Cite as: 527 U. S. 1 (1999)
Opinion of Stevens, J.
ance" and "damages," for example, plainly have no place in the federal fraud statutes. See, e. g., United States v. Stewart, 872 F. 2d 957, 960 (CA10 1989) ("[Under the mail fraud statute,] the government does not have to prove actual reliance upon the defendant's misrepresentations"); United States v. Rowe, 56 F. 2d 747, 749 (CA2) (L. Hand, J.) ("Civilly of course the [mail fraud statute] would fail without proof of damage, but that has no application to criminal liability"), cert. denied, 286 U. S. 554 (1932). By prohibiting the "scheme to defraud," rather than the completed fraud, the elements of reliance and damage would clearly be inconsistent with the statutes Congress enacted. But while the language of the fraud statutes is incompatible with these requirements, the Government has failed to show that this language is inconsistent with a materiality requirement.
Accordingly, we hold that materiality of falsehood is an element of the federal mail fraud, wire fraud, and bank fraud statutes. Consistent with our normal practice where the court below has not yet passed on the harmlessness of any error, see Carella, 491 U. S., at 266-267, we remand this case to the Court of Appeals for it to consider in the first instance whether the jury-instruction error was harmless.
IV
The judgment of the Court of Appeals respecting the tax fraud counts is affirmed. The judgment of the Court of Appeals on the remaining counts is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Stevens, concurring in part and concurring in the judgment.
Although I do not agree with the Court's analysis of the harmless-error issue in Part II of its opinion, I do join Parts I and III and concur in the judgment.
25
Page: Index Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 NextLast modified: October 4, 2007