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 nonrecused active judges in favor of en banc rehearing.

The petition for panel rehearing and the petition for rehearing 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 reconsider 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.

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, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962), and Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960). See Du Bo, 186 F.3d at 1179-80 (relying on those cases).1

Second, we said that omissions from a grand jury indictment, 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 incentive to bring timely objections. We limited the automatic reversal rule to timely challenges, reasoning that under harmless error review, filing a pretrial motion would be "self-defeating" because the very filing of the motion would demonstrate 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 indictment 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.

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, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002). Cotton directly eliminated the jurisdictional premise for the automatic reversal rule. In Cotton, the Court held that an indictment containing the essential elements of the offense is not a jurisdictional prerequisite to a criminal prosecution. See id. at 630, 122 S. Ct. 1781 (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 distinguishable from Du Bo and do not compel the automatic reversal 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, 82 S. Ct. 1038 ("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 considered by the grand jury" (citing Stirone, 361 U.S. at 219, 80 S. Ct. 270)). But both Russell and Stirone were concerned with preventing the government from pursuing a theory of the crime not presented to the grand jury; the Court sought to prevent that kind of a substantive "constructive amendment" of the indictment.3

See Cotton, 535 U.S. at 631, 122 S. Ct. 1781(describing Russell and Stirone as reflecting the "settled proposition of law" that "an indictment 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.) (distinguishing 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, 87 S. Ct. 824, 17 L. Ed. 2d 705. 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, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (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, 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 Stirone.

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 precedents 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 analysis 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, 122 S. Ct. 1781 (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 "seriously affect[s] the fairness, integrity, or public reputation of 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 "substantial rights" because the defendant had notice of the missing 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, 119 S. Ct. 1827, that they necessarily "affect substantial rights." See also id. (describing structural errors as those that "`defy analysis by "harmless error" standards'" (quoting Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (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 suggested in Du Bo, 186 F.3d at 1179-80, that it is impossible to review an omission for harmlessness. In the untimely challenge 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 harmless error and plain error review. 14870

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 practical 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 criminal punishment may be regarded as fundamentally fair." Neder, 527 U.S. at 8-9, 119 S. Ct. 1827 (internal quotation marks omitted).5

Neither the nature of the error, nor its amenability to harmless error review, is affected by the timing of a defendant's challenge. 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 Defendant'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, 119 S. Ct. 1827.

The situation in Neder presents a close parallel to the omission 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 element 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 fundamental 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, 122 S. Ct. 1781("Respondents emphasize that the Fifth Amendment grand jury right serves a vital function 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 reasonable doubt." (citation omitted)).

In deciding Omer, the panel distinguished Neder on the ground that, whereas an error in jury instructions can be assessed with reference to the trial record and the overall fairness 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, commonplace) 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, 108 S. Ct. 2369, 101 L. Ed. 2d 228 (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, 106 S. Ct. 938, 89 L. Ed. 2d 50 (1986) (same).6 In Mechanik, the Court held that, although the error "had the theoretical potential 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, 106 S. Ct. 938; see id. (stating that "the petit jury's subsequent guilty verdict means not only 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, 119 S. Ct. 1827 (listing such "structural errors"). The Court's decision in Cotton makes it extremely difficult to categorize omissions from indictments as structural errors. In Cotton, the Court held that one such omission "did not seriously affect the fairness, integrity, or public reputation of judicial proceedings" because the evidence of the missing element was "overwhelming and essentially uncontroverted" at trial. 535 U.S. at 632-33, 122 S. Ct. 1781 (internal quotation marks omitted). In reaching that conclusion, the Court avoided deciding directly whether the omission of an element from an indictment 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, 119 S. Ct. 1827(deciding that omission of an element from jury instructions is not structural error, in part, because in Johnson v. United States, 520 U.S. 461, 468-69, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997), the Court had decided that the same error did not satisfy the fourth element of the plain error analysis); 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, ___ U.S. ___, 125 S. Ct. 623, 160 L. Ed. 2d 466 (2004).

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 various stages, for harmless error. See Allen, 406 F.3d at 945 (reviewing for harmless error an omission challenged at sentencing);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, ___ U.S. ___, 125 S. Ct. 627, 160 L. Ed. 2d 456 (2004); United States v. Cor-Bon Custom Bullet Co., 287 F.3d 576, 580(6th Cir.2002) (reviewing for harmless error an omission challenged 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 reversal, 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 available).

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 artifice 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 failure 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 opportunity 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 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 indictment.8

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 federally insured status was an element of the crime. Moreover, certificates of federally insured status for each bank were provided 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 combination 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 reviewing the prejudice caused by the omission of elements from indictments. Accordingly, I respectfully dissent.