dissenting:
Ernest Perkins has raised eight independent challenges to his bank robbery conviction. The court rejects all eight and affirms the conviction. I concur in the court’s analysis in all respects but one; I am not persuaded that the district court’s change-of-appearance instruction, which everyone but the government concedes was improper,1 constituted harmless error beyond a reasonable doubt. I therefore must dissent.
I
The court has properly identified the problem: “A change of appearance instruc*1407tion contemplates some independent evidence indicating that the defendant himself actually changed his appearance. Ante at 1403 (emphasis in original). Here, there is no such independent evidence. The bank surveillance photographs demonstrate that the robber, during the commission of the crime, had a long, thick moustache. A distinct photograph of the defendant demonstrates that he, at the time of his booking, had only a slight amount of growth over his lip. By themselves, these two sets of images offer no meaningful inference; there is nothing to tie them together. The missing link that would have justified a change-of-appearance instruction would be a photograph of Perkins before the robbery (or at least, before the trial) demonstrating that formerly he too, like the robber, had a long, thick moustache. Only then would there be a demonstrable change in the defendant’s appearance from which one might fairly infer a consciousness of guilt and thus ultimately conclude that Perkins and the robber are the same man. As it was, the government had only two of the three snapshots it needed to warrant the challenged instruction: the all-important “before” picture either does not exist or is inexplicably absent from the record.
II
Under the rule articulated by the Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), an error striking at the fundamental fairness of a criminal trial may be deemed harmless only if “the court [is] able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828.2 The beneficiary of the constitutional error bears the burden of proving that “the error complained of did not contribute to the verdict obtained.” Id. Unlike the court, I am not convinced that the trial court’s erroneous instruction was harmless beyond a reasonable doubt, and I am not persuaded that the government has met its burden of proving otherwise.
The court bases its conclusion on two observations. First, the court contends that “[i]n order for the jury to have attached significance to any change of appearance, the jury already would have [to have] concluded that the defendant was the robber.” Ante at 1403. According to this reasoning, the instruction was harmless because a logical jury would have had no rational basis for connecting the bank photographs with the booking photograph in *1408order to infer a change of appearance. Either the jury already had concluded that both images depicted the same man, or absent the “missing link,” they simply disregarded the instruction as nonsensical.
This reasoning, however, merely assumes away the problem. Presumably, a ehange-of-appearance instruction was only necessary because it was not abundantly clear that both sets of pictures depicted the same man. The purpose of a change-of-appearance instruction is, after all, to guide the jury’s consideration of circumstantial evidence that may help to identify the defendant as the criminal; if direct evidence already sufficiently identifies the criminal, then the prosecution has no need for such an instruction. Indeed, in this case the government did not attempt (and apparently was unable) to make an in-court identification.3
Moreover, the fact that the instruction makes no sense without a picture of what Perkins looked like before the robbery does not suggest that the jury ignored it or placed no value upon it. It is precisely when reason does not support the giving of a jury instruction that consideration of that instruction may prove prejudicial. A logical jury might well have assumed that the trial court would not have given it illogical directions, thus concluding that the court at least was satisfied that the missing link had been supplied. In this way, Perkins may have been prejudiced — literally “prejudged” — by the trial court.
Second, the court concludes that the evidence of Perkins’s guilt was overwhelming. Ordinarily, when there is overwhelming evidence of guilt, there can be no reasonable doubt that the error was harmless. See, e.g., Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969); Rose, 478 U.S. at 584, 106 S.Ct. at 3109 (Burger, C.J., concurring); Echavarria-Olarte, 904 F.2d at 1398-99. “[T]he Constitution entitles a criminal defendant to a fair trial, not a perfect one.” Van Arsdall, 475 U.S. at 681, 106 S.Ct. at 1436 (citations omitted).
I cannot agree, however, that the government’s evidence in this case is overwhelming. In support of its conclusion to the contrary, the court recites the following:
Alamond [an eye-witness] identified Perkins as the man he saw running from the bank and getting in a blue Datsun; the police found in the bank a parking citation issued to the blue Datsun which was registered to Perkins, and found a delinquent notice for the ticket in Perkins’s apartment; Perkins lied about his ownership of the car when he actually drove the blue Datsun to the place where he was arrested and had the keys to that car in his pocket, showing his consciousness of guilt; and the police found in Perkins’s apartment a rust-colored 1970’s style suit and maroon briefcase matching those used in the robbery.
Ante at 1404. The defense has raised powerful challenges to all of this evidence.
First of all, in his initial police interview, Chris Alamond described the Datsun he saw as brown, not blue — a discrepancy that casts considerable doubt upon the accuracy of his observation. He also described the fugitive whom he saw as having no facial hair — a fact that casts further doubt upon his identification or, perhaps, suggests that the man whom he saw was not the robber. Alamond, moreover, did not identify Perkins as the robber in open court. In fact, he admitted at trial that his observation was insufficient to permit such an identification. Alamond did positively identify Perkins sometime before trial in a live police lineup, but even that identification is questionable. At the time, Alamond conceded that he was “not sure” about his identification because the man he observed had been both on the run and across the street. Furthermore, two days prior to the *1409lineup, Alamond had examined a police pho-tospread and had described a picture of Perkins as being “similar” to the man he had seen; Perkins, however, was the only person common to both the photospread and the subsequent lineup.
Nearly all the remaining evidence cited by the court relates to the getaway car and its connection to Perkins.4 The defense, however, has offered an explanation for this connection that, if not convincing, is at least sufficient to render this evidence less than “overwhelming” in its implication of guilt. See Dudley v. Duckworth, 854 F.2d 967, 972 (7th Cir.1988) (error not harmless where evidence of guilt was “impressive but not overwhelming”), cert. denied, 490 U.S. 1011, 109 S.Ct. 1655, 104 L.Ed.2d 169 (1989). Perkins contends that he sold the car to a fellow boarder at his rooming house, Harold McGee. He admits that he continued to have “periodic access” to the car because McGee had not finished paying for it, but he insists that McGee also used the vehicle and that McGee was the driver on the day of the robbery. Perkins further insists that McGee, whom Perkins had known from his days at a halfway house, looks deceptively similar to Perkins and more closely fits the witnesses’ descriptions of the robber. Like Perkins, McGee allegedly has a medium complexion, slim build, and short-cropped hair. Moreover, McGee is 5' 10", the same height as the robber in the estimation of Linda Purmont, the bank teller who had the closest view. Perkins, on the other hand, is 5' 5V2", an inch shorter than Purmont herself.
If McGee did commit the crime, he may well have dropped the parking citation on the bank floor in an effort to implicate Perkins and divert attention from himself. Indeed, if he were a calculating felon, he could have purchased Perkins’s car with this whole scheme in mind, never intending to change the vehicle’s registration or to assert exclusive ownership. He may also have planted the clothes worn during the robbery in Perkins’s closet. As the defense points out, McGee was a resident of the same rooming house and had access to Perkins’s room. One might also reasonably wonder whether Perkins, if he was the actual robber, would have been careless enough to have dropped the parking citation on the bank floor and to have kept the incriminating clothes in his closet.
The purpose of these speculations is, of course, not to cast any suspicion upon Mr. McGee, whom we may presume to be a model citizen. Nor do I mean to usurp the function of the jury, who alone must weigh competing views of the evidence. Rather, I mean only to suggest that no single view of the evidence here is overwhelming. A reasonable doubt persists over whether the prejudicial inference in an admittedly improper jury instruction may have tipped the delicate balance of considerations. I simply cannot conclude without a doubt that the erroneous change-of-appearance instruction did not contribute to the verdict.
I would therefore vacate the conviction and remand this case for a new trial.
. "We review a district court’s decision to submit [a change-of-appearance] instruction! 1 for abuse of discretion." United States v. Feldman, 788 F.2d 544, 555 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987).
. We recognize at least three levels of harmless-error scrutiny in the criminal context. See generally United States v. Valle-Valdez, 554 F.2d 911, 914-17 (9th Cir.1977). First, when the error is not of a constitutional dimension, we will deem it harmless if it is "more probable than not” that the verdict would have been the same without the error. See United States v. Echavarria-Olarte, 904 F.2d 1391, 1398 (9th Cir.1990).
Second, when the error is constitutional in nature, we will apply the Chapman rule and deem it harmless if, but only if, it is clear that the error was harmless beyond a reasonable doubt. See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986); see also id. at 576-77, 106 S.Ct. at 3105 (describing numerous Supreme Court cases that have applied the Chapman rule).
Finally, when the error is constitutional in nature and it implicates a "structural” right so basic to a fair trial that, by definition, it can never be harmless, we will deem the error harmful per se. See Chapman, 386 U.S. at 23 & n. 8, 87 S.Ct. at 823 & n. 8; Rose, 478 U.S. at 577-80, 106 S.Ct. at 3105-07 (describing numerous Supreme Court cases that have applied this rule); id. at 586-89, 106 S.Ct. at 3110-12 (Stevens, J., concurring) (suggesting that some errors are harmful per se because they implicate principles beyond the immediate case and affect values other than the accuracy and reliability of the verdict).
As Chief Judge Wallace pointed out for this court in Valle-Valdez, it is not always clear what level of scrutiny should apply to an erroneous jury instruction. See Valle-Valdez, 554 F.2d at 916-17 (citing Ninth Circuit cases that have applied both the first and the second tests). The majority has elected to apply the Chapman rule, the intermediate level of scrutiny, to the change-of-appearance instruction at issue here. I agree that Chapman represents the appropriate standard because the error in the present instruction has a prejudicial quality that implicates due process concerns. See infra; see also Rose, 478 U.S. at 572, 576-84, 106 S.Ct. at 3103, 3105-09 (applying Chapman rule to an improper jury instruction); Feldman, 788 F.2d at 555—56 (applying Chapman rule to an improper change-of-appearance instruction). I therefore agree with the majority’s choice of standard; I disagree with its conclusions under that standard.
. Linda Purmont, the bank teller whom the robber directly confronted, initially told the police that she was confident in her ability to identify the robber if presented the opportunity. At a live police lineup seven days after the crime, however, she positively identified a random participant who was standing immediately beside the defendant as the robber. At the time, she said that she recognized this man as the robber "the moment that he came in” and that she "knew it was him.”
. The court also mentions Perkins’s false exculpatory statement as part of the overwhelming evidence of his guilt. As the court concedes and as its earlier discussion of this issue explains, however, such statements may not properly be regarded as direct evidence of guilt. They are at best circumstantial evidence of a consciousness of guilt. See ante at 1402.