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SUPREME COURT OF THE UNITED STATES
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No. 94-514
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UNITED STATES, PETITIONER v.
MICHAEL E. GAUDIN
on writ of certiorari to the united states court
of appeals for the ninth circuit
[June 19, 1995]

  Chief Justice Rehnquist, with whom Justice
O'Connor and Justice Breyer join, concurring.
  I join the Court's opinion.  -A person when first
charged with a crime is entitled to a presumption of
innocence, and may insist that his guilt be established
beyond a reasonable doubt.  In re Winship, 397 U. S.
358 (1970).-  Herrera v. Collins, 506 U. S. ___, ___
(1993) (slip op., at 7).  As a result, -[t]he prosecution
bears the burden of proving all elements of the offense
charged and must persuade the factfinder `beyond a
reasonable doubt' of the facts necessary to establish each
of those elements.-  Sullivan v. Louisiana, 508 U. S.
___, ___ (1993) (slip op., at 2-3) (citations omitted); see
also Estelle v. McGuire, 502 U. S. 62, 69 (1991) (-[T]he
prosecution must prove all the elements of a criminal
offense beyond a reasonable doubt-).  The Government
has conceded that 18 U. S. C. 1001 requires that the
false statements made by respondent be -material- to
the Government inquiry, and that -materiality- is an
element of the offense that the Government must prove
in order to sustain a conviction.  Ante, at 3; Brief for
United States 11.  The Government also has not
challenged the Court of Appeals' determination that the
error it identified was structural and plain.  See id., at
8, n. 5; see also 28 F. 3d 943, 951-952 (CA9 1994).  In
light of these concessions, I agree that -[t]he trial judge's
refusal to allow the jury to pass on the `materiality' of
Gaudin's false statements infringed- his -right to have
a jury determine, beyond a reasonable doubt, his guilt
of every element of the crime with which he [was]
charged.-  Ante, at 17.
  I write separately to point out that there are issues in
this area of the law which, though similar to those
decided in the Court's opinion, are not disposed of by
the Court today.  There is a certain syllogistic neatness
about what we do decide: every element of an offense
charged must be proven to the satisfaction of the jury
beyond a reasonable doubt; -materiality- is an element
of the offense charged under 1001; therefore, the jury,
not the Court, must decide the issue of materiality.  But
the Government's concessions have made this case a
much easier one than it might otherwise have been.
  Whether -materiality- is indeed an element of every
offense under 18 U. S. C. 1001 is not at all obvious
from its text.  Section 1001 of Title 18 provides:
      -Whoever, in any matter within the jurisdiction of
any department or agency of the United States
knowingly and willfully falsifies, conceals or covers
up by any trick, scheme, or device a material fact,
or makes any false, fictitious or fraudulent state-
ments or representations, or makes or uses any false
writing or document knowing the same to contain
any false, fictitious or fraudulent statement or entry,
shall be fined not more than $10,000 or imprisoned
not more than five years, or both.-
Currently, there is a conflict among the Courts of
Appeals over whether materiality is an element of the
offense created by the second clause of 1001.  Compare,
e.g., United States v. Corsino, 812 F. 2d 26, 30 (CA1
1987) (-`While materiality is not an explicit requirement
of the second, false statements, clause of 1001, courts
have inferred a judge-made limitation of materiality in
order to exclude trifles from its coverage'-) with United
States v. Elkin, 731 F. 2d 1005, 1009 (CA2 1984) (-It is
settled in this Circuit that materiality is not an element
of the offense of making a false statement in violation
of  1001-).  The Court does not resolve that conflict;
rather, it merely assumes that materiality is, in fact, an
element of the false statement clause of  1001.  Ante,
at 5; cf. Sullivan, supra, at ___, n. 1 (slip op., at 3, n.
1) (assuming that reasonable doubt jury instruction was
erroneous in light of the -question presented and the
State's failure to raise this issue below-).
  As with many aspects of statutory construction,
determination of what elements constitute a crime often
is subject to dispute.  See, e.g., National Organization
for Women, Inc. v. Scheidler, 510 U. S. ___, ___ (slip op.,
at 12) (1994) (holding that -RICO contains no economic
motive requirement-); United States v. Culbert, 435 U. S.
371, 380 (1978) (declining to limit the Hobbs Act's scope
to an undefined category of conduct termed -racketeer-
ing-).  -[I]n determining what facts must be proved
beyond a reasonable doubt the [legislature's] definition
of the elements of the offense is usually dispositive.-
McMillan v. Pennsylvania, 477 U. S. 79, 85 (1986).
Nothing in the Court's decision stands as a barrier to
legislatures that wish to define-or that have
defined-the elements of their criminal laws in such a
way as to remove issues such as materiality from the
jury's consideration.  We have noted that -`[t]he defini-
tion of the elements of a criminal offense is entrusted to
the legislature, particularly in the case of federal crimes,
which are solely creatures of statute.'-  Staples v.
United States, 511 U. S. ___, ___ (1994) (slip op., at 4)
(quoting Liparota v. United States, 471 U. S. 419, 424
(1985)); see also McMillan, supra, at 85.  Within broad
constitutional bounds, legislatures have flexibility in
defining the elements of a criminal offense.  See
Patterson v. New York, 432 U. S. 197, 210 (1977).
Federal and State legislatures may reallocate burdens of
proof by labeling elements as affirmative defenses, ibid.,
or they may convert elements into -sentencing factor[s]-
for consideration by the sentencing court, McMillan,
supra, at 85-86.  The Court today does not resolve what
role materiality plays under 1001.
  The Court properly acknowledges that other mixed
questions of law and fact remain the proper domain of
the trial court.  Ante, at 15.  Preliminary questions in
a trial regarding the admissibility of evidence, Fed. Rule
Evid. 104(a), the competency of witnesses, ibid., the
voluntariness of confessions, Crane v. Kentucky, 476
U. S. 683, 688-689 (1986), the legality of searches and
seizures, Fed. Rule Crim. Proc. 12(b)(3), and the propri-
ety of venue, see Fed. Rule Crim. Proc. 18, may be
decided by the trial court.
  Finally, the Government has not argued here that the
error in this case was either harmless or not plain.
Brief for United States 8, n. 5.  As to the former, there
is a -strong presumption- that a constitutional violation
will be subject to harmless-error analysis.  See Rose v.
Clark, 478 U. S. 570, 579 (1986).  Accordingly, -the
Court has applied harmless-error analysis to a wide
range of errors and has recognized that most constitu-
tional errors can be harmless.-  Arizona v. Fulminante,
499 U. S. 279, 306 (1991); cf. id., at 309-310 (listing
examples of structural errors).  In particular, the Court
has subjected jury instructions plagued by constitutional
error to harmless-error analysis.  See, e.g., Yates v.
Evatt, 500 U. S. 391, 402 (1991) (taint of an unconstitu-
tional burden-shifting jury instruction subject to harm-
less-error analysis); Carella v. California, 491 U. S. 263,
266 (1989) (per curiam) (jury instruction containing an
erroneous mandatory presumption subject to harmless-
error analysis); Pope v. Illinois, 481 U. S. 497, 502-504
(1987) (jury instruction misstating an element of an
offense subject to harmless-error analysis); Rose, supra,
at 581-582 (jury instruction containing an erroneous
rebuttable presumption subject to harmless-error analy-
sis); but see Sullivan v. Louisiana, 508 U. S. ___, ___
(1993) (slip op., at 5-6) (erroneous burden of proof
instruction not subject to harmless-error analysis).  The
Court today has no occasion to review the Court of
Appeals' conclusion that the constitutional error here
-cannot be harmless.-  28 F. 3d, at 951.
  As to the latter, in United States v. Olano, 507 U. S.
___, ___ (1993) (slip op., at 6), the Court noted the
limitations on -plain error- review by the Courts of
Appeals under Rule 52(b).  -The first limitation on
appellate authority under Rule 52(b) is that there indeed
be an `error.'-  Id., at ___ (slip op., at 7).  Second, -the
error [must] be `plain.'-  Id., at ___ (slip op., at 8).
Thus, -[a]t a minimum, [a] Court of Appeals cannot
correct an error pursuant to Rule 52(b) unless the error
is clear under current law.-  Ibid.  Third, the plain error
must -`affect[] substantial rights,'- ibid., i.e., -in most
cases it means that the error must have been prejudi-
cial,- ibid.  Finally, if these three prerequisites are met,
the decision to correct forfeited error remains within the
sound discretion of the Court of Appeals.  A Court of
Appeals, however, should not exercise that discretion
unless the error -`-seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.-'-
Id., at ___ (slip op., at 6).
  In affirming the Court of Appeals, the Court concludes
that -it is fair to say that we cannot hold for respondent
today while still adhering to the reasoning and the
holding of [Sinclair v. United States, 279 U. S. 263
(1929)].-  Ante, at 14.  Before today, every Court of
Appeals that has considered the issue, except for the
Ninth Circuit, has held that the question of materiality
is one of law.  See 28 F. 3d, at 955 (Kozinski, J.,
dissenting) (collecting cases).  Thus, it is certainly
subject to dispute whether the error in this case was
-clear under current law.-  Olano, supra, at ___ (slip op.,
at 8).  The Court, however, does not review the Court of
Appeals' determination that the failure to submit the
issue of materiality to the jury constituted -plain error.-
28 F. 3d, at 952.