United States v. Omer

Cite as: 549 U. S. ____ (2007) 1 Statement of SCALIA, J. SUPREME COURT OF THE UNITED STATES UNITED STATES v. TIMOTHY W. OMER ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 05–1101. 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 require ments 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 when ever it feels the “common parlance” of the crime’s name evokes them, id., at ___ (slip op., at 1–2). I had not real ized 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 supple mental 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 misrep resentation 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 2 UNITED STATES v. OMER Statement of SCALIA, J. the scheme at issue (or any statement made in the course of the scheme) was materially false or decep tive.” 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.

Public-domain opinion of the United States Supreme Court, reproduced from the court record (U.S. Reports). Historical text may contain OCR artifacts. Provided for reference — not legal advice.