Neder v. United States Page 16

Neder v. United States general information

Media for Neder v. United States

Audio Transcription for Oral Argument - February 23, 1999 in Neder v. United States

Roy W. McLeese, III:

--And there's a sense--

Sandra Day O'Connor:

I mean there is language in several of our opinions to that effect.

And normally you would think that wire and mail fraud, any Federal fraud statute, would incorporate the notion of materiality as an element.

Roy W. McLeese, III:

--And... and there is a sense, as I was just trying to suggest, in which it does.

In the sense that the defendant has to intend that his scheme use material misrepresentations.

So, in that sense, because the whole... the statute does not punish completed frauds, is not limited to completed frauds, nor is it limited even to people who successfully generate a scheme to defraud, but it extends even to people who are trying to generate a scheme to defraud, it clearly reaches someone who is--

William H. Rehnquist:

How about people who try to make false representations but don't succeed?

Roy W. McLeese, III:

--And the example... because what you're--

William H. Rehnquist:

But that... see, that seems a bit of a stretch.

Roy W. McLeese, III:

--I think it falls comfortably within the language.

And let me try to give... because materiality is kind of an illusive concept, it may be helpful to use something more concrete.

If the statute said, if it reached schemes or artifices to poison by means of a toxic substance, a defendant who generated an idea, whereby he was going to secure some chemicals and he was going to mix them together and administer them to the victim, but who was not a very good chemist and he picked some substances that weren't really toxic, such a defendant would have clearly created a scheme to poison somebody or to... to kill someone by administering a toxic substance.

He didn't pick a good one.

It's not a good scheme.

It's not very well crafted.

But it is clearly a scheme to--

William H. Rehnquist:

I mean, that sounds like conspiracy.

Roy W. McLeese, III:

--and... and, moreover, and... and... and beyond that, because the statute here extends not just to people who successfully create schemes to defraud--

John Paul Stevens:

What is your common law precedent for the scheme to kill by toxic substances?

That's the problem.

There is no common law precedent for that kind of statute, is there?

Roy W. McLeese, III:

--No, there isn't.

But, in fact the--

John Paul Stevens:

I suppose--

Roy W. McLeese, III:

--the wording of this statute is very different from the common law concepts of... of fraud.

This statute is not a completed fraud statute.

What it says is it's not just those who commit fraud... if this statute said, if you use the mails in commission of a fraud, clearly the Petitioner would have a very strong argument that all of the... the requirements of fraud be carried forward.

But it doesn't say that.

What it says is, any scheme to defraud, which is an effort or plan to defraud.

And then it goes beyond that even yet, and says, people who use the mails intending--