Before we get all weepy about U.S. District Judge Rebecca R. Pallmeyer's decision not to release former George Ryan early from his prison sentence, it's advisable to read it. Other than a few fleeting references in news stories, its argumentation and logic have been largely ignored. You can find the entire decision on the court's website, here. (George H. Ryan, Sr. v. United States of America - Ruling)
I've extracted just a small piece of the decision (below) to show its tight reasoning. This selection addresses in part Ryan's arguments that he should be released because the U.S. Supreme Court undercut one of the charges against Ryan, that his corrupt acts denied Illinois citizens of his honest services. This part begins on page 3 of the decision:
Ryan advances two grounds in support for his motion to vacate or set aside his mail fraud and RICO convictions. First, he urges that Skilling undermines the jury instructions: "Because the court's jury instructions were erroneous under Skilling and the error was not harmless, Ryan's conviction and Sentence are unlawful." (Mot. to Vacate ¶ 14.) Second, Ryan urges that under the standard established in Skilling, the evidence is "insufficient to support Ryan's mail fraud and RICO convictions . . . ." (Id.) Because his conviction should be vacated, Ryan urges, he should be released immediately and admitted to bail. (Mot. to Set Bail ¶ 2.)
Skilling is unquestionably relevant here and warrants examination of Ryan's conviction. That said, it is important to note that Skilling's appeal to the Supreme Court presented substantially different circumstances from those in Ryan's case. Skilling had been charged with "conspiring to defraud Enron's shareholders by misrepresenting the company's fiscal health, thereby artificially inflating its stock price." Skilling, 130 S. Ct. at 2934. Skilling was prosecuted for these acts, characterized as depriving his private employer and its shareholders of the intangible right to his honest services, and the Supreme Court "acknowledge[d] that Skilling's vagueness challenge hasforce." Id. at 2929.
George Ryan, on the other hand, held statewide elected office, and as more fully described below, the conduct for which he was convicted--steering contracts, leases, and other governmental benefits in exchange for private gain--was well-recognized before his conviction as conduct that falls into the "solid core" of honest services fraud. Such conduct was identified by the Court in Skilling as the proper target of § 1346. Id. at 2930-31.
In response to Skilling's argument that the statute is void for vagueness, the Supreme Court acknowledged that due process requires any "'penal statute [to] define the criminal offense  with sufficient definiteness that ordinary people can understand what conduct is prohibited and  in a manner that does not encourage arbitrary and discriminatory enforcement.'" Id. at 2927-28 (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). Ryan's current challenge does not rest on vagueness grounds, and the court believes that, in the language of Skilling, Ryan clearly understood "what conduct was prohibited" and could not have been surprised that he was subject to prosecution. Ryan's efforts to conceal his conduct from public scrutiny themselves demonstrate he knew it was improper.
Indeed, long before George Ryan and his associates wrote this chapter in Illinois's distressing history of public corruption, one of Ryan's predecessors as Governor, Otto Kerner, was prosecuted under this same theory by an earlier United States Attorney.3 On direct appeal in this case, the Seventh Circuit acknowledged that the statute could be challenged if Defendants Ryan and Warner "could not have known that the conduct underlying their convictions could be considered 'depriv[ing] another of the intangible right of honest services.'" United States v. Warner, 498 F.3d 666, 697 (7th Cir. 2007) (quoting 18 U.S.C. § 1346). As applied in this case, the Court of Appeals concluded, the statute is not unconstitutionally vague--a conclusion that drew no comment from the dissenting judge.
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 at 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." (Oral Arg. at 5.) 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. Skilling emphasized that when Congress reinstated the honest services mail fraud statute after it was invalidated by McNally v. United States, 483 U.S. 350 (1987), the focus was on "core" or "paradigmatic" cases involving kickback or bribery schemes. The Skilling Court made several references to Shushan v. United States, 117 F.2d 110 (5th Cir. 1941), as an example of the paradigmatic case that would survive its ruling. Skilling, 130 S. Ct. at 2926, 2931. Notably, our own Court of Appeals4 relied on Shushan when it upheld Otto Kerner's conviction, quoting this language:
No trustee has more sacred duties than a public official and any scheme to obtain an advantage by corrupting such an one must in the federal law be considered a scheme to defraud. . . . A scheme to get a public contract on more favorable terms than would likely be got otherwise by bribing a public official would not only be a plan to commit the crime of bribery, but would also be a scheme to defraud the public. United States v. Isaacs, 493 F.2d 1124, 1150 (7th Cir. 1974) (quoting Shushan v. United States, 117 F.2d 115 (5th Cir. 1941)). The Seventh Circuit then observed that "this is precisely what occurred here. The citizens of Illinois were defrauded of Kerner's honest and faithful services as governor." 493 F.2d at 1151. Ryan's prosecution, like Kerner's before it, targeted conduct that remains at the core of honest services fraud.
While Skilling did not comment directly on Ryan's case, it came close. In a particularly relevant section, the Court noted that "the honest-services doctrine had its genesis in prosecutions involving bribery allegations." 130 S. Ct. at 2931 (citations omitted).
That section cites United States v. Sorich, 523 F.3d 702, 707 (7th Cir. 2008), for its language that these prosecutions constitute "most [of the] honest services cases. . . ." Sorich itself, in the section cited in Skilling states: Broadly speaking, honest services fraud cases come in two types. In the first, an employer is defrauded of its employee's honest services by the employee or another. . . . In the second and more common type of case, the citizenry is defrauded of its right to the honest services of a public servant, again, by that servant or by someone else. For instance, in United States v. Warner, 498 F.3d 666 (7th Cir. 2007), the Illinois Secretary of State [Ryan] channeled state contracts and leases to a friend in return for paid vacations. In both examples above, and in most honest services cases, the defendant violates a fiduciary duty in return for cash-kickbacks, bribes, or other payments. 523 F.3d at 707. The Seventh Circuit and the Supreme Court have, thus, acknowledged that this case presents the paradigmatic type of case undisturbed by Skilling. This does not end our inquiry, of course, because neither court grappled with the details presented here. It does, however, suggest that in many cases, and in Ryan's 5 case, Skilling was not the sea change that Ryan urges.
*Professor Alschuler, now one of Ryan's attorneys, characterized the prosecution of Otto Kerner in 1973 as one of the trailblazing honest services prosecutions. Albert W. Alschuler, The Mail Fraud & RICO Racket: Thoughts on the Trial of George Ryan.
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