dissenting,
with whom SEYMOUR, HENRY, and LUCERO, Circuit Judges, join.I respectfully dissent. Pursuant to Kansas law as stated in State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), Petitioners were incorrectly charged, tried, and convicted of a crime. Williams, citing Kansas Statute § 21-3603 (in effect at the time), holds that when a defendant is related to his victim he “must be charged with aggravated incest and not indecent liberties with a child.” Carmichael v. State, 255 Kan. 10, 872 P.2d 240, 246 (1994) (emphasis added). It is undisputed that Petitioners should have been charged from the beginning with aggravated incest. To reduce this ease to merely remedying an erroneous sentence, as the majority has done, is to ignore the fact that the sentence is erroneous because Kansas law prohibits the charge upon which the sentence is based.
This case turns on Carmichael because it is the last definitive statement from the Kansas Supreme Court. In Carmichael, the Kansas Supreme Court stated that “[i]n [State v. Moore, 242 Kan. 1, 748 P.2d 833 (Kan.1987) ], ... [w]e held [that] aggravated incest is not a lesser included crime of rape.... [E]ach crime required proof of an element not required by the other, and therefore, aggravated incest is not a crime which is necessarily proved if the crime of rape is charged and proved.” Carmichael, 872 P.2d at 245 (emphasis added). The Carmichael court referred with approval to cases from other jurisdictions, which are cited in Moore, holding that rape and incest are separate and independent crimes. “The basic rationale in these cases is that rape and incest have different elements and therefore are distinct offenses.” Id. at 246 (emphasis added).
In discussing the fact that Williams in effect overruled Moore, referring to procedural aspects of the case, the Carmichael court said:
In so doing, we did not embrace the rationale that there is one wrongful act, i.e., forcible sexual intercourse, and where incestuous, the crime of incest is included in and merges with the crime of rape. Nor do we do so now. Although the conduct prohibited in aggravated incest and rape can be identical, i.e., sexual intercourse, the offenses are not. Aggravated incest requires the additional elements of a victim under 18 years of age, kinship, and that the offender be aware of the kinship. Rape requires force; aggravated incest does not. For that reason, we have held that aggravated incest is not included in nor merges with the offense of rape.
Carmichael, 872 P.2d at 246 (emphasis added). While there is language in Carmichael stating that it overruled Moore, the Kansas Supreme Court is clearly referring to the procedural fact that, pursuant to Kansas law, a person cannot be charged with both aggravated incest and indecent liberties with a child or with both *1188aggravated incest and rape where the two charges grow out of the same set of facts. Id. at 246-47.
Carmichael further holds that the appropriate remedy for a Williams violation is “to vacate the sentence imposed for rape and resentence the petitioner for aggravated incest.” Id. at 247. However, Carmichael did not overturn Williams. Instead, Carmichael affirmed the Williams principle that when a defendant is related to his victim he “must be charged with aggravated incest and not indecent liberties with a child.” Id. at 246 (emphasis added). The Carmichael court relied on its statutory authority to “correct an illegal sentence.” Id. at 245. However, as stated above, it is not just the sentence that is invalid. This case involves more than merely an illegal sentence. Petitioners were incorrectly charged, tried, and convicted of a crime. Pursuant to Kansas law as interpreted by Williams and Carmichael, Petitioners were charged and convicted under the wrong statute. As drafted by the Kansas legislature, and interpreted by the Kansas Supreme Court, indecent liberties with a child and aggravated incest are two separate crimes.1
Kansas’ proposed solution in Carmichael directly violates the law set forth by the United States Supreme Court in Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948). In Cole, the defendants were convicted of promoting an unlawful assembly under Section Two of a state statute. On appeal, the Arkansas Supreme Court held that the information filed against the defendants also violated Section One of the same statute and affirmed the defendants’ convictions based solely on Section-One grounds. The United States Supreme Court reversed, stating:
We therefore have this situation. The petitioners read the information as charging them with an offense under § 2 of the Act, the language of which the information had used. The trial judge construed the information as charging an offense under § 2. He instructed the jury to that effect. He charged the jury that petitioners were on trial for the offense of promoting an unlawful assemblage, not for the offense “of using force and violence.” Without completely ignoring the judge’s charge, the jury could not have convicted petitioners for having committed the separate, distinct, and substantially different offense defined in § 1. Yet the State Supreme Court refused to consider the validity of the convictions under § 2, for violation of which petitioners were tried and convicted. It affirmed their convictions as though they had been tried for violating § 1, an offense for which they were neither tried nor convicted.
No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.... It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.
Id. at 200-01, 68 S.Ct. 514. The Court reversed the Arkansas Supreme Court on *1189Fourteenth Amendment due process grounds.
In the present case, the majority has ignored the Supreme Court’s mandate in Cole. Mr. Henson was charged, tried, and convicted of rape, and Mr. Beem was charged, tried, and convicted of indecent liberties with a minor. As the Kansas Court of Appeals in these cases held (based on Carmichael), under Kansas law, both should have been charged, tried, and convicted of aggravated incest. Vacating Mr. Henson’s and Mr. Beem’s sentences and then sentencing them instead for aggravated incest (because their conduct also violates that statute) clearly violates Petitioners’ due process rights because they were never charged, tried, nor convicted of aggravated incest. As this court previously stated, “[w]hat ... is before us now is the fundamental due process question of whether one can be sentenced for a crime not charged and to which no plea of guilty has been entered. The answer is an unequivocal no.” Von Atkinson v. Smith, 575 F.2d 819, 821 (10th Cir.1978) (applying Cole) (emphasis added).
The primary elements of due process— notice of the charge and an opportunity to defend against the charge — are not present here even though it is now undisputed that Petitioners were related to their victims. Courts are forbidden from directing verdicts against criminal defendants on any element of a crime. See Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (“[Ajlthough a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence.”). This court is prohibited from taking judicial notice of any element of the crime of aggravated incest, regardless of how easily the particular element could have been proven. This prohibition includes taking judicial notice of the relationship between the Petitioners and their victims.
It is immaterial that the new sentences imposed on the Petitioners expose them to less punishment than their sentences for rape or indecent liberties with a minor. “It is irrelevant that the sentence for the uncharged crime is less than that for the one charged.” Von Atkinson, 575 F.2d at 821. Allowing the State to re-sentence Mr. Henson and Mr. Beem for crimes for which they were not charged, tried, or convicted violates a basic tenet of our judicial system. All criminal defendants are considered innocent until proven guilty after a full and fair trial.
In my view, this case has nothing to do with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi deals solely with aggravating sentencing factors which result in a sentence in excess of the statutory maximum for the crime which is properly the basis of a valid conviction. It merely holds that the Due Process Clause requires that such aggravating sentencing factors must be proven at trial. Apprendi has to do with the due process effect of a sentencing statute which results in the imposition of a sentence for the crime of conviction. The Carmichael remedy is an attempt to remedy an invalid conviction by re-sentencing for a different crime with different elements requiring definition by a different criminal statute. In my view, it is clear from the Kansas cases construing the Kansas statutory scheme that the crime of incest is distinct from the crimes of conviction in these two cases. “[Aggravated incest is not a lesser included crime of rape.... [E]ach crime require[s] proof of an element not required by the other, and therefore, aggravated incest is not a crime which is necessarily proved if the crime of rape is charged and proved.” Carmichael, 872 P.2d at 245 (emphasis added).
*1190Apprendi is irrelevant to the cases before us because these are not simply sentencing statutes, they are separate crimes,2 There is nothing to suggest that Apprendi has either overturned or super-ceded Cole, even in a case like the one before us where the State has applied an Apprendi-like remedy where the underlying conviction is for the wrong crime.
The majority is persuaded that the Carmichael remedy is merely a sentencing reduction remedy because Petitioners’ convictions for indecent liberties with a child still stand. That is a mistaken reading of what the Kansas court has done. It is unmistakably clear that Kansas has instead tried to apply a sentencing remedy in order to correct an admittedly erroneous conviction. It is constitutionally impermissible to let stand a crime that was charged and tried in error by the mere expedient of reducing the sentence to the level of the one that should have been charged and tried.
In sum, it is clear from reading the definitive Kansas cases that the Kansas Court of Appeals (and the Kansas Supreme Court in Carmichael) concluded that Defendants were tried and convicted for the wrong crime but were of the view that they were at constitutional liberty to cure the problem by sentencing Defendants for the crime for which they should have been charged without the benefit of either trial or conviction of essential elements of the correct crime. No matter how strong the evidence of the non-charged, non-tried, and non-convicted crime, Cole makes it abundantly clear that they may not do so.
The constitutional error of vacating the Defendants’ sentences and sentencing them for a crime for which they were not charged, tried, or convicted cannot constitute harmless error. While it may not be structural error to leave an element out of the indictment, surely it is error to indict, try, and convict of the wrong offense. This is not a simple case where an element was omitted; instead, Defendants were indicted, tried, and convicted of the whole wrong crime. Harmless error deals with errors in the trial process. In the instant case, the error infects the entire series of events from indictment to trial to conviction. Defendants were indicted under charges that did not include all necessary elements of aggravated incest — in fact, they were not charged with aggravated incest at all.3 Additionally, Defendants did not proffer a defense regarding the missing elements and their juries were not instructed as to all elements of aggravated incest. Finally, Defendants were convicted of crimes of which Kansas law dictates they cannot properly be convicted, and these convictions still stand.
The only conceivable way we could permit a sentence for aggravated incest to be entered against Mr. Henson and Mr. Beem is to take judicial notice of the essential element of kinship — an impermissible en*1191deavor — and ignore the fact that they continue to serve sentences for crimes which Kansas says they cannot be convicted. This court must not jettison its responsibility to vigilantly protect the inviolate right of all defendants to be charged, tried, and convicted of the crime for which they are imprisoned.
This situation differs markedly from cases in which an uncharged element relates to a sentencing enhancement or inclusive offense and the court applies harmless error to evaluate the sufficiency of the evidence. See United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (evaluating sufficiency of evidence to justify sentencing enhancement for possession of over fifty grams of cocaine when defendant was charged with “detectable amount” of cocaine). In the present case, the Defendants were charged with a crime that is entirely separate from the ones for which they were sentenced, as determined by the Kansas courts: “[T]he crimes of incest and rape in Kansas ... have been considered to be separate and independent crimes.” Carmichael v. State, 872 P.2d at 245. Because Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), does not involve separate crimes but rather involves only a missing element, materiality, in the instructions for the charged crime, it is not relevant to our inquiry. Neder simply concludes that “the omission of an element is an error that is subject to harmless-error analysis.” Id. at 15, 119 S.Ct. 1827.
Because the crime charged and the crime of conviction are separate and independent, Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), and Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), are implicated. Since there has been no jury verdict within the meaning of the Sixth Amendment, the premise for harmless-error analysis is absent. Sullivan’s reasoning applies equally to our case:
[T]he illogic of harmless-error review in the present case [is] evident. Since ... there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of [harmless-error] review is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-doubt [for aggravated incest], the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt — not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough.... The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.
Sullivan, 508 U.S. at 280, 113 S.Ct. 2078 (emphasis in original).
The imprisonment of an individual for a crime for which they were not charged, tried, and convicted cannot be considered harmless error. Sentencing a defendant for a crime that is totally discrete (i.e. not related as being a lesser or greater offense or as a sentencing factor) from the crime for which he was indicted violates due process. This falls within the “limited class of fundamental constitutional errors that defy analysis by harmless error standards. Errors of this type are so intrinsically harmful as to require automatic reversal without regard to their effect on the *1192outcome:’ Neder, 527 U.S. at 7, 119 S.Ct. 1827 (internal quotations and citations omitted) (emphasis added). There is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. at 8, 119 S.Ct. 1827 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)).4
The judicial estoppel issue, as applied in these circumstances, is novel and has not been raised or briefed. While there may be some comfort in the we-all-know-they-are-guilty argument, we are sitting as a court of law in a criminal ease, not as a court of equity. The judicial estoppel argument was not raised or argued by the parties and is too novel a notion in this case to be addressed without the benefit of briefing.
The concurrence argues that we should apply judicial estoppel and convict these Defendants of something in the name of “Justice, writ large.” . Concurrence at 1. While the concurrence appropriately notes that this circuit has rejected judicial estop-pel, see, e.g., McGuire v. Continental Airlines, Inc., 210 F.3d 1141, 1145 n. 7 (10th Cir.2000) (Kelly, J.) (“[I]t is well established that judicial estoppel does not exist in the Tenth Circuit.”), it urges this court to reject its “minority” view and adopt the doctrine sua sponte. "While I can imagine a situation in which this circuit could revisit its categorical rejection of judicial estop-pel, this is not it.
The concurrence notes that the Supreme Court has recently endorsed the notion of judicial estoppel. In New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), the Court invoked judicial estoppel to prevent the State of New Hampshire from changing its argument as to the precise location of its border with the State of Maine. Id. at 755, 121 S.Ct. 1808. While that was a civil case, the concurrence notes that the Supreme Court “freely cites both civil and criminal cases.” Concurrence at 2. However, none of the criminal cases cited reaches the conclusion that the concurrence suggests. Most importantly, in none of those three cases is judicial estoppel applied against a criminal defendant. In each case, the respective courts dutifully described what judicial estoppel is, but in none of them did they apply the doctrine as the concurrence would like to do here.
In Russell v. Rolfs, 893 F.2d 1033 (9th Cir.1990), the State of Washington had argued to the federal district court that the defendant should be denied federal relief because “he had an adequate and available state remedy,” id. at 1038 (quotations omitted), yet it argued before the federal appellate court that the defendant’s appeal for relief must be denied because he was procedurally barred in state court. The Ninth Circuit applied judicial estoppel against the State. In United States v. Hook, 195 F.3d 299 (7th Cir.1999), the defendant tried to claim that the government should be judicially estopped from prosecuting him, because the government had taken an inconsistent position in a related case. The court rejected that argument, doing so entirely on the basis that the government’s positions in the two cases were not inconsistent. Thus, even if judicial estoppel were available for use against the government (which the court *1193did not definitively address), it would not have helped the defendant.
Finally, in United States v. McCaskey, 9 F.3d 368 (5th Cir.1993), the defendant again tried to apply judicial estoppel against the government. The government, notably, argued that judicial estoppel should not apply in criminal cases. The court did not reach that issue, because it held that the defendant had waived any claim of judicial estoppel by not raising it below. “Assuming without deciding that judicial estoppel can apply to the government in criminal cases, we believe that the underlying purposes of the doctrine are the same in both civil and criminal litigation — to protect the integrity of the judicial process and to prevent unfair and manipulative use of the court system by litigants.” Id. at 379 (emphasis added). In other words, although it used broad language, the most the court was willing to consider was applying judicial estoppel against the government in a criminal case — but it did not even do that.
The Supreme Court in New Hampshire was therefore, by all appearances, simply collecting cases in which judicial estoppel was discussed, not where it was applied. Moreover, the First Circuit case on which the concurrence relies heavily, United States v. Velez Carrero, 140 F.3d 327 (1st Cir.1998), does not apply judicial estoppel to criminal cases. “Just as the companion doctrines of judicial estoppel and election of remedies preclude parties in civil litigation from asserting legal or factual positions inconsistent with the positions that they took in prior proceedings, so, too, a criminal defendant ordinarily must raise claims in a timely fashion, consistent with his prior positions in the case, or suffer the consequences.” Id. at 330 (citation omitted) (emphasis added). The First Circuit thus argues, at most, that there is a general analogy to judicial estoppel for criminal cases; but it does not adopt judicial estop-pel in that case. In fact, that court relied on contract doctrine for its holding, because the issue at hand was a plea agreement.
The concurrence does find a fractured opinion from the Second Circuit that invokes judicial estoppel against a criminal defendant, and perhaps there are other examples — though none that the Supreme Court cited. The point here, though, is that it would not only be unwise, but actually quite radical, to invoke judicial estop-pel against a criminal defendant without— at least — having heard oral argument and having been briefed extensively before embarking upon such a sea change.
Furthermore, the issue of judicial estop-pel has no relevance at this stage of the proceedings. As the concurrence notes, the first and most important requirement in invoking judicial estoppel is to prevent a party from adopting a position which is “clearly inconsistent” with its earlier position. Concurrence at 1. The concurrence asserts that the Defendants’ “current position (the element of kinship necessary for incest was not alleged and proved) is the antipode of their previous position (that they were, in fact, related to their respective victims in the very way they now claim lacks record support).” Id. at 2.
Neither Mr. Beem nor Mr. Henson have ever argued or claimed that they are not related to the victim but have merely claimed that since they are related to the victim their charge was invalid. Therefore, there is no inconsistent position to be estopped at this stage of the proceedings. If judicial estoppel were to apply at all, it would be at a subsequent trial. That matter, of course, is not before us.
In addition, I do not believe that the Defendants have in fact asserted an inconsistent position. At the very least, that threshold issue merits full briefing and argument before we make a decision based *1194on that assumption. It is fully consistent for Defendants to come to this court and say that because they are related to their victims they cannot legally be imprisoned for the crimes of which they stand convicted. They do not ask us to believe that there are no familial relationships. Quite to the contrary, they ask us to recognize those relationships and to hold that Kansas’ response to those relationships violates due process. Stating that kinship was not “alleged and proved” by the State, or more fundamentally that Defendants were not even charged with a crime that would call for that relationship to be alleged and proved, is not at all inconsistent with Defendants’ representations to the Kansas courts.
The concurrence goes on to note the second element of a judicial estoppel claim: “[Jjudicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.” Id. at 1 (quotations and citation omitted). Yet, a decision here in favor of Defendants need not create such a perception. We are not being hoodwinked when we recognize that the State of Kansas has imprisoned two bad men for the wrong crimes.
I would reverse and remand with directions to grant the writ of habeas corpus.
. We further note that these two different crimes are defined in two separate sections of the Kansas statutes. Additionally, there is no language in the statutes suggesting that §21-3603 (aggravated incest) is a subset of, or a mere sentencing factor for, § 21-3503 (indecent liberties with a child).
. The majority has essentially treated Appren-di as a harmless error rule by holding that where the "effects” of the state court action result in a sentence less "than that authorized by the jury’s guilty verdict” the requirements of the Due Process Clause are met. Maj. Op. at 1183 (quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348). This is inapposite. Apprendi requires due process in imposing an aggravated sentence; it does not excuse a lack of due process simply because a lighter sentence is imposed.
. The harmless error inquiry might be different if the convictions for rape and indecent liberties with a child had been vacated along with decreasing Defendants' sentences. However, Defendants' original illegal convictions still stand. It is impossible and inconceivable that illegal convictions could constitute harmless error under any reading of that doctrine.
. The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial' was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be— would violate the jury-trial guarantee.
Sullivan, 508 U.S. at 279, 113 S.Ct. 2078 (emphasis in original).