Bereano v. US: Bereano was charged in 1994 with multiple counts of mail fraud stemming from practices at his law firm and lobbying firm. At the time, jurors were instructed that he could be convicted under either the "pecuniary fraud" theory or the "honest services fraud" theory. Their verdict, finding him guilty on seven counts, did not specify which theory the jury relied on for each count. Bereano's convictions were affirmed on appeal and he "has long since served his sentence and paid his fine." In 2011, Bereano filed a petition for a writ of coram nobis, arguing that his convictions should be vacated in light of the Supreme Court's Skilling decision in 2010, in which the Court held that the "honest services fraud" theory was limited to schemes involving bribery and kickbacks. The district court denied Bereano's petition, concluding that any error was harmless beyond a reasonable doubt because Bereano was charged under both theories.
On appeal, the Fourth Circuit affirmed the district court's dismissal. Analyzing whether the Skilling error was "of the most fundamental character," the court looked to whether Bereano would have prevailed on a direct appeal of his convictions if the appeal occurred after Skilling had been decided. Although a verdict resting on multiple theories should be set aside when one theory is no longer valid and it is impossible to tell upon which theory the jury relied, harmless error analysis still applies. Particularly, the court looks to determine the evidence credited by the jury and whether that evidence would support a conviction on the legally valid theory. Applying that analysis, the court concluded that the Government at Bereano's trial "presented overwhelming evidence that he schemed to commit pecuniary fraud." Thus, the error was harmless and the district court correctly dismissed Bereano's petition for a writ of coram nobis.