Whether harmless-error analysis of jury instructions that omitted or misdefined an element must decline to find that constitutional error harmless

QUESTIONS PRESENTED Petitioners were charged with fraud offenses, all of which had as an element “intent to defraud” and most of which also had as an element “scheme to defraud.” At trial, all petitioners specifically contested both elements; three of the petitioners testified that they did not intend to defraud anyone or intend to deprive anyone of money or property. The Fifth Circuit held that the definition of “intent to defraud” was erroneous because it did not require an intent to cheat and assumed that the definition of “scheme to defraud” was erroneous because it did not require an intent to deprive anyone of money or property. The Fifth Circuit nonetheless concluded the errors were harmless because, in the appellate court’s view, there was overwhelming evidence of petitioners’ intent to defraud and scheme to defraud (as properly defined). The questions presented are: I. Whether harmless-error analysis of jury instructions that omitted or misdefined an element must decline to find that constitutional error harmless when (1) the defendant at trial contested the element (as properly defined) and (2) there was any evidence permitting a rational jury to have areasonable doubt about the element (as properly defined), as multiple federal circuit and state appellate courts have held; or, instead, whether an appellate court nonetheless may deem such error harmless based on its belief that there was overwhelming evidence of the element (as properly defined) at trial, as the Fifth Circuit did below. u II. Whether, for the reasons stated in Justice Scalia’s dissenting opinion in Neder v. United States, 527 U.S. 1 (1999), this Court should overrule Neder and treat jury instructions that omit or misdefine an element as structural error.