                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-3426

C ECIL T URNER,
                                              Petitioner-Appellee,
                               v.

U NITED S TATES OF A MERICA,
                                          Respondent-Appellant.


           Appeal from the United States District Court
                for the Central District of Illinois.
            No. 10-cv-1140—Joe Billy McDade, Judge.



     A RGUED M AY 31, 2012—D ECIDED S EPTEMBER 6, 2012




  Before B AUER, S YKES, and T INDER, Circuit Judges.
  S YKES, Circuit Judge. Cecil Turner was convicted on
four counts of wire fraud and two counts of making
false statements to the FBI stemming from a scheme to
defraud the State of Illinois of salaries paid to but not
earned by a team of janitors responsible for cleaning state
office buildings in Springfield, Illinois. As was typical
at the time in federal fraud prosecutions, the wire-
fraud counts were submitted to the jury on alternative
2                                                No. 11-3426

theories that Turner aided and abetted a scheme to
defraud the State of Illinois of its money and also its
right to honest services. See 18 U.S.C. §§ 1343, 1346. We
affirmed the judgment in 2008. See United States v. Turner,
551 F.3d 657 (7th Cir. 2008).
  Two years later, the Supreme Court decided Skilling
v. United States, 130 S. Ct. 2896 (2010), limiting the honest-
services fraud statute to schemes involving bribes or
kickbacks. Turner filed a § 2255 motion asking the
district court to vacate the wire-fraud convictions based
on Skilling error, and the court agreed. The case returns
to us on the government’s appeal asking us to order
the wire-fraud convictions reinstated.
  We reverse. The Skilling error was harmless. As we noted
in our earlier opinion, “the honest services alternative
was unnecessary to Turner’s conviction.” Turner, 551
F.3d at 666. The evidence was coextensive on the two
fraud theories; the jury could not have convicted Turner
of honest-services fraud without also convicting him
of pecuniary fraud.


                      I. Background
  We assume familiarity with our prior opinion and
offer only a brief summary of the background facts. Dana
Dinora was an assistant superintendent of public works
in the City of Springfield, Illinois, and in that capacity
could ensure expedited sanitation services for local home-
owners with the right connections. Dinora was also
the head of a three-man janitorial team working nights
No. 11-3426                                              3

cleaning state office buildings in Springfield. In the
latter position, he masterminded a scheme for his crew
to frequently avoid reporting for work while still
collecting full pay. We described his elaborate but illicit
scheme in our opinion deciding Turner’s direct appeal:
    At its peak the scheme allowed Dinora to collect a
    full salary while working less than 30 minutes each
    day and the others to receive full pay while cutting
    their work hours in half. Sometimes one janitor
    would remain at work while the other two were
    absent; the “on duty” janitor would tip off the
    absent ones if questioned by a supervisor about the
    whereabouts of the other members of the crew. The
    absent janitors would then come in to work, call
    the supervisor who made the inquiry, or submit an
    appropriate leave slip. Another feature of the scheme
    involved leaving a note in one building falsely repre-
    senting that the absent janitor was working in
    another building. The three janitors also kept two
    sets of attendance logs. The first accurately recorded
    occasions when one or more of the janitors did
    not work a full shift and submitted a proper leave
    request. If no one checked their work that night,
    however, the “on-duty” janitor would replace the
    first, accurate attendance log with a second log
    falsely recording that all three had been working
    the entire night.
Turner, 551 F.3d at 660.
  But one man cannot do the work of three, and soon the
state of the buildings began to betray the malfeasance.
4                                               No. 11-3426

Complaints about workplace conditions from building
occupants made their way up the chain of command
to Turner, who was the director of physical services for
the Illinois Secretary of State, and in that capacity was
responsible for maintaining state-owned buildings in
Springfield. Turner and his wife, Doris, a member of
the County Board, knew Dinora because (among other
things) Dinora had granted them a priority-home designa-
tion for garbage pickup. Turner ran interference cov-
ering up the fraudulent scheme, ordering his sub-
ordinates to ignore the complaints about the condition
of the buildings. Eventually a middle manager defied
Turner and reported the misconduct to the Inspector
General, who in turn alerted the FBI. Turner, Dinora,
and the two junior janitors were indicted for defrauding
Illinois taxpayers of over $150,000 in unearned pay.
The three custodians each pleaded guilty.
  Turner took his case to a jury and lost. He was con-
victed on two counts of making false statements to the
FBI, see 18 U.S.C. § 1001, and four counts of wire fraud
for aiding and abetting the janitors’ scheme to defraud
the State of Illinois of money and honest services, see
18 U.S.C. §§ 1343, 1346. On direct appeal Turner chal-
lenged his convictions on all six counts. We rejected
his arguments and affirmed across the board. Turner,
551 F.3d at 668-69.
  The Supreme Court later decided Skilling, which in-
volved a due-process vagueness challenge to the honest-
services fraud statute. The Court adopted a limiting
construction to cure the statute’s vagueness, restricting the
No. 11-3426                                                   5

scope of honest-services fraud to cases involving bribes or
kickbacks. 130 S. Ct. at 2931. Turner’s case involved
neither, so he filed a § 2255 motion asking the district
court to vacate his wire-fraud convictions in light of
Skilling. The government opposed this request, arguing
that the Skilling error was harmless because the
evidence was coextensive on both pecuniary and honest-
services fraud. The district court sided with Turner,
granted the motion, and vacated the wire-fraud convic-
tions. The government appealed.


                       II. Discussion
  The government concedes the Skilling error,1 but
argues that (1) Turner procedurally defaulted it because
he did not challenge the constitutionality of the honest-
services statute in his direct appeal; and (2) the Skilling
error was harmless in any event. Turner responds that
he had cause for his decision not to bring such a chal-
lenge. See Reed v. Farley, 512 U.S. 339, 354 (1994)
(requiring cause and prejudice to excuse a procedural
default). He argues that our decision in United States v.
Bloom, 149 F.3d 649 (7th Cir. 1998), foreclosed a successful
challenge to the constitutionality of the honest-services


1
   The government also concedes that Skilling applies retroac-
tively to cases on collateral review. See Ryan v. United States,
645 F.3d 913, 915 (7th Cir. 2010) (declining to answer the
retroactivity question but noting that Davis v. United States,
417 U.S. 333 (1974), and Bousley v. United States, 523 U.S. 614
(1998), “imply an affirmative answer”).
6                                                No. 11-3426

statute. We rejected this argument in Ryan v. United
States, 645 F.3d 913, 916-17 (7th Cir. 2011). There, the
defendant also tried to establish cause for his failure to
challenge the honest-services statute on direct appeal
based on the futility of the claim under Bloom. We held
that the meaning of “ ‘cause’ in the formula ‘cause and
prejudice’ means some impediment to making an argu-
ment. That the argument seems likely to fail is not
‘cause’ for its omission.” Id. at 916.
  Here, however, the government has its own pro-
cedural obstacle: It overlooked Turner’s procedural
default in its opposition to collateral relief in the district
court. The government says that we should excuse its
forfeiture while holding Turner to his default. It is clear
we have the discretion to do so. See Wood v. Milyard, 132
S. Ct. 1826, 1832-34 (2012); Ryan, 645 F.3d at 917-18
(“On collateral review, however, a court may elect to
disregard a prosecutor’s forfeiture, because the Judicial
Branch has an independent interest in the finality of
judgments.”). But that discretion is reserved for excep-
tional cases. Wood, 132 S. Ct. at 1834; Ryan v. United
States, 2012 WL 3156309, at *2 (7th Cir. Aug. 6, 2012).
Here, we exercise our discretion to proceed to the merits.
  The sole merits question is whether the conceded
Skilling error was harmless. Normally a verdict must be
“set aside in cases where the verdict is supportable on
one ground, but not another, and it is impossible to tell
which ground the jury selected.” Yates v. United States,
354 U.S. 298, 312 (1957). But Skilling held that “errors of
the Yates variety are subject to harmless-error analysis.”
130 S. Ct. at 2934; see also United States v. Segal, 644 F.3d
No. 11-3426                                               7

364, 365-66 (7th Cir. 2011); United States v. Black, 625
F.3d 386, 388 (7th Cir. 2010). The harmless-error question
here depends on whether the trial evidence was such
that the jury must have convicted Turner on both
theories of fraud. Segal, 644 F.3d at 366; Black, 625 F.3d
at 388; United States v. Colvin, 353 F.3d 569, 577 (7th Cir.
2003) (en banc) (“We do not see how the jury could
have convicted Colvin of using fire to commit the § 241
conspiracy and not the § 3631 felony.”).
   Stated differently, if the evidence on the two fraud
theories was so thoroughly coextensive that the jury
could only find the defendant guilty or not guilty of both,
then the conviction will stand even though one theory
is later held to be legally invalid. As we stated in Segal:
      So the issue here boils down to this: would the
    jury have still convicted Segal had it not been told
    that in addition to the valid money/property fraud
    allegations, an allegation of honest services fraud
    could also be taken into consideration? We con-
    clude that the jury would—and most certainly
    did—convict Segal for money/property fraud, irrespec-
    tive of the honest services charge. This is because
    even if the jury concluded that there was an honest
    services violation, that violation had to be premised
    on money/property fraud. That is, to the extent Segal
    was depriving others of his honest services, it
    was because he was taking their money.
Segal, 644 F.3d at 366.
  Although the district judge thought otherwise, we
conclude that the jury can only have convicted Turner on
8                                                  No. 11-3426

both wire-fraud theories. As we explained in our earlier
opinion, the core of the case against Turner was that he
aided and abetted the janitors’ scheme to defraud the
State of Illinois of its money—in the form of thousands
of dollars in salaries paid for no work—by helping to
perpetuate and cover it up. Turner, 551 F.3d at 659, 666.
The honest-services fraud theory was thus entirely “pre-
mised [up]on [the] money/property fraud.” Id. at 666.
On the evidence in this case, the jury could not have
convicted Turner for honest-services fraud had it not
been convinced beyond a reasonable doubt that he
aided and abetted the janitors’ money-fraud scheme. In
short, this prosecution was an all-or-nothing proposi-
tion. Either Turner was guilty of aiding and abetting a
pecuniary and an honest-services fraud (as it was then
understood), or he was not guilty of either type of fraud.
  Accordingly, even though Turner “could not lawfully
be convicted of honest-services fraud[,] . . . it is not open to
reasonable doubt that a reasonable jury would have
convicted [him] of pecuniary fraud.” Black, 625 F.3d at
388. Because the Skilling error was harmless, the wire-
fraud convictions can stand. We therefore R EVERSE
and R EMAND with instructions to reinstate Turner’s wire-
fraud convictions.




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