Does a federal judge's failure to charge the jury on all elements of the relevant crimes constitute a harmless error?

The Government concedes, as it must, that the court's decision not to charge the jury on all the elements of the relevant crimes was erroneous. See Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct.

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Smith urges us to hold that a trial judge's refusal to instruct the jury on essential elements of the charged offenses requires automatic reversal as a matter of law. The Government, by contrast, contends that errors in jury instructions, like ordinary trial errors, must be analyzed under a harmless error standard of review. The question is a close one, we believe. If a court's failure to instruct the jury on essential elements of the crimes is seen as an evidentiary error, then harmless error analysis would certainly apply. See Arizona v. Fulminante, --- U.S. ----, ----, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). However, if it is viewed as having the effect of directing a verdict for the Government, it may well constitute a "structural defect[ ] in the constitution of the trial mechanism" that would require automatic reversal as a matter of law. Id. Under the facts presented here, however, we need not resolve the difficult question of the proper standard of review, as the district court's error requires reversal under both a plain error and a harmless error analysis.