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United States Supreme Court


No. 05-1101

Argued: Decided: January 16, 2007

     The petition for a writ of certiorari is denied.

     Statement of Justice Scalia respecting the denial of the petition for writ of certiorari.

     My dissent in United States v. Resendiz-Ponce, 549 U. S. ___ (2007), warned that the Court's opinion was "effecting a revolution in our jurisprudence regarding the requirements of an indictment," id., at ___ (slip op., at 4), and that it would provide a license for the Government to avoid explicating the elements of a criminal offense whenever it feels the "common parlance" of the crime's name evokes them, id., at ___ (slip op., at 1-2). I had not realized how quickly that license would be exercised. Barely 24 hours after we released Resendiz-Ponce, the Solicitor General filed a supplemental brief in this case, which raises the question (avoided in Resendiz-Ponce) whether the omission of an element of the offense from a federal indictment can constitute harmless error. The supplemental brief urged us not to grant review in this case for the following reason:

"In the wake of the Court's decision in Resendiz-Ponce ... it appears that the indictment in this case was not constitutionally deficient. As the Court has noted, it is well settled that the term 'fraud' requires a misrepresentation or concealment of material fact ... just as the term 'attempt,' 'as used in the law for centuries,' encompasses an overt-act requirement, see Resendiz-Ponce, slip op., at 5. The indictment [for fraud] in this case therefore need not have separately alleged that the scheme at issue (or any statement made in the course of the scheme) was materially false or deceptive." Supp. Brief for United States 2.

     That is not the reason I concur in the Court's decision to deny certiorari. It may, however, be a good reason--depending upon how the crime of fraud fares in our new some-crimes-are-self-defining jurisprudence. Another frontier of law opened by this Court, full of opportunity and adventure for lawyers and judges.

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