Pursuant to 28 U.S.C. Sec. 2255, Orrin Shaid collaterally attacks his 1973 convictions for violations of criminal banking statutes. After a lengthy examination of the case, a United States magistrate recommended that relief be denied Shaid. The district court adopted the Report of the Magistrate and denied relief. We affirm the district court's denial of relief on most of Shaid's claims. We find, however, that the district court failed to examine thoroughly one of Shaid's claims, and we remand for further consideration of that claim.

In 1973, Orrin Shaid was convicted of and sentenced for conspiracy to misapply bank funds and to make false statements in a loan application in violation of 18 U.S.C. Sec. 371; nineteen counts of misapplication of bank funds in violation of 18 U.S.C. Sec. 656; two counts of making false statements in a loan application in violation of 18 U.S.C. Sec. 1014; six counts of making a false entry in a bank statement in violation of 18 U.S.C. Sec. 1005; and four counts of accepting a gift in exchange for procuring a bank loan for a third party in violation of 18 U.S.C. Sec. 215. Shaid was sentenced to eight years imprisonment.

The facts of Shaid's case, and particularly of the conspiracy, are set out in detail in United States v. Wilson, 500 F.2d 715, 718-20 (5th Cir.1974), cert. denied, sub nom., Levin v. United States, 420 U.S. 977, 95 S. Ct. 1403, 43 L. Ed. 2d 658 (1975). We offer only a brief summary of them here. The evidence introduced at Shaid's trial indicated that, in 1971, he and a group of investors purchased the Shireno State Bank of Shireno, Texas. Shaid apparently had attained the financial backing of his investors by promising them a readily available supply of loans and credit from the bank once it was purchased. After the bank was purchased, the bank's president authorized a bank loan to each of the investors. The government contended that none of those loans was ever repaid.

Two months after the Shireno purchase, Shaid purchased the First State Bank of Grandview, Texas. Shortly thereafter, First State granted unsecured loans to Shaid as well as other members of his group. Several of those loans were used to write off the notes and interest at the Shireno bank.

Soon after the First State purchase, bank directors and examiners at both banks began an investigation of Shaid. That investigation yielded evidence that Shaid and many of the investors, in order to obtain loans, filed financial statements that falsely inflated their assets. Specifically, Shaid had executed promissory notes under other persons' names.

On direct appeal, this Court affirmed Shaid's convictions. Soon thereafter, Shaid filed a motion under 28 U.S.C. Sec. 2255 to vacate his sentence, based on a challenge to the Parole Commissions Guidelines. In 1977, that motion was denied. Shaid was later granted parole.

In 1982, Shaid was convicted on federal bank fraud charges in another case. Due to the earlier conviction, Shaid received an enhanced sentence. The facts of that case are set out in our opinion affirming his conviction. See United States v. Shaid, 730 F.2d 225 (5th Cir.), cert. denied, 469 U.S. 844, 105 S. Ct. 151, 83 L. Ed. 2d 89 (1984).

As a result of the 1982 conviction, a parole violator detainer was lodged against Shaid for violation of his parole and he was taken into custody on that basis. Consequently, Shaid's petition is based upon being "in custody" for the 1973 conviction.

In 1984, Shaid filed, pro se, a second Sec. 2255 motion to vacate the 1973 sentence. After an evidentiary hearing and review of Shaid's claims, the magistrate, in a 75 page report, recommended denial of Shaid's motion. The district court adopted the magistrate's findings and recommendations and, after a de novo review of Shaid's objections to the report, denied Shaid's motion.

Shaid appeals, raising essentially ten points of error. While two points of error relate to the handling of the current collateral attack, the first eight challenge his 1973 conviction. With one possible but unimportant exception, none of the objections Shaid raises was specifically raised at trial, in his direct appeal, or in his first collateral attack.

28 U.S.C. Sec. 2255 provides the usual avenue by which federal prisoners collaterally attack their convictions.1 They may only do so, however, on the basis of errors of law that constitute "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185, 99 S. Ct. 2235, 2240, 60 L. Ed. 2d 805 (1979) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417 (1962)). Sec. 2255 extends primarily to those issues that are of constitutional or jurisdictional magnitude. See id.; United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sept.1981). Any purported error not of such magnitude may only be considered under a Sec. 2255 motion if it could not have been raised on direct appeal and, if condoned, would result in a complete miscarriage of justice. Capua, 656 F.2d at 1037.

On a Sec. 2255 motion, if a convicted defendant raises trial errors to which no contemporaneous objections were made, she or he must meet a two part requirement. First, the defendant must show "cause" as to why the objection was not made at trial and, second, the defendant must show actual prejudice resulting from the errors of which she or he complains. United States v. Frady, 456 U.S. 152, 167-68, 102 S. Ct. 1584, 1594, 71 L. Ed. 2d 816 (1982). This standard, of course, does not apply to claims of ineffective assistance of counsel, which must be reviewed de novo.

Although the Frady test has been applied by many courts in evaluating Sec. 2255 claims where no objection was raised at trial, there is a recognized exception to the test's application. If a defendant has been convicted of a criminal act that becomes no longer criminal, courts generally acknowledge that such a conviction cannot stand. See, e.g., Addonizio, 99 S. Ct. at 2241 (discussing Davis v. United States, 417 U.S. 333, 94 S. Ct. 2298, 41 L. Ed. 2d 109 (1974), stating that refusal to vacate a sentence where a change in substantive law had rendered defendant's conduct not a violation of the criminal statute would result in a "complete miscarriage of justice"); Callanan v. United States, 881 F.2d 229, 231-32 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S. Ct. 1816, 108 L. Ed. 2d 946 (1990); see also United States v. Bruno, 903 F.2d 393 (5th Cir.1990) (applying, although not specifically stating, the rule); United States v. Bush, 888 F.2d 1145, 1145-46 (7th Cir.1989); United States v. Stoneman, 870 F.2d 102, 105 (3rd Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 236, 107 L. Ed. 2d 187 (1989). Frady itself recognized this exception, emphasizing that the case would have been different if Frady had argued that he was not guilty of the crime for which he was convicted. See Frady, 456 U.S. at 171, 102 S.Ct. at 1596.2 If, then, a defendant has been convicted of a crime of which he is innocent, or has been convicted of acts that are no longer criminal, courts need not consider cause and prejudice. Cf. Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397 (1986) ("[W]here a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.")

Before addressing Shaid's attacks on his 1973 conviction, we first consider his objections to the handling of his Sec. 2255 motion. Shaid makes two claims. First, he contends that the district judge failed to make a de novo review of his Sec. 2255 motion and his objections to the magistrate's report. Second, he argues that the magistrate committed a reversible error by denying Shaid's request for a copy of the transcript of the 1973 trial. We find that neither the judge nor the magistrate committed reversible error by these actions of which Shaid complains.

Shaid argues that the district court failed to make a de novo review of his motion and objections, as required by 28 U.S.C. Sec. 636(b)(1) and Article III of the Constitution. He also complains that the district judge did not make findings of fact or conclusions of law.

To support his claim that the district court should have made findings of fact and conclusions of law, Shaid cites a number of cases, including our opinion in United States v. Daly, 823 F.2d 871 (5th Cir.1987). In that case, we stated that unless the record shows conclusively that the petitioner is not entitled to relief, the district court must state findings of facts and conclusions of law for its ruling on a Sec. 2255 motion. See Daly, 823 F.2d at 872; see also, United States v. Edwards, 711 F.2d 633, 633 (5th Cir.1983); Hart v. United States, 565 F.2d 360, 361-62 (5th Cir.1978).

In making his argument, however, Shaid ignores one important distinction between his case and those cited above. While Shaid's case was referred to a magistrate to make findings of fact and recommendations for disposition, in accordance with 28 U.S.C. Sec. 636, there is no indication that a magistrate ever reviewed the other cases. Indeed, our rationale for sending those cases back to the district court was to provide us with a record sufficient for appellate review. See, Hart, 565 F.2d at 361. In contrast, the magistrate's 75-page report in Shaid's case gives us a sufficient record for review.

Shaid's contention that the district judge did not make a de novo review of the magistrate's report and Shaid's objection to the report is also without merit. The district court's order dismissing Shaid's claim reads in part:

The Report of the Magistrate, which contains her findings of fact and recommendations for the disposition of such action, has been presented for consideration, and having made a de novo review of the objections raised by the Petitioner thereto, the Court is of the opinion that the findings and conclusions of the Magistrate are correct, and the objections of Petitioner are without merit; hence the Court adopts the Report of the United States Magistrate as the findings and conclusions of this Court.

The language of the order indicates that the district court complied with 28 U.S.C. Sec. 636(b)(1) in conducting its review. In Washington v. Estelle, 648 F.2d 276 (5th Cir.), cert. denied, 454 U.S. 899, 102 S. Ct. 402, 70 L. Ed. 2d 216 (1981), the petitioner made a similar claim regarding a district court's review of a magistrate's report on a Sec. 2254 habeas motion. In that case we found that the order, which was strikingly similar to the one in this case,3 conformed to the statute. See Washington v. Estelle, 648 F.2d at 282.

Following Shaid's 1973 conviction, Shaid and his codefendants apparently purchased a copy of the trial transcript to aid them in their direct appeals. In preparing the instant motion, Shaid had access to and used the jury instruction portion of that transcript. He complains that he was unable to locate the remainder of the transcript and that the magistrate erred by not providing him with a copy free of charge.4 Shaid argues that the denial of the transcript deprived him of due process and effective assistance of counsel.

Congress has authorized the government to pay transcript fees for those prisoners bringing cases under Sec. 2255 "if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal." 28 U.S.C. Sec. 753(f). This statute was upheld as constitutional by the Supreme Court in United States v. MacCollum, 426 U.S. 317, 96 S. Ct. 2086, 48 L. Ed. 2d 666 (1976).

Shaid admits that in addition to the jury instructions, he had access to several motions that were made immediately subsequent to his trial, one of which he requested in his Motion for Production of Certain Portions of Transcript. He also refers to the entire transcript in his brief before us, which indicates that he now has access to it. With that access, he does not convince us that he suffered from not having it earlier. Indeed, he does not raise any new issues that surfaced from his review of the record. Instead, he merely points to portions of the record in an attempt further to bolster the claims he made before the magistrate.

We therefore find that the magistrate did not err by denying Shaid a free copy of the transcript. Shaid apparently had access to those portions of the transcript needed to decide the issues presented by his Sec. 2255 motion. To the extent that he now points out portions of the record that might be relevant to assessing his claims, we take them into our consideration of his case.

Shaid's most compelling collateral attack on his 1973 conviction is his assertion that the district judge wrongly instructed the jury as to the mens rea requirement under 18 U.S.C. Sec. 656. He was convicted of the nineteen misapplication of funds charges under that section. 18 U.S.C. Sec. 656 provides that a crime is committed by someone connected with a bank who "willfully misapplies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities intrusted to the custody or care of such bank, or to the custody or care of any such agent, officer, director, employee or receiver." The trial judge instructed the jury in some detail as to the meaning of "willful misapplication" under the statute. He explained:

The general nature of the requisite intent has been expressed as a reckless disregard of the bank's interests, and proof of naturally foreseeable adverse consequences has been held sufficient to prove criminal intent. More specifically, proof that normal loan procedures were circumvented or facts concealed from the Board of Directors would be indicative of fraudulent intent. Proof of a failure to obtain insufficient collateral, proof of the repeated cashing of insufficient fund checks or proof of self-interest on the part of the bank officer or employee in an otherwise questionable transaction, all would be evidence of intent to injure or defraud.

Shaid contends that this instruction was improper because reckless disregard is not sufficient to show intent under the statute.

Shaid's attorney did not object to this portion of the instruction, either at trial or on appeal.5 Nevertheless, in our review of the case on direct appeal, we noted in our general discussion of the constitutionality of the instruction that "reckless disregard of the interest of a bank is, for the purpose of 'willful misapplication,' the equivalent of intent to injure or defraud." Wilson, 500 F.2d at 720. For support of that proposition we cited two cases from other circuits, Logsdon v. United States, 253 F.2d 12 (6th Cir.1958) and Giragosian v. United States, 349 F.2d 166 (1st Cir.1965).6 After Wilson, we reiterated that position a number of times. Indeed, at least three times we cited Wilson for support of the proposition that reckless disregard is the proper mens rea under Sec. 656. See United States v. Salinas, 654 F.2d 319, 327 (5th Cir.1981) ("[I]t is well settled that intent can be proved under Section 656 by a showing of reckless disregard for the interests of the bank.") (citing Wilson ); United States v. Welliver, 601 F.2d 203, 210 (5th Cir.1979) ("As pertains to Sec. 656, this court has held that a 'reckless disregard of the interest of a bank is, for purpose of "willful misapplication," the equivalent of intent to injure or defraud.' ") (citing Reynolds, infra, quoting Wilson ); United States v. Reynolds, 573 F.2d 242, 244-45 (5th Cir.1978).

In 1983, however, we considered the issue en banc and we changed the law. In United States v. Adamson, 700 F.2d 953 (5th Cir.) (Unit B en banc), cert. denied, 464 U.S. 833, 104 S. Ct. 116, 78 L. Ed. 2d 116 (1983), we determined that the proper mens rea requirement standard for Sec. 656 is knowledge. "In order to convict a defendant for willfully misapplying funds with intent to injure or defraud a bank, the government must prove that the defendant knowingly participated in a deceptive or fraudulent transaction." Adamson, 700 F.2d at 965 (emphasis in original). Accordingly, we explicitly overruled "that portion of United States v. Welliver [citation omitted] which held that the proper mens rea standard for Sec. 656 was a reckless disregard of the interests of the bank." Id. We went on to explain that "to the extent that Salinas follows Welliver in lowering the mens rea standard for Sec. 656 to reckless disregard, we also overrule Salinas today." Id. at 965 n. 18.7 We then determined that an instruction equating reckless disregard with knowledge constitutes reversible error. Id. at 965 (citing Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979)).8

In evaluating Shaid's collateral attack on the jury instruction, the magistrate correctly assumed the jury instructions were defective under Adamson. The trial court introduced its instruction on intent by saying that it had been equated with reckless disregard for the interests of the bank. Even though some of his elaboration might have tended toward suggesting that knowledge might be inferred from evidence of reckless disregard, the fact is that his general statement of the rule equated the two.9 We conclude that the instruction was error.

Because Shaid's attorney did not object to the instructions at trial and because we now review the issue on a Sec. 2255 motion, we do not automatically reverse Shaid's Sec. 656 convictions. The magistrate, following United States v. Frady, supra, reviewed Shaid's case under the cause and prejudice standard. She determined that Shaid's attorney had no cause for failing to object to the instruction since the law was not absolutely settled against him at that time. Indeed, as Adamson explains, the development of the improper mens rea requirement in the Fifth Circuit in many ways began with Shaid's case. See Adamson, 700 F.2d at 962-63. Finding no cause, the magistrate saw no need to turn to the prejudice standard.

We do not here review the magistrate's application of the cause and prejudice standard. We do not do so because we find that the magistrate reached the issue prematurely. The result was a failure to consider adequately Shaid's claim. Shaid argues before us, as he did before the magistrate and in his objections to the report of the magistrate, that he was wrongly convicted because he is innocent of an essential element of the intent to defraud. That element is knowledge. He contends that much of his defense at trial and on appeal was that he did not have the requisite intent to misapply the funds. Specifically, he argued on several occasions that he or those whom he was accused of aiding and abetting did not have certain knowledge. Both at trial and on appeal the government responded that reckless disregard had been proved.

Shaid argues that if he was convicted of recklessly disregarding the interests of the bank, rather than knowingly misapplying funds, his conviction cannot stand. We agree. If Shaid's contentions are correct, his case differs significantly from Frady, the case that first applied the cause and prejudice standard to a Sec. 2255 motion. In Frady, the defendant was convicted of first-degree murder. In his Sec. 2255 motion, he argued that the jury had been erroneously instructed on malice, an element of first-degree murder. He pointed out that the trial court's instructions relieved the government of proving malice beyond a reasonable doubt. In turn this resulted in an inadequate opportunity for the jury to consider a manslaughter verdict. See Frady, 456 U.S. at 169-70 & n. 18, 102 S. Ct. at 1595 & n. 18. Because Frady had not objected to the instruction at trial or raised the issue on appeal, the Supreme Court analyzed the case under the cause and prejudice standard first enunciated in Davis v. United States, 411 U.S. 233, 93 S. Ct. 1577, 36 L. Ed. 2d 216 (1973). The Frady court did not reach the cause prong of Davis because it found that Frady had shown no prejudice. The basis of its finding of lack of prejudice was that the instruction did not have any impact on Frady's conviction. Frady never had claimed at trial that he did not have the requisite malice. Had he made that claim, the Supreme Court recognized that his plea for relief could not be ignored:

[W]e emphasize that this would be a different case had Frady brought before the District Court affirmative evidence indicating that he had been convicted wrongly of a crime of which he was innocent. But Frady, it must be remembered, did not assert at trial that he and Richard Gordon beat Thomas Bennett to death without malice. Instead, Frady claimed he had nothing whatever to do with the crime. The evidence, however, was overwhelming, and Frady promptly abandoned that theory on appeal. [citation omitted]. Since that time, Frady has never presented colorable evidence, even from his own testimony, indicating such justification, mitigation, or excuse that would reduce his crime from murder to manslaughter.

Frady, 456 U.S. at 171, 102 S.Ct. at 1596.

After a thorough review of the record, we find that Shaid's case differs critically from Frady. Shaid's defense did involve the intent element of Sec. 656. Even though Shaid's attorney did not challenge with precision the equation of reckless disregard with intent, he continually argued that there was no proof that Shaid or those he allegedly aided had knowledge of misapplying funds. In fact, Shaid's requested jury instructions included the following language regarding the mens rea requirement of Sec. 656:

In determining whether the Defendant, at the time the (loan was made/check was issued) had the intent to defraud the bank, you must distinguish between a criminal misapplication and conduct which amounts merely to poor administration or judgment in managing the bank's assets. The term "criminal misapplication" means that the action was taken willfully, by one who knew that it was illegal, and who acted for the purpose of defrauding the bank. If you find however that the action charged against the Defendant was not acting with the purpose of injuring the bank in mind, or that he was unaware of any illegality of his conduct, then you must find the Defendant not guilty.

That instruction was rejected. In Shaid's motion for acquittal, the issue was again raised regarding several counts. At times the government responded by showing specific knowledge but at other times it did not. Several times, the government suggested or specifically stated that the evidence proved reckless disregard for the interests of the bank.

On direct appeal, Shaid again raised the issue of whether he and some of his co-defendants had knowledge of some of the Sec. 656 violations. As to several of those counts, the government responded that Wilson, the co-defendant whose knowledge was in question, either knew that certain statements regarding loans were false or that he made the loans without a cursory verification of the statements. Later, the government's brief--after reviewing the conduct charged in those counts--concluded that "[s]uch conduct amounts to more than mere bad judgment or maladministration. It amounted to conduct which was in reckless disregard of the interests of the bank and which was an unjustifiable use of bank funds. Such conduct clearly constitutes misapplication." Given that this dispute was continued in Shaid's direct appeal, it is not surprising that we noted in our opinion that recent cases had held that reckless disregard equalled intent to injure or defraud under Sec. 656. See Wilson, 500 F.2d at 720.

There is, then, evidence in the record that Shaid might have been convicted of reckless disregard for the interests of a bank. As our decision in Adamson makes clear, reckless disregard without knowledge cannot equal a crime under Sec. 656. Accordingly, if Shaid's convictions rest on that theory, his convictions cannot stand. Not only would he have been convicted of crimes he did not commit (Sec. 656 violations), he would have been convicted of conduct that is no longer criminal under the statute. To allow such convictions to stand would result in a complete miscarriage of justice. See Addonizio, 442 U.S. at 187, 99 S.Ct. at 2241.10

Because neither the magistrate nor the district judge considered Shaid's claim that he is innocent of crimes for which he has been convicted, we remand to the district court for further consideration. Shaid did not contest on mens rea grounds all nineteen counts of misapplication of funds of which he was found guilty. For this reason, the district court will need to review the record to determine which counts raise a legitimate concern as to whether Shaid or those whom he is alleged to have aided had the requisite knowledge to violate Sec. 656. The court will then need to make a finding as to whether each of Shaid's Sec. 656 convictions rested on only a finding of reckless disregard for the interests of the bank.

In its brief, the government suggests that the evidence presented at trial was sufficient to show that Shaid's conduct was knowing. While under a cause and prejudice standard, sufficiency of the evidence might go to the prejudice prong,11 it cannot satisfy inquiry as to the basis of each conviction. The fact that an alternative theory might support a conviction cannot sustain a conviction that was based on an unconstitutional theory. Cf. Callanan v. United States, 881 F.2d at 233. Hence, the question for the district court is not whether the evidence presented at trial is sufficient to sustain Shaid's convictions on the Sec. 656 charges but whether in each questioned instance Shaid actually was convicted on a reckless disregard theory.

Shaid attacks his conviction on seven remaining grounds. These grounds are: (1) that the trial court erred in its instruction to the jury regarding the "connected" with a bank requirement under 18 U.S.C. Sec. 656; (2) the trial court improperly instructed the jury as to the mens rea requirement and essential elements of 18 U.S.C. Sec. 1005; (3) the trial court erred by not striking certain overt acts from the conspiracy count of the indictment; (4) the trial court erred by allowing the verdict to be returned by an eleven member jury, although Shaid had stipulated that if one of the jurors became unable to serve, he would be willing to proceed to a verdict by the remaining members; (5) the indictment resulted from

misinformation given to the grand jury; (6) the prosecutor suppressed exculpatory evidence from the grand and petit juries; (7) Shaid was denied effective assistance of counsel.

As to the first six attacks, the magistrate thoroughly considered the substance of each of these claims and found no merit to any of them. To the extent that there was any possibility that an error had occurred, particularly regarding Shaid's jury instruction claims, the magistrate found no cause for Shaid's failure to object.12 Our review of the record and the relevant law indicates that the magistrate properly determined these issues. Since Shaid sheds no new light on these claims on his appeal of the district court's denial of his motion, we do not further address them here.

The magistrate with great care scrutinized Shaid's final attack on his conviction, his claim of ineffective assistance of counsel. Indeed, the magistrate conducted a thorough hearing on both Shaid's claim that his counsel was ineffective in failing to call a certain witness and the government's motion to dismiss that claim. She then devoted 35 pages of her report to an analysis of each of Shaid's ineffective assistance claims. After reviewing the magistrate's report, we find no error in her determination that Shaid's trial counsel was not constitutionally ineffective. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

With the exception of Shaid's claim regarding the mens rea requirement under Sec. 656, we affirm the district court's denial of Shaid's petition. We remand the case to the district court for further review of the Sec. 656 claims and for further proceedings as necessary.

AFFIRMED IN PART, REMANDED IN PART.

The majority argues that the Frady cause and prejudice standard should not apply to the petitioner, Shaid, because Shaid, unlike Frady, claimed at trial not to have the required mens rea for conviction of the charged offense. See United States v. Frady, 456 U.S. 152, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982). Because Frady cannot be distinguished on this basis, and because Frady is controlling Supreme Court precedent, I respectfully dissent.

Frady was convicted of first degree murder by a jury in the Federal District Court for the District of Columbia. In Frady, as in the instant case, the Court of Appeals decided, subsequent to the instructions given at Frady's trial, that the trial court's instructions concerning mens rea were improper.1 Frady sought to overturn his conviction on Sec. 2255 review based on the trial court's improper instructions. The Supreme Court concluded that it could not reach the merits of Frady's claim absent a showing of cause and prejudice for his failure to object.2 Frady could not demonstrate prejudice, the Supreme Court reasoned, because he defended only on the basis that he did not commit the crime and because the evidence of his guilt and malice was overwhelming.

The majority contends that Frady is distinguishable from the instant case because Shaid, unlike Frady, argued at trial that he did not have the proper mens rea to be convicted of willful misapplication of bank funds.3 In concluding that Frady could not show prejudice resulting from his failure to object to the improper mens rea instructions at trial, Justice O'Connor observes that the case would be different "had Frady brought before the District Court affirmative evidence indicating that he had been convicted wrongly of a crime of which he was innocent."4 If Frady had argued justification, mitigation, excuse, or lack of mens rea, Justice O'Connor contended, he might have demonstrated prejudice as a result of the improper jury instructions. Frady could not establish prejudice, Justice O'Connor reasoned, because he contended only that someone else committed the crime.

The majority ignores Justice O'Connor's discussion of prejudice and claims that this passage reveals an exception to Frady's cause and prejudice requirement that applies whenever the defendant argues that he is innocent under the applicable substantive law. Only if Shaid had never argued that he lacked the proper mental state for willful misapplication of bank funds, the majority reasons, would the Frady cause and prejudice standard have come into play. The majority's analysis creates an exception to Frady that is larger than the general rule, that is unsupported by the case law, and that take Justice O'Connor's discussion entirely out of context.

The majority claims that this non-existent exception has been applied in a series of cases in which prisoners have obtained reversal of mail fraud convictions on post-conviction review following the Supreme Court's rejection of the intangible rights theory of mail fraud in McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987). These cases establish no such exception.5 For example, in Callanan v. United States, 881 F.2d 229 (6th Cir.1989), cited by the majority, the Callanans, father and son, were convicted of mail fraud based on the intangible rights theory. Far from establishing the majority's asserted exception to Frady, the Callanan court applied Frady and found that cause existed because the Supreme Court's decision in McNally had been completely unexpected.

In several of these post-McNally cases, the courts do not discuss the question of procedural default. The question of cause was not a significant issue in these cases because the law before McNally was well established that mail fraud convictions could be premised on the intangible rights theory. See Callanan v. United States, 881 F.2d 229, 231 (6th Cir.1989) (It was well settled that mail fraud could be based on intangible rights theory); United States v. Ochs, 842 F.2d 515, 521 (1st Cir.1988) ("It [McNally ] was, without doubt, a departure from the law of every court of appeals--including this one--to consider the issue of intangible rights mail fraud prosecutions."); United States v. Piccolo, 835 F.2d 517, 521 (3rd Cir.1987) (Aldisert, J., dissenting), cert. denied, sub nom., Piccolo v. United States, 486 U.S. 1032, 108 S. Ct. 2014, 100 L. Ed. 2d 602 (1988) (McNally was "blockbusting"); United States v. Slay, 673 F. Supp. 336, 343 (E.D.Mo.1987), aff'd, 858 F.2d 1310 (8th Cir.1988) (McNally was "a total surprise"); United States v. Doherty, 675 F. Supp. 726, 728 (D.Mass.1987) aff'd in part, rev'd in part, 867 F.2d 47 (1st Cir.1989), cert. denied, --- U.S. ----, 109 S. Ct. 3243, 106 L. Ed. 2d 590 (1989) (McNally was "wholly unexpected explication of the law of mail fraud."). Under these circumstances, the defendant could hardly have been expected to object to the intangible rights theory. As we noted in United States v. Marcello :

Ordinarily, a habeas petitioner who raises an instructional error for the first time in a collateral attack must satisfy the cause and prejudice standard of Wainwright v. Sykes6.... It is well settled in this circuit, however, that the Sykes claim is waived if it is not raised.... In the case at bar, the government did not raise the procedural bar, but, rather, recognized that the defendants had cause for failing to object to the intangible rights theory.

United States v. Marcello, 876 F.2d 1147, 1153 (5th Cir.1989) (emphasis added). The courts presumably did not address the question of cause in these cases because, as in Marcello, the government conceded the issue.

At most, the cases cited by the majority indicate some uncertainty concerning whether a petitioner must demonstrate cause and prejudice when the substantive theory on which his conviction was premised is subsequently determined to be invalid. No such uncertainty exists in the present case. Before McNally, the lower federal courts had interpreted the words "scheme or artifice to defraud" in the mail fraud statute, 18 U.S.C. Sec. 1341, to include schemes to defraud the public of "intangible rights," such as the right to good government. The McNally Court, however, read the statute as "limited in scope to the protection of property rights." 483 U.S. at 360, 107 S.Ct. at 2881. The instant case involves mens rea instructions subsequently determined to be improper, rather than a broad invalidation of the substantive theory under which Shaid was convicted. Even if an exception to Frady could be said to exist in instances where the substantive theory under which the defendant was convicted is invalidated, the Supreme Court's decision in Frady clearly requires a showing of cause and prejudice for improper jury instructions concerning mens rea.

The majority claims that an exception exists to the Frady cause and prejudice standard, but also, inconsistently, asserts that the magistrate's consideration of cause and prejudice was premature.7 The cause and prejudice standard, however, is a threshold question that determines whether we may consider the merits of a petitioner's claim despite a procedural bar. The majority claims that the magistrate prematurely considered cause and prejudice and thus failed adequately to review the merits of Shaid's claim. The majority, apparently, would require the district court to review the merits of a petitioner's claim before considering cause and prejudice, a threshold issue that determines whether it needs to review the merits. Such reasoning is, to say the least, flawed.

The district court's denial of Shaid's Sec. 2255 petition should be affirmed as to Shaid's Sec. 656 claims because, as the magistrate properly concluded, Shaid failed to demonstrate cause for failing to object to the improper mens rea instructions at trial.8 Because the majority misapplies controlling Supreme Court precedent, and would require consideration of the merits before applying a threshold rule, I respectfully dissent.