concurring in part and dissenting in part.
I concur in all but Part III.A of Judge Nelson’s opinion, and in Part III.A to the extent that it concerns the firearm count. I disagree that precluding argument about who did the shooting is structural error on the felony murder charge, because on that charge it does not matter who pulled the trigger as long as it was reasonably foreseeable that a participant would. It does matter on the firearm charge. Therefore, I would affirm the convictions on felony murder, but reverse as to use of a firearm.
If the district court had precluded closing argument on an element of the offense, the majority would be correct under our precedent because we have held that foreclosing argument on an element is structural error. See Conde v. Henry, 198 F.3d 734 (9th Cir.1999); United States v. Kellington, 217 F.3d 1084 (9th Cir.2000). However, we have never held that it is structural error to preclude argument on a theory that is not on an element of the offense. In both Conde and Kellington the defendant was prohibited from arguing that the elements of the offense had been met. In Conde, which was a state prosecution for kidnapping for the purposes of robbery, the defendant was precluded from arguing that the robbery did not occur and that he lacked the requisite intent to rob. Conde, 198 F.3d at 739-40. In Kellington, the defendant was precluded from arguing that his ethical obligations as an attorney dictated his conduct, thereby explaining why he lacked criminal intent to destroy evidence. Kellington, 217 F.3d at 1099-1100.
The identity of the shooter is not an element of felony murder. As the jury was instructed (without challenge in the district court or on appeal):
Under the felony murder doctrine, a person who knowingly or willingly participates in an attempted burglary or robbery is liable for any reasonably foreseeable killing committed by another participant in furtherance of the attempted burglary or robbery, even if the *1008person did not take part in the killing, and did not intend for it to occur. This is because when two or more persons, acting in concert, knowingly participate in an attempted burglary or robbery, each is responsible for the reasonably foreseeable acts of the others done in furtherance of the attempted burglary or robbery.
Because identity of the shooter is not an element, precluding argument that Calar-ruda instead of Miguel pulled the trigger did not infringe the fundamental right under the Sixth Amendment to present a relevant theory of the defense. For this reason, the error, if there were error, is not structural. Instead, like all other trial-type errors, it is subject to harmless error analysis and to review for abuse of discretion.
There was no evidence that Calarruda fired the weapon. The percipient witness who took the stand testified that he saw Miguel in “a relaxed aiming position” with the gun in his hands immediately after the shot went off. He also testified that Miguel confessed at school the next day that “he shot the guy.” Calarruda testified that Miguel said on the night of the shooting that “I think I caught the guy.”1 The only evidence that someone other than Miguel might have been the shooter came from the location where the shell casing was found (after the crime scene had been disturbed). Calarruda was closer to where the casing was found than Miguel, but it is purely speculative (as well as irrelevant) to suppose from this evidence (or from evidence that Calarruda was a part-owner of the gun and had loaded it) that Calarruda was the shooter.2
Jose’s suggestion that Calarruda may not have been a participant lacks any basis in the record. He and Miguel owned the gun; Calarruda gave two bullets to Miguel and kept two for himself after talking with Tapaoan about going to Waipahu to “beat up some guys” and to “rob[and] take people’s money”; Calarruda was part of the discussion about how much fun it was to beat up a fellow partygoer; and Calarruda was part of the decision to go to the “Rest Camp” to “rob some people and shoot somebody.” Calarruda left the group only briefly, to relieve himself, just before reaching the WARC compound, but he rejoined them before they all entered the WARC grounds. He and Tapaoan watched while Miguel and Jose walked up to the cabin and onto the porch. Calarru-da was there when the shot was fired and he ran away with the group. Calarruda and Miguel dismantled the gun, threw parts of it into a drain, threw other parts in a dumpster, and buried the barrel. It is inconceivable that the jury could have found that Calarruda shot and killed Latc-hum in an act unrelated to the robbery. Neither logic nor evidence would support such a finding.
In these circumstances, there was no error requiring reversal of the felony murder convictions. The court did not preclude closing argument entirely. Cf. Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). Unlike Conde or Kellington, it did not preclude closing argument on an element of the offense. *1009The argument that the court did preclude was legally irrelevant and lacked any substantial evidentiary support. See United States v. Sturgis, 578 F.2d 1296, 1300 (9th Cir.1978) (judge should interfere with closing argument that is legally wrong); United States v. Guess, 745 F.2d 1286, 1288 (9th Cir.1984) (it is well established that the trial judge has broad discretion to control closing argument). Whether or not any of us would have made the same ruling on the same ground, the ruling was not structural error and I cannot see how it was harmful on felony murder.
I therefore dissent.
. Miguel also confessed to being the shooter in a tape-recorded conversation on June 9, 1998, which the government did not offer into evidence, and essentially conceded as much during the course of his juvenile transfer proceedings and on appeal from that ruling to this court. This no doubt explains why the district judge, who had presided throughout, questioned counsel’s good faith basis for making the argument that Calarruda was the shooter.
. The court did not preclude argument that Miguel may not have been the shooter, just that Calarruda was.