In Neder v. United States, 527 U.S. 1 (1999), the United States Supreme Court considered a case in which the district court did not submit to the jury the materiality element of mail, wire, and bank fraud charges, but rather decided that the false statements at issue were material. Although the Supreme Court decided that under the relevant statutes materiality was an element of the charged offenses to be determined by the jury, it concluded that the omission of that element in jury instructions was subject to a harmless error analysis. Id. at 4, 8-11, 20-25. The Neder Court began from the position that, where a defendant has counsel and is tried by an impartial adjudicator, most other constitutional trial errors may be harmless; and that errors so profound as to be structural, and thus requiring automatic reversal, occur only in a limited class of cases. Furthermore, constitutional errors are either structural or they are not. Structural errors "infect the entire trial process," necessarily rendering it fundamentally unfair. Examples of such structural errors include racial discrimination in the selection of a grand jury, the complete denial of counsel, the denial of public trial or self-representation at trial, a defective reasonable doubt instruction, and bias of the trial judge. Id. at 8-9, 14. The Neder Court equated a jury instruction that omits an element entirely with an instruction that incorrectly describes an element. Id. at 10. Because the latter instruction contained an error properly characterized as one of omission and thus was subject to a harmless error analysis, the Court held that an instruction that omits an element altogether was also subject to such analysis. Id. The Court further distinguished these two analogous types of erroneous jury instructions from a faulty reasonable doubt instruction. A flawed reasonable doubt instruction is a structural error that "vitiates all the jury's findings," whereas an instruction omitting or misstating an element is not and does not. Id. at 11. A faulty reasonable doubt instruction thus produces consequences in the proceedings that necessarily are unquantifiable and indeterminate, whereas the consequences of an instruction omitting or misstating an element are limited to the jury's finding on that element. Id. From this framework, the Court observed that uncontested evidence demonstrated that Neder had underreported the income on his tax returns by $ 5 million, and that Neder had not argued that this underreporting could be found to be immaterial. Id. at 16-20. Because that evidence rationally could not have led to a contrary finding regarding the omitted element, that is, a finding that the false statements were immaterial, the Court held that the instructions' omission of that element was harmless error. Id. at 19-20. The United States Supreme Court considered whether the failure to instruct the jury on an element of a crime is subject to harmless error analysis. In that case, the defendant was convicted of, among other crimes, filing false income tax returns that underreported $ 5 million in income. An element of this crime is that false statements made by the defendant are "material." (26 U.S.C.A. 7206(1).) The defendant did not argue at trial or on appeal that the false statements at issue were immaterial. (Neder, supra, 527 U.S. at p. 16.) Outside the presence of the jury, the court found that the evidence established the element of materiality and instructed the jury that the question of materiality "'is not a question for the jury to decide.'" (Id. at p. 6.) The Neder court determined that the error was subject to harmless error analysis and, under the circumstances presented in that case, was harmless. The Court explained: "The omitted element in Neder was materiality. Neder underreported $ 5 million on his tax returns, and did not contest the element of materiality at trial. Neder does not suggest that he would introduce any evidence bearing upon the issue of materiality if so allowed. Reversal without any consideration of the effect of the error upon the verdict would send the case back for retrial-a retrial not focused at all on the issue of materiality, but on contested issues on which the jury was properly instructed. We do not think the Sixth Amendment requires us to veer away from settled precedent to reach such a result." (Neder, supra, 527 U.S. at p. 15.) The Supreme Court said, "Cases . . . that defy harmless-error review . . . contain a 'defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.' Such errors 'infect the entire trial process,' and 'necessarily render a trial fundamentally unfair.' Unlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. . . . In Johnson v. United States . . . (1997) 520 U.S. 461, 137 L. Ed. 2d 718, 117 S. Ct. 1544 . . . the element of materiality was decided by the judge rather than submitted to the jury. . . . '. . . We concluded that the error did not warrant correction in light of the "'overwhelming'" and 'uncontroverted' evidence supporting the issue to which the erroneous restriction was directed . . . . . . . In contrast, where . . . the trial court gives the jury a defective 'reasonable doubt' instruction . . . , the error is not subject to harmless-error analysis because it 'vitiates all the jury's findings' and produces 'consequences that are necessarily unquantifiable and indeterminate.' . . . . . . Reversal per se without any consideration of the effect of the error upon the verdict would send the case back for retrial--a retrial not focused at all on the issue omitted by the instructions, but on contested issues on which the jury was properly instructed." (Id., at pp. 46-48, 51 119 S. Ct. at pp. 1833-1834, 1837, 144 L. Ed. 2d at pp. 46-48, 51) The Court declined to extend the ruling of Sullivan v. Louisiana to a failure to allow the jury to determine an essential element of a crime. Id. at 15. There, the District Court had instructed that the jury "'need not consider' the materiality of any false statements," where materiality was an element of the crime charged. Id. at 6. On appeal, the Court agreed that the instructions were given in error but found that failure to instruct on an element of the crime was subject to harmless error analysis. Id. at 15. Because the defendant "did not, and apparently could not, bring forth facts contesting the omitted element of materiality" the conviction was affirmed. Id. at 19, 25. The United States Supreme Court decided that harmless error analysis should be applied to instructional error that omits an element of the offense, thereby withdrawing that element from the jury's purview. The Court provided guidance to appellate courts engaged in assessing the prejudicial effect of such error, which is instructive in this related context. The Court observed: "Safeguarding the jury guarantee will often require that a reviewing court conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error -- for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding -- it should not find the error harmless. A reviewing court making this harmless-error inquiry does not, as Justice Traynor put it, 'become in effect a second jury to determine whether the defendant is guilty.' Rather a court, in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is 'no,' holding the error harmless does not 'reflect a denigration of the constitutional rights involved.' On the contrary, it 'serves a very useful purpose insofar as it blocks setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.'" (Neder, supra, 527 U.S. at pp. 19-20.) The Court held that the trial court's failure to instruct the jury on an element of a charge was not structural error but should be reviewed as trial error. The Court stated: "Unlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Id. at 9. The Court added that, while "the court erroneously failed to charge the jury on the element of materiality," that error did not render the trial "fundamentally unfair," because the defendant "was tried before an impartial judge, under the correct standard of proof and with the assistance of counsel; and a fairly selected, impartial jury was instructed to consider all of the evidence and argument in respect to the defendant's defense against the tax charges." Id. Utilizing the framework for structural error described above, Sullivan v. Louisiana holds that an error in the instruction on reasonable doubt pertaining to the entire case results in structural error, while Neder holds that the failure to instruct at all on one element is not structural error when the jury is otherwise properly instructed. In Neder, the defendant argued that harmless error analysis could not be applied because there was no object on which the scrutiny could operate; the proper burden of proof had not been applied to any element of the offense. Id. According to Sullivan's logic, the defendant reasoned, "where the constitutional error . . . prevents the jury from rendering a 'complete verdict' on every element of the offense . . . the basis for harmless-error review 'is simply absent.'" Id. (quoting Brief for Petitioner at 7, Neder, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (No. 97-1985) available at 1998 WL 828332). The Court rejected this argument, stating that, "although this strand of the reasoning in Sullivan does provide support for the defendant's position, it cannot be squared with our harmless-error cases." Id. In Neder, the error was the failure to instruct the jury on one element of the crime charged. The Court noted, however, that the defendant had not contested that element at trial Furthermore, the defendant did not even suggest that at retrial he would introduce any evidence bearing on materiality. The Court declined to extend the reasoning of Sullivan because the subject constitutional error would not have been contested upon retrial. Instead, such a retrial would focus only on those contested issues that had not been infected by error. Neder, therefore, stands for the proposition that an uncontested, isolated error that would not change the verdict is subject to harmless error review rather than automatic structural error reversal. The Neder court clearly stated its reasons for this practical approach. It would not be illogical to extend the reasoning of Sullivan from a defective 'reasonable doubt' instruction to a failure to instruct on an element of the crime. But, as indicated in the foregoing discussion, the matter is not res nova under our case law. And if the life of the law has not been logic but experience, see O. Holmes, The Common Law 1 (1881), we are entitled to stand back and see what would be accomplished by such an extension in this case. The omitted element was materiality. Petitioner underreported $ 5 million on his tax returns, and did not contest the element of materiality at trial. Petitioner does not suggest that he would introduce any evidence bearing upon the issue of materiality if so allowed. Reversal without any consideration of the effect of the error upon the verdict would send the case back for retrial-a retrial not focused at all on the issue of materiality, but on contested issues on which the jury was properly instructed. We do not think the Sixth Amendment requires us to veer away from settled precedent to reach such a result. 527 U.S. at 15.