United States v. 2005-10-31 | 03-30513 | USA VOMER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 03-30513
v.  D.C. No.
CR-03-00009-DWM TIMOTHY W. OMER,
Defendant-Appellant. 
 UNITED STATES OF AMERICA, No. 03-30544
Plaintiff-Appellant, D.C. No.
v.  CR-03-00009-DWM
TIMOTHY W. OMER, ORDER
Defendant-Appellee. 
Filed October 31, 2005
Before: Michael Daly Hawkins, Sidney R. Thomas, and
M. Margaret McKeown, Circuit Judges.
Order;
Dissent by Judge Graber
ORDER
The panel has voted to deny the petition for panel rehearing
and the petition for rehearing en banc. A judge of the court
requested a vote on whether to rehear the case en banc, but
the request failed to receive a majority of votes of the non-
recused active judges in favor of en banc rehearing.
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The petition for panel rehearing and the petition for rehear-
ing en banc are DENIED.
GRABER, Circuit Judge, with whom KOZINSKI,
O’SCANNLAIN, BYBEE, CALLAHAN, and BEA, Circuit
Judges, join, dissenting from the denial of rehearing en banc:
I respectfully dissent from the court’s decision not to take
this case en banc. We should take this opportunity to recon-
sider the rule that our prior precedent required the three-judge
panel to apply: automatic reversal of any conviction in which
the defendant timely, and correctly, objected that an element
of the crime was missing from the indictment. See United
States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999) (holding that
such a deficiency is not subject to harmless error review). An
absolute rule makes no sense. When the defendant has actual
notice of the missing element in advance of trial, evidence of
the missing element is introduced, the jury is properly
instructed about the element, and the finder of fact finds the
element beyond a reasonable doubt, the defendant may not
have been prejudiced by the omission; reversal should not be
compelled. We ought not cling to a rule that drains judicial
resources when we can review—indeed, have reviewed, in
very similar circumstances—the prejudice caused by the
omission of an element from an indictment.
A. The Du Bo decision, establishing the “automatic
reversal rule” at issue, rested on three premises.
The court in Du Bo held that, “if properly challenged prior
to trial, an indictment’s complete failure to recite an essential
element of the charged offense is . . . a fatal flaw requiring
dismissal of the indictment.” 186 F.3d at 1179. We supported
that automatic reversal rule with three premises.
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The first premise was jurisdictional. We asserted that an
indictment that omits an element “does not properly allege an
offense against the United States” and thereby “leaves nothing
for a petit jury to ratify.” Id. at 1180 (internal quotation marks
omitted). We drew this idea in part from a Fourth Circuit
decision holding that harmless error is inapplicable because
the omission of an essential element deprives the court of
jurisdiction: “The absence of prejudice to the defendant in a
traditional sense does not cure a substantive, jurisdictional
defect in an indictment.” United States v. Hooker, 841 F.2d
1225, 1232 (4th Cir. 1988) (en banc) (emphasis added); see
also Du Bo, 186 F.3d at 1180 (citing Hooker). We also
appeared to hold that the jurisdictional basis for our rule of
automatic reversal was supported by Russell v. United States,
369 U.S. 749 (1962), and Stirone v. United States, 361 U.S.
212 (1960). See Du Bo, 186 F.3d at 1179-80 (relying on those
cases).1
Second, we said that omissions from a grand jury indict-
ment, unlike omissions from jury instructions, simply are not
susceptible to harmless error review. Du Bo, 186 F.3d at
1179-80.
Finally, we expressed a desire to give defendants an incen-
tive to bring timely objections. We limited the automatic
reversal rule to timely challenges, reasoning that under harm-
less error review, filing a pretrial motion would be “self-
1Other circuits also have interpreted Russell and Stirone to require auto-
matic reversal. See, e.g., United States v. Spinner, 180 F.3d 514, 516-17
(3d Cir. 1999); Hooker, 841 F.2d at 1230. Some of those circuits are
rethinking the foundations of that position. See, e.g., United States v.
Higgs, 353 F.3d 281, 304-07 (4th Cir. 2003) (relying on later Supreme
Court precedents), cert. denied, 125 S. Ct. 627 (2004); United States v.
Prentiss, 256 F.3d 971, 981-85 (10th Cir. 2001) (en banc) (per curiam)
(opinion by Baldock, J.) (rejecting applicability of cases, such as Stirone,
that predated Chapman v. California, 386 U.S. 18, 23-24 (1967)); see also
4 Wayne R. LaFave et al., Criminal Procedure § 19.3 (2d ed. 1999 &
Supp. 2005).
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defeating” because the very filing of the motion would dem-
onstrate that the defendant had notice of the missing element.
Id. at 1180 n.3.
In this case, Defendant Timothy W. Omer raised a timely
challenge to the omission of two elements from the indict-
ment against him for bank fraud. We applied the rule of Du
Bo and reversed Defendant’s conviction because of one of
those omissions.2 At the time we decided United States v.
Omer, 395 F.3d 1087 (9th Cir. 2005) (per curiam), however,
none of the three rationales articulated in Du Bo supported
continued application of the automatic reversal rule.
2Defendant was charged with bank fraud in violation of 18 U.S.C.
§ 1344(1). The indictment alleged that Defendant and an accomplice
“knowingly executed or attempted to execute a scheme or artifice to
defraud” four financial institutions by way of a check-kiting scheme. The
indictment described that “scheme or artifice” in some detail but did not
allege that the scheme was material to—i.e., “capable of influencing”—
the bank’s decision to release funds, as required by Neder v. United States,
527 U.S. 1, 16, 24-25 (1999). The indictment also failed to allege that the
financial institutions were federally insured. See United States v. Ali, 266
F.3d 1242, 1243 (9th Cir. 2001) (“ ‘Proof of federally-insured status of the
affected institution is, for both section 1344 and section 1014, a jurisdic-
tional prerequisite as well as an element of the substantive crime.’ ” (quot-
ing United States v. Key, 76 F.3d 350, 353 (11th Cir. 1996) (per curiam))).
The district court denied Defendant’s pretrial motion to dismiss the indict-
ment for failure to allege those two elements.
After a trial, the jury convicted Defendant. The jury instructions did not
mention “materiality,” but they did require the jury to find beyond a rea-
sonable doubt that the affected institutions were federally insured. The
panel reversed Defendant’s conviction because the indictment omitted the
“materiality” element. United States v. Omer, 395 F.3d 1087, 1089 (9th
Cir. 2005) (per curiam) (“[T]he indictment’s failure to recite an essential
element of the charged offense, namely the materiality of the scheme or
artifice to defraud, is a fatal flaw requiring dismissal of the indictment.”).
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B. Supreme Court precedent does not support the
jurisdictional rationale for Du Bo.
After we issued Du Bo, the Supreme Court decided United
States v. Cotton, 535 U.S. 625, 634 (2002). Cotton directly
eliminated the jurisdictional premise for the automatic rever-
sal rule. In Cotton, the Court held that an indictment contain-
ing the essential elements of the offense is not a jurisdictional
prerequisite to a criminal prosecution. See id. at 630 (stating
that “defects in an indictment do not deprive a court of its
power to adjudicate a case”).
The decisions of Russell and Stirone, which we cited in
support of our jurisdictional rationale in Du Bo, are distin-
guishable from Du Bo and do not compel the automatic rever-
sal rule. Russell and Stirone contain strong, general
admonitions about protecting the Fifth Amendment right to
have a grand jury determine probable cause. See Russell, 369
U.S. at 770 (“To allow the prosecutor, or the court, to make
a subsequent guess as to what was in the minds of the grand
jury at the time they returned the indictment would deprive
the defendant of a basic protection which the guaranty of the
intervention of a grand jury was designed to secure.”); see
also Du Bo, 186 F.3d at 1179-80 (holding that, when “[w]e
may only guess whether the grand jury” found probable cause
to support the missing element, “[r]efusing to reverse . . .
would impermissibly allow conviction on a charge never con-
sidered by the grand jury” (citing Stirone, 361 U.S. at 219)).
But both Russell and Stirone were concerned with preventing
the government from pursuing a theory of the crime not pre-
sented to the grand jury; the Court sought to prevent that kind
of a substantive “constructive amendment” of the indictment.3
3In Russell, the defendants were convicted under 2 U.S.C. § 192 of will-
fully refusing to “answer any question pertinent to the question under
inquiry” in a congressional hearing. 369 U.S. at 751 & n.2, 752. The Court
reversed their convictions because their indictments did not identify the
subject of the pertinent congressional hearings. The Court’s chief concern
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See Cotton, 535 U.S. at 631 (describing Russell and Stirone
as reflecting the “settled proposition of law” that “an indict-
ment may not be amended except by resubmission to the
grand jury”). Many cases, however, including the present one,
do not involve a new or different theory, so it is questionable
whether the Supreme Court’s stated rationale must apply
across the board to every kind of missing element. See, e.g.,
United States v. Prentiss, 256 F.3d 971, 984 n.11 (10th Cir.
2001) (en banc) (per curiam) (opinion by Baldock, J.) (distin-
guishing the constructive amendment at issue in Stirone from
the mere failure to allege an essential element because, in the
latter case, the indictment “sought to charge Defendant with
the sole crime for which the jury convicted him”).
Additionally, Russell and Stirone were decided before
Chapman v. California, 386 U.S. 18. 22 (1967), in which the
Court established that constitutional errors can be harmless.
Even more importantly, Russell and Stirone were decided
before Neder v. United States, 527 U.S. 1, 7-15 (1999), a case
that is significant here both for its explanation of “structural
error” (discussed below) and its substantive holding that
omission of an element of the charged crime from jury
instructions can be harmless. See also United States v. Allen,
was that one of the defendants had not received notice “of the nature of
the accusation against him.” Id. at 767. The Court also held that, even if
a bill of particulars could provide the defendant with notice, it could not
ensure that the grand jury had determined the question under inquiry. Id.
at 770. To protect the right to grand jury indictment, the Court applied the
“settled rule” that only the grand jury may amend the indictment and,
accordingly, reversed the conviction. Id. at 770-71.
In Stirone, the defendant was indicted for unlawfully interfering with
interstate commerce by obstructing the movement of sand across state
lines. 361 U.S. at 213-14. At trial, however, the jury was permitted to con-
vict the defendant for interfering either with the movement of sand or with
the movement of steel. Id. at 214. The Court held that this alternate factual
theory was more than a mere variance in proof; it presented the risk of
conviction for an offense different from that which the grand jury had
charged. Accordingly, the Court reversed the conviction. Id. at 217-18.
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406 F.3d 940, 943-45 (8th Cir. 2005) (en banc) (reviewing for
harmless error because Neder’s list of structural errors did not
include Stirone and because Neder held that omissions from
jury instructions can be harmless), petition for cert. filed, ___
U.S.L.W. ___ (U.S. Sept. 29, 2005) (No. 05-6764). As our
sister circuits have done, we can distinguish Russell and Sti-
rone.
C. Our own precedents undermine Du Bo’s premise that
omissions from the grand jury are not susceptible to
harmless error review.
In Du Bo, we asserted that omissions from the grand jury
are, in general, not proper fodder for harmless error review.
We reasoned that assessing grand jury error would require the
court to “ ‘guess as to what was in the minds of the grand
jury.’ ” Du Bo, 186 F.3d at 1179 (quoting United States v.
Keith, 605 F.2d 462, 464 (9th Cir. 1979)). Our own prece-
dents undermine this rationale.
When defective indictments are challenged for the first
time on appeal, our cases do not mandate automatic reversal
but, rather, require us to review for plain error. In so doing,
we perform a prejudice analysis nearly identical to the analy-
sis that we refused to perform in Du Bo. See United States v.
Velasco-Medina, 305 F.3d 839, 847 (9th Cir. 2002) (holding
that “any defect in the indictment was harmless”); United
States v. Leos-Maldonado, 302 F.3d 1061, 1064 (9th Cir.
2002) (“Leos cannot meet the third condition [of the plain
error standard].”). Except for the burden of proof, the third
element of the plain error analysis is identical to the harmless
error analysis: Both require us to determine whether the error
“affect[ed] substantial rights,” i.e., prejudiced the defendant.
United States v. Jordan, 291 F.3d 1091, 1095-96 (9th Cir.
2002). Compare Cotton, 535 U.S. at 631 (setting forth the
four prongs of plain error review: (1) an error; (2) that is
plain; (3) that “affect[s] substantial rights”; and (4) that “seri-
ously affect[s] the fairness, integrity, or public reputation of
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judicial proceedings” (alteration in original) (emphasis added)
(internal quotation marks omitted)), with Fed. R. Crim. P.
52(a) (“Any error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded.” (emphasis
added)).
In Velasco-Medina and Leos-Maldonado, we held that
omissions from indictments did not affect a defendant’s “sub-
stantial rights” because the defendant had notice of the miss-
ing element, because the weight of the evidence in the trial
record established that element, and because the petit jury
found the element proved beyond a reasonable doubt.
Velasco-Medina, 305 F.3d at 847; Leos-Maldonado, 302 F.3d
at 1064-65. Those holdings make it impossible to conclude
that omissions from indictments are exempt from Rule 52(a)
because they “are so intrinsically harmful,” Neder, 527 U.S.
at 7, that they necessarily “affect substantial rights.” See also
id. (describing structural errors as those that “ ‘defy analysis
by “harmless error” standards’ ” (quoting Arizona v. Fulmi-
nante, 499 U.S. 279, 309 (1991))).
Even more significant than those plain error decisions is a
case in which we applied harmless error principles to review
an indictment that was challenged in district court after the
trial began. See United States v. James, 980 F.2d 1314, 1319
(9th Cir. 1992) (concluding that “[t]he error in the indictment
could have had no effect on the outcome of the trial and was
harmless beyond a reasonable doubt” (emphasis added)); cf.
Du Bo, 186 F.3d at 1180 n.3 (stating that its rule of automatic
reversal applies only to timely—that is, pretrial—challenges).
As our cases demonstrate, it simply is not true, as we sug-
gested in Du Bo, 186 F.3d at 1179-80, that it is impossible to
review an omission for harmlessness. In the untimely chal-
lenge cases, we have acknowledged that it is possible to
review the prejudice caused by the omission of an element
from an indictment, and in fact we have conducted both harm-
less error and plain error review.
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D. Encouraging timely objections to indictments is an
insufficient justification for retaining Du Bo’s automatic
reversal rule.
As noted, we have applied harmless error principles to the
omission of elements from grand jury indictments in cases
where the defendant did not object before trial. If we accept
the view that it is possible to review defective indictments for
harmless error, the only remaining basis for Du Bo’s rule is
our desire to give defendants an incentive to bring timely
objections. See Du Bo, 186 F.3d at 1180 n.3 (giving a practi-
cal reason for applying a rule of automatic reversal to timely
challenges to indictments).
There is nothing wrong with reviewing a timely argument
under a more favorable standard of review than an untimely
one; we do it all the time.4 But the fact that a defendant brings
a timely objection, standing alone, cannot be sufficient to
create an exemption from the general rule that errors having
no effect on the outcome of a proceeding must be disregarded.
See Fed. R. Crim. P. 52(a). Structural errors exempt from
Rule 52(a) are “basic protections without which . . . no crimi-
nal punishment may be regarded as fundamentally fair.”
Neder, 527 U.S. at 8-9 (internal quotation marks omitted).5
4Indeed, even if we eliminated the rule of automatic reversal, we would
continue to review omissions challenged before trial more rigorously. Our
established rule for challenges that come at later stages of the district court
proceeding is to “liberally construe the indictment in favor of validity.”
United States v. Chesney, 10 F.3d 641, 643 (9th Cir. 1993).
5Even when we have held that an error is subject to a rule of automatic
reversal without deeming it “structural,” as in United States v. Annigoni,
96 F.3d 1132, 1144 (9th Cir. 1996) (en banc), we did so because the error
was “simply not amenable to harmless-error analysis.” In this connection,
I also question our holding in Annigoni, that even a nonstructural error can
be subject to a rule of automatic reversal. Three years after we issued that
decision, Neder reiterated the Supreme Court’s two-option approach and
held that, “[f]or all other [nonstructural] errors, reviewing courts must
apply” a harmless error analysis. 527 U.S. at 7 (emphasis added).
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Neither the nature of the error, nor its amenability to harmless
error review, is affected by the timing of a defendant’s chal-
lenge. Therefore, the timeliness of a defendant’s challenge
cannot justify Du Bo’s rule of automatic reversal.
E. Not only are the premises articulated in support of Du
Bo’s automatic reversal rule insufficient, but Supreme
Court precedent suggests the opposite result.
The Supreme Court held in Neder that the omission of an
element from jury instructions is subject to harmless error
review. The element omitted in Neder was materiality, exactly
the same as one of the two elements omitted from Defen-
dant’s indictment in the present case. In Neder, the Court
ruled that the omission of the materiality element from the
jury instructions was harmless beyond a reasonable doubt
because the trial record contained no evidence that could have
led a rational jury to find that the defendant’s false statements
were immaterial. 527 U.S. at 16-20.
The situation in Neder presents a close parallel to the omis-
sion of an element from an indictment and leaves us with an
incongruity: Omission of an element from an indictment is
subject to automatic reversal, but omission of the same ele-
ment from a jury instruction is not. Yet, the right to a grand
jury finding of probable cause as to each element of the
offense is no more important, no more central to the funda-
mental fairness of a prosecution, than the right to a petit jury’s
finding that each element was proved beyond a reasonable
doubt. Cf. Cotton, 535 U.S. at 634 (“Respondents emphasize
that the Fifth Amendment grand jury right serves a vital func-
tion in providing for a body of citizens that acts as a check on
prosecutorial power. No doubt that is true. But that is surely
no less true of the Sixth Amendment right to a petit jury,
which, unlike the grand jury, must find guilt beyond a reason-
able doubt.” (citation omitted)).
In deciding Omer, the panel distinguished Neder on the
ground that, whereas an error in jury instructions can be
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assessed with reference to the trial record and the overall fair-
ness of the trial, assessing a grand jury error would require the
court to “ ‘guess as to what was in the minds of the grand
jury’ ” and, in any event, could not be remedied by a fair trial.
Du Bo, 186 F.3d at 1179 (quoting Keith, 605 F.2d at 464). As
demonstrated above, that reasoning—that there is no way to
evaluate, or to cure, any prejudice caused by the omission of
an element from an indictment—is undermined by a variety
of cases from the Supreme Court, our court, and other circuits
in which courts actually do evaluate the prejudice caused by
defective grand jury indictments. The cases show that, as a
matter of legal doctrine, it is possible (and, indeed, common-
place) to review the omission of an element from a grand
jury’s indictment for harmless error.
Under Supreme Court precedent, most errors in grand jury
proceedings are reviewed for harmless error. See Bank of
Nova Scotia v. United States, 487 U.S. 250, 254 (1988) (“We
hold that, as a general matter, a district court may not dismiss
an indictment for errors in grand jury proceedings unless such
errors prejudiced the defendants.”); United States v.
Mechanik, 475 U.S. 66, 70 (1986) (same).6 In Mechanik, the
Court held that, although the error “had the theoretical poten-
tial to affect the grand jury’s determination whether to indict
these particular defendants for the offenses with which they
were charged,” the defendants’ later conviction by a petit jury
rendered the error harmless. 475 U.S. at 70; see id. (stating
that “the petit jury’s subsequent guilty verdict means not only
6The only error in grand jury proceedings that the Supreme Court has
considered structural, and thus subject to automatic reversal, is discrimina-
tion on account of race, and possibly sex, in the selection of grand jurors.
See Vasquez v. Hillery, 474 U.S. 254, 260-63 (1986) (race discrimination);
Bank of Nova Scotia, 487 U.S. at 257 (discussing its reversal because of
sex discrimination in Ballard v. United States, 329 U.S. 187, 193 (1946)).
In Mechanik, the Court interpreted the rule of Vasquez as a “prophylactic
means of deterring grand jury discrimination in the future” and stated that
such “considerations have little force outside the context of racial discrim-
ination in the composition of the grand jury.” 475 U.S. at 70 n.1.
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that there was probable cause to believe that the defendants
were guilty as charged, but also that they are in fact guilty as
charged beyond a reasonable doubt”). At the very least,
Mechanik suggests that there is nothing about the nature of a
grand jury proceeding that precludes harmless error review. In
the light of Mechanik, if the defendant had actual notice of all
elements, all were proved, and the jury was properly
instructed, a missing element from a charge in the indictment
can be harmless error.
The Supreme Court’s cases enumerate a class of “structural
errors” that are not susceptible to harmless error review. See
Neder, 527 U.S. at 9 (listing such “structural errors”). The
Court’s decision in Cotton makes it extremely difficult to cat-
egorize omissions from indictments as structural errors. In
Cotton, the Court held that one such omission “did not seri-
ously affect the fairness, integrity, or public reputation of
judicial proceedings” because the evidence of the missing ele-
ment was “overwhelming and essentially uncontroverted” at
trial. 535 U.S. at 632-33 (internal quotation marks omitted).
In reaching that conclusion, the Court avoided deciding
directly whether the omission of an element from an indict-
ment can be reviewed for prejudice. See Jordan, 291 F.3d at
1096 n.7 (noting that Cotton “might have been significant” to
our harmless error analysis had the Supreme Court rested its
decision on the “substantial rights” prong of the “plain error
review”). But Cotton remains relevant to rebut the idea that
omission of an element from an indictment always renders a
criminal proceeding unfair. Cf. Neder, 527 U.S. at 9 (deciding
that omission of an element from jury instructions is not struc-
tural error, in part, because in Johnson v. United States, 520
U.S. 461, 468-69 (1997), the Court had decided that the same
error did not satisfy the fourth element of the plain error anal-
ysis); United States v. Robinson, 367 F.3d 278, 285 (5th Cir.)
(“We have interpreted Cotton also to require the application
of harmless error review where an indictment is defective and
the defendant preserves the error by proper objection.”), cert.
denied, 125 S. Ct. 623 (2004).
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F. Other circuits are increasingly abandoning Du Bo-like
precedents in favor of harmless error review of grand
jury omissions.
Since 2001, six of our sister circuits have held explicitly
that they will review defective indictments, challenged at var-
ious stages, for harmless error. See Allen, 406 F.3d at 945
(reviewing for harmless error an omission challenged at sentenc-
ing);7 Robinson, 367 F.3d at 285 (reviewing for harmless error
an omission challenged on appeal); United States v. Higgs,
353 F.3d 281, 304-07 (4th Cir. 2003) (reviewing for harmless
error an omission challenged on appeal, relying on Mechanik
and Cotton), cert. denied, 125 S. Ct. 627 (2004); United
States v. Cor-Bon Custom Bullet Co., 287 F.3d 576, 580 (6th
Cir. 2002) (reviewing for harmless error an omission chal-
lenged after the jury was impaneled but before trial began);
Prentiss, 256 F.3d at 981 (overruling the 10th Circuit’s earlier
Du Bo-like precedents and relying on Neder and Mechanik to
provide harmless error review for an omission challenged on
appeal); United States v. Corporan-Cuevas, 244 F.3d 199,
202 (1st Cir. 2001) (reviewing for harmless error an omission
challenged on appeal); see also 4 Wayne R. LaFave et al.,
Criminal Procedure § 19.3(a) (2d ed. 1999 Supp. 2005)
(“[B]y a conservative count, at least five federal circuits have
abandoned the traditional position mandating automatic rever-
sal, and substituted harmless error review, for appellate
review of a timely challenge to an indictment’s failure to
allege an essential element of the offense.”). But see United
States v. Pickett, 353 F.3d 62, 68 (D.C. Cir. 2004) (expressly
declining to decide whether harmless error review is avail-
able).
7Allen was a death penalty case. The indictment was defective because
it omitted any statutory aggravating factor. 406 F.3d at 943. The defendant
“presciently” objected in the district court. Id. The court rejected the
defendant’s reliance on Stirone, pointing out that Chapman, Fulminante,
and Neder had changed the landscape. Adopting essentially the analysis
contained in this dissent, the court held that the defect in the indictment
was subject to harmless error review. Allen, 406 F.3d at 945-46.
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G. Omer cleanly presents an opportunity to reconsider the
rule of automatic reversal.
In this case, Defendant cited the omission of two elements
from his indictment in support of his argument for automatic
reversal. The first element, materiality, was omitted from
Defendant’s indictment for bank fraud as well as from the
jury instructions at trial. By contrast, only the indictment
omitted the second element, the federally insured status of the
banks defrauded by Defendant. The jury was properly
instructed about the second element at trial and found beyond
a reasonable doubt that the financial institutions at issue were
federally insured.
The panel’s decision addressed only the first omission.
Applying Du Bo, 186 F.3d at 1179, the panel held that “the
indictment’s failure to recite an essential element of the
charged offense, namely the materiality of the scheme or arti-
fice to defraud, is a fatal flaw requiring dismissal of the
indictment.” Omer, 395 F.3d at 1089. Although the panel
reversed solely because of the indictment’s failure to allege
materiality, the indictment’s failure to allege that the banks
were federally insured likewise would have been subject to
the rule of automatic reversal because Defendant’s challenge
was timely. See James, 980 F.2d at 1318 (stating that the fail-
ure of the indictment in United States v. Coleman, 656 F.2d
509, 511 (9th Cir. 1981), to allege that the bank was federally
insured was cured by the indictment’s reference to the statute
setting forth that element, and thus did not require automatic
reversal, only because the defendant’s challenge was not
timely).
The omission of two elements, one of which was properly
instructed and one of which was not, provides a unique oppor-
tunity to decide whether those two different, commonly
occurring situations require different answers with respect to
the availability or application of a harmless error analysis.
See, e.g., Jordan, 291 F.3d at 1096 (holding that, when drug
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quantity was neither alleged in the indictment nor proved to
the jury beyond a reasonable doubt, the omission was not
harmless beyond a reasonable doubt). In my view, the court
en banc ought to abolish the rule of automatic reversal only
in the most troubling subset of cases: convictions in which the
defendant had notice of, and the jury was properly instructed
regarding, the element of the crime missing from the indict-
ment.8
H. Conclusion
I am confident that the indictment’s failure to allege that
the defrauded banks were federally insured did not prejudice
Defendant. He does not dispute that he actually knew that fed-
erally insured status was an element of the crime. Moreover,
certificates of federally insured status for each bank were pro-
vided to Defendant (albeit late), evidence of federal insurance
was introduced at trial, the jury was instructed that it must
find that the banks were federally insured and, by its verdict,
the jury did so find beyond a reasonable doubt. This combina-
tion of factors plainly would satisfy the prejudice inquiry that
we previously have used in untimely challenge cases and that
other circuits have adopted. Nonetheless, Du Bo requires
reversal for this defect alone.9
A result that makes as little common sense as that, on a
recurring issue that has prompted a growing consensus in our
sister circuits that harmless error review is appropriate, should
result in en banc rehearing. Our practice of automatically
reversing convictions when a defendant timely objects that an
element of the offense was omitted from the indictment is out
of step with Neder, Cotton, Mechanik, and our own cases
8My concern, in other words, is not the result in Omer, but the analysis
that the panel was required to use to reach it.
9By contrast, the jury was not instructed on the missing materiality ele-
ment. In my view, the omission of the element from both the indictment
and the instructions was not harmless beyond a reasonable doubt.
14877 UNITED STATES v. OMER

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reviewing the prejudice caused by the omission of elements
from indictments. Accordingly, I respectfully dissent.
14878 UNITED STATES v. OMER

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The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2005 Thomson/West.

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