concurring in part and dissenting in part:
I concur in all of the majority opinion, except Part II.3. Because I cannot agree with the majority that the admittedly erroneous “presumption” instruction was harmless, I respectfully dissent in part. Because I do not find the error to have been harmless, I also dissent from so much of the court’s judgment as affirms the convictions on Counts One and Three. I agree, however, with the majority that the erroneous instruction was harmless as to Count Two. I therefore concur in the affir-mance of the judgment of conviction on that count.
Defendant was charged with two counts of attempting to evade income taxes, 26 U.S.C. § 7201, and one count of conspiracy to defraud the government, 18 U.S.C. § 371, by filing false income tax returns. The 1992 tax evasion count, Count Three, was based on the filing of a false return, which was signed by defendant.1 The government secured an instruction from the district court that “a return ... signed with the defendant’s name creates a rebut-table presumption that the defendant ... had knowledge of its [the tax return’s] contents.” The government now virtually concedes that the instruction is erroneous.2
*905One of the elements the government was required to prove beyond a reasonable doubt, to prove a § 7201 offense, is that “defendant knew that more federal income tax was owed than was declared due on the defendant’s income tax return.” Ninth Cir. Crim. Jury Inst. 9.35 (2000) (emphases added). Thus, an essential part of the required knowledge is knowledge of what was “declared due” on defendant’s return. The erroneous presumption instruction effectively relieved the government of its burden of proving that defendant possessed such knowledge — an essential element of the crime charged. The majority concedes as much, acknowledging that in order to sustain a conviction on Count Three, “the government was required to prove beyond a reasonable doubt that Trevino knew that more income tax was owed than was declared on her [1992] income tax return.” Maj. op. at 902-04 (emphasis added). The majority attempts to evade the force of that concession by arguing that “[i]n order to know more federal income tax was owed than was declared, it is not necessary to know the precise contents of the return that was filed or have specific knowledge of the amount declared due.” Id. at 903-04. It also argues that “[a] defendant’s knowledge that she is paying less than the amount declared may be inferred when the defendant knows her accountant is following her instructions to significantly reduce the profits reported to the IRS.” Id. The evidence it points to in support of this assertion, however, all concerns tax years other than 1992. Moreover, even if the evidence supported such an inference, the erroneous instruction told the jury that such evidence need not be weighed and such an inference need not be drawn — the jury simply could rely on the presumption. In short, the majority is able to find harmlessness only by ignoring a required element of the offense.
Given that defendant’s entire defense was that her tax returns were prepared by her accountant and that she was ignorant of their contents, the majority’s conclusion has no grounding in the law or in the record of this case. The government offered no evidence to prove that Trevino had knowledge of the contents of her 1992 tax return prepared by her accountant — all it had to prove this element was the erroneous presumption. What we recently said in Gibson v. Ortiz, 387 F.3d 812 (9th Cir.2004), applies here:
When a court gives the jury instructions that allow it to convict a defendant on an impermissible legal theory, as well as a theory that meets constitutional requirements, “the unconstitutionality of any of the theories requires that the conviction be set aside.”
Id. at 825 (quoting Boyde v. California, 494 U.S. 370, 379-80, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)).
The majority is also mistaken in concluding that the erroneous instruction was harmless as to Count One, the conspiracy count. It asserts that “[t]he erroneous instruction did not relieve the government of its burden of demonstrating beyond a reasonable doubt that Trevino knew she owed more than the amount reflected on the 1992 return.” Maj. op. at 903 n. 4. Respectfully, I cannot agree. One of the overt acts, Overt Act Six, that the government was required to prove beyond a reasonable doubt in order to convict defendant of the Count One conspiracy was that she filed a tax return for 1992 “knowing that such return was false in that it understated the amount of income tax due.... ” *906Indictment at 5. To paraphrase the majority’s discussion of Martinez v. Garcia, 379 F.3d 1034 (9th Cir.2004), “it was impossible to tell from the verdict form whether [Trevino] was convicted on the basis of [Overt Acts One through Four] (permissible theory) or [Overt Act Six (filing the 1992 return) ] (impermissible theory)” on Count One. Maj. op. at 902-03 n. 2. Thus, given this “binary choice,” the error is not harmless as to Count One, and reversal is required. See id. at 1039.
Because the giving of Instruction No. 44 was not harmless error as to Counts One and Three — under any standard — I would reverse the conviction on those counts, and remand for a new trial. A Booker!Ame-line remand would still be appropriate on the remaining count.
. Defendant apparently did not sign her 1991 return on which Count Two was based.
. Although not making a complete concession, the government concedes on appeal that "[t]he defense correctly notes that the statutory authority (26 U.S.C. § 6064) provided in support of Jury Instruction 44 does not directly support the language of the instruction.” *905In defense of its having sought the instruction, the government pleads that it "was obtained directly from the current version of the United States Department of Justice Tax Manual. Criminal Tax Manual, 2001 Version, Section 8.04[1].”