concurring.
I concur in the court’s judgment, but I get there via a somewhat different route. I agree with the court’s construction of the governing statute. My concern has to do with what the jury was instructed by way of definition of the statute. The court approves the District Court’s definition of the verb “use,” as contained in a supplemental jury instruction (an instruction to which Diallo took exception in part) responsive to the jury’s question as to the intended meaning of “use.” In my view, the definition contained in the supplemental instruction was, in one respect, flawed. But I conclude that the error was harmless, and hence I agree with the court that Diallo’s conviction and sentence should be affirmed.
I.
As the court’s opinion makes clear, defendant Mamadou Diallo’s troubles began when, on July 13, 2005, while Diallo was driving from New York to Indianapolis on Interstate-80, his forward progress was halted by Pennsylvania State Trooper Timothy Callahan, who perceived that Diallo’s van did not appear to be in conformity with the law’s requirement that a license plate be illuminated. Callahan, apparently concerned about the possible transport of drugs and firearms, inquired what was in the several plastic bags in Diallo’s van. Diallo, after explaining that the bags contained clothes, at Callahan’s request (but, apparently, not command) opened one of the bags, which turned out not to contain clothes but handbags bearing the initials “LV,” the mark of expensive Louis Vuitton products. Diallo was then arrested by Callahan. Not long after, Diallo was indicted on one count of violating 18 U.S.C. Section 2320(a). § 2320(a) made it a crime punishable by fine and imprisonment to “intentionally traffic [ ] or attempt [ ] to traffic in goods or services and knowingly use [ ] a counterfeit mark in connection with such goods or services.”4 Tried to a jury, Diallo was found guilty. He was sentenced to three years of probation, six months of which was to consist of home detention.
The evidence at trial established that Diallo had purchased the counterfeit Louis Vuitton handbags in New York and was, when arrested, en route to Indianapolis to sell the handbags at his retail store.
As the court explains, the District Court, in charging the jury, outlined, concisely and with precision, the elements of the offense which it was incumbent upon the government to prove:
*263First, that the defendant trafficked or attempted to traffic in goods. Second, that such trafficking or attempt to traffic was intentional. Third, that the defendant used a counterfeit mark on or in connection with the goods. And fourth, that the defendant knew the marks used on the goods were counterfeit.
However, prior to the jury charge, the government’s burden of proof had been lessened by defendant’s acknowledgment, in closing argument, that the single issue in dispute was whether Diallo, as of the time of his arrest, had, within the intendment of the statute, “use[d]” the counterfeit marks. Diallo’s position was that there could have been no use, within the terms of § 2320(a), until counterfeit goods were offered for sale. In opposition, the government contended that culpable “use” commenced when the counterfeit handbags were purchased in New York with a view to subsequent sale. Unsurprisingly, the jury, shortly after it started deliberating, posed a question:
What is the definition of “use” as it pertains to this trial between the dates of July 11, 2005 and July 13, 2005, and the third and fourth elements of the charge? Is it pertaining to a physical exchange or use of one or more senses.
After substantial consultation with counsel, the District Court undertook to answer the jury’s question the next day. Weaving together two dictionary definitions, the District Court explained “use” as follows:
To make use of, to put into action or convert to one’s service, to avail oneself of, to have recourse to or enjoyment of, to employ.
Defendant objected to inclusion of the phrase “to have recourse to or enjoyment of.” Defendant’s objection to “have recourse to” is, in my judgment, without merit. But his objection to “have ... enjoyment of’ is, in my judgment, soundly based.
“[T]he meaning of the verb ‘uses’ has to turn on the language as we normally speak it.” Watson v. United States, 552 U.S. 74, 128 S.Ct. 579, 583, 169 L.Ed.2d 472 (2007). In my view, “put into action,” “convert to one’s service,” “avail oneself of,” “have recourse to,” and “employ,” satisfy this standard. “[H]ave ... enjoyment of’ does not.
It is true that Webster’s Third New International Dictionary 754 (3d ed.1993) includes, in the definition of “enjoyment,” the phrase “possession and use (the [enjoyment] of civil rights).” But this is a secondary meaning. What Webster’s lists as the primary meaning of “enjoyment” is (unsurprisingly) “the action or state of enjoying something: the deriving of pleasure or satisfaction (as in the possession of anything).” This primary meaning is “language as we normally speak it.” Watson, supra, 128 S.Ct. at 583. Presenting to a jury the phrase “have ... enjoyment of’ as a synonym of “use,” without explaining that the phrase is being employed in its secondary meaning — without, in short, anchoring the phrase in a limiting and clarifying context — has the potential to mislead.
My concern about the ambiguity of “have ... enjoyment of,” unilluminated by instructive context, may be illustrated by an example, drawn on the verb “enjoy.” One may say: “The lieutenant governor enjoys presiding over the state senate.” One may also say: “The lieutenant governor enjoys qualified immunity.” These two sentences mean very different things. But the different meanings are signaled by the different settings in which the verb “enjoys” appears. When the phrase “have ... enjoyment of’ is employed without adornment or elaboration it seems a reasonable surmise that the attentive audience will suppose “have ... enjoyment of’ *264carries its primary meaning, for that is “language as we normally speak it.”
This is why the inclusion of the phrase “have ... enjoyment of’ in the supplementary language supplied to the jury seems to me to have been more likely to confuse than to illuminate. Accordingly, when defendant objected to the phrase it should have been excised.
II.
Under the caption “Harmless Error,” Rule 52(a) of the Federal Rules of Criminal Procedure provides:
Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.
A decade ago Chief Justice Rehnquist, speaking for the Court, observed that, “Although this Rule by its terms applies to all errors where a proper objection is made at trial, we have recognized a limited class of fundamental constitutional errors that ‘defy analysis by harmless error standards.’ ... Errors of this type are so intrinsically harmful as to require automatic reversal (i.e., ‘affect substantial rights’) without regard to their effect on the outcome. For all other constitutional errors, reviewing courts must apply Rule 52(a)’s harmless-error analysis and must ‘disregard]’ errors that are ‘harmless beyond a reasonable doubt’.” Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). However, appellate review of TCcm-constitutional errors does not call for beyond-a-reasonable-doubt scrutiny. “According to our traditional harmless error standard, a non-constitutional error is harmless when ‘it is highly probable that the error did not prejudice the defendant’.” United States v. Langford, 516 F.3d 205, 215 (3d Cir.2008).5
I have argued above that it was error for the District Court, in responding to the jury’s request for clarification as to the meaning of the verb “use,” to have included among several defining verbal phrases the phrase “have ... enjoyment of.” If this was error, it was of course non-constitutional error. Is it “ ‘highly probable that the error did not prejudice’ the defendant”? Manifestly, the answer is “Yes.” If the phrase be deemed to have carried any weight, it could only have worked in Dial-lo’s favor. The reason for positing that the phrase might have caused some confusion in a juror’s mind is that, given the primary meaning of “enjoyment,” a juror might conceivably have supposed that it was incumbent on the government to show that Diallo had been gratified by — i.e., had taken pleasure in — the counterfeit marks, and that in the absence of such a showing the government had not proved its case. Thus, what I believe to have been error was most assuredly harmless. And I therefor concur in the judgment of the court affirming the judgment of the District Court.
. Diallo was convicted pursuant to § 2320(a) as it stood in 2005. In 2006 Congress amended § 2320(a); the amended statute (1) follows its predecessor in making it a crime to "intentionally traffic[] or attempt [] to traffic in goods or services and knowingly use [] a counterfeit mark in connection with such goods or services," but (2) then goes on to list at considerable length a variety of goods the specification of which suggests that they are legislatively perceived as goods that are particularly likely to be targets of counterfeiters.
. Langford draws on Government of Virgin Islands v. Toto, 529 F.2d 278 (3d Cir.1976), decided more than thirty years ago. The opinion of Judge Aldisert, joined by Judges Weis and Garth, is notable in that it builds upon, and expressly pays tribute to, the harmless-error analysis propounded by Roger J. Traynor, one of the most revered and influential state-court judges of the twentieth century. As Judge Aldisert put it: "Roger J. Tray-nor, the distinguished former Chief Justice of California, offers the wisdom of profound experience in approaching the basic problem from the viewpoint of harmless error.” Id. at 284.