concurring in part and dissenting in part:
I do not think the principle of Kind v. United States, 529 A.2d 294 (D.C.1987), is controlling here, and therefore I would affirm all the convictions.
In United States v. North, 285 U.S.App.D.C. 343, 910 F.2d 843 (1990), the defendant was convicted, inter alia, on a count of aiding and abetting the obstruction of a congressional inquiry. A statutory element of the charged offense was that an “inquiry or investigation is being had” by either House or Senate or a committee thereof. 18 U.S.C. § 1505 (1988). The trial *781court erroneously removed this element of the offense from the jury by instructing that as a matter of law, congressional inquiries were pending. Nevertheless, the appellate court applied a “harmless error” test, holding that “the mere fact that an error ‘deprives the jury of its factfinding role’ is not per se grounds for reversal and is subject to harmless error analysis when no rational jury could find the other elements of the offense without finding the fact presumed.” 285 U.S.App.D.C. at —, 910 F.2d at 893 (citing Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989)).
If harmless error may be applied in such circumstances where the trial court affirmatively removed an element of an offense from jury consideration, I think that plainly it may be applied where an element was not explicitly included in the trial court’s instructions but the jury in convicting must necessarily have found the omitted element to have been proven.1 Such is the case before us.
Here, the indictment specifically charged that each of the eleven checks had a value of $250 or more, and included a photostat of each check. Eight of the checks were for $1,000; two of the checks for $2,000; and the altered check for $3,050. The checks themselves were introduced into evidence. The verdict form itself, sent to the jury room, likewise specified with respect to each check its exact amount. In convicting, the jury could only have found that the offenses were committed with the exact checks included in the indictment and submitted into evidence. No rational jury could have otherwise convicted the defendant.2
In this regard, the case differs from Kind. In that case, the defendant was convicted of possession of a prohibited weapon, namely, a knife, with intent to use it unlawfully against another person, as well as of assault and destruction of property. The underlying incident was an altercation in an automobile between the defendant and a woman involving a knife. The government introduced into evidence a knife recovered after Kind’s arrest from the back floorboard of the car in which the assault took place. 529 A.2d at 296 n. 3. However, particularly under the charge as actually given by the trial court in which no minimum knife length requirement was mentioned, conviction did not necessarily require that the jury accept the proposition that the knife in evidence was the actual knife used in the assault.
I might add that, more generally, I join in the view expressed recently in several federal circuits questioning whether the broad per se reversal doctrine of the Kind case is “long for this world in light of recent Supreme Court trends.” United States v. Dotson, 895 F.2d 263, 265 (6th Cir.1990) (citing Carella v. California, supra; Pope v. Illinois, 481 U.S. 497, 501-04, 107 S.Ct. 1918, 1921-23, 95 L.Ed.2d 439 (1987); Rose v. Clark, 478 U.S. 570, 576-84, 106 S.Ct. 3101, 3105-09, 92 L.Ed.2d 460 (1986)). See also United States v. Kerley, 838 F.2d 932 (7th Cir.1988) (no per se reversal where essential element of offense is omitted in instructions).
. It appears that at least one other exception may also exist; namely, where the faulty instruction involves "an element of the crime that the defendant in any case admitted.” Carella v. California, supra, 109 S.Ct. at 2423 (Scalia, J., concurring in the judgment). But cf. Kind, 529 A.2d at 296 n. 5 (apparently less than pellucid testimony of the defendant “can be read to indicate his acknowledgment” that the knife introduced into evidence was the knife involved in the incident, but issue still one for jury).
. The instruction relating to the count of first-degree theft specifically noted that the property wrongfully obtained must be of a value of S250 or more. The prosecutor in the closing argument stressed that if the jury were to find that the defendant engaged in any one of the charged forgeries, she could be convicted on the theft count.