ryan had
defaulted his objection to the undisclosed-conflicts instruction and the
state-law instruction.201
Ryan, however, had objected to these instructions at trial and on
appeal.202 The Seventh Circuit had considered his arguments and had
Id. at 32:34 (quoting Skilling v. United States, 561 U.S. 358, 414 (2010) (emphasis added)).
Supplemental Memorandum of Pet’r-Appellant George H. Ryan at 29–30, Ryan v.
United States, 645 F.3d 913 (7th Cir. 2011) (No. 10-3964), vacated and remanded, 132 S. Ct. 2099
(2012).
201
See Ryan v. United States, 645 F.3d 913, 915 (7th Cir. 2011), vacated and remanded, 132 S.
Ct. 2099 (2012).
202
See, e.g., Separate App’x of Pet’r-Appellant, Vol. 1, supra note 70, at A-000174-A000183
(Ryan’s Response to United States’ Motion for Pretrial Ruling on Jury Instructions);
199
200

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

54

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

upheld the challenged instructions.203 The government had not claimed
any default.
Indeed, its supplemental brief declared, “[I]n the
government’s view, Ryan has not procedurally defaulted his claim that he
was convicted for conduct that is not a crime.”204 It added, “In order to
obtain review of his claim in a § 2255 proceeding, Ryan does not have to
establish ‘cause’ because his claim was not defaulted.”205 The government
did maintain, however, that Ryan had failed to object to two of the
instructions he said defined bribery incorrectly.
Judge Easterbrook’s opinion did not mention Ryan’s objections to the
improper instructions and did not mention the government’s express
concession that there was no default. The opinion described Ryan’s
supposed default this way:
[Ryan] never made the argument that prevailed in
Skilling: that § 1346 is limited to bribery and kickback
schemes. . . . The forfeiture as we see it is that Ryan never
made in the district court or on appeal an argument that
§ 1346 is best understood to be significantly more limited
than Bloom held. . . . [W]hile Ryan’s lawyers proposed
instructions based on Bloom—which was more favorable
to defendants than the law in some other circuits—
Skilling’s lawyers contended that § 1346 is much
narrower if not unconstitutionally vague. Skilling asked
the Supreme Court to disapprove Bloom. That Court
ruled in his favor. If Ryan’s lawyers had done what
Skilling’s lawyers did, the controlling decision today
might be Ryan rather than Skilling. (Ryan’s petition for
certiorari beat Skilling’s to the Supreme Court.)
Nothing prevented Ryan from making the arguments
that Skilling did. Many other defendants in this circuit
contended that Bloom was wrongly decided. Conrad
Black was among them. . . . The Supreme Court heard
Black’s case along with Skilling’s. . . . Because Black had
preserved an objection to Bloom’s understanding of

Consolidated Brief and Required Short App’x of the Defendants-Appellants Lawrence E.
Warner and George H. Ryan, Sr. at 61, United States v. Warner, 498 F.3d 666 (7th Cir. 2007)
(Nos. 06-3517 & 06-3528).
203
See United States v. Warner, 498 F.3d 666, 698–99 (7th Cir. 2007).
204
Government’s Supplemental Memorandum at 6, Ryan v. United States, 645 F.3d 913
(7th Cir. 2011) (No. 10-3964), vacated and remanded, 132 S. Ct. 2099 (2012).
205
Id. at 7 (emphasis removed).

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

55

§ 1346, we inquired on remand from the Supreme Court
whether the errors were harmless.206
Falsehood Number Four: “Skilling asked the Supreme Court to
disapprove Bloom. That Court ruled in his favor. . . . Nothing prevented
Ryan from making the arguments that Skilling did. Many other
defendants in this circuit contended that Bloom was wrongly decided.
Conrad Black was among them.” 207

206
Ryan, 645 F.3d at 915–16. Although this passage includes everything the Seventh Circuit
said about Ryan’s asserted default, the ellipses in the passage mark substantial omissions.
Interspersed with the court’s description of the supposed default was its discussion of
whether this default could be excused. Judge Easterbrook wrote, “Ryan sees ‘cause’ in this
circuit’s pre-Skilling law.” Id. at 915. He did not reveal, however, that Ryan had mentioned
“cause” only in response to the government’s argument that he had waived or forfeited his
objection to two bribery instructions. The opinion made it seem that Ryan had
acknowledged his failure to object to any of the invalid instructions, including the
undisclosed-conflicts instruction.
Judge Easterbrook’s deception on this point probably was deliberate. After reading our
supplemental brief and the government’s, he certainly knew that Ryan had objected
throughout the proceedings to the undisclosed-conflicts instruction. Without mentioning
Ryan’s objections or the government’s concession that there had been no default, he spoke
only of Ryan’s argument that the default could be excused. And he did that by transposing
an argument for excusing a lack of objection to two bribery instructions into an argument for
excusing a larger default that the parties agreed had not happened.
Judge Easterbrook misled his readers again when he described the content of Ryan’s
argument concerning “cause” (the argument Ryan made to excuse his failure to object to the
two bribery instructions). According to Judge Easterbrook, Ryan maintained that “cause”
existed simply because it would have been “pointless” to challenge Bloom in the Seventh
Circuit. Id. at 916–17. Judge Easterbrook responded that it would not have been pointless
and, more importantly, “[t]hat the argument seems likely to fail is not ‘cause’ for its
omission.” Id. at 916. Ryan, however, had made no such argument. In language Judge
Easterbrook quoted, the Supreme Court has said that, although the “futility” of an argument
is not “cause” for failing to make it, “cause” does exist when a claim “is so novel that its legal
basis is not reasonably available to counsel.” Id. at 916–17 (quoting Bousley v. United States,
523 U.S. 614, 622–23 (1998)). In language Judge Easterbrook did not quote, the Supreme
Court has also said that “cause” exists when the Court has issued a decision “‘overturn[ing]
a longstanding and widespread practice to which [the Court] has not spoken, but which a
near-unanimous body of lower court authority has expressly approved.’” Reed v. Ross, 468
U.S. 1, 17 (1984). Ryan observed that in the twenty-two years between the enactment of the
honest services statute and Skilling, no court had endorsed a construction limiting this statute
to bribery and kickback schemes. Reply Brief of Pet’r-Appellant at 19–20, Ryan v. United
States, vacated and remanded, 132 S. Ct. 2099 (2012) (2011) (No. 10-3964). He noted that, after
McNally, which similarly departed from uniform lower court precedent, the Seventh Circuit
and other courts had excused the procedural defaults of § 2255 petitioners. See id. (citing,
e.g., Bateman v. United States, 875 F.2d 1304, 1308 (7th Cir. 1989)). Ryan asked the court to
approve a recent district court ruling that “Skilling represents just the sort of ‘clear break with
the past’ that the United States Supreme Court contemplated as giving rise to ‘cause.’” See
id. (citing Stayton v. United States, 766 F. Supp. 2d 1260, 1266 (M.D. Ala. 2011)).
207
See Ryan, 645 F.3d at 916.

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

56

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

Jeffery Skilling did not ask the Supreme Court to disapprove Bloom.
To the contrary, in both the Supreme Court and the Fifth Circuit, he cited
Bloom in support of his arguments. 208 Similarly, Conrad Black never
contended that Bloom was wrongly decided. His briefs in the Supreme
Court did not mention the case.209 In the Seventh Circuit, he cited Bloom
frequently—but only in support of his arguments. 210 Perhaps “[m]any
other defendants in [the Seventh] circuit contended that Bloom was
wrongly decided,” but my research has not revealed even one.
Judge Easterbrook must have known after reading our supplemental
brief and the government’s that Ryan had objected throughout the
proceedings to the undisclosed-conflicts and other invalid instructions. A
forthright judge would have acknowledged Ryan’s objections and, if he
thought these objections inadequate, explained why. Judge Easterbrook’s
discussion implied, however, that Ryan had not made the proper objection.
Just what the proper objection would have been was unclear, but it
apparently would have been either “overrule Bloom” or “limit honestservices fraud to bribery and kickback schemes.”
Judge Easterbrook did not explain why Ryan should have said either
of these things. Although the judge apparently regarded Ryan’s argument
as inconsistent with Bloom, Bloom had said nothing about undisclosed
conflicts.211 It had merely held that “an employee deprives his employer
of his honest service[] . . . if he misuses his position . . . for personal
gain,”212 and the idea that an official “misuses his position” whenever he
fails to disclose any past favor that is “capable of influencing” one of his

208
See Reply Brief for Pet’r at 21, Skilling v. United States, 561 U.S. 358 (2010) (No. 08-1394);
Brief of Defendant-Appellant Jeffrey K. Skilling at 65, United States v. Skilling, 554 F.3d 529
(5th Cir. 2009) (No. 06-20885).
209
See Brief for the Pet’rs, Black v. United States, 561 U.S. 465 (2010) (No. 08-876).
210
See Opening Brief of Defendants-Appellants at 47, 51–52, 55, 86, United States v. Black,
530 F.3d 596 (7th Cir. 2008) (Nos. 07-4080, 08-1030, 08-1072, 08-1106).
211
Recall the phrasing of the government’s pretrial argument: “Other circuits . . . have
upheld public corruption prosecutions rooted in . . . the failure of a public official to disclose
a financial interest or relationship affected by his official actions.” Separate App’x of Pet’rAppellant, Vol. 1, supra note 70, at A-000158 (United States’ Motion for Pretrial Ruling on
Jury Instructions Related to Mail Fraud Allegations) (emphasis added). Even the
government did not claim that Bloom had criminalized undisclosed conflicts.
Judge Easterbrook remarked that Bloom “was more favorable to defendants than the
law in some other circuits.” Ryan, 645 F.3d at 916. This statement might have been true when
Bloom was decided. By the time the Seventh Circuit read Bloom to forbid undisclosed
conflicts and to make federal felonies of minor state regulatory violations and violations of
civil consent decrees, however, no court anywhere had interpreted the honest-services
statute more expansively. The Seventh Circuit remained “the mail fraud capital of America.”
See Borre v. United States, 940 F.2d 215, 226 (7th Cir. 1991) (Easterbrook, J., concurring in part
and dissenting in part).
212
United States v. Bloom, 149 F.3d 649, 656–57 (7th Cir. 1998).

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

57

decisions is a stretch. When Ryan had a strong argument that the
undisclosed-conflicts instruction was inconsistent with Bloom, why should
he have asked the Seventh Circuit to overrule this decision?
Requiring litigants to anticipate the precise standard the Supreme
Court approved in Skilling would make post-conviction relief available
only to soothsayers. Until I proposed a bribes-and-kickbacks standard in
my amicus brief in Weyhrauch, no litigant anywhere appears to have
argued for this standard.213 Ryan objected to the unconstitutional thing
that happened to him—directing the jury to convict him of a nonexistent
crime. That should have been enough.
Judge Easterbrook’s suggestion that Ryan’s name could have replaced
Skilling’s on the leading Supreme Court decision if only his lawyers had
been as capable as Black’s or Skilling’s214 was not only obnoxious but
wrong. Conrad Black had said none of the things Judge Easterbrook
apparently thought necessary to obtain relief on the basis of Skilling. Just
as Black did not ask any court to disapprove Bloom, he never argued that
honest-services fraud should be limited to bribery and kickback schemes.
His principal argument was: “Section 1346 May be Applied to Private
Sector Relationships Only if the Jury Finds that Defendants Contemplated
Economic Harm to the Party to Whom ‘Honest Services’ Were Owed.”215
In its supplemental brief to the Seventh Circuit, the government observed
that “Black was given the benefit of Skilling,” reviewed the arguments
Black presented, and declared that Ryan had “similarly preserved his
claim.”216 Judge Easterbrook apparently paid no attention.
Like Black, Jeffrey Skilling did not argue in the court of appeals or in
his petition for certiorari that honest-services fraud should be limited to
bribery and kickback schemes. After I had proposed a bribes-andkickbacks standard in my amicus brief, however, and after some justices
213
See Skilling v. United States, 561 U.S. 358, 423 (2010) (Scalia, J., concurring) (“Until
today, no one has thought . . . that the honest-services statute prohibited only bribery and
kickbacks.”); Brief of Albert W. Alschuler as Amicus Curiae, supra note 110, at 19–20. Ryan in
fact came close to anticipating Skilling—closer than Black, Skilling, or anyone else I know of.
He maintained: “A Quid Pro Quo Is Required Where Mail Fraud Charges Are Predicated On
the Receipt of A Campaign Contribution” and “A Quid Pro Quo is Required Where Federal
Charges Are Predicated on The Receipt of a Gift.” Separate App’x of Pet’r-Appellant, Vol.
1, supra note 70, at A-000175, A-000179 (Ryan’s Response to United States’ Motion for Pretrial
Ruling on Jury Instructions) (argument headings).
214
See Ryan, 645 F.3d at 916.
215
Brief for the Pet’rs, supra note 209, at 22 (argument heading). The Supreme Court did
not accept Black’s argument. Black v. United States, 561 U.S. 465, 474 (2010). Although the
Court held specifically that the honest-services statute does not reach undisclosed conflicts
and so accepted the argument Ryan made, post-Skilling honest-services fraud still proscribes
private-sector bribes and kickbacks that have neither produced nor were expected to
produce economic harm.
216
Government’s Supplemental Memorandum, supra note 204, at 6.

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

58

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

had expressed interest in my proposal during the argument in Black,217
Skilling argued in the alternative for a bribes-and-kickbacks standard in
his merits brief.218 Litigants in the Supreme Court, however, may not raise
issues for the first time in their merits briefs. 219
The Supreme Court ignored Skilling’s belated effort to propose a
bribes-and-kickbacks standard. It noted instead his principal argument—
that “the honest-services statute . . . is unconstitutionally vague.”220 It
declared that, in the absence of a narrowing construction, this statute
would encounter the “vagueness shoal” that Skilling had protested from
the outset.221 The statute apparently would have been unconstitutional in
the un-narrowed form applied to him. Skilling’s objection to the statute’s
vagueness entitled him to the benefit of the narrowing construction the
Court approved.222
Like Skilling, Ryan had consistently objected that the honest-services
statute was unconstitutionally vague. Judge Easterbrook, however,
declared this objection insufficient. He wrote, “Ryan contended at trial
and on appeal . . . that § 1346 is unconstitutionally vague, an argument
that Skilling rejected. He never made the argument that prevailed in
Skilling: that § 1346 is limited to bribery and kickback schemes.” 223 But
Skilling did not reject the argument that the honest-services statute was
unconstitutional in the sprawling form it took when Ryan was convicted.
Judge Easterbrook and his colleagues refused to give Ryan the benefit the
Court gave Skilling although Ryan had made precisely the same objection.
They left Ryan’s conviction under the un-narrowed statute in place
despite his persistent objection that this statute was unconstitutional. 224
B. Disregarding and Concealing the Government’s Waiver
Judge Easterbrook’s claim that Ryan defaulted his objection to the
undisclosed conflicts and other instructions was especially odd because

217
See Tr. of Oral Arg. at 5, 8–10, 12–13, 33–34, 42, Black v. United States, 561 U.S. 465 (2010)
(No. 08-876), http://www.supremecourt.gov/oral_arguments/argument_transcripts/08876.pdf [http://perma.cc/4UWZ-VUVE].
218
See Brief of Defendant-Appellant Jeffrey K. Skilling, supra note 208, at 61–63.
219
See SUP. CT. R. 24(1)(a). Even if Skilling had proposed a bribes-and-kickbacks standard
in his petition for certiorari, he would not have proposed it in the courts below. In the world
of Judge Easterbrook, he would have forfeited any claim to the benefit of that standard.
220
Skilling v. United States, 561 U.S. 358, 399 (2010).
221
Id. at 368.
222
See id. at 413–14.
223
Ryan v. United States, 645 F.3d 913, 915 (7th Cir. 2011).
224
Skilling and Black came before the Supreme Court on direct appeal, and a direct appeal
differs in many ways from a collateral attack. In determining whether a forfeiture or
procedural default has occurred, however, the two sorts of proceedings do not differ at all.

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

59

the government acknowledged expressly that Ryan did not default.225
Judge Easterbrook once wrote, “Claims of waiver may be waived in turn;
claims of forfeiture may be forfeited (or waived). . . . We could hardly
penalize [one party] for forfeiture while overlooking [the opposing
party’s] decision not to make forfeiture an issue.”226 Why, then, did Judge
Easterbrook penalize Ryan’s supposed forfeiture while overlooking the
government’s deliberate decision not to make forfeiture an issue?
Judge Easterbrook explained, “On collateral review . . . a court may
elect to disregard a prosecutor’s forfeiture, because the Judicial Branch has
an independent interest in the finality of judgments.”227 The judge cited
only one authority in support of this statement, Day v. McDonough.228 In
Day, the Supreme Court held that, in some circumstances, a court may
advance an objection a prosecutor has not made, but Day also said, “[W]e
would count it an abuse of discretion to override a State’s deliberate
waiver of a limitations defense.”229 It added, “[S]hould a State
intelligently choose to waive a statute of limitations defense, a district
court would not be at liberty to disregard that choice.” 230
The Supreme Court’s distinction between inadvertent forfeiture and
deliberate waiver is one that Judge Easterbrook knows well. In our case,
he declared, “Ryan himself proposed some of the instructions that the
judge gave . . . and with respect to them he has waived and not just
forfeited the line of argument he makes now.” 231 In a case involving
another Illinois governor, he wrote, “[A]t oral argument counsel for the
United States represented that the prosecutor is not invoking any doctrine
of forfeiture to block appellate review. The possibility of forfeiture thus
has been waived, and as the subject is not jurisdictional the prosecutor’s
waiver is conclusive.”232
Recall the unequivocal language of the government’s supplemental
brief: “[I]n the government’s view, Ryan has not procedurally defaulted
his claim that he was convicted for conduct that is not a crime.” 233 And:
“In order to obtain review of his claim in a § 2255 proceeding, Ryan does
not have to establish ‘cause’ because his claim was not defaulted.”234 How

See Government’s Supplemental Memorandum, supra note 204, at 6.
EEOC v. Indiana Bell Tel. Co., 256 F.3d 516, 526–27 (7th Cir. 2001).
227
Ryan, 645 F.3d at 917–18.
228
547 U.S. 198 (2006).
229
Id. at 202.
230
Id. at 211 n.11.
231
Ryan, 645 F.3d at 915. Although he did not say so, Easterbrook spoke only of Ryan’s
supposed waiver of objections to two challenged bribery instructions.
232
United States v. Blagojevich, 612 F.3d 558, 560 (7th Cir. 2010).
233
Government’s Supplemental Memorandum, supra note 204, at 6.
234
Id. at 7 (emphasis removed).
225
226

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

60

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

could Judge Easterbrook have disregarded the government’s express
waiver of any argument that Ryan had defaulted?
Certainly Judge Easterbrook could not have missed this waiver after
our petition for rehearing complained loudly about his disregard of
Day.235 By then, however, Judge Easterbrook’s opinion had been released
to the public. Because the government’s waiver occurred in the
supplemental brief it filed at the same time we filed ours and because these
briefs were the parties’ last filings in the case, we couldn’t have flagged
the government’s waiver earlier.236 After examining our petition, Judge
Easterbrook must have known that finding a procedural default despite
the government’s waiver was contrary to Day. I imagine, however, that
he was unwilling to lose face by withdrawing his opinion and starting
over.
Judge Easterbrook’s disregard of the government’s waiver was not
only insupportable but also out of character. No one has pounced on
waivers, forfeitures, and defaults by government lawyers more eagerly
than he.237 In a habeas corpus case brought by a state prisoner, for
example, a lawyer for the state contended that no error had occurred in
the prisoner’s trial. Until this lawyer filed his reply brief, however, he did
not argue that, if any error had occurred, it would have been harmless. A
Seventh Circuit rule then in effect provided, “A reply brief shall be limited
235
See Petition for Rehearing En Banc, supra note 32, at 1, 11–13 (emphasizing Day’s holding
that it is “an abuse of discretion to override a State’s deliberate waiver”).
236
We previously emphasized the government’s forfeiture of any claim of default. See
Supplemental Memorandum of Pet’r-Appellant George H. Ryan, supra note 200, at 1, 4–5. I
was relieved when the government elevated its earlier forfeiture to an express waiver. I
feared that Judge Easterbrook might try to invent a procedural default on Ryan’s part once
he realized what Bousley, Frady, and Engle v. Isaac were really about, and I was confident that
the government’s concession would prevent him from doing so. But I underestimated Judge
Easterbrook.
237
See, e.g., Buchmeier v. United States, 581 F.3d 561, 563 (7th Cir. 2009) (Easterbrook, J.)
(“The United States thus has forfeited, if it has not waived, any contention that the overall
performance of Buchmeier’s lawyer was adequate; it has effectively consented to treating
this collateral attack as a rerun of the direct appeal.”); Taylor v. United States, 287 F.3d 658,
660 (7th Cir. 2002) (Easterbrook, J.) (“As is common, the prosecutor ignored this shortcoming,
forfeiting any entitlement to dismissal of the appeal for noncompliance with
§ 2253(c)(1)(B).”); Carter v. Litscher, 275 F.3d 663, 665 (7th Cir. 2001) (Easterbrook, J.) (“[T]he
certificate of appealability fails to identify a substantial constitutional issue and thus does
not satisfy 28 U.S.C. § 2253(c)(2) . . . [but] the state has made nothing of this problem and thus
has forfeited the benefits of that statute.”); United States v. Patterson, 215 F.3d 776, 785 (7th
Cir. 2000) (Easterbrook, J.) (“[T]he United States did not argue forfeiture in its appellate brief.
It raised forfeiture for the first time in the memorandum submitted after argument, and by
that delay it forfeited any right to assert Robert’s potential forfeitures at an earlier stage.”);
Owens v. Boyd, 235 F.3d 356, 358 (7th Cir. 2000) (Easterbrook, J.) (“Because the state has
ignored the limitations that § 2253(c)(2) places on a court’s power to issue a certificate of
appealability, it has forfeited the benefits of that statute.”).

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

61

to matter in reply.”238 Because the prisoner had been convicted of an
especially monstrous rape, Judge Easterbrook warned that there might
soon be blood on the lawyer’s hands:
Astoundingly, the state did not mention harmless error in
its opening brief. . . . It got ’round to harmless error at
page 19 of its reply brief. . . . The state has not offered a
reason for omitting this question from its opening brief.
We find it inexplicable. Procedural rules apply to the
government as well as to defendants. Illinois has
forfeited what would have been its best argument. If as a
result a violent offender goes free, the Attorney General
of Illinois must understand where the responsibility
lies—with his own staff.239
In a § 2255 proceeding very similar to Ryan’s, Judge Easterbrook held
the government’s forfeiture decisive. The petitioner in Toulabi v. United
States240 was convicted of mail fraud before the Supreme Court held in
McNally v. United States241 that the mail fraud statute proscribed only
deprivations of property, not deprivations of the intangible right of honest
services. When the petitioner argued that the indictment in his case
charged him with conduct that is not a crime, the government responded
as it did in almost every other post-McNally case: The jury could not have
convicted the petitioner without finding a deprivation of property. 242
Judge Easterbrook noted that the petitioner and the government
might have made the same arguments if the case had come before the
court on direct appeal. Without offering an answer to the “contentious
issue” of what the difference between direct and collateral review might
be, he declared that McNally “[s]urely” could not be taken into account
“by giving the defendant what amounts to a second appeal of his
conviction.”243 Judge Easterbrook criticized some earlier Seventh Circuit
decisions for failing “even [to] mention[] the difference between direct and
collateral review,” and he wrote:

238
Wilson v. O’Leary, 895 F.2d 378, 384 (7th Cir. 1990) (quoting what was then Seventh
Circuit Rule 28(f)).
239
Id. Perhaps the lawyer who forfeited what would have been the state’s best argument
for keeping a vicious rapist off the streets immediately left the profession and enrolled in
dental school. I think I would have.
240
875 F.2d 122 (7th Cir. 1989).
241
483 U.S. 350 (1987).
242
Toulabi, 875 F.2d at 123–24; see supra Part IV (describing McNally and its aftermath).
243
Toulabi, 875 F.2d at 124.

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

62

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

Our case shows why this might occur. . . . The
prosecutor . . . briefed the issues just as if this were a
direct appeal, and Toulabi responded in kind. This is a
common sequence in McNally cases on collateral attack,
and it is then not surprising when the court—without
mentioning the difference between direct and collateral
attack—proceeds to conduct a full review.
The
prosecutor's curious choice precludes us from deciding in
today's case how far an appellate court should inquire
into the record and instructions of a case on collateral
review after McNally. We accept the case as the parties
have presented it, examining the record and instructions
as we would on direct appeal.244
Because the prosecutor had not made the arguments Judge Easterbrook
wanted him to make and because “the jury did not necessarily find that
Toulabi’s scheme deprived Chicago of . . . property,” the court reversed a
trial court’s denial of post-conviction relief.245
In a concurring opinion, Judge Kenneth Ripple insisted that neither
the Seventh Circuit nor the vilified prosecutor had done anything wrong.
He wrote:
[T]he 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. . . . This is essentially 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.246

Id. at 124–25.
Id. at 126.
246
Id. at 128 (Ripple, J. concurring). Like Judge Easterbrook, Judge Ripple was a
conservative appointed to the Seventh Circuit by President Reagan. In subsequent cases, the
U.S. Attorney’s Office and the court appeared to disregard Judge Easterbrook’s dicta and to
follow Judge Ripple’s advice. But see Young v. United States, 124 F.3d 794, 797, 803 (7th Cir.
1997) (Easterbrook, J.) (taking a position later rejected by the Supreme Court in Bousley and
declaring that defendants who had pleaded guilty prior to Bailey could not challenge their
convictions for noncriminal conduct, criticizing two Seventh Circuit decisions for allowing
defendants to challenge their pre-Bailey guilty pleas, criticizing the U.S. Attorney’s Office for
244
245

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

63

After criticizing the government, Judge Easterbrook accepted
Toulabi’s case “as the parties have presented it,” 247 and until Ryan’s case,
he had done the same thing in every other case. Although a court may in
appropriate circumstances disregard the government’s non-assertion of a
procedural default, Judge Easterbrook seems never to have done so until
Ryan’s case. In view of the fact that the government had not merely
forfeited but had waived any claim of default in his case, Ryan’s was an
especially inappropriate case for departing from the pattern Judge
Easterbrook had observed for more than twenty-five years. In the earlier
cases, disregarding the government’s non-assertion of a petitioner’s
default might have been lawful, but in a case in which the government
had deliberately waived any claim of default, it was not.248
Judge Easterbrook strained so hard to keep George Ryan in prison that
it seems fair to speculate about his motives. The following section of this
Memoir considers three hypotheses.
C. Possible Explanations
Hypothesis One: Judge Easterbrook sought to nullify Skilling.
Although Judge Easterbrook had devised the Seventh Circuit
standard that Skilling abrogated,249 this hypothesis seems to me unlikely.
When researching my amicus brief in Weyhrauch, the closest thing I could
find to authority for a bribes-and-kickbacks standard was a statement
failing to challenge these Seventh Circuit decisions in the case before the court, criticizing the
U.S. Attorney’s Office for failing to make several other arguments, and finally, after several
pages of blustery dicta, deciding the case on the basis of the issues submitted by the parties).
See Bousley v. United States, 523 U.S. 614, 616 (1998) (allowing some defendants who pleaded
guilty before Bailey to challenge their convictions for noncriminal conduct); Bailey v. United
States, 516 U.S. 137, 143 (1995) (holding that only “active employment” of a firearm during a
drug transaction constitutes “use” of the firearm during that transaction).
247
Toulabi, 875 F.2d at 124.
248
Before disregarding even an inadvertent forfeiture, a court must determine that doing
so would serve the interests of justice. Day v. McDonough, 547 U.S. 198, 210 (2006). Judge
Easterbrook did not mention any possible interest in freeing innocent people from prison but
did consider “the independent interest [of the judicial branch] in the finality of judgments.”
He wrote, “Ryan’s trial lasted eight months, and his appeal led to more than 100 pages of
opinions by four judges of this court.” Ryan, 645 F.3d at 918.
Ryan’s trial did not last eight months, and no one ever said it did. Judge Easterbrook
just made it up. Ryan’s six-month trial was bad enough. But what chutzpah it took for a
court whose decisions had permitted the government to conduct a wide-ranging, kitchensink trial to cite the appalling length of this trial, not as proof that the defendant had been
denied due process, but as proof of how much due process he had received. The court’s
chutzpah was especially remarkable because the Supreme Court already had held the sixmonth trial improper, declaring that the jury should have heard only evidence of bribes and
kickbacks.
249
See United States v. Bloom, 149 F.3d 649, 656–57 (7th Cir. 1998) (Easterbrook, J.).

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

64

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

Judge Easterbrook had made for the Seventh Circuit in United States v.
Thompson.250 He noted that “misuse of office” is a “slippery” phrase,
declared that “one of these days we may need to gloss the phrase to reduce
the risk that uncertainty poses to public servants,” and added that it
would be “consistent with [the] language” of the honest-services statute
to limit it to situations “in which the ‘private gain’ comes from third
parties who suborn the employee with side payments.” 251 Judge
Easterbrook is not a champion of the mail fraud statute, and I doubt that
he sought to nullify Skilling. The judge’s extreme hostility to affording
post-conviction relief, however, might have affected his judgment.252
Hypothesis Two: In “the most high profile case in Chicago in recent
memory,”253 Judge Easterbrook took account of public sentiment and the
prospect of criticism in the press.
This hypothesis also seems to me unlikely. I doubt that Judge
Easterbrook cared at all that, in Chicago parlance, Ryan’s was a “heater

484 F.3d 877, 883–84 (7th Cir. 2007).
Id. at 883–84. I noted this statement several times in my brief. See Brief of Albert W.
Alschuler as Amicus Curiae, supra note 110, at 3, 20, 21, 28. I sent a copy to Judge Easterbrook
with a note declaring that, unlike most briefs, mine had a hero, and he was it.
252
Judge Easterbrook declared that a post-conviction petitioner was entitled to a new trial
only when he could show “that on the evidence at trial in light of the later statutory
interpretation the only proper judgment is a judgment of acquittal.” Oral Argument, supra
note 157, at 1:19. As shown above in Part VI, Judge Easterbrook’s attribution of this standard
to the Supreme Court was a fabrication. Neither that Court nor any other had required postconviction petitioners to show that the evidence was insufficient to support their convictions.
But consider for a moment how harsh Judge Easterbrook’s imaginary standard would be.
This standard would leave people in prison even when it seemed far more likely than not
that they had never been convicted of a crime. Suppose, to take an exaggerated example,
that a judge told a jury to convict a defendant of grand larceny if he either entered a store
with a shopping bag or stole property worth more than $300. Suppose the evidence of
entering with a shopping bag was overwhelming while the evidence of stealing was weak.
The evidence of stealing consisted entirely of an identification of the defendant by a nearly
blind witness who claimed to have seen him in dim light. Even after a higher court ruled
that entering with a shopping bag was no crime, Judge Easterbrook apparently would leave
the defendant in prison. Questions of credibility are for the jury, and, if the defendant had
been convicted of larceny under proper instructions, the testimony of the nearly blind
witness would have been sufficient to support his conviction. From Judge Easterbrook’s
perspective, it would not matter that, because of the court’s invitation to convict of a
nonexistent crime, the jury would have had no reason to examine the witness’s credibility or
to consider whether the defendant stole anything. Chief Justice Rehnquist took a better view
of the purpose of post-conviction remedies when he wrote for the Supreme Court in Bousley,
“[O]ne of the principal functions of habeas corpus [is] ‘to assure that no man has been
incarcerated under a procedure which creates an impermissibly large risk that the innocent
will be convicted.’” Bousley v. United States, 523 U.S. 614, 620 (1998).
253
See United States v. Warner, 498 F.3d 666, 705 (7th Cir. 2007) (Kanne, J., dissenting).
250
251

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

65

case.”254 His own view of the case, however, might have been influenced
by what he read in the papers.
Hypothesis Three: Judge Easterbrook sought to save face.
Although I do not know what motivated Judge Easterbrook’s first
opinion in Ryan’s case, this final hypothesis rings truer to me than the
others. For Judge Easterbrook to decide the case on the basis of the issues
submitted by the parties would have been to acknowledge to his fellow
judges and to the parties that his statements of law at argument had been
erroneous and his badgering of counsel unjustified. If preserving his
dignity required inventing a default by Ryan that never occurred and
concealing a waiver by the government that did, perhaps he was willing
to subordinate both truth and justice to that objective. 255
VIII. A MINI-VICTORY IN THE SUPREME COURT AND A NEW ARGUMENT
As every law clerk reviewing petitions for certiorari knows, the
Supreme Court’s mission is not to correct errors but to resolve “unsettled
questions of federal constitutional or statutory law of general interest.” 256
Nevertheless, our certiorari petition in Ryan’s case asked for error
correction. We wrote that “[t]he Seventh Circuit’s failure to follow Day
and implement Skilling warrants, at a minimum, a per curiam reversal and

254
If Judge Easterbrook had sought public praise, however, his opinion would have
succeeded. The Chicago Tribune editorialized:
On appeal, Ryan’s attorneys advanced several arguments here, one of
which was that he didn’t accept bribes or kickbacks, so he shouldn’t be
in the slammer. What’s remarkable about the appellate court
smackdown, written by Chief Judge Frank Easterbrook, is the swift
backhand it delivers to that claim. . . . As if to tell Ryan’s lawyers: You
cannot be serious.
No, Corruption Isn’t “Just Politics”: Jurors and Judges Aren’t Buying that Defense Mantra, CHI.
TRIB. (July 11, 2011), http://articles.chicagotribune.com/2011-07-11/opinion/ct-edithonest-20110711_1_public-corruption-jurors-convict [http://perma.cc/ATJ5-N73N].
255
Early in his opinion, Judge Easterbrook came close to acknowledging that Skilling
applied retroactively and that Ryan’s post-conviction petition was timely. See Ryan v. United
States, 645 F.3d 913, 914–15 (7th Cir. 2011), vacated and remanded, 132 S. Ct. 2099 (2012)
(declaring that “a district court or court of appeals may make the retroactivity decision under
§ 2255(f)(3),” and adding, “Because the United States has waived any limitations defense to
Ryan’s position, we need not decide whether Skilling applies retroactively on collateral
review, though Davis . . . and Bousley . . . imply an affirmative answer”). Although Judge
Easterbrook thus came close to confessing error on a tangential issue after realizing that one
of his own opinions flatly contradicted his statements during argument, I doubt that he was
capable of backing away from his more pivotal claim that post-conviction petitioners may
not challenge the jury instructions that produced their convictions for noncriminal conduct.
256
WILLIAM H. REHNQUIST, THE SUPREME COURT: HOW IT WAS, HOW IT IS 269 (1987); see
Carolyn Shapiro, The Limits of the Olympian Court: Common Law Judging Versus Error
Correction in the Supreme Court, 63 WASH & LEE L. REV. 271, 278–80 (2006).

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

66

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

remand with directions to address the issues presented by the parties.”257
We cited a Supreme Court rule declaring that certiorari can be appropriate
when a court of appeals has “so far departed from the accepted and usual
course of judicial proceedings . . . as to call for an exercise of this Court’s
supervisory power.”258
While Ryan’s petition was before the Supreme Court, the Court
decided Wood v. Milyard.259 Wood was in large part a replay of Day v.
McDonough.260 The Court declared, as it had in Day, that a federal court is
“not at liberty . . . to bypass, override, or excuse” the government’s
deliberate waiver of a non-jurisdictional defense.261 But Wood made it
more difficult for a court—especially an appellate court—to disregard the
government’s inadvertent forfeiture of a defense. Calling “the principle
of party presentation basic to our adversary system,” the Court said that
appellate courts may notice forfeited defenses only in “exceptional cases”
and “extraordinary circumstances.”262
After its decision in Wood, the Supreme Court granted our petition for
certiorari, vacated the Seventh Circuit’s judgment, and remanded Ryan’s
case for further consideration in light of Wood.263 The Seventh Circuit
would no longer be able to conceal and disregard the government’s
waiver of Ryan’s supposed default, or so we thought.
A new argument focused on the issues the parties had briefed and the
district court decided more than a year earlier. To the amazement of
everyone in the courtroom, Judge Easterbrook asked no questions. None
of the seasoned court watchers in attendance could recall any other case
in which he remained silent.264
Seventeen days after the argument, the court issued another opinion
by Judge Easterbrook upholding the denial of post-conviction relief.265

Petition for Writ of Certiorari, supra note 41, at 3.
Id. (citing S. CT. RULE 10(a)).
259
132 S. Ct. 1826 (2012).
260
547 U.S. 188 (2006).
261
Wood, 132 S. Ct. at 1830; see Day v. McDonough, 547 U.S. 198, 202, 210 n.11 (2006).
262
Wood, 132 S. Ct. at 1833.
263
Ryan v. United States, 132 S. Ct. 2099 (2012).
264
A recording of this argument can be found at http://media.ca7.uscourts.gov/sound/
2012/migrated.orig.10-3964_07_20_2012.mp3.
265
Ryan v. United States, 688 F.3d 844 (7th Cir. 2012). Judge Easterbrook has not always
been so speedy. His opinion for the court in the case of another former Illinois governor
appeared more than one-and-one-half years after the case had been argued. See United States
v. Blagojevich, 794 F.3d 729, 729 (7th Cir. 2015) (listing the argument date as Dec. 13, 2013
and the decision date as July 21, 2015).
257
258

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

67

IX. JUDGE EASTERBROOK OPINES AGAIN
A. Another Concocted Waiver
Judge Easterbrook’s second opinion mentioned neither the
government’s waiver of Ryan’s supposed procedural default nor the
imaginary default itself. Instead, the opinion announced a substantially
broader waiver by the government. Judge Easterbrook declared that the
government waived any objection to treating Ryan’s post-conviction
challenge as though it were a direct appeal. He also declared that Wood v.
Milyard required the court to treat the government’s possibly misguided
decision as conclusive:
The United States . . . 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. . . . 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. . . .
The Supreme Court held Ryan’s petition for certiorari
until it decided Wood v. Milyard. . . . 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 . . . . We therefore turn to the harmless-error
inquiry, framed as if this were a direct appeal.266

266

Ryan, 688 U.S. at 847–48.

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

68

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

Falsehood Number Five: “The United States . . . 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.” 267
In all of its filings in the district court and the court of appeals, the
government emphasized the difference between the review available
under § 2255 and that available on direct appeal. The government’s
supplemental brief following oral argument declared, “Collateral relief
is . . . limited only to those grievously wronged; ‘an error that may justify
reversal on direct appeal will not necessarily support a collateral attack on
a final judgment.’”268
To be sure, the government did not claim that “on collateral review
the appropriate question is whether the evidence was sufficient to convict
under the correct instructions.”269 If it had, it could not have cited any
decision in support. The government did contend, however, that the
review afforded § 2255 petitioners was limited in the same way the
Supreme Court had limited the review afforded state prisoners who
sought federal habeas corpus relief.
When a constitutional error (such as directing a jury to convict for
noncriminal conduct) has occurred at trial, a court hearing a direct appeal
must set aside the defendant’s conviction unless the government shows
beyond a reasonable doubt that the error was harmless.270 In Brecht v.
Abrahamson,271 however, the Supreme Court held that a less demanding
harmless error standard applies in post-conviction proceedings brought
by state prisoners. A state prisoner is entitled to federal habeas corpus
relief only when the error had a “substantial and injurious effect or
influence in determining the jury’s verdict.” 272 In O’Neal v. McAninch,273
the Supreme Court modified the Brecht standard slightly.274 It then
applied its modified standard in a habeas corpus proceeding in which a
state prisoner alleged that jury instructions directed his conviction for

Id. at 847.
Government’s Supplemental Memorandum, supra note 204, at 7 (quoting Brecht v.
Abrahamson, 507 U.S. 619, 634 (1993), United States v. Frady, 456 U.S. 152, 165 (1982), and
United States v. Addonizio, 442 U.S. 178, 184 (1979)) (emphasis omitted).
269
Ryan, 688 F.3d at 847.
270
See Chapman v. California, 386 U.S. 18, 24 (1967).
271
507 U.S. 619 (1993).
272
Id. at 631.
273
513 U.S. 432 (1995).
274
See id. at 436 (declaring that “[w]hen a federal judge in a habeas proceeding is in grave
doubt about whether a trial error of federal law had ‘a substantial and injurious effect or
influence in determining the jury’s verdict,’ that error is not harmless”).
267
268

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

69

noncriminal conduct.275 The government argued that the court should
apply the Brecht-McAninch harmless-error standard in Ryan’s case.276
Five years after McAninch, however, in Lanier v. United States,277 the
Seventh Circuit held that the “harmless beyond a reasonable doubt”
standard applies in § 2255 proceedings brought by federal prisoners. 278
The government argued that the court overlooked Brecht and McAninch
when it decided Lanier,279 and it probably did. We nevertheless
maintained that Lanier was correct. The federal courts’ willingness to
allow state courts to deny post-conviction relief to some state prisoners
who may be innocent does not imply that the federal courts should refuse
to release prisoners whom they themselves have wrongly convicted.280
Although Ryan and the government battled fiercely about what
harmless error standard to apply on collateral review, Judge Easterbrook
portrayed the government’s lawyers as ignorant of the distinction
between collateral and direct review. He attributed to them a sweeping
waiver they did not make and thereby avoided acknowledging his
unlawful disregard of a waiver they did make. He agreed to treat Ryan’s
case as though it had arisen on direct appeal, but only because he said the
government had never asked him to do anything else—not even after the
court advised it that a materially different standard applied. By falsely

The petitioner in McAninch claimed that erroneous instructions might have led to his
conviction without the state of mind required by an Ohio statute. Id. at 435. The Supreme
Court reversed the Sixth Circuit’s denial of relief because that court had required the prisoner
to assume the burden of showing that the instructional error was prejudicial. Id. at 436. The
Court declared that grave doubt about whether the erroneous instructions had a substantial
and injurious effect would entitle the petitioner to post-conviction relief.
276
Brief of the United States at 20–23, Ryan v. United States, 645 F.3d 913 (7th Cir. 2011)
(No. 10-3964).
277
220 F.3d 833 (7th Cir. 2000).
278
Id. at 839.
279
See Brief of the United States, supra note 276, at 21–22.
280
We noted that the decision in Brecht rested on federalism concerns inapplicable to § 2255
proceedings brought by federal prisoners. The Supreme Court wrote:
The reason most frequently advanced in our cases for distinguishing
between direct and collateral review is the State’s interest in the finality
of convictions that have survived direct review within the state court
system. . . . We have also spoken of comity and federalism. “The States
possess primary authority for defining and enforcing the criminal law.
In criminal trials they also hold the initial responsibility for vindicating
constitutional rights. Federal intrusions into state criminal trials
frustrate both the States’ sovereign power to punish offenders and their
good-faith attempts to honor constitutional rights.”
Brecht v. Abrahamson, 507 U.S. 619, 635 (1993) (quoting Engle v. Isaac, 456 U.S.
107, 128 (1982)).
275

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

70

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

portraying the government’s lawyers as goats, Judge Easterbrook
managed to avoid revealing what a goat he had been himself.281
B. Poor at Counting
Immediately after announcing that the court would honor the
government’s waiver by reviewing Ryan’s case as though it had arisen on
direct appeal, Judge Easterbrook declared that the court would do no such
thing. The court would refuse to review four of Ryan’s mail fraud
convictions because they had come before the court on collateral review
rather than direct appeal.282 The court would ignore these convictions
although no judge had suggested at argument that the convictions could
be ignored and although the government had never maintained that the
court could properly refuse to review these convictions. Again, Ryan’s
first opportunity to discuss a determinative issue would come in his
petition for rehearing. The ever-moving target had shifted once again.283
Judge Easterbrook explained:
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—[including his] 60 month sentences on the
seven mail-fraud convictions . . . have expired. Section
2255 allows a person to contest ongoing imprisonment,
281
Judge Easterbrook earlier had portrayed Ryan’s lawyers and the district court as goats.
In the statement of facts in his first Ryan opinion, he wrote:
[After the Supreme Court decided Skilling,] Ryan began a collateral
attack under 28 U.S.C. § 2255. He contended that the jury instructions
were defective because they permitted the jury to convict him on an
honest-services theory without finding a bribe or a kickback . . . .
Asserting that the errors could not be shown to be harmless under the
standard used on direct appeal, Ryan asked for a new trial. The district
court concluded that the errors are harmless under that standard and
denied Ryan’s petition.
Ryan v. United States, 645 F.3d 913, 914 (7th Cir. 2011). By mentioning that the harmlesserror standard invoked by Ryan and employed by the district court was the one “used on
direct appeal,” Judge Easterbrook apparently sought to convey the impression that Ryan’s
lawyers and the district court did not understand the difference between direct and collateral
review. In fact, Ryan advocated the standard used on direct appeal only because the Seventh
Circuit itself had endorsed the use of this standard in Lanier.
282
Ryan v. United States, 688 F.3d 844, 848–49 (7th Cir. 2012).
283
By the time of Judge Easterbrook’s opinion, Ryan had filed five briefs in the Seventh
Circuit—a principal brief, a reply brief, a supplemental brief following argument, a petition
for rehearing, and a supplemental brief following the Supreme Court’s remand. These briefs
had discussed almost everything under the sun except the possibility that the court might
dredge up previously unmentioned doctrines to justify a refusal to hear his challenges. After
so much process, denying due process was a challenge, but Judge Easterbrook managed to
do it.

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

71

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 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 . . . . Ryan has not identified
any collateral consequences of the mail-fraud
convictions . . . that would not equally be required by the
RICO conviction . . . . Even on direct appeal, courts are
free to pretermit decisions 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 . . . . A
collateral attack under . . . § 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 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.284
After upholding three mail fraud convictions, Judge Easterbrook
declared that they were “more than enough to sustain the RICO
conviction and sentence.”285 Although Judge Easterbrook had indicated
that reviewing more than the number of convictions needed to sustain the
284
285

Ryan, 688 F.3d at 848–49.
Id. at 852.

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

72

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

RICO charge would “smack of an advisory opinion—something that no
waiver, however deliberate, can authorize,” he did not indicate which of
the court’s three rulings was advisory.286
Judge Easterbrook’s discussion blended three doctrines that
sometimes can block post-conviction review—the custody requirement,
the concurrent-sentence doctrine, and mootness. Even if the judge’s
portrayal of the facts had been accurate (and I will tell you shortly why it
was an outrageous falsehood), none of these doctrines would have limited
the court’s review of any of Ryan’s convictions.
Custody. Relief under § 2255 is limited to people in custody, but
custody is determined at the time a post-conviction petition is filed, not at
the time a court resolves a case.287 Even when a petitioner has served his
entire sentence and even when no collateral consequences of his
conviction remain, a petitioner satisfies the custody requirement if, like
Ryan, he was imprisoned when he filed his petition. 288
The Concurrent Sentence Doctrine. The concurrent sentence doctrine
permits a court to deny review when a concurrent sentence has no adverse
consequences for a petitioner.289 Judge Easterbrook acknowledged that
this doctrine had become a dead letter in cases on direct review. 290 He
failed to note that the Seventh Circuit also had recognized its demise in
§ 2255 proceedings. Vacating any of Ryan’s mail fraud convictions would
have required a redetermination of his sentence, including his RICO
sentence.291 In a case arising under § 2255, the Seventh Circuit said, “Our
own cases . . . undercut the rationale behind the concurrent sentence
doctrine; we have held that ‘the vacation of a concurrent sentence might
lead the sentencing judge to reconsider a sentence not vacated.’”292
Id. at 849.
See Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (“[U]nder the statutory scheme, once
the federal jurisdiction has attached in the District Court, it is not defeated by the release of
the petitioner prior to completion of [the] proceedings . . . .”).
288
See Spencer v. Kemna, 523 U.S. 1, 7 (1998) (noting that the absence of any collateral
consequences may make a habeas corpus action moot but does not justify a dismissal for lack
of custody if the petitioner was in custody when he filed his petition).
289
See Claassen v. United States, 142 U.S. 140, 146 (1891).
290
Ryan, 688 F.3d at 849.
291
See United States v. Smith, 103 F.3d 531, 533–35 (7th Cir. 1996) (noting that vacating one
or more counts in a § 2255 proceeding “unbundles” the sentencing package and requires a
redetermination of sentence).
292
Borre v. United States, 940 F.2d 215, 223 n.16 (7th Cir. 1991) (quoting United States v.
Holzer, 848 F.2d 822, 824 (7th Cir. 1988)). Judge Easterbrook observed, “Ryan has not argued
that the district judge would have given a lower sentence on the RICO count had she
believed, say, that only four of the mail-fraud convictions represented bribes, and the other
three represented undisclosed conflicts of interest.” Ryan, 688 F.3d at 849. But of course
Ryan would have had no reason to make any argument at all on the subject until Judge
Easterbrook jumped from the box shouting “Surprise!” Even then, Ryan, like Judge
286
287

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

73

Mootness. Judge Easterbrook wrote, “Ryan’s challenge to expired
sentences may or may not be moot as a technical matter.”293 Because
vacating any of Ryan’s convictions would have led to resentencing on the
others, none of his convictions was even arguably moot. Moreover, in a
habeas corpus proceeding in which the petitioner had both completed his
sentence and regained the right to vote before the Supreme Court decided
his case, the Court declared:
[S]ome collateral consequences of his conviction remain,
including the possibility that the conviction would be
used to impeach testimony he might give in a future
proceeding and the possibility that it would be used to
subject him to persistent felony offender prosecution if he
should go to trial on any other felony charges in the
future.294
Judge Easterbrook not only distorted the custody requirement, the
concurrent sentence doctrine, and the doctrine of mootness; he also
probably erred by declaring that any two valid mail fraud convictions
would justify Ryan’s RICO conviction.295 The Supreme Court has said that
a pattern of racketeering activity is not established simply by proving two
predicate crimes. Although two predicates are necessary, they may not be
sufficient.296 One cannot know whether the jury would have found the

Easterbrook, could only have speculated about what sentence the trial judge would impose
if she learned that most of Ryan’s supposed crimes were not crimes. That is why vacating
some of Ryan’s convictions would have required the Seventh Circuit to remand the case to
the trial judge herself for resentencing on the surviving counts.
Judge Easterbrook seemed confident that, even if most of Ryan’s convictions were
vacated because they were for non-criminal conduct, his initial sentence would be
unchanged. “After all, a district judge may base a sentence on established misconduct
whether or not that misconduct has led to a conviction.” Ryan, 688 F.3d at 849. Unlike Judge
Easterbrook, however, a district judge might not regard every nondisclosure of a conflicting
interest as “misconduct” after Skilling. All of Judge Easterbrook’s statements were
contestable or just plain wrong, but Ryan had no opportunity to contest them.
293
Ryan, 688 F.3d at 848.
294
Evitts v. Lucey, 469 U.S 387, 391 n.4 (1985). See also Sibron v. New York, 392 U.S. 40, 55
(1968) (acknowledging that an earlier Supreme Court decision had “abandoned all inquiry
into the actual existence of specific collateral consequences and in effect presumed that they
existed”).
295
Ryan, 688 F.3d at 848.
296
H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 237 (1989). One of the lessons you
might draw from this Memoir is that federal criminal law and procedure are horribly
complicated and arcane. The judges who pretend that jurors can understand the law are
confused about it themselves. Congress could simplify things, but, like the judges, it adds
new gargoyles to the edifice instead. See Albert W. Alschuler, Terrible Tools for Prosecutors:

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

74

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

requisite pattern if the number of predicate crimes had been fewer. Judge
Easterbrook’s bending of doctrine was surpassed, however, by his
bending of the facts. His analysis rested on a false premise.
Falsehood Number Six: “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—[including his] 60 month sentences on the seven mail-fraud
convictions . . . have expired.”297
Ryan’s mail fraud sentences had not expired. He entered prison on
November 7, 2007.298 If, hypothetically, he had been serving only a sixtymonth (five-year) prison sentence, he would not have completed this
sentence until November 7, 2012, three months after the court issued its
opinion.299 Moreover, Ryan’s sentences on the mail fraud counts extended
beyond sixty months of imprisonment. On each count, he was sentenced
to a year of supervised release after leaving prison. 300 Supervised release
qualifies as custody.301 None of the legal doctrines Judge Easterbrook
invoked treat supervised release any differently from imprisonment.
Ryan’s sentences on the mail fraud convictions still had fifteen months to
run.302
As you are about to see, Judge Easterbrook engaged in some
remarkable gymnastics to sustain the three mail fraud charges the court
did review. Why was he reluctant to engage in the same gymnastics to
sustain them all?
I suspect he wasn’t reluctant. At argument, Judge Wood had asked
whether we differentiated among the counts. I answered that we didn’t,
but Judge Wood’s question made it seem likely that she did.

Notes on Senator Leahy’s Proposal to “Fix” Skilling v. United States, 67 SMU L. REV. 501, 521–
24 (2014) (arguing that “democracy sucks”).
297
Ryan, 688 F.3d at 848.
298
Catrin Einhorn, Ex-Gov. Ryan of Illinois Reports to Prison, N.Y. TIMES (Nov. 8, 2007),
http://www.nytimes.com/2007/11/08/us/08ryan.html?_r=0
[http://perma.cc/G3BSMD4E].
299
Ryan, 688 F.3d at 846 (noting that the court issued its opinion on August 6, 2012).
300
Separate App’x of Pet’r-Appellant, Vol.1, supra note 70, at A-000187 (the district court’s
judgment).
301
See Hensley v. Municipal Court, 411 U.S. 345, 349 (1973); Jones v. Cunningham, 371 U.S.
236, 243 (1963); Kusay v. United States, 62 F.3d 192, 193 (7th Cir. 1995) (Easterbrook, J.).
302
A federal statute provides that a prisoner who “has displayed exemplary compliance
with institutional disciplinary regulations” can receive as much as fifty-four days credit per
year toward his sentence. 18 U.S.C. § 3624(b) (2012). I did not know how much vested “good
time” Ryan had accumulated by the date of Judge Easterbrook’s opinion, and I don’t imagine
Judge Easterbrook did either. Nothing in the record indicated that Ryan had received any.
Even if one were to assume that Ryan had been awarded the maximum allowable amount
of good time credit toward a five-year sentence, he would have been on supervised release
at the time of the Seventh Circuit’s decision. His mail fraud sentences had not “expired.”

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

75

One of the counts the court refused to address was the Harry Klein
(Jamaica vacations) count. As you may recall, the government’s closing
argument had emphasized that Ryan’s cash-back arrangement with Klein
concealed a “classic conflict of interest,” not that it concealed a bribe. 303
The three other unreviewed counts concerned two contracts awarded to
lobbying clients of co-defendant Lawrence Warner. The decisions to
award these contracts had been made by professionals in Ryan’s office
after competitive evaluations, and Ryan did not participate in the
evaluations. Speaking of one of the contracts, the district court said,
“[T]here is no suggestion that Ryan took any specific ‘action’ related to the
IBM contract—and the standard definition of bribery requires some sort
of official action in exchange for the benefits received.” 304
Judge Easterbrook’s opinion declared that the benefits Ryan and
members of his family had received from Warner “underlay” the three
mail fraud convictions the court reviewed.305 Perhaps at least Judge Wood
was unwilling to say that any benefits provided by Warner underlay any
of the unreviewed counts. Judge Easterbrook, however, might have
persuaded Judge Wood that addressing the question would not matter
because all of Ryan’s mail fraud sentences had expired. 306
C. At Long Last: The Court Addresses the Issues Briefed by the Parties
Turning to the three mail fraud convictions the court agreed to review,
Judge Easterbrook declared that the defects of the pre-Skilling instructions
were harmless “in the strong sense that the jury must have found bribery
and not just a failure to disclose a conflict of interest.” 307 He wrote, “We
have three principal reasons.”308
Easterbrook’s first reason was Falsehood Number Seven—the claim
described at the outset of this Memoir that the jury must have found Ryan
guilty of taking bribes when it convicted him on the tax charges. 309 The
tax charges had nothing to do with the government’s bribery allegations,
See Separate App’x of Pet’r-Appellant, Vol. 2, supra note 59, at A-000417–18.
Ryan v. United States, 759 F. Supp. 2d 975, 1000 (N.D. Ill. 2010). See also id. at 1000–01
(discussing counts 4, 5, and 7, the three counts involving Warner that the Seventh Circuit
refused to review).
305
Ryan v. United States, 688 F.3d 844, 850 (7th Cir. 2012).
306
If this speculation is accurate, one may wonder why Judge Wood did not speak up after
our petition for rehearing revealed that Ryan’s sentences had not expired. Acknowledging
that Judge Easterbrook’s declaration about the expiration of these sentences had misled her,
however, might have been embarrassing both to her and to him, and if neither Judge Tinder
nor Judge Easterbrook was willing to join her in vacating the unreviewed convictions, she
might have seen no reason to make a fuss.
307
Ryan, 688 F.3d at 849.
308
Id.
309
Id. at 849–50.
303
304

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

76

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

and Judge Easterbrook made up out of whole cloth the instructions he said
had been given to the jury.310
“Second,” Judge Easterbrook wrote, “both sides argued this case to
the jury as one about bribery.”311 If the parties had indeed argued the case
as one about bribery without mentioning that the jury had the option of
convicting Ryan for failing to disclose a conflict of interest, Judge
Easterbrook’s conclusion that “the jury must have found bribery” would
have been appropriate.312
Judge Easterbrook recited the government’s argument to the jury that
Ryan “sold his office,” that he “might as well have put up a ‘for sale’ sign,”
and that the “type of corruption here” was like a meal plan or open bar.313
He did not note that the government failed to mention the bribery
instructions even once or that it called the undisclosed conflicts instruction
the heart of its case. He also saw no reason to mention the government’s
description of the undisclosed conflicts instruction as “the heart and
soul . . . of . . . each and every Warner situation, because [of] that flow of
benefits I talked to you about.”314
Judge Easterbrook did refer to one portion of the government’s
argument Ryan had stressed:
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
310
See supra Part II. Did I indicate that Judge Easterbrook was ready at last to address the
issues briefed by the parties? He was almost ready. Even when Judge Easterbrook turned to
the question of harmless error that the parties had long asked the court to decide, he began
his analysis by advancing an outlandish argument of his own. He did so although the
Supreme Court had returned the case to the Seventh Circuit with directions to take account
of a recent decision stressing the importance of adversary procedure. Perhaps Judge
Easterbrook cannot help himself.
311
Ryan, 688 F.3d at 850.
312
Id. at 849.
313
Id. at 852.
314
Separate App’x of Pet’r-Appellant, Vol. 2, supra note 59, at A-000417–18 (transcript of
the government’s argument).

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

77

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. 315
Falsehood Number Eight:
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. . . . [W]hen 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.316
The dispute Judge Easterbrook described did not happen. He made
it up. Ryan’s lawyers never maintained that “a particular payment from
Warner to Ryan [must match] a particular decision that Ryan made to
confer benefits on Warner.” Indeed, in the conference on jury instructions,
Ryan’s counsel declared, “I understand . . . [a] one-to-one match-up is not

315
316

Ryan, 688 F.3d at 850.
Id.

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

78

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

required.”317 On that point, Ryan and the government had been in accord
from the beginning.318
Did the prosecutor “invite a conviction based on nondisclosure,” or
did he “argu[e] that Ryan’s lawyers had defined bribery too narrowly?”
See what you think:
Have we proved a quid pro quo? No, [we] haven’t. Have
we charged a quid pro quo? No, we haven’t. We have
charged an undisclosed flow of benefits back and forth.
And I am going to get to the instructions in a minute,
folks, but that’s what we have charged. . . . We have
charged an undisclosed flow of benefits, which, under the
law, is sufficient.319
When Judge Easterbrook maintained that both sides argued Ryan’s case
to the jury as one about bribery, he could not have failed to realize that the
instructions provided another option and that the government
encouraged the jury to use it.
Judge Easterbrook wrote, “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.” 320 He then quoted at
length the district court’s analysis of one count, a count involving another
government contract awarded to a lobbying client of Lawrence Warner.
Although professionals in Ryan’s office made the decision to award the
contracts at issue in three of the counts the court refused to review, Ryan
317
Trial Transcript at 22081 (Feb. 28, 2006), United States v. Warner, 2006 WL 2583722 (N.D.
Ill. 2006) (No. 02-CR-505). After Skilling, fearing that the government and the courts might
try to make the issue in Ryan’s case the propriety of a “steam of benefits” concept of bribery,
we began the discussion of bribery in our Seventh Circuit brief by embracing this concept
ourselves:
Ryan does not doubt that accepting a “retainer” with “the
understanding that when the payor comes calling, the government
official will do whatever is asked” is bribery. . . . He agrees that “where
there is a stream of benefits given by a person to favor a public
official . . . it need not be shown that any specific benefit was given in
exchange for a specific official act.” He affirms that “the intended
exchange in bribery can be ‘this for these’ or ‘these for these,’ not just
‘this for that.’”
Brief and Required Short App’x of Pet’r-Appellant at 16, Ryan v. United States, 645 F.3d 913
(2011) (No. 10-3964) (citations omitted).
318
Of course all discussions of the law of bribery occurred outside the presence of the jury.
Even if Ryan’s lawyers and the prosecutors had differed more than they did, there would
have been no reason to mention their dispute in an argument to the jury.
319
Separate App’x of Pet’r-Appellant, Vol. 2, supra note 59, at A-000416 (transcript of the
government’s argument).
320
Ryan, 688 F.3d at 850.

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

79

made the decision to award this one. The portion of the district court
opinion quoted by Judge Easterbrook declared that Ryan’s reason must
have been either to promote effective law enforcement, as he claimed, or
else:
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 his conduct was
a response to the stream of benefits.[321] Ryan suggests
that the only “private gain” he received for his
intervention in this transaction was the approval of his
friend.[322] . . . [H]owever, 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.[323] The court concludes that the jury must
have found Ryan accepted gifts from Warner with the
intent to influence his actions.324
This passage illustrates the fallacy that we maintained infected most
of the district court’s opinion. The court spoke of “compensat[ing] Warner
for the stream of benefits” and of “accept[ing] gifts from Warner with the
intent to influence [Ryan’s] actions” as though they were the same thing.325
But the gifts came at an earlier point than the “compensation.” These gifts
might have been unconditional and legitimate even if they inspired
By equating
gratitude and later did prompt “compensation.”326
subsequent favoritism for a benefactor with bribery, the district court
concluded that the jury must have found bribery. Few elected officials,
however, disregard the interests of friends and supporters entirely. If a
jury finding that Ryan sought to benefit Warner established that he had

321
Under the instructions, the jury could have found a lack of good faith simply because
Ryan failed to disclose a conflict of interest, and it might have found non-disclosure of a
conflict even if Ryan’s only reason for approving the contract was to promote effective law
enforcement. But ignore that difficulty.
322
The instructions did not require the jury to find any “private gain” at all on Ryan’s part.
If he “misused his office” to provide “private gain” to anyone including Warner, he would
have been guilty of honest services fraud.
323
I will discuss this erroneous statement in text shortly.
324
Ryan, 688 F.3d at 852 (quoting Ryan v. United States, 759 F. Supp. 2d 975, 999 (N.D. Ill.
2010)).
325
Id.
326
Id.

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

80

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

committed bribery, almost every other elected official must be guilty of
bribery too.327
Among the errors of the quoted passage was its statement that “the
jurors . . . 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.”328 The jury instructions mentioned friendship
only in their description of an Illinois statute—one that forbade accepting
gifts from lobbyists but exempted “anything provided on the basis of a
personal friendship.”329 The court told the jury that violating this statute
or any of a number of other Illinois statutes to produce private gain for
Ryan or anyone else constituted honest services fraud.330
If Warner’s gifts to Ryan were given on the basis of friendship, the
jury could not properly have rested Ryan’s conviction on his violation of
this statute. But the jury could have based its conviction on any of a
number of other grounds, including Ryan’s failure to disclose the conflict
of interest created by Warner’s gifts. 331 Although a gift from someone like
Klein, who was not a lobbyist, could not violate the statute, it could create
a conflict of interest, and a gift provided by a lobbyist on the basis of
friendship could too.332
Our brief explained how the district court had inflated its instruction;
it had never told the jury that “if the benefits Ryan received from Warner
were merely the proceeds of a friendship, they could not be the basis for a
conviction.”333 At argument, however, Judge Wood asked, “So what do
you do with the instruction that the jury was given saying don’t convict if
you think it was just friendship? Don’t convict if you think it was a gift.
The jury did convict.”334 I replied:
327
See Alschuler, supra note 68, at 481–82 (noting that every definition of bribery looks to
the moment an alleged bribe is received and that none includes subsequent favoritism for a
benefactor).
328
Ryan, 688 F.3d at 852.
329
Separate App’x of Pet’r-Appellant, Vol. 2, supra note 59, at A-000421 (jury instructions
describing 5 ILCS 425/10 as that provision read from January 1, 1999 through the end of
2002).
330
Id.
331
See id. at A-000420 (the conflict of interest instruction).
332
Only one of the benefits provided by Warner even arguably might have violated the
statute forbidding the acceptance of gifts from lobbyists—his failure to charge a fee for
adjusting an insurance claim after Ryan’s apartment flooded on Christmas Day. See Brief
and Required Short App’x of Pet’r-Appellant, supra note 317, at 8. Campaign contributions
were specifically exempted from the statutory prohibition, and none of the other benefits
Warner provided went to people who were prohibited from receiving them. See id.; supra
Part III (describing the benefits given by Warner). The statute was all but irrelevant to the
government’s case.
333
Brief and Required Short App’x of Pet’r-Appellant, supra note 317, at 25.
334
Oral Argument, supra note 157, at 34:39.

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

81

There is no such instruction, Your Honor. . . . [T]he only
mention of friendship comes in the context of an Illinois
statute that prohibits gifts from lobbyists and other
prohibited sources, and it says that it does not prohibit
gifts made on the basis of friendship. It doesn’t say that
failure to disclose a gift made on the basis of friendship
can’t be the basis for a conviction on a conflict of interest
theory. It doesn’t say that Ryan can’t be convicted simply
for favoring friends in the award of government
benefits.335
We pointed out the district court’s error once more in our
supplemental brief following the Supreme Court’s remand.336 Thus we
had noted the district court’s error three times before Judge Easterbrook
embraced it. I considered listing as Falsehood Number Nine the declaration
that the jury was instructed not to convict if Warner provided his gifts on
the basis of friendship. Because this statement originated in an
understandable error of the district court rather than a phantasm of Judge
Easterbrook, however, it probably does not rise to the whopper level.
Perhaps it proves only that talking to the U.S. Court of Appeals for the
Seventh Circuit is like talking to a wall. We noted the error a fourth time
in our petition for rehearing,337 but the court saw no reason to correct it.
X. LARGER LESSONS AND SOME PROPOSALS FOR REFORM
A. Decent Procedure in an Adversary System
Here’s what Judge Easterbrook wrote in 1989:
I [offer no] praise for judges who . . . write essays about
issues the parties did not present. Just as the parties may
choose the terms of their contract, they may choose the
subjects of their litigation. Resolving a case on a ground
not presented denies the parties this autonomy and
increases the risk [of] an uninformed opinion. . . . It is

Id. at 34:48–35:35.
See Circuit Rule 54 Statement of Pet’r-Appellant at 18–19 n.21, Ryan v. United States,
688 F.3d 845 (7th Cir. 2012) (No. 10-3964).
337
Ryan’s Petition for Rehearing with Suggestion of Rehearing En Banc, supra note 34, at
8.
335
336

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

82

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

hard enough to navigate when the court sticks to
questions fully ventilated by counsel. 338
The view of the adversary system Judge Easterbrook took in 1989 is
the one endorsed by the Supreme Court:
In our adversary system . . . we rely on the parties to
frame the issues for decision and assign to courts the role
of neutral arbiter of matters the parties present. . . . [A]s
a general rule, “our adversary system is designed around
the premise that the parties know what is best for them,
and are responsible for advancing the facts and
arguments entitling them to relief.”339
The Court has said, “To the extent courts have approved departures
from the party presentation principle in criminal cases, the justification
has usually been to protect a pro se litigant’s rights.”340 It has quoted with
approval Judge Richard Arnold: “Counsel almost always know a great
deal more about their cases than we do, and this must be particularly true
of counsel for the United States, the richest, most powerful, and best
represented litigant to appear before us.”341
Judge Easterbrook’s saturnalia of sua sponte continued unabated after
the Supreme Court remanded Ryan’s case for reconsideration in light of
Wood v. Milyard.342 In Wood, the Court again reiterated the importance of
adversary procedure. It said, “[A] federal court does not have carte blanche
to depart from the principle of party presentation basic to our adversary
system,” and it added:
For good reason, appellate courts ordinarily abstain from
entertaining issues that have not been raised and
preserved in the court of first instance. . . . That restraint
is all the more appropriate when the appellate court itself
spots an issue the parties did not air below, and therefore

338
Frank H. Easterbrook, Afterword: On Being a Commercial Court, 65 CHI-KENT L. REV. 877,
880 (1989).
339
Greenlaw v. United States, 554 U.S. 237, 243–44 (2008) (quoting Castro v. United States,
540 U.S. 375, 386 (2003) (Scalia, J., concurring)).
340
Id. at 243–44.
341
Id. at 244 (quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold,
J., concurring in the denial of rehearing en banc)).
342
See Ryan v. United States, 132 S. Ct. 2099, 2099 (2012) (remanding in light of Wood v.
Milyard, 132 S. Ct. 1826 (2012)).

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

83

would not have anticipated developing in their
arguments on appeal. 343
Judge Easterbrook apparently was unimpressed. He disregarded not
only the Supreme Court’s admonition but also Seventh Circuit decisions
insisting on the party-presentation principle.344 By the time Ryan’s case
ended, he had made six rulings in favor of the government that the
government had not sought—that by convicting on the tax charges the
jury must have found bribery; that all of Ryan’s five-year sentences for
Wood v. Milyard, 132 S. Ct. 1826, 1833–34 (2012).
An example is Judge Richard Posner’s opinion in Hartman v. Prudential Insurance Co.
The plaintiffs in this diversity action arising under Illinois law were two orphans. As the
court described the facts, the plaintiffs’ father wanted to make them the beneficiaries of two
life insurance policies. His estranged wife, however, bribed an insurance agent to thwart the
father’s objective. She then persuaded her lover to murder the father, and she collected a
substantial settlement from the insurer. The defendants were the estranged wife, the bribed
agent, and the insurer. The district court entered summary judgment in their favor.
Hartman v. Prudential Ins. Co., 9 F.3d 1207, 1208–09 (7th Cir. 1993).
The Seventh Circuit agreed with the district court that the plaintiffs were not entitled to
the remedy they sought, reformation of the insurance policies. Id. at 1214. An intermediate
appellate court in California, however, had approved a recovery of damages in a similar case.
Id. at 1213. Although the California decision broke new ground by allowing recovery for
fraud by people who had not themselves relied on fraudulent representations, Judge Posner
wrote that the court had “no reason to doubt that Illinois” courts would follow the California
decision. Id. The Seventh Circuit nevertheless affirmed the judgment in favor of the
defendants because the plaintiffs’ counsel had not sought recovery on the theory approved
by the California court. Id. at 1214–15.
“We are not happy with this result,” Judge Posner wrote. Id. at 1214. He explained,
however, that a contrary ruling would create unfortunate incentives.
“One
consequence . . . would be that prudent appellees would have to brief issues not raised or
pressed by appellants lest the appellate court fasten on such a (non)issue and use it to upend
the judgment of the trial court.” Hartman, 9 F.3d at 1214. (Of course a prudent party would
have no reason to discuss issues not raised by his opponent if the court followed a consistent
practice of allowing supplemental briefing before deciding a case on the basis of an issue not
previously raised.) “Another consequence would be to diminish the responsibility of
lawyers and to reduce competition among them.” Id.
Commentators have bemoaned the courts’ inconsistency. Although they may strictly
enforce the adversary system’s rules of forfeiture when deserving orphans seek recovery
from murdering step-mothers and insurance companies, the same courts may follow what
the commentators call “the gorilla rule” when their sua sponte actions will enable them to
ensure the finality of judgments and the continued imprisonment of possibly innocent
people. See, e.g., Melissa M. Devine, When Courts Save Parties From Themselves: A Practitioner’s
Guide to the Federal Circuit and the Court of International Trade, 21 TUL. J. INT’L & COMP. L. 329,
332–33 (2013); Robert J. Martineau, Considering New Issues on Appeal: The General Rule and the
Gorilla Rule, 40 VAND. L. REV. 1023, 1061 (1987); Barry A. Miller, Sua Sponte Appellate Rulings:
When Courts Deprive Litigants of an Opportunity to be Heard, 39 SAN DIEGO L. REV. 1253, 1310
(2002) (discussing inconsistent use of the gorilla rule); Tory A. Weigand, Raise or Lose:
Appellate Discretion and Principled Decision-Making, 17 SUFFOLK J. TRIAL & APP. ADV. 179, 180
(2012) (“[W]hen the governing rule is declared to be both firm but discretionary, the hairs on
the back of the neck tend to bristle.”).
343
344

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

84

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

mail fraud had expired; that the concurrent sentence doctrine (or
something else) made it inappropriate to review more than two (or three)
of these convictions; that Ryan had forfeited his objection to the
undisclosed-conflicts instruction; that Day v. McDonough allowed the
court to disregard the government’s waiver of a claim of forfeiture; and
that a post-conviction petitioner may not complain about erroneous
instructions that directed his conviction for noncriminal conduct. 345 In
most of these rulings, Judge Easterbrook flouted the basic principle of
fairness the Supreme Court has said courts must observe when they find
sufficient reason for departing from the party-presentation principle: “Of
course, before acting on its own initiative, a court must accord the parties
fair notice and an opportunity to present their positions.” 346
When a litigant’s first opportunity to address a decisive issue comes
in his petition for rehearing, it comes too late. For one thing, petitions for
rehearing are difficult to write. An advocate must determine which
audience to address. Does he hope to persuade the erring opinion writer
to repent? Does he hope to persuade the other members of the panel to
stand up to him? Or does he hope to find champions among judges not
on the panel?347
Although an advocate is likely to criticize an opinion more forcefully
when he has abandoned all hope of winning its author’s vote, he dare not
punch hard even then—certainly not as hard as he would have if opposing
counsel had advanced the same arguments. A good advocate does not
speak truth to federal judicial power; instead, as if appearing before
Vladimir Putin, he seeks a way to make his point while minimizing the
risk of umbrage. In a petition for rehearing, he depicts every howling
error and every lie as a slight misapprehension.
Whatever an advocate says, it’s unlikely anyone will listen. The
Seventh Circuit advises lawyers, “Petitions for rehearing are filed in many
cases, usually without good reason or much chance of success. Few are
granted.”348 The court’s view seems to be that its opinions are so close to
perfection that lawyers should just save their time and their clients’

345
Judge Easterbrook’s first opinion in Ryan’s case focused almost entirely on Ryan’s
supposed failure to make proper objection to the instructional errors. Ryan v. United States,
645 F.3d 913, 915 (2011). At the end of this opinion, however, Judge Easterbrook made clear
that he had not retreated from his statements at argument that instructional errors are not
cognizable in post-conviction proceedings. See id. at 917 (“Jury instructions that misstate the
elements of an offense are not themselves a ground of collateral relief . . . . (Unconstitutional
jury instructions are a different matter. . . . But Skilling is about statutory interpretation.)”).
346
Day v. McDonough, 547 U.S. 188, 210 (2006).
347
Whatever the advocate’s goal, he is allowed only fifteen double-spaced pages to achieve
it. See FED. R. APP. P. 40(b).
348
Practitioner’s Handbook, supra note 154, at 158.

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

85

money. Federal appellate judges rarely back away from published
opinions, and an advocate should bother them only when he has found a
smoking gun.
Partly because of the dismissive view most judges take of petitions for
rehearing, the rule should be that an appellate court may never rest a
decision in whole or in part on a ground the parties have had no prior
opportunity to address. There should be no exceptions. When, following
argument, a judge believes he has found something important the parties
have missed, the court should invite supplemental briefing or else offer
the parties another way to have their say.
An informal procedure might suffice. An individual judge could
simply pose a question to counsel on both sides by letter (with copies to
the other judges on the panel and to the court’s case file). The judge’s letter
could set forth an issue the parties had not raised and request responses
by a specified time. The use of this procedure might delay the issuance of
an opinion, but so be it.
Sending questions by letter might be useful even before argument if,
for example, a judge found a thirty-five year old case cited by neither party
that made him “wonder what we have got here if anything.” The gain in
the quality of answers produced by advance notice of some queries might
justify the accompanying diminution of the questioner’s sadistic
satisfaction. Providing an opportunity to be heard before a court makes a
sua sponte ruling is essential to fairness, and it also is likely to improve the
quality of judicial decisions. Judge Easterbrook’s rulings in Ryan show
how wrong judges are likely to be when they strike out on their own. 349
B. Correcting Errors
The New York Times publishes corrections every day. When a Times
story refers to 556 federally recognized American Indian tribes rather than
566, the Times fixes it.350 When a story says that Sumba is southwest of
Bali rather than southeast, the Times notes the error.351 When John
Coppolella’s name has been spelled John Coppalella, a correction
appears.352 And when I see a New York Times correction, I think: Those
guys are professionals. They care about getting things right.

349
Admittedly, Judge Easterbrook managed to get things wrong even when he did allow
supplemental briefing.
350
Corrections: March 1, 2015, N.Y. TIMES (Mar. 1, 2015), http://www.nytimes.com/2015/
03/01/pageoneplus/corrections-march-1-2015.html [http://perma.cc/ZN7C-CC5L].
351
Id.
352
Corrections: March 8, 2015, N.Y. TIMES (Mar. 8, 2015), http://www.nytimes.com/2015/
03/08/pageoneplus/corrections-march-8-2015.html [http://perma.cc/JL3N-GRHN].

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

86

VALPARAISO UNIVERSITY LAW REVIEW

[Vol. 50

The Justices of the Supreme Court and the Supreme Court’s Reporter
of Decisions are professionals too. Until the “final, official text” of a
Supreme Court opinion appears in a bound volume of the United States
Reports, all versions of the opinion issued by the Court note that it remains
subject to revision.353 In practice, that means that every opinion remains
subject to revision for as long as five years, and “the Justices—or, in any
event, the Court’s staff—invest much energy in correcting . . . errors.”354
When Judge Easterbrook maintained that George Ryan had received
as much process as was due, he wrote, “Ryan’s trial lasted eight
months.”355 The assertion wasn’t true, but the error wasn’t important.
Ryan’s six-month trial was bad enough. Many of us have made errors like
that. Nevertheless, our petition for rehearing noted the error, and it was
not corrected. None of the more serious errors described in this Memoir
were corrected either, although they had been brought to the court’s
attention in our petitions for rehearing.
Why would Judge Easterbrook and his colleagues have left
uncorrected, say, the untenable argument that Ryan’s conviction on the
tax charges showed that the jury had found him guilty of taking bribes?
Here are four hypotheses: (1) The judges of the Seventh Circuit do not
read petitions for rehearing. (2) The judges felt in their bones that we must
be wrong. (3) Although the argument based on the tax counts was
untenable, it provided only one of three reasons for concluding that the
jury must have found that Ryan took bribes. Because eliminating this
argument would not have changed the outcome of the case, the judges did
not care that it was wrong. And (4) Judge Easterbrook himself did not
strike the untenable argument because acknowledging that he had made
up the facts would have been embarrassing, and his colleagues remained
silent because they did not want to embarrass or confront him.
None of these reasons for refusing to correct an error is any good.
When a judge learns at any time before his court issues its mandate that
an opinion he has written or joined contains a clear error, he should act to
correct it, and he should do so even if the error is not outcomedeterminative or important. Like the journalists of the New York Times and
Bound Volumes, UNITED STATES SUPREME COURT, http://www.supremecourt.gov/
opinions/boundvolumes.aspx [http://perma.cc/UU7V-9HBA].
354
Charles Rothfeld, Should the Supreme Court Correct Its Mistakes? Yes, If the Process Is Fair
and Open, 128 HARV. L. REV. F. 56, 56 (2014). Even decades after the publication of an opinion,
the Court may revise it through a formal, published order. See Richard J. Lazarus, The
(Non)finality of Supreme Court Opinions, 128 HARV. L. REV. 540, 561–62 (2014). The Court
recently began to provide greater notice of its “postrelease edits to slip opinions.” UNITED
STATES SUPREME COURT, http://www.supremecourt.gov/opinions/slipopinion/15
[https://perma.cc/P8D3-AAKU].
355
Ryan v. United States, 645 F.3d 913, 918 (7th Cir. 2011). See supra note 355.
353

http://scholar.valpo.edu/vulr/vol50/iss1/3

Alschuler: How Frank Easterbrook Kept George Ryan in Prison

2015]

Easterbrook

87

the Justices of the Supreme Court, the judges of the United States courts
of appeals should take pride in their work and should think of themselves
as members of a profession whose standards include truth-telling and
accuracy.356
XI. CONCLUSION
Judge Easterbrook is a stickler for rules who breaks the rules. The
other judges of the Seventh Circuit should enforce the rules, respect the
basic principles of the adversary system, and check Judge Easterbrook’s
penchant for confabulation. 28 U.S.C. § 46(b) does not put three judges on
a panel to promote “collegiality.”

356
The authors of codes of judicial conduct might do well to borrow some key provisions
of the Code of Ethics of the Society of Professional Journalists. See SPJ Code of Ethics, SOCIETY
OF PROF’L JOURNALISTS (Sept. 6, 2008), https://www.spj.org/pdf/ethicscode.pdf
[http://perma.cc/HC6R-D6TM].

Produced by The Berkeley Electronic Press, 2015

Valparaiso University Law Review, Vol. 50, No. 1 [2015], Art. 3

http://scholar.valpo.edu/vulr/vol50/iss1/3