UNITED STATES OF AMERICA, — v. BILLIE JEROME ALLEN, —

HANSEN, Circuit Judge,

concurring in part and dissenting in part.

I agree with the court’s conclusion that, in light of Ring, the indictment in this case was defective because it did not charge at least one statutory aggravating factor. Ante at 748-751. Further, I agree with the court’s conclusion that this defect does not require automatic reversal and must be analyzed for harmless error, that is, error which did not affect Allen’s substantial rights by prejudicing the outcome of the district court proceedings against him. Ante at 751-753. However, I disagree with the court’s conclusion that the failure to submit one or more statutory aggrava-tors to the grand jury for inclusion in the indictment was not harmless beyond a reasonable doubt in the circumstances of this case. Ante at 755-758. I therefore respectfully dissent from that portion of the opinion, and I would affirm Allen’s death sentence.

In analyzing whether the error was harmless, the court holds that we cannot look to the trial and penalty-phase evidence or to the petit jury’s verdict to determine whether the grand jury, if asked, would have charged at least one statutory aggravating factor. Under the court’s test, we are limited to reviewing the grand jury proceedings to determine whether “that same grand jury would have found the omitted element had the prosecutor asked.” Ante at 757. I respectfully part ways with the court in two regards. First, I believe that this is an incorrect test for harmless error. Second, even under the court’s stringent new test, I believe that the grand jury proceedings show that Allen’s grand jury would have charged at least one statutory aggravating factor that the petit jury found if the prosecutor had asked the grand jury to do so.

I.

First, I believe that the court has formulated an incorrect test for harmless error. Under the court’s approach, we can look only to the grand jury proceedings. As I understand the Supreme Court and Eighth Circuit precedent on the subject, we are required to examine the trial and penalty-phase evidence and the petit jury’s verdict. In this case, the unanimous petit jury found beyond a reasonable doubt the existence of two statutory aggravating factors: that Allen “in the commission of the offense, or in escaping apprehension ..., knowingly createfd] a grave risk of death to one or more persons in addition to Richard Heflin,” see 18 U.S.C. *759§ 3592(c)(5), and that Allen “commit[ted] the offense in the expectation of the receipt of anything of pecuniary value,” see 18 U.S.C. § 3592(e)(8). (Appellant’s App. at 477-78.)

When a prosecutor submits a case to a grand jury, the grand jury’s role is to determine “whether there is probable cause to believe a crime has been committed” and to protect “citizens against unfounded criminal prosecutions.” United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). An “unfounded” prosecution, in this sense, is one which is based on “arbitrary and oppressive governmental action,” id., or “was dictated by an intimidating power or by malice and personal ill will,” Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962). The prosecutor in this case expressly advised Allen’s grand jury that each of the two crimes it was considering would expose Allen to the death penalty: the prosecutor read the statutes, including their penalty provisions, to the grand jury just before it began its deliberations. (Tr. Apr. 17, 1997, at 34-39.) There is no hint that Allen’s prosecution was based on arbitrary and oppressive government action, dictated by an intimidating power, or dictated by malice and personal ill will. Thus, the only defect in this case is that, because Allen’s grand jury was not asked whether one or more statutory aggravating factors existed, the grand jury did not have an opportunity to decide whether there was probable cause to believe that one or more statutory aggravating factors were in fact present.

In analyzing this defect for harmless error, there is binding Eighth Circuit precedent from which the court impermissibly deviates. The court recognizes United States v. Wright as “binding precedent in this circuit requiring] application of harmless error review.” Ante at 752-753. However, the court then fails to apply the test for harmless error used in Wright. In that case, a carjacking prosecution, a Jones/Apprendi error occurred when the element of serious bodily injury was not submitted to the grand jury for inclusion in the indictment. We remanded for the district court to determine whether there was “overwhelming evidence [of] serious bodily injury, making the defect in Wright’s indictment harmless error.” Wright, 248 F.3d at 767. On remand, the district court conducted a resentencing hearing and “found the evidence sufficiently overwhelming to make the indictment defect harmless error,” and we affirmed. United States v. Wright, 32 Fed. Appx. 782, 783 (8th Cir.2002) (unpublished). This panel is obligated to follow Wright, which can only be overruled by the en banc court. See United States v. Ayala, 313 F.3d 1068, 1070 (8th Cir.2002), cert. denied, — U.S.-, 124 S.Ct. 140, 157 L.Ed.2d 95 (2003).

Thus, I conclude that the court is applying the wrong test for harmless error. Applying the right test, i.e., the Wright test, I would conclude that the failure to submit one or more statutory aggravating factors to the grand jury for inclusion in the indictment was harmless error because overwhelming evidence of the existence of the statutory aggravating factors was presented at the trial and penalty phase to the petit jury, which found unanimously and beyond a reasonable doubt the existence of two statutory aggravating factors.

I believe that this approach, more so than the court’s present approach, is consistent with binding Supreme Court precedent. In United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), the defendants moved to dismiss the indictment on the basis of prosecutorial misconduct which may have affected the grand jury’s decision to indict them. The district court denied their motion and they *760were convicted. On appeal, the Supreme Court analyzed the defect in the grand jury proceedings for harmless error and affirmed. The Court concluded that “the petit jury’s verdict rendered harmless any conceivable error in the charging decision that might have flowed from the violation.” Id. at 73, 106 S.Ct. 938. The Court reasoned that even if prosecutorial misconduct influenced the grand jury’s determination that there was probable cause to charge the defendants, “the petit jury’s verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable cause to charge the defendants with the offenses for which they were convicted.” Id. at 67, 106 S.Ct. 938. “Measured by the petit jury’s verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.” Id. at 70, 106 S.Ct. 938.

This precedent requires us to look to the petit jury’s verdict when analyzing the harmlessness of the defect in Allen’s grand jury proceedings. Because the petit jury unanimously found the existence of the statutory aggravating factors beyond a reasonable doubt, it necessarily follows that there was probable cause to charge the statutory aggravating factors. And because the petit jury unanimously decided that Allen should be sentenced to death, it logically follows that initiating a death-penalty prosecution was not “unfounded” (i.e., it was not arbitrary, malicious, or the result of government overreaching).

We have applied the Mechanik rule frequently and in broad terms. “Except in cases involving racial discrimination in the composition of the grand jury, a guilty verdict by the petit jury excuses errors at the grand jury level that are connected with the charging decision.” United States v. Sanders, 341 F.3d 809, 818-19 (8th Cir.2003) (citation and internal marks omitted). “Any injury sustained in the charging process is cured by a subsequent finding of guilt beyond a reasonable doubt.” United States v. Tulk, 171 F.3d 596, 598 (8th Cir.1999). “[T]he verdict of the petit jury makes any error in the grand jury proceeding connected with the charging decision harmless beyond a reasonable doubt.” United States v. Dugan, 150 F.3d 865, 868 (8th Cir.1998) (citation and internal marks omitted), cert. denied, 525 U.S. 1009, 119 S.Ct. 528, 142 L.Ed.2d 438 (1998) and 525 U.S. 1087, 119 S.Ct. 838, 142 L.Ed.2d 694 (1999).

While it is true that we have not previously expressly applied the Mechanik rule to a Jones/Apprendi/Ring-type defect in grand jury proceedings resulting in a deficient indictment, in my view we should do so now. See United States v. Trennell, 290 F.3d 881, 890 (7th Cir.) (applying Me-chanik to conclude that Apprendi indictment error of failure to submit drug-quantity issue to grand jury for inclusion in indictment was rendered harmless when petit jury found drug quantity beyond reasonable doubt), cert. denied, 537 U.S. 1014, 123 S.Ct. 508, 154 L.Ed.2d 419 (2002).

II.

Second, even if the court’s new test for harmless error were the correct one, I believe that a faithful application of that test shows that the error in this case must be deemed harmless. The court’s harmless-error test is whether, based solely on the grand jury proceedings, we can confidently say that “that same grand jury would have found the omitted element had the prosecutor asked.” Ante at 757. The following grand jury testimony demonstrates that the grand jury would have charged at least one statutory aggravating factor — that Allen created a grave risk of death to persons other than security guard Heflin — if the prosecutor had asked the grand jury to do so.

*761Lisa Moore, a bank teller, told the grand jury that she was pregnant at the time the robbery occurred. That day, she was working at the bank along with five other tellers and Heflin. There was one customer present, Michael West, who worked as the bank’s maintenance man. The first robber appeared in the bank, fired three shots in Heflin’s direction, and shouted, “Everybody get the f* * * down.” When West turned to run, the robber raised his gun and fired three shots at West, but missed. Moore then complied with the robber’s demand by lying face-down in the teller area. When the robber entered the teller area, Moore looked up at him. He pointed his gun at her head and said, “B* * * *, I said, get the f* * * down.” He then fired a shot into the wall. While the robber took money from the teller area, Moore could hear his accomplice firing shots in the lobby. When the robber left the teller area, Moore again looked up at him, and he said, “B* * * *, I told you, stay down.” The two robbers then exited the bank. Moore went to the lobby, where she observed that Heflin had been shot. Moore subsequently decided to quit her job at the bank for her safety and the safety of her unborn child. (Tr. Apr. 16, 1997, at 6-7, 26-46, 58-59.)

Terry Gear, a friend of Holder’s, testified before the grand jury that Holder invited him to be part of the bank robbery. Holder said that he was not going to get caught because he had an SKS assault rifle that could shoot through “police cars and vests.” Holder said that he and his associates “weren’t going to let anything stop them,” and if anyone tried to catch him, “he was going to X them out.” Gear declined Holder’s invitation to participate in the bank robbery. {Id. at 118-23.)

FBI Special Agent Ann Pancoast told the grand jury that she had investigated the bank robbery. Heflin died of multiple gunshot wounds, some from direct shots and some from ricochets. Each bank robber had discharged a semiautomatic assault rifle in the bank. Authorities recovered a total of sixteen spent shell casings and observed numerous bullet holes in the walls. The two bank robbers fled in a van that they had doused with gasoline. The van crashed in Forest Park and became totally engulfed by flames. Bystanders in the park heard explosions inside the van, later determined to be ammunition cooking off. (Tr. Apr. 17, 1997, at 14-19, 25.)

Applying the court’s test for harmless error, this grand jury testimony persuades me that the defect in the indictment was harmless beyond a reasonable doubt. Given that the prosecutor would have needed to persuade only a simple majority of the twenty-three-member grand jury to find probable cause, I am satisfied that if the prosecutor had asked the grand jury to charge the risk-of-death aggravator, it would have done so. The grand jury testimony showed that (1) both bank robbers fired multiple shots from semiautomatic assault rifles while they were in the bank, for a combined total of sixteen shots; (2) one bank robber pointed his gun at Moore’s head and fired a shot into the nearby wall to intimidate her into following his instructions; (3) one bank robber fired three shots at West when West turned to run; (4) multiple shots ricocheted through the lobby; (5) when planning the robbery, Holder had indicated that he would kill anyone who tried to prevent him from robbing the bank or tried to catch him; and (6) in fleeing the scene of the crime, the two bank robbers crashed a flaming gasoline-saturated van which contained exploding ammunition into St. Louis’s largest park on St. Patrick’s Day.

From this grand jury testimony, the grand jury would have found probable cause to believe that Allen and Holder knowingly created a grave risk of death to *762persons other than Heflin while committing the bank robbery or in escaping apprehension. The prosecutor did not ask the grand jury to charge this statutory aggravating factor only because, pre-Ring, the law did not require it. Nonetheless, I am satisfied that this case passes even the panel’s stringent test for harmless error: the “same grand jury would have found the omitted element had the prosecutor asked.” Accord United States v. Matthews, 312 F.3d 652, 665 (5th Cir.2002) (Apprendi indictment error of failure to submit element to grand jury in carjacking case was harmless where record as whole showed that, if asked, any rational grand jury would have charged that element), cert. denied, 538 U.S. 938, 123 S.Ct. 1604, 155 L.Ed.2d 341 (2003).

III.

For the reasons set forth above, I conclude that the failure to submit one or more statutory aggravating factors to the grand jury for inclusion in the indictment was harmless beyond a reasonable doubt. Allen concedes that he had full and timely notice of the statutory aggravating factors the government would attempt to prove, in the form of the government’s notice of intent to seek the death penalty, and he further concedes that his defense would not have changed if he had instead received notice in the form of the indictment. Allen was not forced to defend himself against statutory aggravating factors lacking probable cause or against an “unfounded” death-penalty prosecution, because any rational grand jury (including this grand jury) would have charged at least one statutory aggravating factor if asked to do so, and because the unanimous petit jury found the existence of two statutory aggravating factors beyond a reasonable doubt and sentenced Allen to death.

There can be no doubt that the grand jury knew it was being asked to charge Allen with two crimes, both of which exposed him to the death penalty: the prosecutor read both statutes, including their penalty provisions, to the grand jury immediately before it began its deliberations. Thus, the only conceivable benefit Allen was deprived of was a chance at jury nullification: the mere possibility that despite hearing sufficient evidence of the existence of at least one statutory aggravating factor justifying a death-penalty prosecution, and despite knowing that returning the indictment would expose Allen to the death penalty on both charges, the grand jury might nonetheless choose not to make Allen defend himself against the death penalty. However, we have previously held that the possibility of jury nullification “does not transform a harmless error into a prejudicial one.” United States v. Horsman, 114 F.3d 822, 829 (8th Cir.1997), cert. denied, 522 U.S. 1053, 118 S.Ct. 702, 139 L.Ed.2d 645 (1998). “Accordingly, where the only possible deprivation suffered by the defendant is the possibility of jury nullification, the defendant’s substantial rights have not been violated.” Id. (citation and internal marks omitted).

Because the failure to submit one or more statutory aggravating factors to the grand jury for inclusion in the indictment did not affect Allen’s substantial rights, I respectfully dissent from the portion of the majority opinion holding that this error was not harmless. Hence, I would affirm Allen’s death sentence for committing a murder in the course of using a firearm during and in relation to a crime of violence.