concurring in part and dissenting in part.
Because I believe that this court should withhold judgment on whether the district court committed error by failing to submit the question of materiality to the jury until the United States Supreme Court decides United States v. Johnson, 82 F.3d 429 (11th Cir.), cert. granted, — U.S. -, 117 S.Ct. 451, 136 L.Ed.2d 346 (1996), I respectfully dissent from Parts III and VI of the court’s opinion.
As the court correctly notes, this case arises from the aftermath of the Supreme Court’s decision in United States v. Gaudin, — U.S. -, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). In Gaudin, the defendant was convicted under 18 U.S.C. § 1001 for making false statements on loan documents. At trial, the district court instructed the jury that the issue of materiality was a question of law for the court to decide and that it had decided that the statements were material. On review, however, the Supreme Court held that “the Fifth and Sixth Amendments require conviction by a jury on all elements of the crime,” including materiality. — U.S. at -,-, 115 S.Ct. at 2318, 2320. The Court’s decision in Gaudin immediately called into question an entire group of cases then pending on direct appeal in circuits where it was well established that .materiality was a question of law. E.g., United States v. Fawaz, 881 F.2d 259 (6th Cir.1989). Since Gaudin, the circuit courts have struggled with how to review those cases where the jury instructions complied with the law at the time of trial but were called into question by the time of appellate review.
On November 15, 1996, however, the Supreme Court granted certiorari in United States v. Johnson, 82 F.3d 429 (11th Cir.), cert. granted, — U.S. -, 117 S.Ct. 451, 136 L.Ed.2d 346 (1996), in order to resolve this exact issue. As a result of the Supreme Court’s granting of certiorari in Johnson, this court, sitting en banc, postponed reargument of United States v. McGhee until after the Supreme Court decides Johnson. No. 95-6323 (6th Cir. Nov. 26,1996).
Nonetheless, the majority seeks to distinguish this case from both Johnson and other post-Gaudin eases, including McGhee, on the grounds that Tandon actually requested the materiality instruction and is therefore barred by the invited error doctrine. Under the invited error doctrine, a defendant is normally precluded from challenging any action taken by the district court at the defendant’s request. United States v. Sharpe, 996 F.2d 125, 128-29 (6th Cir.1993). An appellate court will reverse an invited error “only in the most exceptional situation.” Id. at 129 (quotations omitted).
As a threshold matter, contrary to the majority’s assertions, this ease is not easily distinguished from Johnson. In fact, as in this case, Johnson requested the challenged materiality instruction. See Brief for the Respondent, United States v. Johnson, 82 F.3d 429 (11th Cir.), cert. granted, — U.S. -, 117 S.Ct. 451, 136 L.Ed.2d 346 (1996), 1997 WL 37887, at *11 n. 3 (“Petitioner’s counsel not only requested the very instruction that informed the jury that the materiality question had been decided against petitioner, but objected to the presentation of any materiality evidence to the jury on the ground that materiality was a matter for the Court and an improper matter for the jury.”) (internal citations and quotations omitted). Although the Eleventh Circuit did not address the issue of invited error in its review of the ease, the matter is still before the Supreme Court on the basis of the factual record. Accordingly, this court should not address the issue prior to the Supreme Court’s decision in Johnson.
In addition, a review of the policy underlying the invited error doctrine suggests that it is not applicable to cases such as this where there has been an intervening change in the law. Generally, the invited error doctrine is designed to prevent a defendant from engaging in tactical gamesmanship — e.g., proposing erroneous jury instructions in an attempt *493to create reversible error on appeal. When, as here, the error is only apparent as a result of an intervening change in the law, however, the same policy rationale does not apply. In such cases, the defendant did not propose the jury instruction in an attempt to create a reversible error on appeal. To the contrary, the defendant included the proposed jury instruction because it complied with the clear and uneontroverted law at the time of the trial. Viewed in this light, it is difficult to see what “error” the defendant actually invited.
Recognizing that “review of invited error in an instruction may be appropriate ‘when the issue arises by virtue of a change in the law while the appeal is pending,’ ” Maj. Op. at 488 (quoting United States v. Mkhsian, 5 F.3d 1306, 1310 (9th Cir.1993)), the majority further seeks to distinguish the facts of this case. Discussing Mkhsian, the court writes:
Unlike Mkhsian, the instruction did not permit the jury wrongly to reject any of Tandon’s defenses, since he never argued at trial that the failure to include additional income on his tax returns or the illegal deductions were not material. Additionally, unlike the Mkhsian court, we do not believe that the error seriously affected the fairness, integrity, or public reputation of the proceedings because overwhelming evidence against Tandon exists.
Maj. Op. at 489 (internal citations omitted). Rather than distinguishing this case, however, in reality, the majority has engaged in both harmless and plain error review. If I were convinced that the proper mode of review were either of these alternatives and that no other mode of review was appropriate, I would not be adverse to such alternative reasoning. Because I am not so convinced and, in fact, believe that neither is appropriate under these circumstances, I cannot join the court’s opinion.
Finally, relying on the Ninth Circuit’s opinion in Gaudin, the majority argues that, at the time of Tandon’s trial, “a plausible theory existed upon which Tandon could have based an objection to a materiality instruction that removed the issue from the jury.” Maj. Op. at 488. This same argument, however, is now before the Supreme Court in Johnson. . Similar to this case, Johnson’s trial occurred some six months after the Ninth Circuit’s decision in Gaudin. Thus, the timing of Tandon’s trial in no way distinguishes itself from the issue before the Supreme Court in Johnson.
In addition, contrary to the majority’s position, the Ninth Circuit’s opinion in Gaudin did not dramatically change the law in the Ninth Circuit. Since 1979, in United States v. Valdez, 594 F.2d 725 (9th Cir.1979), the Ninth Circuit had held that in cases brought under 18 U.S.C. § 1001 materiality “is an element of the crime that must be determined by the jury.” Id. at 728-29. After the Ninth Circuit’s decision in Valdez and prior to the Supreme Court’s opinion in Gau-din, however, every circuit, including the Sixth, had reaffirmed the principle that materiality was a question of law. E.g., United States v. Corsino, 812 F.2d 26, 31 n. 3 (1st Cir.1987); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.1984); United States v. Greber, 760 F.2d 68, 73 (3d Cir.1985); Nilson Van & Storage Co. v. Marsh, 755 F.2d 362, 367 (4th Cir.1985); United States v. Hausmann, 711 F.2d 615, 616-17 (5th Cir.1983); United States v. Chandler, 752 F.2d 1148, 1150-51 (6th Cir.1985); United States v. Brantley, 786 F.2d 1322, 1327 (7th Cir.1986); United States v. Hicks, 619 F.2d 752, 758 (8th Cir.1980); United States v. Daily, 921 F.2d 994, 1004 (10th Cir.1990); United States v. Lopez, 728 F.2d 1359, 1362 n. 4 (11th Cir.1984); United States v. Hansen, 772 F.2d 940, 950 (D.C.Cir.1985). Even the Ninth Circuit had repeatedly held that materiality was a question of law in almost all cases except those brought under § 1001. Gaudin, 28 F.3d at 945 (“In our circuit, we have held that the issue of materiality in most of these statutes is a question of law for the judge. The exception has been section 1001 cases, in which we have held that it is an element of the crime that must be determined by the jury.”). Given this wall of authority, I cannot see how the Ninth Circuit’s decision in Gau-din could have provided a sufficient basis upon which Tandon could have based a materiality instruction. In fact, as counsel for Tandon undoubtedly knew, no court in this *494circuit would have even recognized such an objection.
Even assuming that the breach in the wall of authority created by the Ninth Circuit’s opinion in Gaudin was sufficient to cast doubt on the continuing vitality of materiality being a question of law, the same rationale should apply to forfeited error, i.e., failure to object, as the majority assumes it does to invited error. There is no basis for holding that a defendant whose counsel did not object to an instruction given the prevailing law at the time of his trial should receive the benefit of an intervening change in the law while a defendant whose counsel proposed the instruction in light of prevailing law, consistent with his professional and ethical duties to the court, should not receive the benefit of the intervening change. To draw a distinction between the two defendants is manifestly unfair.
For the foregoing reasons, I am unable to join the opinion of the court with respect to Parts III and VI. Accordingly, I respectfully dissent.