Chief Justice Rehnquist delivered the opinion of the Court.
Petitioner was tried on charges of violating a number of federal criminal statutes penalizing fraud. It is agreed that the District Court erred in refusing to submit the issue of materiality to the jury with respect to those charges involving tax fraud. See United States v.Gaudin, 515 U.S. 506 (1995). We hold that the harmless-error rule of Chapman v. California, 386 U.S. 18 (1967), applies to this error. We also hold that materiality is an element of the federal mail fraud, wire fraud, and bank fraud statutes under which petitioner was also charged.
In the mid-1980's, petitioner Ellis E. Neder, Jr., an attorney and real estate developer in Jacksonville, Florida, engaged in a number of real estate transactions financed by fraudulently obtained bank loans. Between 1984 and 1986, Neder purchased 12 parcels of land using shell corporations set up by his attorneys and then immediately resold the land at much higher prices to limited partnerships that he controlled.
Neder also 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. Neder 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.
Neder also obtained a consolidated $14 million land acquisition and development loan for a project known as Reddie Point. Pursuant to the loan, Neder 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,
Neder was indicted on, among other things, 9 counts of mail fraud, in violation of 18 U. S. C. § 1341; 9 counts of wire fraud, in violation of § 1343; 12 counts of bank fraud, in violation of § 1344; and 2 counts of filing a false income tax return, in violation of 26 U. S. C. § 7206(1). The fraud counts charged Neder with devising and executing various schemes to defraud lenders in connection with the land acquisition and development loans, totaling over $40 million. The tax counts charged Neder with filing false statements of income on his tax returns. According to the Government, Neder failed to report more than $1 million in income for 1985 and more than $4 million in income for 1986, both amounts reflecting profits Neder obtained from the fraudulent real estate loans.
In accordance with then-extant Circuit precedent and over Neder's objection, the District Court instructed the jury that, to convict on the tax offenses, it "need not consider" the materiality of any false statements "even though that language is used in the indictment." App. 256. The question of materiality, the court instructed, "is not a question for the jury to decide." Ibid. The court gave a similar instruction on bank fraud, id., at 249, and subsequently found, outside the presence of the jury, that the evidence established the materiality of all the false statements at issue, id., at 167. In instructing the jury on mail fraud and wire fraud, the District Court did not include materiality as an element of either offense. Id., at 253-255. Neder again objected to the instruction. The jury convicted Neder of the fraud and tax offenses, and he was sentenced to 147 months' imprisonment, 5 years' supervised release, and $25 million in restitution.
The Court of Appeals for the Eleventh Circuit affirmed the conviction. 136 F.3d 1459 (1998). It held that the District Court erred under our intervening decision in United States
We granted certiorari, 525 U.S. 928 (1998), to resolve a conflict in the Courts of Appeals on two questions: (1) whether, and under what circumstances, the omission of an element from the judge's charge to the jury can be harmless error, and (2) whether materiality is an element of the federal mail fraud, wire fraud, and bank fraud statutes.
Rule 52(a) of the Federal Rules of Criminal Procedure, which governs direct appeals from judgments of conviction in the federal system, provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Although this Rule by its terms applies to all errors where a proper objection is made at trial, we have recognized a limited class of fundamental constitutional errors that "defy analysis by `harmless error' standards." Arizona v. Fulminante, 499 U.S. 279, 309 (1991); see Chapman v. California, 386 U. S., at 23. Errors of this type are so intrinsically harmful as to require automatic reversal (i. e., "affect substantial rights") without regard to their effect on the outcome. For all other constitutional errors, reviewing courts must apply Rule 52(a)'s harmless-error analysis and must "disregar[d]" errors that are harmless "beyond a reasonable doubt." Id., at 24.
We have recognized that "most constitutional errors can be harmless." Fulminante, supra, at 306. "[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis." Rose v. Clark, 478 U.S. 570, 579 (1986). Indeed, we have found an error to be "structural," and thus subject to automatic reversal, only in a "very limited class of cases." Johnson v. United States, 520 U.S. 461, 468 (1997) (citing Gideon v. Wainwright, 372 U.S. 335 (1963) (complete denial of counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254 (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 U.S. 168 (1984) (denial of selfrepresentation at trial); Waller v. Georgia, 467 U.S. 39 (1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S. 275 (1993) (defective reasonable-doubt instruction)).
The error at issue here—a jury instruction that omits an element of the offense—differs markedly from the constitutional violations we have found to defy harmless-error review. Those cases, we have explained, contain a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Fulminante, supra, at 310. Such errors "infect the entire trial process," Brecht v. Abrahamson, 507 U.S. 619, 630 (1993), and "necessarily render a trial fundamentally unfair," Rose, 478 U. S., at 577. Put another way, these errors deprive defendants of "basic protections" without which "a criminal
Unlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. Our decision in Johnson v. United States, supra, is instructive. Johnson was a perjury prosecution in which, as here, the element of materiality was decided by the judge rather than submitted to the jury. The defendant failed to object at trial, and we thus reviewed her claim for "plain error." Although reserving the question whether the omission of an element ipso facto "`affect[s] substantial rights,' " 520 U. S., at 468-469, we concluded that the error did not warrant correction in light of the "`overwhelming' " and "uncontroverted" evidence supporting materiality, id., at 470. Based on this evidence, we explained, the error did not "`seriously affec[t] the fairness, integrity or public reputation of judicial proceedings.' " Id., at 469 (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
That conclusion cuts against the argument that the omission of an element will always render a trial unfair. In fact, as this case shows, quite the opposite is true: Neder was tried before an impartial judge, under the correct standard of proof and with the assistance of counsel; a fairly selected, impartial jury was instructed to consider all of the evidence and argument in respect to Neder's defense against the tax charges. Of course, the court erroneously failed to charge the jury on the element of materiality, but that error did not render Neder's trial "fundamentally unfair," as that term is used in our cases.
We have often applied harmless-error analysis to cases involving improper instructions on a single element of the offense. See, e. g., Yates v. Evatt, 500 U.S. 391 (1991)
The conclusion that the omission of an element is subject to harmless-error analysis is consistent with the holding (if not the entire reasoning) of Sullivan v. Louisiana, the case upon which Neder principally relies. In Sullivan, the trial court gave the jury a defective "reasonable doubt" instruction in violation of the defendant's Fifth and Sixth Amendment rights to have the charged offense proved beyond a reasonable doubt. See Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam). Applying our traditional mode of analysis,
Neder argues that Sullivan `s alternative reasoning precludes the application of harmless error here. Under that reasoning, harmless-error analysis cannot be applied to a constitutional error that precludes the jury from rendering a verdict of guilty-beyond-a-reasonable-doubt because "the entire premise of Chapman review is simply absent." Id., at 280. In the absence of an actual verdict of guiltybeyond-a-reasonable-doubt, the Court explained: "[T]he question whether the same verdict of guilty-beyond-areasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which the harmless-error scrutiny can operate." Ibid.; see Carella, supra, at 268-269 (Scalia, J., concurring in judgment). Neder argues that this analysis applies with equal force where the constitutional error, as here, prevents the jury from rendering a "complete verdict" on every element of the offense. As in Sullivan, Neder argues, the basis for harmless-error review "`is simply absent.' " Brief for Petitioner 7.
Although this strand of the reasoning in Sullivan does provide support for Neder's position, it cannot be squared with our harmless-error cases. In Pope, for example, the trial court erroneously instructed the jury that it could find the defendant guilty in an obscenity prosecution if it found that the allegedly obscene material lacked serious value under "community standards," rather than the correct "reasonable person" standard required by the First Amendment. 481 U. S., at 499-501. Because the jury was not properly
Similarly, in Carella, the jury was instructed to presume that the defendant "embezzled [a] vehicle" and "[i]nten[ded] to commit theft" if the jury found that the defendant failed to return a rental car within a certain number of days after the expiration of the rental period. 491 U. S., at 264 (internal quotation marks omitted). Again, the jury's finding of guilt cannot be seen as a "complete verdict" because the conclusive presumption "directly foreclosed independent jury consideration of whether the facts proved established certain elements of the offenses." Id., at 266. As in Pope, however, we held that the unconstitutional conclusive presumption was "subject to the harmless-error rule." 491 U. S., at 266.
And in Roy, a federal habeas case involving a state-court murder conviction, the trial court erroneously failed to instruct the jury that it could convict the defendant as an aider and abettor only if it found that the defendant had the "intent or purpose" of aiding the confederate's crime. 519 U. S., at 3 (internal quotation marks and emphasis omitted). Despite that omission, we held that "[t]he case before us is a case for application of the `harmless error' standard." Id., at 5.
The Government argues, correctly we think, that the absence of a "complete verdict" on every element of the offense establishes no more than that an improper instruction on an element of the offense violates the Sixth Amendment's jury trial guarantee. The issue here, however, is not whether a jury instruction that omits an element of the offense was error (a point that is uncontested, see supra, at 8), but whether the error is subject to harmless-error analysis. We
Forced to accept that this Court has applied harmlesserror review in cases where the jury did not render a "complete verdict" on every element of the offense, Neder attempts to reconcile our cases by offering an approach gleaned from a plurality opinion in Connecticut v. Johnson, 460 U.S. 73 (1983), an opinion concurring in the judgment in Carella, supra, and language in Sullivan, supra. Under this restrictive approach, an instructional omission, misdescription, or conclusive presumption can be subject to harmless-error analysis only in three "rare situations": (1) where the defendant is acquitted of the offense on which the jury was improperly instructed (and, despite the defendant's argument that the instruction affected another count, the improper instruction had no bearing on it); (2) where the defendant admitted the element on which the jury was improperly instructed; and (3) where other facts necessarily found by the jury are the "functional equivalent" of the omitted, misdescribed, or presumed element. See Sullivan, supra, at 281; Carella, supra, at 270-271 (Scalia, J., concurring in judgment); Johnson, supra, at 87 (plurality opinion). Neder understandably contends that Pope, Carella, and Roy fall within this last exception, which explains why the Court in those cases held that the instructional error could be harmless.
We believe this approach is mistaken for more than one reason. As an initial matter, we are by no means certain that the cases just mentioned meet the "functional equivalence" test as Neder at times articulates it. See Brief for Petitioner 29 ("[A]ppellate courts [cannot be] given even the slightest latitude to review the record to `fill the gaps' in a jury verdict, as `minor' as those gaps may seem"). In Pope, for example, there was necessarily a "gap" between what the jury did find (that the allegedly obscene material lacked value under "community standards") and what it was required
Petitioner's submission also imports into the initial structural-error determination (i. e., whether an error is structural) a case-by-case approach that is more consistent with our traditional harmless-error inquiry (i. e., whether an error is harmless). Under our cases, a constitutional error is either structural or it is not. Thus, even if we were inclined to follow a broader "functional equivalence" test (e. g., where other facts found by the jury are "so closely related" to the omitted element "that no rational jury could find those facts without also finding" the omitted element, Sullivan, 508 U. S., at 281 (internal quotation marks omitted)), such a test would be inconsistent with our traditional categorical approach to structural errors.
We also note that the present case arose in the legal equivalent of a laboratory test tube. The trial court, following existing law, ruled that the question of materiality was for the court, not the jury. It therefore refused a charge on the question of materiality. But future cases are not likely to be so clear cut. In Roy, we said that the error in question could be "as easily characterized as a `misdescription of an element' of the crime, as it is characterized as an error of `omission.' " 519 U. S., at 5. As petitioner concedes, his submission would thus call into question the far more common subcategory of misdescriptions. And it would require a reviewing court in each case to determine just how serious a "misdescription" it was.
It would not be illogical to extend the reasoning of Sullivan from a defective "reasonable doubt" instruction to a failure to instruct on an element of the crime. But, as indicated in the foregoing discussion, the matter is not res nova under our case law. And if the life of the law has not been logic but experience, see O. Holmes, The Common Law 1 (1881), we are entitled to stand back and see what would be accomplished by such an extension in this case. The omitted element was materiality. Petitioner under reported $5 million on his tax returns, and did not contest the element of materiality at trial. Petitioner does not suggest that he would introduce any evidence bearing upon the issue of materiality if so allowed. Reversal without any consideration of the effect of the error upon the verdict would send the case back for retrial—a retrial not focused at all on the issue of materiality, but on contested issues on which the jury was properly instructed. We do not think the Sixth Amendment requires us to veer away from settled precedent to reach such a result.
Having concluded that the omission of an element is an error that is subject to harmless-error analysis, the question remains whether Neder's conviction can stand because the error was harmless. In Chapman v. California, 386 U.S. 18 (1967), we set forth the test for determining whether a constitutional error is harmless. That test, we said, is whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id., at 24; see Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) ("[A]n otherwise valid conviction should not
To obtain a conviction on the tax offense at issue, the Government must prove that the defendant filed a tax return "which he does not believe to be true and correct as to every material matter." 26 U. S. C. § 7206(1). In general, a false statement is material if it has "a natural tendency to influence, or [is] capable of influencing, the decision of the decision-making body to which it was addressed." United States v. Gaudin, 515 U. S., at 509 (quoting Kungys v. United States, 485 U.S. 759, 770 (1988) (internal quotation marks omitted)). In a prosecution under § 7206(1), several courts have determined that "any failure to report income is material." United States v. Holland, 880 F.2d 1091, 1096 (CA9 1989); see 136 F. 3d, at 1465 (collecting cases). Under either of these formulations, no jury could reasonably find that Neder's failure to report substantial amounts of income on his tax returns was not "a material matter."
At trial, the Government introduced evidence that Neder failed to report over $5 million in income from the loans he obtained. The failure to report such substantial income incontrovertibly establishes that Neder's false statements were material to a determination of his income tax liability. The evidence supporting materiality was so overwhelming, in fact, that Neder did not argue to the jury—and does not argue here—that his false statements of income could be found immaterial. Instead, he defended against the tax charges by arguing that the loan proceeds were not income
Neder disputes our conclusion that the error in this case was harmless. Relying on language in our Sullivan and Yates decisions, he argues that a finding of harmless error may be made only upon a determination that the jury rested its verdict on evidence that its instructions allowed it to consider. See Sullivan, 508 U. S., at 279; Yates, 500 U. S., at 404. To rely on overwhelming record evidence of guilt the jury did not actually consider, he contends, would be to dispense with trial by jury and allow judges to direct a guilty verdict on an element of the offense.
But at bottom this is simply another form of the argument that a failure to instruct on any element of the crime is not subject to harmless-error analysis. Yates involved constitutionally infirm presumptions on an issue that was the crux of the case—the defendant's intent. But in the case of an omitted element, as the present one, the jury's instructions preclude any consideration of evidence relevant to the omitted
The erroneous admission of evidence in violation of the Fifth Amendment's guarantee against self-incrimination, see Arizona v. Fulminante, 499 U.S. 279 (1991), and the erroneous exclusion of evidence in violation of the right to confront witnesses guaranteed by the Sixth Amendment, see Delaware v.Van Arsdall, 475 U.S. 673 (1986), are both subject to harmless-error analysis under our cases. Such errors, no less than the failure to instruct on an element in violation of the right to a jury trial, infringe upon the jury's factfinding role and affect the jury's deliberative process in ways that are, strictly speaking, not readily calculable. We think, therefore, that the harmless-error inquiry must be essentially the same: Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error? To set a barrier so high that it could never be surmounted would justify the very criticism that spawned the harmless-error doctrine in the first place: "Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it." R. Traynor, The Riddle of Harmless Error 50 (1970).
We believe that where an omitted element is supported by uncontroverted evidence, this approach reaches an appropriate balance between "society's interest in punishing the guilty [and] the method by which decisions of guilt are to be made." Connecticut v. Johnson, 460 U. S., at 86 (plurality opinion). The harmless-error doctrine, we have said, "recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, . . . and promotes public respect for the criminal process by focusing on the underlying fairness of the trial."
Of course, safeguarding the jury guarantee will often require that a reviewing court conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless.
A reviewing court making this harmless-error inquiry does not, as Justice Traynor put it, "become in effect a second jury to determine whether the defendant is guilty." Traynor, supra, at 21. Rather a court, in typical appellatecourt fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is "no," holding the error harmless does not "reflec[t] a denigration of the constitutional rights involved." Rose, 478 U. S., at 577. On the contrary, it "serve[s] a very useful purpose insofar as [it] block[s] setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial." Chapman, 386 U. S., at 22. We thus hold that the District Court's failure to submit the
We also granted certiorari in this case to decide whether materiality is an element of a "scheme or artifice to defraud" under the federal mail fraud (18 U. S. C. § 1341), wire fraud (§ 1343), and bank fraud (§ 1344) statutes. The Court of Appeals concluded that the failure to submit materiality to the jury was not error because the fraud statutes do not require that a "scheme to defraud" employ material falsehoods. We disagree.
Under the framework set forth in United States v. Wells, 519 U.S. 482 (1997), we first look to the text of the statutes at issue to discern whether they require a showing of materiality. In this case, we need not dwell long on the text because, as the parties agree, none of the fraud statutes defines the phrase "scheme or artifice to defraud," or even mentions materiality. Although the mail fraud and wire fraud statutes contain different jurisdictional elements (§ 1341 requires use of the mails while § 1343 requires use of interstate wire facilities), they both prohibit, in pertinent part, "any scheme or artifice to defraud" or to obtain money or property "by means of false or fraudulent pretenses, representations, or promises."
That does not end our inquiry, however, because in interpreting statutory language there is a necessary second step. It is a well-established rule of construction that "`[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.' " Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730,
The Government does not dispute that both at the time of the mail fraud statute's original enactment in 1872, and later when Congress enacted the wire fraud and bank fraud statutes, actionable "fraud" had a well-settled meaning at common law. Nor does it dispute that the well-settled meaning of "fraud" required a misrepresentation or concealment of material fact. Indeed, as the sources we are aware of demonstrate, the common law could not have conceived of "fraud" without proof of materiality. See BMW of North America, Inc. v. Gore, 517 U.S. 559, 579 (1996) ("[A]ctionable fraud requires a material misrepresentation or omission" (citing Restatement (Second) of Torts § 538 (1977); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 108 (5th ed. 1984))); Smith v. Richards, 13 Pet. 26, 39 (1839) (in an action "to set aside a contract for fraud" a "misrepresentation must be of something material"); see also 1 J. Story, Commentaries on Equity Jurisprudence § 195 (10th ed. 1870) ("In the first place, the misrepresentation must be of something material, constituting an inducement or motive to the act or omission of the other
The Government attempts to rebut this presumption by arguing that the term "defraud" would bear its common-law meaning only if the fraud statutes "indicated that Congress had codified the crime of false pretenses or one of the common-law torts sounding in fraud." Brief for United States 37. Instead, the Government argues, Congress chose
The Government relies heavily on Durland v. United States, 161 U.S. 306 (1896), our first decision construing the mail fraud statute, to support its argument that the fraud statutes sweep more broadly than common-law fraud. But Durland was different from this case. There, the defendant, who had used the mails to sell bonds he did not intend to honor, argued that he could not be held criminally liable because his conduct did not fall within the scope of the common-law crime of "false pretenses." We rejected the argument that "the statute reaches only such cases as, at common law, would come within the definition of `false pretenses,' in order to make out which there must be a misrepresentation as to some existing fact and not a mere promise as to the future." Id., at 312. Instead, we construed the statute to "includ[e] everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future." Id., at 313. Although Durland held that the mail fraud statute reaches conduct that would not have constituted "false pretenses" at common law, it did not hold, as the Government argues, that the statute encompasses more than common-law fraud.
In one sense, the Government is correct that the fraud statutes did not incorporate all the elements of common-law fraud. The common-law requirements of "justifiable reliance"
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.
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.
This is an easy case. The federal tax fraud statute, 26 U. S. C. § 7206(1), prohibits the filing of any return that the taxpayer "does not believe to be true and correct as to every material matter."
The jury found that petitioner knowingly and "falsely reported [his] total income in his 1985 return . . . and in his 1986 return." App. 256 (jury instructions). A taxpayer's "total income" is obviously "information necessary to a determination of a taxpayer's income tax liability." 136 F. 3d, at 1465. The jury verdict, therefore, was not merely the functional equivalent of a finding on any possible materiality issue; it necessarily included a finding on that issue. That being so, the trial judge's failure to give a separate instruction on that issue was harmless error under any test of harmlessness.
But the Court does not rest its decision on this logic. Rather, it finds the instructional error harmless because petitioner "did not, and apparently could not, bring forth
The Court of Appeals' judgment could, and should, be affirmed on the ground that the jury verdict in this case necessarily included a finding that petitioner's tax returns were not "true and correct as to every material matter." I therefore cannot join the analysis in Part II of the Court's opinion, which—without explaining why the jury failed necessarily to find a material omission—states that judges may find elements of an offense satisfied whenever the defendant failed to contest the element or raise evidence sufficient to support a contrary finding. My views on this central issue are thus close to those expressed by Justice Scalia, but I do not
If the Court's tolerance of the trial judge's Sixth Amendment error in this case were, as Justice Scalia's dissent suggests, post, at 30, as serious as malpractice on "the spinal column of American democracy," surely the error would require reversal of the conviction regardless of whether defense counsel made a timely objection. Yet the dissent states that reversal is appropriate only when a defendant made a timely objection to the deprivation. Post, at 35 (opinion concurring in part and dissenting in part). It is for that reason that I find tension between the force of Justice Scalia's eloquent rhetoric and the far narrower rule that he actually espouses.
There is even more tension between that rhetoric and his perception of the proper role of the jury in cases that are far more controversial than the prosecution of white-collar crimes. The history that he recounts provides powerful support for my view that this Court has not been properly sensitive to the importance of protecting the right to have a jury resolve critical issues of fact when there is a special danger that elected judges may listen to the voices of voters rather than witnesses. A First Amendment case and a capital case will illustrate my point.
In Pope, we found constitutional error in the conviction of two attendants in an adult bookstore because the trial court had instructed the jury to answer the question whether certain magazines lacked "serious literary, artistic, political, or scientific value" by applying the community standards that prevailed in Illinois. 481 U. S., at 500-501. As the history of many of our now-valued works of art demonstrates, this error would have permitted the jury to resolve the issue against the defendants based on their appraisal of the views of the majority of Illinois' citizens despite the fact that under
Admittedly, that endorsement is consistent with the holding in Part II of the Court's opinion in Walton v. Arizona, 497 U.S. 639, 647-649 (1990), that a judge may make the factual findings that render a defendant eligible for the death penalty. As I have previously argued, however, that holding was not faithful to the history that was reviewed by "the wise and inspiring voice that spoke for the Court in Duncan v. Louisiana, [391 U.S. 145 (1968)]." Id., at 709-714 (Stevens, J., dissenting). Nor was it faithful to the history that Justice Scalia recounts today. Of course, Blackstone was concerned about judges exposed to the voice of the higher authority personified by the Crown, whereas today the concern is with the impact of popular opinion. It remains clear, however, that the constitutional right to be tried by a jury of one's peers provides "an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Duncan v. Louisiana, 391 U.S. 145, 156 (1968).
The Court's conclusion that materiality is an element of the offenses defined in 18 U. S. C. §§ 1341, 1343, and 1344 is
Justice Scalia, with whom Justice Souter and Justice Ginsburg join, concurring in part and dissenting in part.
I join Parts I and III of the Court's opinion. I do not join Part II, however, and I dissent from the judgment of the Court, because I believe that depriving a criminal defendant of the right to have the jury determine his guilt of the crime charged—which necessarily means his commission of every element of the crime charged—can never be harmless.
Article III, § 2, cl. 3, of the Constitution provides: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . ." The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . ." When this Court deals with the content of this guarantee—the only one to appear in both the body of the Constitution and the Bill of Rights—it is operating upon the spinal column of American democracy. William Blackstone, the Framers' accepted authority on English law and the English Constitution, described the right to trial by jury in criminal prosecutions as "the grand bulwark of [the Englishman's] liberties. . . secured to him by the great charter." 4 W. Blackstone, Commentaries *349. One of the indictments of the Declaration of Independence against King George III was that he had "subject[ed] us to a Jurisdiction foreign to our Constitution,
The right to be tried by a jury in criminal cases obviously means the right to have a jury determine whether the defendant has been proved guilty of the crime charged. And since all crimes require proof of more than one element to establish guilt (involuntary manslaughter, for example, requires (1) the killing (2) of a human being (3) negligently), it follows that trial by jury means determination by a jury that all elements were proved. The Court does not contest this. It acknowledges that the right to trial by jury was denied in the present case, since one of the elements was not—despite the defendant's protestation—submitted to be passed upon by the jury. But even so, the Court lets the defendant's sentence stand, because we judges can tell that he is unquestionably guilty.
The Court's decision would be wrong even if we ignored the distinctive character of this constitutional violation. The Court reaffirms the rule that it would be structural
The Court never asks, much less answers, this question. Indeed, we do not know, when the Court's opinion is done, how many elements can be taken away from the jury with impunity, so long as appellate judges are persuaded that the defendant is surely guilty. What if, in the present case, besides keeping the materiality issue for itself, the District Court had also refused to instruct the jury to decide whether the defendant signed his tax return? See 26 U. S. C. § 7206(1). If Neder had never contested that element of the offense, and the record contained a copy of his signed return, would his conviction be automatically reversed in that situation but not in this one, even though he would be just as obviously guilty? We do not know. We know that all elements cannot be taken from the jury, and that one can. How many is too many (or perhaps what proportion is too high) remains to be determined by future improvisation. All we know for certain is that the number is somewhere between tuppence and 19 shillings 11, since the Court's only response to my assertion that there is no principled distinction between this case and a directed verdict is that "our course of constitutional adjudication has not been characterized by this `in for a penny, in for a pound' approach." See ante, at 17, n. 2.
The Court points out that in Johnson v. United States, 520 U.S. 461 (1997), we affirmed the petitioner's conviction even though the element of materiality had been withheld from the jury. But the defendant in that case, unlike the defendant here, had not requested a materiality instruction. In the context of such unobjected-to error, the mere deprivation of substantial rights "does not, without more," warrant reversal, United States v. Olano, 507 U.S. 725, 737 (1993), but the appellant must also show that the deprivation "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings," Johnson, supra, at 469 (quoting Olano, supra,
Insofar as it applies to the jury-trial requirement, the structural-error rule does not exclude harmless-error analysis—though it is harmless-error analysis of a peculiar sort, looking not to whether the jury's verdict would have been the same without the error, but rather to whether the error did not prevent the jury's verdict. The failure of the court to instruct the jury properly—whether by omitting an element of the offense or by so misdescribing it that it is effectively removed from the jury's consideration—can be harmless, if the elements of guilt that the jury did find necessarily embraced the one omitted or misdescribed. This was clearly spelled out by our unanimous opinion in Sullivan v. Louisiana, supra, which said that harmless-error review "looks .. .to the basis on which `the jury actually rested its verdict.' " 508 U. S., at 279 (quoting Yates v. Evatt, 500 U.S. 391, 404 (1991)). Where the facts necessarily found by the jury (and not those merely discerned by the appellate court) support the existence of the element omitted or misdescribed in the instruction, the omission or misdescription is harmless.
The Court points out that all forms of harmless-error review "infringe upon the jury's factfinding role and affect the jury's deliberative process in ways that are, strictly speaking, not readily calculable." Ante, at 18. In finding, for example, that the jury's verdict would not have been affected by the exclusion of evidence improperly admitted, or by the admission of evidence improperly excluded, a court is speculating on what the jury would have found. See, e. g., Arizona v. Fulminante, 499 U. S., at 296 (Would the verdict have been different if a coerced confession had not been introduced?); Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (Would the verdict have been different if evidence had not been unconstitutionally barred from admission?). There is no difference, the Court asserts, in permitting a similar speculation here. Ante, at 18.
If this analysis were correct—if permitting speculation on whether a jury would have changed its verdict logically demands permitting speculation on what verdict a jury would have rendered—we ought to be able to uphold directed verdicts
The difference between speculation directed toward confirming the jury's verdict (Sullivan) and speculation directed toward making a judgment that the jury has never made (today's decision) is more than semantic. Consider, for example, the following scenarios. If I order for my wife in a restaurant, there is no sense in which the decision is hers, even if I am sure beyond a reasonable doubt about what she would have ordered. If, however, while she is away from the table, I advise the waiter to stay with an order she initially made, even though he informs me that there has been a change in the accompanying dish, one can still say that my wife placed the order—even if I am wrong about whether she would have changed her mind in light of the new information. Of course, I may predict correctly in both instances simply because I know my wife well. I doubt, however, that a low error rate would persuade my wife that my making a practice of the first was a good idea.
It is this sort of allocation of decisionmaking power that the Sullivan standard protects. The right to render the verdict in criminal prosecutions belongs exclusively to the jury; reviewing it belongs to the appellate court. "Confirming"
* * *
The recipe that has produced today's ruling consists of one part self-esteem, one part panic, and one part pragmatism. I have already commented upon the first ingredient: What could possibly be so bad about having judges decide that a jury would necessarily have found the defendant guilty? Nothing except the distrust of judges that underlies the jury-trial guarantee. As to the ingredient of panic: The Court is concerned that the Sullivan approach will invalidate convictions in innumerable cases where the defendant is obviously guilty. There is simply no basis for that concern. The limited harmless-error approach of Sullivan applies only when specific objection to the erroneous instruction has been made and rejected. In all other cases, the Olano plain-error rule governs, which is similar to the ordinary harmless-error analysis that the Court would apply. I doubt that the criminal cases in which instructions omit or misdescribe elements of the offense over the objection of the defendant are so numerous as to present a massive problem. (If they are, the problem of vagueness in our criminal laws, or of incompetence in our judges, makes the problem under discussion here seem insignificant by comparison.)
And as for the ingredient of pragmatism (if the defendant is unquestionably guilty, why go through the trouble of trying him again?), it suffices to quote Blackstone once again:
See also Bollenbach v. United States, 326 U.S. 607, 615 (1946). Formal requirements are often scorned when they stand in the way of expediency. This Court, however, has an obligation to take a longer view. I respectfully dissent.
"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, . . . 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 therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, 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 five 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."
Section 1343 provides:
"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, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than five 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."
"Whoever knowingly executes, or attempts to execute, a scheme or artifice—
"(1) to defraud a financial institution; or
"(2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises;
"shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both."
"(b)the maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his choice of action, although a reasonable man would not so regard it." Restatement (Second) of Torts § 538 (1977).
"`[F]alse pretenses, a false representation, or actual frau[d]' carry the acquired meaning of terms of art. They are common-law terms, and . . . they imply elements that the common law has defined them to include. . . . Congress could have enumerated their elements, but Congress's contrary drafting choice did not deprive them of a significance richer than the bare statement of their terms."
"Any person who—
"(1) Declaration under penalties of perjury.
"Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter . . .
. . . . .
"shall be guilty of a felony."