Federal Mail Fraud Crimes

The law does not define fraud; it needs no definition as it is an old a falsehood and as veritable as human ingenuity[2]. The statutes elasticity inhibits a precise definition of "any scheme or artifice to defraud" and provides United States Attorneys a powerful tool to criminalize deceptive conduct that might not otherwise be punishable. The statutes judicial evolution in the United States Supreme Court has seen only five cases by which the court has delimited the reach of the mail fraud statute and thus the ability of the U. S. Attorneys to charge and convict defendants[3].
Today's mail fraud statute 18 U.S.C. & 1341[4] enacted June 25, 1948 was based on an Act of Congress from March 4, 1909[5]. The statute's purpose is to prevent use of the mails to facilitate prohibited fraudulent schemes, regardless of the schemes exact nature or whether or not it happens to be forbidden by state law[6]. Thus by criminalizing various articles sent through the mail, Congress hoped to limit the distribution of such matter deemed injurious to the public. However, the statute does not purport to reach all frauds, but only those limited instances when use of the mails is part of the execution of the fraud or incident to an essential part of the scheme[7].
The predecessor to 18 U.S.C. & 1341 was much broader in scope as it prohibited all intentional efforts to defraud. Under the old statute, any fraudulent scheme, which merely utilized the mail, would constitutionally support a conviction[8].
The history of the mail fraud statute indicates a considerable debate on: (1) whether or not Congress should enact such legislation and (2) whether or not Congress could enact such legislation. The United States Supreme Court affirmatively answered the latter question in Badders v. United States, 240 U.S. 391 (1916). There, the legendary Oliver Wendell Holmes, delivered the opinion for the Court holding Congress may prohibit mailing letters in furtherance of a scheme which it regarded as contrary to public policy, whether it could forbid the scheme or not and could make each putting of a letter in the post office as a separate offense[9].
The question of should Congress enact such a far reaching statute goes back to the middle of the 1830's. Mail fraud's ideological conception, whether Congress should enact legislation prohibiting certain articles transmission via the mail, originated within the issue of slavery. In 1836, the question of providing Congress with the power to exclude anti-slavery publications from the mail was discussed in the Senate. The prevailing opinions of the members of Congress were against the existence of that power[10].
President Jackson, in his annual message the previous year, referred to the attempted circulation through the mail of printed and publicized inflammatory appeals addressed to the passions of slaves tending to stimulate them to insurrection. President Jackson suggested to Congress, "the propriety of passing a law prohibiting, under severe penalties, such circulation of incendiary publications in the southern states[11].
This portion of President Jackson's message was referred to a select committee in the Senate which John C. Calhoun[12], the Senator from South Carolina chaired. Although President Jackson's proposal was aimed against the abolitionist movement, Senator Calhoun opposed the recommendation, contending that this regulatory power belonged to the states to determine what is and is not calculated to disturb their security. He argued that Congress did not have the power to pass any law prohibiting transmissions through the mail on the ground it would abridge the liberty of the press[13].
The aversion to extending this power to Congress was based on the perceived limitless expansion of power that might result from such legislation. Senator Calhoun, in addition to other distinguished jurists and statesmen sharing his concern, felt Congress's exclusive control over the post office too great a power. He argued that Congress could declare any road or navigable waterway to be a post road and then by an 1825 Act, any stage, boat, or vessel on a navigable waterway, could be excluded from carrying mail[14]. Therefore Congress would ultimately be able to decide which articles could be mailed and which could not. He further argued the freedom of the press on all subjects, political, moral, and religious would be completely at the whim of Congress. This power was felt to be a more effectual control of the press than any sedition law regardless of how severe its penalties[15].
Senator Calhoun proposed that when a State had pronounced certain publications as dangerous to its peace and prohibited their circulation, it was then the duty of Congress to respect the State's laws and cooperate with the enforcement[16]. He proposed that while Congress could not prohibit the transmission of any incendiary document via the mails, it could assist the state and prevent delivery by the postmaster in the states where circulation was forbidden[17].
This debate continued for the next 37 years until the mail fraud statute was enacted in 1872. As part of the recodification of the postal laws, the statute, as first enacted in 1872, contained a general proscription against using the mails in furtherance of "any scheme or artifice to defraud" [18]. Representative Farnsworth, during a debate on H.R. 2295, the recodification legislation introduced during the 41st Congress[19], remarked that measures should be taken, "to prevent the frauds which are mostly gotten up in big cities...by thieves, forgers, and rapscallions generally, for the purpose of deceiving and fleecing the innocent people in the country[20]." Fears of Congress wielding enormous power over the press held by Senator John C. Calhoun and those of like mind were eventually placated when the United States Supreme Court interpreted the mail fraud statute to mean, "In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people; but to refuse its facilities for the distribution of matter deemed injurious to the public[21]."
Of course, mail fraud would not be mail fraud without a mailing. But when does dropping a letter in the mailbox or sending it via private or commercial carrier cross the sufficiency threshold to constitute mail fraud? This "Crossing the Rubicon[22]" of criminality developed over the course of the twentieth century. During this time, the United States Supreme Court expanded and contracted the reach of the mail fraud statute, finally merging the various components in Schmuck v. United States, 489 U.S. 705 (1989).
From its origins in 1872 to approximately the middle of the twentieth century, the mail fraud statute's reach was considerable. It was only necessary that the scheme to defraud should be devised or intended to be devised and a letter placed in the post office for the purpose of executing the scheme or attempting to do so[23]. The breadth of the statute was extended two years later when the United States Supreme Court held, to satisfy the mailing requirement, it is sufficient for the mailing to be "incident to an essential part of the scheme or a step in the plot.[24]"
This broad standard remained until Kann v. United States, 322 U.S. 88 (1944). In Kann, the defendants were corporate officers and directors accused of setting up a dummy corporation in order to divert profits into their own pockets. As part of this fraudulent scheme, the defendants caused the corporation to issue two checks payable to them. The defendants cashed these checks at local banks, which then mailed the checks to the drawee banks for collection. The Court held that the mailing of the cashed checks to the drawee banks could not supply the mailing element of the mail fraud charges. The defendant's fraudulent scheme had reached fruition. "It was immaterial to them, or to any consummation of the scheme, how the bank which paid or credited the check would collect from the drawee bank. The federal mail fraud statute does not purport to reach all frauds, but only those limited instances in which the use of the mails is a part of the execution of the fraud, leaving all other cases to be dealt with by appropriate state law[25].
In short, the mailing must be for the purpose of executing he scheme. However, cases where the use of the mails is for concealment purposes so that further frauds, which are part of the original scheme, may be perpetrated are to be distinguished from cases where the use of the mails takes place after the scheme has reached fruition. Mailings occurring after a scheme has reached fruition are not in the execution of the scheme[26].
The obvious next question is when is a mailing "for the purpose of executing a scheme?" The United States Supreme Court provided guidance to this question in two important cases, Parr v. United States, 363 U.S. 370 (1960) and United States v. Maze, 414 U.S. 395 (1974). Both cases helped clarify the Courts ruling in Kann.
In Parr, several defendants, some independent businessmen as well as certain school board members, were charged with having fraudulently obtained gasoline and a variety of other products and services through the unauthorized use of a credit card issued to the school district which employed them. It was the governments contention that the mailing element of the mail fraud charges were satisfied when the oil company, which issued the credit card, mailed invoices to the school district for payment, and when the district mailed payment in the form of a check. The United States Supreme Court held these mailings were not in the execution of the scheme as required by the statute because it was immaterial to the defendants how the oil company went about collecting its payment[27].
Parr also involved a second fraudulent scheme through which the defendant school board members misappropriated school district tax revenues. The government argued that the mailing element of the mail fraud charges was supplied by the mailing of tax statements, checks, and receipts. The Court held, however, that in the absence of any evidence that the tax levy was increased as part of the fraud, the mailing element of the offense could not be supplied by mailings "made or caused to be made under the imperative command of duty imposed by state law[28]." Simply put, because the state officials were required by law to mail out the tax statements, checks, and receipts, this could not satisfy the mailings element.
In Maze, the defendant stole his roommate's credit card and departed for Southern California, obtaining food and lodging by placing the charges on the stolen card. The government claimed the mailing element of the mail fraud charge was supplied by the fact that the defendant knew each motel proprietor would mail an invoice to the credit card issuing bank, which in turn would mail a bill to the card owner. The United States Supreme Court held these mailings could not support mail fraud charges because the defendant's scheme had reached fruition when he checked out of each motel. The success of his scheme in no way depended upon the mailings[29].
Simply put, the mail fraud statute prohibits the use or causing the use of the mails for purposes of executing a scheme or artifice to defraud, but is not applicable merely because mails are in fact used as a result of a fraudulent scheme[30]. However, under the mail fraud statute, mailings occurring after the receipt of goods obtained by fraud, i.e. once the fraud has reached fruition, are within the grasp of the mail fraud statute if the mailings are designed to "lull" the victims into a false sense of security, postpone their complaint to the authorities and therefore make the apprehension of the defendants less likely than if no mailing had taken place[31]. Neither Kann, nor Parr, nor Maze suggested that the Court was laying down an automatic rule that a deliberate planned use of the mails, done only after the perpetration of the scheme had acquired all obtainable gains from the victim, could never be considered "for the purpose of executing" the defendant's scheme[32].
Another pertinent question with respect to mailings is, "does the mailing have to be intentional?" or "must the perpetration of a scheme intend to use the mails as part of the scheme to defraud?" The United States Supreme Court addressed the mental state (or lack thereof) to satisfy the mailing requirement in Pereira v. United States, 347 U.S. 1 (1954). There the defendant was charged with having defrauded a wealthy widow of her property after marrying her. The defendant asked his new wife if she would join him in a hotel venture and advance him $35,000 toward the purchase price of $78,000 to which she agreed. The couple then agreed that she would sell some securities that she possessed in Los Angeles, and send the money to a bank of his choosing in El Paso. On June 15, she received the check for $35,000 on the Citizens National Bank of Los Angeles from her broker in Los Angeles, and gave it to the defendant, who endorsed it for collection to the State National Bank of El Paso. The check cleared, and on June 18, a cashier's check for $35,000 was drawn in favor of the defendant. The very next morning, the defendant and an accomplice, after telling their victim they were driving to a neighboring town to sign some oil leases, left her at home in Roswell, New Mexico, promising to return by noon. Instead, the defendant picked up the check for $35,000 at the El Paso Bank, cashed it there and left with the money. That was the last the victim had seen of the defendant or of her money until the trial some seven months later[33].
The United States Supreme Court ultimately held it is not necessary that the use of the mails be intended as an element of the scheme to defraud. Additionally, a person "causes" mails to be used within the meaning of the mail fraud statute where the defendant acts with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can be foreseen even though not actually intended[34].
While the cases discussed all deal with mail fraud, they pertain to specific qualities of the mail fraud statute. Kann, Parr, and Maze delimit the reach of the mail fraud statute addressing what does and does not constitute a mailing. Conversely, Pereira expands the statute's reach and speaks to the intent to use the mail. The United States Supreme Court in Schmuck v. United States, brought the two issues together and further defined the scope of the mail fraud statute.
In Schmuck, the defendant was charged with devising and executing a scheme to defraud Wisconsin retail automobile customers who based their decisions to purchase certain automobiles at least in part on the low-mileage readings provided by the tampered odometers. This was a fairly large-scale operation. Evidence at trial indicated that defendant had employed a man known only as "Fred" to turn back the odometers on about 150 different cars. The defendant then marketed these cars to a number of dealers, several of whom he dealt with on a consistent basis over a period of about 15 years. Indeed, of the 12 automobiles that are the subject of the counts of the indictment, 5 were sold to "P and A Sales," and 4 to "Southside Auto." Thus, defendant's scheme was not a "one-shot" operation in which he sold a single car to an isolated dealer. His was an ongoing fraudulent venture. A rational jury could have concluded that the success of the defendant's venture depended upon his continued harmonious relations with, and good reputation among, retail dealers, which in turn required the smooth flow of cars from the dealers to their Wisconsin customers[35].
The title-registration mailings were part of the execution of the fraudulent scheme, a scheme which did not reach fruition until the retail dealers resold the cars and effected transfers of title. The defendant's scheme would have come to an abrupt halt if the dealers either had lost faith in the defendant or had not been able to resell the cars obtained from him. These re-sales and the defendant's relationships with the retail dealers naturally depended on the successful passage of title among the various parties. Thus, although the registration-form mailings may not have contributed directly to the duping of either the retail dealers or the customers, they were necessary to the passage of title, which in turn was essential to the perpetuation of the defendant's scheme[36].
The defendant argues that mail fraud can be predicated only on a mailing that affirmatively assists the perpetrator in carrying out his fraudulent scheme. The mailing element of the offense, he contends, cannot be satisfied by a mailing, such as those at issue here, that is routine and innocent in and of itself, and that, far from furthering the execution of the fraud, occurs after the fraud has come to fruition, is merely tangentially related to the fraud, and is counterproductive in that it creates a "paper trail" from which the fraud may be discovered[37].
The United States Supreme Court held to determine whether the mailing is part of the execution of the scheme to defraud, the relevant question is whether the mailing is part of the scheme's execution as conceived by the perpetrator at the time of the fraud. Even if the mailing latter proves to be counterproductive to the perpetrator, there is no general rule that routine mailings, which are innocent in themselves, or mailings that someday may contribute to the uncovering a fraudulent scheme, cannot supply the mailing element of the offense[38].
Besides the mailing requirement, mail fraud requires a person or group to be "defrauded." The words "to defraud" commonly refer to wronging one of their property rights by dishonest methods or schemes, and usually signify deprivation of something of value by trick, deceit, chicane or overreaching[39]. The United States Supreme Court addressed the extent of "property" rights in McNally v. United States, 483 U.S. 350 (1987).
In McNally, the defendants and a third individual, Howard P. "Sonny" Hunt, were politically active in the Democratic Party in the Commonwealth of Kentucky during the 1970's. After Democrat Julian Carroll was elected Governor of Kentucky in 1974, Hunt was made chairman of the state Democratic Party and given de facto control over selecting the insurance agencies from which the Commonwealth would purchase its policies. In 1975, the Wombwell Insurance Company of Lexington, Kentucky (Wombwell), which since 1971 had acted as the Commonwealth's agent for securing a workmen's compensation policy, agreed with Hunt that in exchange for a continued agency relationship it would share any resulting commissions in excess of $ 50,000 a year with other insurance agencies specified by him. The commissions in question were paid to Wombwell by the large insurance companies from which it secured coverage for the Commonwealth[40].
From 1975 to 1979, Wombwell funneled $851,000 in commissions to 21 separate insurance agencies designated by Hunt. Among the recipients of these payments was Seton Investments, Inc. (Seton), a company controlled by Hunt and defendant Gray and nominally owned and operated by defendant McNally. Gray served as Secretary of Public Protection and Regulation from 1976 to 1978 and also as Secretary of the Governor's Cabinet from 1977 to 1979. Prior to his 1976 appointment, he and Hunt established Seton for the sole purpose of sharing in the commissions distributed by Wombwell. He paid some $ 200,000 to Seton between 1975 and 1979, and the money was used to benefit Gray and Hunt. Pursuant to Hunt's direction, Wombwell also made excess commission payments to the Snodgrass Insurance Agency, which in turn gave the money to McNally[41].
On account of the foregoing activities, Hunt was charged with and pleaded guilty to mail and tax fraud and was sentenced to three years' imprisonment. Defendants were charged with one count of conspiracy and seven counts of mail fraud, six of which were dismissed before trial. The remaining mail fraud count was based on the mailing of a commission check to Wombwell by the insurance company from which it had secured coverage for the State. This count alleged that defendants had devised a scheme (1) to defraud the citizens and government of Kentucky of their right to have the Commonwealth's affairs conducted honestly, and to obtain, directly and indirectly, money and other things of value by means of false pretenses and the concealment of material facts. The conspiracy count alleged that defendants had conspired to violate the mail fraud statute through the scheme just described[42].
The government argued the mail fraud statute was applicable as the defendants deprived the victims of "intangible rights" unrelated to property or money. The Court held, however, that the mail fraud statute is limited in scope to the protection of property rights, and does not refer to the intangible right of the citizenry to have public officials perform their duties honestly[43].
Since McNally limited the mail fraud statute to the protection of property rights. The next question which comes to mind is "What is property?". In Cleveland v. United States, 531 U.S. 12, (2000), the United States Supreme Court further defined property. In Cleveland, the defendant and others were prosecuted under the mail fraud statute for making false statements in applying to the Louisiana State Police for permission to operate video poker machines.
In 1992, Fred Goodson and his family formed a limited partnership, Truck Stop Gaming, Ltd. (TSG), in order to participate in the video poker business at their truck stop in Slidell, Louisiana. The defendant, a New Orleans lawyer, assisted Goodson in preparing TSG's application for a video poker license. The application required TSG to identify its partners and to submit personal financial statements for all partners. It also required TSG to affirm that the listed partners were the sole beneficial owners of the business and that no partner held an interest in the partnership merely as an agent or nominee, or intended to transfer the interest in the future[44].
TSG's application identified Goodson's adult children, Alex and Maria, as the sole beneficial owners of the partnership. It also showed that Goodson and Cleveland's law firm had loaned Alex and Maria all initial capital for the partnership and that Goodson was TSG's general manager. In May 1992, the State approved the application and issued a license. TSG successfully renewed the license in 1993, 1994, and 1995. Each renewal application identified no ownership interests other than those of Alex and Maria[45].
The indictment alleged that the defendant and Goodson had violated the mail fraud statute by fraudulently concealing that they were the true owners of TSG in the initial license application and three renewal applications mailed to the State. They concealed their ownership interests, according to the Government, because they had tax and financial problems that could have undermined their suitability to receive a video poker license[46].
The defendants argued that the State had no property interest in video poker licenses. The government responded that the State receives a large sum of money in exchange for each license and continues to receive payments from the licensee as long as the license is in effect and therefore has a "property" interest in the licensees.
The Court held that "the mail fraud statute does not reach fraud in obtaining a state or municipal license of the kind involved, for such a license is not property in the government regulator's hands[47]." The license statute establishes a typical regulatory program. It licenses, subject to certain conditions, engagements in pursuits that private actors may not undertake without official authorization. In this regard, it resembles other licensing schemes long characterized by this Court as exercises of state police powers[48]. To the extent that the word "property" is ambiguous in the mail fraud statute, ambiguity should be resolved in favor of lenity and although a video poker license may possibly be property in the hands of a licensee, no offense is committed if the license is not property in the hands of the state[49].
After addressing the term "property" in the phrase "a scheme or artifice to defraud," the remaining question is "What is meant by defraud?". In Neder v. United States, 527 U.S. 1 (1999), the United States Supreme Court interpreted the law's meaning and classified the requirements needed to satisfy the statute.
In Neder, the defendant engaged in a number of schemes involving land development fraud. In 1985, he obtained a $4,150,000 construction loan to build condominiums on a project known as Cedar Creek. To obtain the loan, he falsely represented to the lender that he had satisfied a condition of the loan by making advance sales of 20 condominium units. In fact, he had been unable to meet the condition, so he secured additional buyers by making their down payments himself. He then had the down payments transferred back to him from the escrow accounts into which they had been placed. The defendant later defaulted on the loan without repaying any of the principal. He employed a similar scheme to obtain a second construction loan of $5,400,000, and unsuccessfully attempted to obtain an additional loan in the same manner[50].
The defendant also obtained a consolidated $14 million land acquisition and development loan for a project known as Reddie Point. Pursuant to the loan, the defendant could request funds for work actually performed on the project. Between September 1987 and March 1988, he submitted numerous requests based on false invoices, the lender approved the requests, and he obtained almost $ 3 million unrelated to any work actually performed[51].
In instructing the jury on mail fraud, the district court did not include "materiality" as an element of the offense. Materiality means the government must prove beyond a reasonable doubt that the scheme or plan must be capable of influencing the intended victim.
The United States Supreme Court held, the common law fraud requirements of "justifiable reliance" and "damages" have no place in the federal criminal statute proscribing mail fraud as the statute prohibits a scheme to defraud rather than a completed fraud and therefore the statute's language is incompatible with requiring justifiable reliance and damages. Further, with respect to criminal offenses, materiality of falsehood is an element of a "scheme or artifice to defraud" prohibited by the federal mail fraud statute even though the statute's text does not mention materiality[52].
Footnotes
[1] A 1994 amendment to the mail fraud statute extended criminal culpability to encompass private and commercial interstate carriers.
[2] Weiss v. United States, 122 F2d. 675, 681 (5th Cir.), cert. denied, 314 U.S. 687 (1947).
[3] See Schmuck v. United States, 489 U.S. 705, 712 (1989); see also Cleveland v. Untied States, 531 U.S. 12 (holding a states video poker license did not qualify as "property" within 18 U.S.C. & 1341's compass.); see also Neder v. United States, (holding that with respect to criminal offenses, materiality of falsehood is an element of "scheme or artifice to defraud" even though the statutes text does not mention materiality).
[4] 18 U.S.C. & 1341 reads: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives there from, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction there on ,or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation affects a financial institution, such person shall be fined not more than $ 1,000,000 or imprisoned not more than 30 years, or both.
[5] The former statute 18 U.S.C. & 338.
[6] See Parr v. Untied States, 363 U.S. 370 (1960).
[7] Id. at 390.
[8] Durland v. Untied States, 161 U.S. 306 (1896).
[9] Id. at 393.
[10] Ex Parte Jackson, 96 U.S. 727, 733 (1877).
[11] Id. at 733-734.
[12] John Caldwell Calhoun, statesman and political philosopher, was Vice President (1825-32) of the United States and a leading champion of Southern rights. He was born near Abbeville, S.C., on Mar. 18, 1782. The son of a slave-holding up-country farmer, Calhoun was educated at Moses Waddell's Log College in Georgia and at Yale University and studied law under Tapping Reeve at Litchfield, Conn. Admitted to the South Carolina bar in 1807. Calhoun was identified with the State Rights position advocated by Southern conservatives. As the antislavery crusade gained momentum in the North, he became preoccupied with the political defense and intellectual justification of the "peculiar institution" on which Southerners generally believed their whole economy rested. In the Senate, Calhoun engineered passage of the gag rule that precluded discussion of slavery. Serving (1842-43, 1845-50) in the Senate, Calhoun was a powerful spokesman for slavery and Southern rights until his death.
[13] Jackson, 96 U.S. at 734.
[14] Id.
[15] See Id. at 734.
[16] Id.
[17] Id. at 734-735.
[18] McNally v. United States, 483 U.S. 350, 356 (1987).
[19] The recodification bill was not passed by the 41st Congress, but was reintroduced and passed by the 42nd Congress with the antifraud section intact. Act of June 8, 1872, ch. 335, 149, and 301, 17 stat. 302 and 323.
[20] Id.
[21] See Id. at 736.
[22] On January 10, in 49 B.C. Julius Caesar and his army advanced to Rimini, where Caesar could control the passes across the Apennines. In doing so, he and his legions crossed the river Rubicon, which was forbidden by Roman law, thereby provoking the Second Civil War. It is considered for one to "Cross the Rubicon" to take an irrevocable step.
[23] United v. Young, 232 U.S. 155, 161(1914).
[24] Badders, 230 U.S. at 394.
[25] Kann, 323 U.S. at 94.
[26] Id. at 95.
[27] Parr, 363 U.S. at 393.
[28] Id. at 391.
[29] Maze, 414 U.S. at 402.
[30] See Id.; See Parr, 363 U.S. at 393.
[31] United States v. Lane, 474 U.S. 438, 451 (1986).
[32] See United States v. Sampson, 371 U.S. 75, 80 (1962)
[33] See Pereira v. United States, 347 U.S. 1, 5 (1954).
[34] Id. at 9.
[35] Schmuck, 489 U.S. at 711-712.
[36] Id. at 712.
[37] Id. at 711.
[38] See Id. at 714-715.
[39] McNally, 483 U.S. at 358-359.
[40] Id. at 353.
[41] Id.
[42] Id. at 353-354.
[43] Id. at 358.
[44] Cleveland, 531 U.S. at 15-16.
[45] Id. at 16.
[46] Id. at 16-17
[47] Id. at 20.
[48] Id. at 21.
[49] Id. at 26.
[50] Neder, 527 U.S. at 5.
[51] Id at 5-6.
[52] Id.
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