dissenting:
Two issues are presently before this court for en banc consideration: (1) “whether the failure to instruct the jury on the issue of materiality ... constitutes a structural error”; and, if so, (2) “whether the error is reversible per se or reviewable under the plain error analysis set out in United States v. Olano, [507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508] (1993).” In answering these questions, I conclude failure to instruct the jury on the issue of materiality is not structural error. Therefore, I dissent from the majority’s conclusion as to the first question. I agree that failure to instruct on the element of materiality is error, but whether it is reversible error presents a question beyond those designated by this court for en banc review. Answering the first question in the negative, I need not reach the second question. Because I conclude the error is not structural, I would apply the plain error analysis of Rule 52(b) in the absence of a timely objection at trial. However, given the *1072unique circumstance created in these cases as a result of an intervening change in the settled law of this circuit, I would require the government to bear the burden of proving the absence of prejudice because defendants’ failure to object was the result of their reliance upon settled law. See United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994), cert. denied — U.S. -, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995). I would resubmit the individual eases to the original panels for decision pursuant to these standards. I express no opinion regarding whether the convictions of the defendants should be vacated, as those questions are more appropriate for the panel in each case to decide.
In a recent decision by the Supreme Court in a habeas case, California v. Roy, — U.S. -, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996), the Court addressed the principal question before this court — whether failure to include an instruction on an element of a charged offense is structural error. The Court determined whether a Chapman1 or a Kotteakos2 standard for harmless error should be applied in a habeas case where the petitioner alleged the jury instructions underlying his conviction omitted an-element of the charged offense. The majority opinion noted that if the omission had been a “structural defect,” no form of harmless error analysis could be applied. The majority held that a Kotteakos harmless error standard inquiring as to whether there is a ‘“grave doubt as to the harmlessness of an error’” would apply to the habeas review of Roy’s conviction. The Court did not conclude that omission of an instruction on an element of an offense was structural error requiring automatic reversal, but rather referred to the error throughout its opinion as “trial error” 3 and ultimately remanded the ease for further review under the harmless error standard it delineated.
Justice Sealia, concurring in Roy, agreed that omission of an instruction on an element of the crime is not itself structural error, but clarified that the error could be harmless only if the reviewing court on remand had the requisite degree of confidence that the jury necessarily found the existence of the omitted element. Without such a finding by the jury, reversal would be required under the principles of Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Interestingly, Justice SCalia cited United States v. Gaudin, — U.S. -, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), in reaching the conclusion that absence of' a formal verdict on a. single element of an offense .would not require automatic reversal.
The fact that Roy arises in the context of habeas review rather than in the context of a direct appeal is irrelevant. Although this distinction affects which harmless error standard applies, it does not alter the Court’s conclusion that the omission of an instruction on an element of a crime is a “trial error.”
The majority has compiled a list of cases where the error established by appellant required automatic reversal. Errors which require automatic reversal are structural errors. See, e.g., Sullivan, 508 U.S. at 282, 113 S.Ct. at 2083 (there are two classes of constitutional error — “trial error” subject to harmless error analysis, and “structural error” requiring automatic reversal) (Rehnquist, C.J., concurring). Not all constitutional violations require automatic reversal. Chapman, 386 U.S. 18, 87 S.Ct. 824. Only the most exceptional do. See, e.g., Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). As I read the majority opinion, it does not add another constitutional right to the list of rights which will require automatic reversal if violated. Instead, the majority opinion holds that failure to instruct the jury on the element of materiality is an example of an error identified as “structural error” in Sullivan — the right to a jury determination of guilt on each element of the charged offense beyond a reasonable doubt. I disagree that absence of an instruction on materiality conclusively establishes a violation of this basic Sixth Amendment right and is thus, by itself, structural error.
*1073Appellate courts should uphold the verdict reached in the district court unless, alter inquiry, it is clear that reversal is unavoidable to protect the defendant’s right to a fair trial.
[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that might have occurred are subject to harmless-error analysis. The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed. As we have repeatedly stated, “the Constitution entitles a criminal defendant to a fair trial, not a perfect one.”
Rose, 478 U.S. at 579, 106 S.Ct. at 3106 (citations omitted).
Even if Roy were completely distinguishable from the question we face, the cases decided by the Supreme Court which have identified the type of Sixth Amendment violation requiring automatic reversal do not support a conclusion that the error here requires automatic reversal and is therefore structural. The error of omitting an instruction on materiality does not preclude us from evaluating whether the evidence established guilt beyond a reasonable doubt or whether the jury rendered a verdict satisfying the interest of fairness.
In Sandstrom v. Montana, 442 U.S. 510, 523-24, 99 S.Ct. 2450, 2458-59, 61 L.Ed.2d 39 (1979), the Court held that an instruction creating a presumption of malice violated due process by shifting the burden of proof on intent to the defendant, contrary to In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (holding due process of law required conviction by proof beyond a reasonable doubt). In Rose, the Court addressed a question that Sandstrom left unanswered — whether a Sandstrom error required automatic reversal or, instead, was subject to a harmless error analysis. The Court in Rose noted that a directed verdict for the prosecution would violate the Sixth Amendment right to a jury trial in serious criminal cases and would require automatic reversal. ‘Where that right [to a jury verdict] is altogether denied, the State cannot contend that the deprivation' was harmless because the evidence established the defendant’s guilt; the error in such a case is that the wrong entity judged the defendant guilty.” 478 U.S. at 578, 106 S.Ct. at 3106. However, the Court noted that a Sandstrom error was distinguishable from a directed verdict in that the jury still considered the disputed element. The Court reasoned it was possible that no jury could have found defendant committed the criminal act without also implicitly finding malice was established beyond a reasonable doubt. In such a case, the erroneous instruction on malice “is simply superfluous.” Rose, 478 U.S. at 581, 106 S.Ct. at 3107. Despite the erroneous instruction, there would be no constitutional violation because the jury would have found “ ‘every fact necessary’ to establish every element of the offense beyond a reasonable doubt.” Id.
Thus, in Sandstrom, the Court held an erroneous instruction regarding the presumption of an element could produce a constitutionally deficient verdict. In Rose, the Court held that where an erroneous set of instructions to the jury does not “altogether den[y]” the possibility that the jury found “ ‘every fact necessary1 to establish every element of the offense beyond a reasonable doubt,” it is proper to inquire whether there has in fact been a violation of this constitutional right before requiring that the verdict be reversed. 478 U.S. at 578, 581, 106 S.Ct. at 3106, 3107. Hence, while an erroneous instruction alone is not structural error requiring automatic reversal, it may, in a given ease, prejudice the defendant’s substantial right to a jury verdict on each element of a charge. Whether an erroneous instruction violated the defendant’s substantial rights in a given case is exactly the type of inquiry a Rule 52 analysis serves to answer.
The implications of Sandstrom and Rose to the present case are clear. As- in Sand-strom, the Court in Gaudin identified an error capable of resulting in a constitutionally deficient verdict. As in Sandstrom, the *1074constitutional right at risk is the right to a determination by a jury on each element of the offense beyond a reasonable doubt. As in Rose, we now face the question of whether a particular error in instructing a jury will always deny the Sixth Amendment right to a jury finding of guilty on each element and therefore automatically require reversal, or whether in some cases the instructional error will not violate this Sixth Amendment right, providing defendant with an imperfect but fair trial.
The question before us assumes the jury was instructed on all but one element of the subject offense. Unlike the case where there is a directed verdict for the prosecution, in a case where an instruction on a single element is omitted, the right to a jury trial is not “altogether denied.” Had the predicate facts so conclusively established materiality that no rational jury could reach the verdicts rendered without also finding the materiality element to be satisfied, failure to instruct on the element of materiality would be superfluous. If the jury implicitly found the materiality element was satisfied, it is of no constitutional moment that the district court, acting outside its authority, found the element to be satisfied as . well.4 As in Rose, it is conceivable both that the error could occur and that the constitutional right at issue could be preserved intact.5 Thus, absence of an instruction on materiality is distinguishable from the absence of a reasonable doubt instruction in Sullivan, where a harmless error analysis was simply impossible as there could be no basis in the record to conclude the jury implicitly applied a reasonable doubt standard because lack of such an instruction “vitiates all the jury’s findings.” 508 U.S. at 281, 113 S.Ct. at 2082. It is precisely the ability to review the record and render a meaningful determination as to whether an error affected a defendant’s substantial rights that distinguishes a trial error from a structural error. Fulminante, 499 U.S. at 307-08, 111 S.Ct. at 1264. Where the jury has not received an instruction on reasonable doubt, a reviewing court will always remain in serious doubt that the defendant’s basic Sixth Amendment rights have been adequately safeguarded. In contrast, where the jury has not received an instruction on materiality, a reviewing court will not always harbor such uncertainty.
The majority contends reversal is required because Rule 52 review would require a “wrong entity” — the appellate court — to make the determination on materiality. A Rule 52 standard that looks at the question of whether the jury found the missing element to be satisfied, rather than what a reasonable jury would have found, places the determination of materiality in the “right entity” — the jury. Applying such a Rule 52 standard does not offend the Sixth Amendment by placing the determination of guilt outside of the jury. See Roy, — U.S. at *1075-, 117 S.Ct. at 339-40; Sullivan, 508 U.S. at 280, 113 S.Ct. at 2082; Carella v. California, 491 U.S. 263, 268-70, 109 S.Ct. 2419, 2422-23, 105 L.Ed.2d 218 (1989); Rose, 478 U.S. at 580-81, 106 S.Ct. at 3107; cf. United Brotherhood of Carpenters & Joiners of America v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 782, 91 L.Ed. 973 (1947), Bollenbach v. United States, 326 U.S. 607, 614-15, 66 S.Ct. 402, 406, 90 L.Ed. 350 (1946) (strength of evidence no substitute for actual jury finding). Here, it is not conclusively established that the constitutional rights identified in Sullivan as the basis for an automatic reversal have been violated by the absence of a materiality instruction alone. By labeling the absence of a materiality instruction as structural error, the majority opinion requires a new trial without regard to whether the constitutional guarantee to a fair trial before an impartial jury has been satisfied.
I conclude failure to instruct the jury on the element of materiality, by itself, is trial error. As trial error, it is subject to analysis for plain error under Rule 52(b) in the absence of a timely objection at trial. However, as the failure to object was the result of defendants’ reliance upon the settled law of this circuit, the government should bear the burden of proving the absence of prejudice. See Viola, 35 F.3d at 42.
KELLY and HENRY, Circuit Judges, join in the foregoing dissent.
. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
.The Court explicitly noted that the Kotteakos standard does not apply to structural errors.
. In such a case, the jury would have fulfilled its constitutional function to "stand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction.” United States v. Martin Linen Supply Co., 430 U.S. 564, 572, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977).
. The majority opinion is largely consistent with the view I have set out. In footnote 10, the opinion states: "A situation may arise when a reviewing court may conclude with complete confidence that a failure to instruct on an element of the offense did not play a role in the jury's verdict on that offense.... Because both Wiles and Schleibaum contested the element of materiality at their respective trials, we are not confronted with that situation.”
Similarly, in applying Roy, the majority notes its finding of structural error is based in part on the fact discerned from the Wiles and Schleibaum case records that the juries “did not render a verdict, formal or otherwise, ... on the element of materiality." I disagree with the majority's view that the broad and far-reaching generic questions we have instructed the parties to brief can be answered by reference to the facts of two of the three cases we have consolidated herein. We have agreed to address whether failure to instruct on the element of materiality is structural error. We have not limited our questions to the particular facts developed in Wiles and Schleibaum. To the extent the majority reasons that Wiles’ and Schleibaum's convictions should be vacated because after looking at the appellate records the majority is convinced the jury did not render "a verdict, formal or otherwise,” it has engaged in a form of the Rule 52 analysis which I advocate. The majority apparently does not vacate the convictions simply because of a missing instruction. The majority finds the missing instruction merits reversal because it cannot find that the jury "otherwise” satisfied defendants’ Sixth Amendment rights.