The Seventh Circuit recently held that the former Commonwealth Edison CEO and an ex-lobbyist convicted of conspiring to funnel jobs and payments to allies of ex-Illinois House Speaker Michael Madigan are entitled to a new trial, but not acquittal, after a U.S. Supreme Court ruling invalidated the legal theories behind those convictions.

The appellate court's ruling explains the rationale behind a brief order in April authorizing the release of Anne Pramaggiore, former CEO of Exelon and its subsidiary ComEd, and retired lobbyist Michael McClain on bond pending a new trial and promising that an opinion granting them a new trial "will follow." The unusual move came just hours after the same panel heard arguments on their bids to unwind their 2023 convictions.

A three-judge panel said it agreed with Pramaggiore and McClain that the government's bribery theory, which was later rejected in the Snyder v. U.S. decision in the nation's top court, contaminated a jury's finding that they were guilty of conspiracy. But it stopped short of acquitting them outright, and said Illinois federal prosecutors could retry them on the conspiracy and Foreign Corrupt Practices Act charges if they so choose.

U.S. Attorney Boutros said his office was "weighing our options" as to a retrial and "will advise the district court of our decision at the appropriate time."

Duane Morris LLP partner John Cooke, a former Illinois federal prosecutor, said that some appellate rulings spark a conversation in the U.S. attorney's office about whether there's enough evidence to secure another conviction. But the Seventh Circuit made it very clear that it was an invalid legal theory that doomed McClain and Pramaggiore's convictions, not a lack of evidence put forth by the government, he said.

"Here, the court went out of its way to say [it was] not ruling on whether these two defendants couldn't be convicted under any other theory of public corruption," Cooke told Law360. "It found the evidence 'significant and compelling' and said there was 'more than sufficient' evidence of false records, for a properly instructed jury to have convicted on this record."

Cooke says he expects the U.S. attorney's office to see that they made an error on jury instructions and pursue another trial that accounts for the change in federal bribery law.

But Cooke is also watching to see if the government is considering a challenge to the Seventh Circuit's harmlessness standard, flagging that it may be why prosecutors recently asked for more time to put in a request for a rehearing en banc, or by the entire Seventh Circuit.

The court had noted in its opinion that under Seventh Circuit precedent, the inquiry to establish harmlessness is "whether the trial evidence was such that the jury must have convicted the petitioners on both [the valid and invalid] theories." If jury instructions allow a jury to convict on two theories, one of which is legally insufficient, the court must order a new trial in case the jury convicted on invalid grounds, the Seventh Circuit panel went on.

"The Seventh Circuit's harmlessness test tends to be stricter," Cooke said.

In its opinion, the Seventh Circuit panel contrasted its approach with that taken by the Fifth Circuit, which weighs whether a trial record contains evidence that could rationally lead to an acquittal with respect to the valid theory of guilt. The court also cited a looser test at the Third Circuit, where the court can find an error is still harmless if there is "overwhelming" evidence for the remaining valid theory of conviction.

Should the federal government pursue a new trial, there are challenges in securing another conviction years later, but there are benefits, too, Cooke said.

"Both sides are able to sort of minimize mistakes they made the first time and try new things the first time," he said, but added that the Seventh Circuit may make life difficult for McClain and Pramaggiore by saying there's adequate evidence. While the jury would never hear that, it might make any appeal of a possible second conviction a heavy lift, he said.

If the U.S. attorney decides against a redo, "it would suggest there's a change in priorities," Cooke said. "And a shift from public corruption to other matters, other resource allocations. ... This looks like a case that would normally be retried."

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