dissenting:

I respectfully dissent. The majority opinion raises an issue that no party raised at any level of these proceedings and then decides that issue incorrectly. The majority opinion misapprehends this circuit’s law on the requirements for a conspiracy indictment; discovers “plain error” where there was none; creates but does not acknowledge a split with two of our sister circuits; inappropriately extends Supreme Court precedent; improperly analyzes whether the asserted error was prejudicial; and places an intolerable and unwarranted burden on this circuit’s district courts.

BACKGROUND

Each Defendant was charged with one count of conspiracy and one count of converting government property. The single count of conspiracy alleged five object offenses: conversion of government property, false statements to federal agencies, mail fraud, wire fraud, and bribery of a public official. As to each of those objects, the government alleged overt acts that occurred within the applicable five-year statute of limitations, see 18 U.S.C. § 3282 , and overt acts that occurred outside that five-year period. The government was required to prove beyond a reasonable doubt that Defendants had engaged in at least one overt act in furtherance of the conspiracy during the limitation period, as it had alleged.

The case proceeded to trial. The government presented evidence concerning the overt acts alleged in the indictment and other overt acts not alleged in the indictment. The parties submitted jury instructions and agreed on a set of instructions. The district court gave those agreed upon instructions. Among other things, the district court instructed the jurors that they were required to find that Defendants had committed at least one overt act in furtherance of the conspiracy and that they were required to agree about which particular overt act, or acts, Defendants had committed. The court did not, however, instruct the jurors that they had to agree that Defendants had engaged in an overt act that took place within the limitation period. Defendants did not request such an instruction, nor did either Defendant object to the district court’s failure to give such an instruction.

The jury convicted Defendants. The verdict form did not specify which overt act, or acts, the jury had found. Accordingly, it is not clear whether the jurors agreed that Defendants had committed all the alleged overt acts, some of them, or one of them. Further, if the jurors did not agree that Defendants had committed all the alleged acts, it is not clear which specific acts they found, so it is not clear whether the jurors found that Defendants had committed overt acts within the limitation period. On this record, there simply is no way to tell.

Defendants appealed. After the case was submitted, the panel sua sponte invited supplemental briefing on several questions that were not raised at any stage of the proceedings. Those questions were subparts of a larger question, also not raised: Did the district court commit plain error by failing to instruct the jury that it had to find that Defendants had committed an overt act in furtherance of the conspiracy during the limitation period, even though no party had requested such an instruction?

In their supplemental briefs, both Defendants asserted — albeit for different reasons — that the district court had plainly erred in failing to so instruct the jury. The majority agrees, for reasons somewhat different than those presented in Defendants’ supplemental briefs, and concludes that the district court’s failure to give the unrequested instruction works a “miscarriage of justice” that requires reversal of Defendants’ convictions. Maj. op. at 968. I disagree.

*968 THE INDICTMENT WAS PROPER

The majority opinion refers to the indictment’s inclusion of overt acts both within and without the limitation period as a “defect” that the district court could have and should have “cured.” Maj. op. at 961. The majority opinion also states that the overt acts that fell outside the limitation period were “improperly included as part of the conspiracy because they were barred by the statute of limitations.” Maj. op. at 963. Those statements reveal the majority opinion’s misunderstanding of this circuit’s law concerning conspiracy indictments, 'a misunderstanding that may have colored the remainder of its analysis.

The inclusion in the indictment of overt acts that fell outside the limitation period did not render the indictment “defective.” As long as some part of the conspiracy continued into the five-year period preceding the indictment, the indictment could reach acts that took place outside the limitation period. See Flintkote Co. v. United States, 7 F.3d 870, 873 (9th Cir.1993); see also, e.g., United States v. Walker, 653 F.2d 1343, 1346 (9th Cir.1981) (to the same effect); United States v. Inryco, Inc., 642 F.2d 290, 294 (9th Cir.1981) (to the same effect). The indictment charged a continuing conspiracy that bridged the statute of limitations and alleged overt acts within the limitation period with respect to each of the object offenses. Under Flintkote, the indictment was entirely proper and did not need to be “cured,” even though it also alleged overt acts that occurred outside the limitation period.

THE DISTRICT COURT’S FAILURE TO INSTRUCT WAS NOT PLAIN ERROR

Because Defendants did not request a statute-of-limitations instruction or object to its omission, we review for plain error under Rule 52(b). For a holding of plain error to be proper: (1) there must be error; (2) the error must be plain; and (3) the defendant must demonstrate that the asserted error affected his or her substantial rights. See United States v. Olano, 507 U.S. 725, 732-35 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993); United States v. Perez, 116 F.3d 840, 846 (9th Cir.1997) (en banc). An appellate court’s power to correct plain error “is to be used sparingly.” United States v. Frady, 456 U.S. 152 , 163 n. 14, 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982). In the realm of jury instructions, “[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court”; further, “[a]n omission, or an incomplete instruction, is less likely to be prejudicial” than an improper instruction and, accordingly, is even less likely to justify reversal. Henderson v. Kibbe, 431 U.S. 145, 154-55 , 97 S.Ct. 1730 , 52 L.Ed.2d 203 (1977).

Assuming for the sake of argument that the trial court erred in failing to instruct on the statute of limitations, the error was not plain. Error is “plain” when it is “clear” or “obvious” under current law. Olano, 507 U.S. at 734 , 113 S.Ct. 1770 . The error here, if any, was neither clear nor obvious.

In some circumstances, a district court can commit plain error by failing to give a jury instruction that neither party requested. In United States v. Mendoza, 11 F.3d 126, 128 (9th Cir.1993), this court concluded that the district court’s failure to instruct the jury on an element of a criminal offense was plain error. The Mendoza court’s analysis focused on the fact that the omitted instruction went to an element of the offense. See id. Noting that the prosecution bears the burden of proving every element of a crime, the court concluded that, “when a trial judge omits an element of the offense charged from the jury instructions, it deprives the jury of its fact-finding duty and violates the defendant’s due process rights.” Id.; see also Perez, 116 F.3d at 846-47 (concluding that a district court’s failure to instruct the jury on an element of the charged offense was plain error); United States v. Jerome, 942 *969 F.2d 1328, 1331 (9th Cir.1991) (holding that a district court committed plain error by failing to give a unanimity instruction on an element of the charged offense).

This is not a case in which a district court failed to instruct the jury as to an element of an offense. The five-year statute of limitations contained in 18 U.S.C. § 3282 is “not jurisdictional and [can] be waived by a defendant.” United States v. Caldwell, 859 F.2d 805, 805 (9th Cir.1988); see also United States v. Akmakjian, 647 F.2d 12, 14 (9th Cir.1981). “Because the statute of limitations is an affirmative defense that must be raised by .[the defendant], failure to assert it at trial usually results in waiver of the defense.” United States v. Manning, 56 F.3d 1188, 1195 (9th Cir.1995).

Thus, this instruction pertains to a waivable affirmative defense, not to an element of the offense. Defendants did argue in the district court, in their motions to dismiss and Rule 29 motions, that the statute of limitations barred their prosecution (although for different reasons than the majority presents). But they did not make such an argument to the jury or in any way inform the district court, during then-long discussions of the form and content of the jury instructions, that they wanted the court to give a statute-of-limitations instruction. The government suggests that Defendants’ failure to request such an instruction was a deliberate tactical choice based on the particular evidence that was submitted at trial. Whether or not that is true, it is clear that the district court had no reason to anticipate that this instruction was necessary or even áppropriate. It was not requested; it did not pertain directly to any of Defendants’ státute-of-limitations arguments; and Defendants might have chosen deliberately not to ask for it.

The considerations that require district courts in all cases to instruct on the elements of charged offenses do not apply in this case. By definition, the elements of the charged offense are at issue in every criminal prosecution. Defendants cannot waive them; district courts cannot relieve the government of its burden of proving them. It requires no special judgment or intuition on the part of a district court to know that it must instruct on all elements of an offense, whether or not a defendant asks it to. The requirement is clear and obvious.

Not so with affirmative defenses. Defendants may waive them, or raise them only in pretrial motions, or raise but then abandon them. Defendants may have good reasons — tactical reasons — for not raising a particular defense, or for not wanting a jury instruction on that defense. It is not clear or obvious that a jury instruction on the statute-of-limitations defense is required, or even appropriate, in every criminal case. Therefore, it makes sense that a defendant should alert a district court that such an instruction is called for. The best way to do so is by requesting such an instruction or by objecting to its omission. But, at a minimum, a defendant should have to do something more than Defendants did in this case before a district court is required to instruct about a particular affirmative defense.

THE MAJORITY OPINION CONFLICTS WITH CASES FROM TWO OTHER CIRCUITS

Two other circuit courts have addressed the question of plain error in the context of omitted jury instructions, under circumstances remarkably similar to these. .Neither court has found plain error.

In United States v. Matzkin, 14 F.3d 1014 (4th Cir.1994), the defendant was convicted of one count of conspiracy to defraud the government. The government alleged that the defendant had committed 26 overt acts in furtherance of the conspiracy, 10 of which fell within the five-year statute of limitations cheated by 18 U.S.C. § 3282 , and 16 of which fell outside that limitation period. See id. at 1017 . As in this case, the defendant did not request an *970 instruction stating that the jury was required to find at least one overt act within the limitation period, and the district court did not give such an instruction. The defendant did not object to that omission. See id.

On appeal, the defendant argued that the district court’s failure to give such an instruction sua sponte was plain error that required reversal. In rejecting that argument, the circuit court stated that “[a] finding of plain error when a court failed to sua sponte include an instruction relating to an affirmative defense would place an unnecessary and intolerable burden upon the trial court.” Id. at 1018 . The court observed that, “[i]f the present case involved but one alleged overt act, and there had been a serious conflict in the evidence as to whether such act was within the statutory time frame, the defendant’s argument would have more substance.” Id. However, as is the case here, the government had alleged numerous overt acts that occurred within the limitation period, and had introduced evidence to prove those acts. See id. In the circumstances, the circuit court concluded that “a statute of limitations defense would not be obvious to the trial judge or put the court on notice that it should give the jury instruction absent a request from counsel.” Id.

The Sixth Circuit reached the same result in United States v. Hook, 781 F.2d 1166 (6th Cir.1986). In that case, the defendant was convicted on various charges arising from his failure to pay income tax. See id. at 1169. On appeal, he argued that he might have been convicted solely on the basis of evidence that fell outside the statute of limitations, because the jury was not instructed that it was required to find that he wilfully failed to pay taxes within the limitation period. See id. at 1172 . The defendant had not requested a statute-of-limitations instruction. See id.

The Sixth Circuit declined to find plain error. See id. at 1178 . The court noted that “the trial court’s alleged error was an act of omission, not commission; the lower court did not misstate the law or direct the jury to convict [the defendant] even if it found the crimes to have been completed before the limitations period.” Id. The court then concluded that “[t]he omission of statute of limitations instructions merely created a situation in which the jury could have convicted [the defendant] while finding that the crimes occurred [outside the limitation period], a possibility we find too speculative to require reversal based on plain error.” Id.

Thus, two circuit courts, confronted with the very issue that we face in this case, have declined to find plain error. Of course, we are not bound by those cases. Nevertheless it is instructive, at least, that two circuit courts, considering this question under circumstances remarkably similar to those in this case, have declined to require unrequested instructions on the statute-of-limitations defense.

THE MAJORITY OPINION’S RESULT IS NOT DICTATED BY YATES

The majority opinion’s analysis of plain error consists of the following: “Considering that a statute of limitations instruction is clearly required under established Supreme Court law and that the defendants had previously moved to dismiss the indictment because of statute of limitations and prosecutorial delay, the trial court’s error was plain.” Maj. op. at 962. It is clear from the majority opinion’s earlier discussion that the “established Supreme Court law” that, in its view, “clearly required” this instruction is the Court’s decision in Yates v. United States, 354 U.S. 298 , 77 S.Ct. 1064 , 1 L.Ed.2d 1356 (1957). But Yates does not “clearly require” an instruction in this case.

In Yates the defendants were charged with a single count of conspiracy “(1) to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence, and (2) to organize, as the Communist Party of the United States, a society of persons who *971 so advocate and teach.” Id. at 300 , 77 S.Ct. 1064 . The jury convicted the defendants without indicating which of the two object offenses it had agreed upon.

The Supreme Court overturned the conspiracy convictions. See id. at 312 , 77 S.Ct. 1064 . The Court concluded that one of the object offenses — organizing the Communist Party — occurred wholly outside the applicable three-year statute of limitations, because the Communist Party was “organized” in 1945, while the indictment was not returned until 1951. Therefore, one of the two object offenses was wholly time-barred and, because the jury returned a general guilty verdict, there was no way to be sure that the jury had not relied on that legally untenable object offense. See id. The Court concluded:

Id.

This case is not Yates . Here, none of the object offenses with which Defendants were charged was time-barred; as to each object offense, the government has alleged overt acts within the limitation period. In Yates , one of the object crimes was legally untenable on the face of the indictment, yet the jury might have convicted solely based on that untenable object. See id. Here, by contrast, all the object offenses properly were indicted and properly were before the jury; unlike Yates , this is not a case “where the verdict is supportable on one ground, but not on another.” Id.

Rather, the difficulty on which the majority opinion focuses is that the jury might have convicted solely on the basis of an overt act that fell outsidé the limitation period, even though none of the objects charged in the indictment was untenable as a matter of law. Our question is whether that possibility requires reversal. That is not the Yates question.

The Supreme Court discussed Yates at length in Griffin v. United States, 502 U.S. 46, 51-60 , 112 S.Ct. 466 , 116 L.Ed.2d 371 (1991). In Griffin , the defendants were indicted on one count of conspiracy to commit two object crimes. See id. at 47 , 112 S.Ct. 466 . The jury convicted them of conspiracy and returned a general verdict that did not specify which object crime the jury had found. See id. at 48 , 112 S.Ct. 466 . On appeal, the defendants argued— and the government conceded' — 'that there was insufficient evidence to convict them of one of the object crimes. On that basis, the defendants argued that the general verdict could not stand, because the government had failed to prove one of the object crimes, and there was no way to be sure that the jury had not relied on that object in convicting the defendants. See id.

The Court rejected the defendants’ arguments. See id. at 60 , 112 S.Ct. 466 . In so doing, the Court concluded that the jury was “well equipped to analyze the evidence” and could be assumed to have convicted based on the object crime that the government had proved, rather than on the other, “factually inadequate” object crime. Id. at 59 , 112 S.Ct. 466 . The Court further concluded that Yates did not control; rather, the Court made clear that Yates applies when “a particular theory of conviction ... contrary to law” is presented to a jury and the jurors “have been left the option of relying upon a legally inadequate theory.” Id.

Neither Yates nor Griffin is exactly on point. The majority opinion extends Yates and argues that it governs this case, an extension that may be inappropriate under Griffin . 1 But I need not argue that Grif *972 fin controls here, or insist that Yates never could be extended as far as the majority extends it. For purposes of plain-error analysis, it is enough to conclude that the majority’s result is not clear or obvious under Yates, Griffin, or any other authority cited in the majority opinion. Accordingly, the district court could not have committed plain error by failing to arrive at that result on its own. See, e.g., Olano, 507 U.S. at 734 , 113 S.Ct. 1770 (stating that error is “plain” only if it is “clear” or “obvious” under current law). To hold, as the majority opinion does, that the district court plainly erred by (1) failing to extrapolate this questionable result from Yates and Griffin , and (2) failing to give an unrequested jury instruction on a waivable affirmative defense based on that extrapolation, is to place an extraordinary and inappropriate burden on this circuit’s district courts.

DEFENDANTS HAVE NOT MET THEIR BURDEN OF SHOWING PREJUDICE

Under Rule 52(b), an appellate court may correct plain error only if that error “affects substantial rights.” The inquiry into whether an asserted error has affected a defendant’s substantial rights is similar to a “harmless error” inquiry, but with one important distinction: In plain-error cases, it is the defendant, not the government, that bears the burden of persuasion. See Olano, 507 U.S. at 734 , 113 S.Ct. 1770 .

“In most cases,” the substantial-rights requirement “means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” 2 Id. To satisfy their burden, Defendants were required to make a “specific showing of prejudice.” Id. at 735 , 113 S.Ct. 1770 ; see also Perez, 116 F.3d at 847 . In cases like this one, “a court of appeals cannot correct the forfeited emr unless the defendant shows that the error was prejudicial.” Olano, 507 U.S. at 734 , 113 S.Ct. 1770 (emphasis added).

Here, Defendants have not made a “specific showing of prejudice.” The majority states that, “[o]f the ten overt acts alleged in the indictment, the acts that most strongly support a finding of conspiracy fell outside the statute of limitations.” Maj. op. at 963. Accordingly, the majority opinion concludes, “the jury could have found [Defendants] guilty based on acts” that were “barred by the statute of limitations.” Id. (emphasis added).

It is not legally sufficient to conclude that the jury “could have” decided on that basis. We are reviewing for plain error, not for harmless error; Defendants bear the burden of showing prejudice. Unless we conclude that the district court’s error “affected the outcome of the district court proceedings” — not that it “could have” affected the outcome — we “cannot correct *973 the forfeited error.” Olano, 507 U.S. at 734 , 113 S.Ct. 1770 .

The majority opinion cites Jerome as support for its finding of prejudice. Maj. op. at 962-63. Jerome is inapposite. In that case, this court held that the district court had committed plain error by failing sua sponte to instruct the jury that it must agree unanimously on which five persons acted in concert with the defendant in his continuing criminal enterprise. See Jerome, 942 F.2d at 1331 . The requirement that a defendant act in concert with five or more persons is an element of a “continuing criminal enterprise.” See United States v. Garcia, 988 F.2d 965, 967 (9th Cir.1993).

As I have explained, a district court must instruct on the elements of a criminal offense even if the defendant does not ask it to. In Jerome , the district court failed to instruct on all elements; that was plain error. But here, the district court appropriately instructed on all the elements of the charged offense and, unlike in Jerome , gave unanimity instructions. What the district court did not do was instruct sua sponte on the waivable statute-of-limitations defense. Jerome does not establish — or even suggest — that such an omission, is prejudicial.

It also is worth noting that the majority opinion’s analysis of prejudice addresses only the overt acts that were alleged in the indictment. At trial, the government alleged — and produced evidence to prove — a number of additional overt acts, not alleged in the indictment, many of which occurred within the limitation period. The government was entitled to do so; a conspiracy conviction may rest on overt acts not alleged in the indictment. See Brulay v. United States, 383 F.2d 345, 350-51 (9th Cir.1967). In concluding that the overt acts that “most strongly support a finding of conspiracy” occurred outside the limitation period, maj. op. at 963, the majority opinion simply ignores evidence — letters, records of telephone calls, sales agreements, and the like — that the government offered at trial to prove other, timely overt acts that were not alleged in the indictment.

CONCLUSION

For the foregoing reasons, I respectfully dissent from Part II of the majority’s opinion. I concur in Part III of the opinion. Accordingly, I would affirm Defendants’ convictions.

. The Fifth Circuit, citing Griffin , rejected a similar but not identical attempt to extend Yates in a case involving a conspiracy convic-lion and allegedly lime-barred object offenses. See United. States v. Mann, 161 F.3d 840, 857 (5th Cir.1998).

. The Olano court stated that a specific showing of prejudice was required ''[i]n most cases,” but declined to decide whether a showing of prejudice always was required. 507 U.S. at 734-35 , 113 S.Ct. 1770 . Olano suggests that there are three classes of "substantial rights” cases under Rule 52(b): “normal” cases, in which a defendant must make a specific showing of prejudice; cases in which prejudice is presumed; and cases in which the error is of such magnitude that it affects substantial rights regardless of prejudice. See id. at 735-37 , 113 S.Ct. 1770 .

The majority opinion correctly treats this as the "normal” case, in which prejudice must be shown. Maj. op. at 962-63. This court has concluded that the Olano court's statements "suggest that there may be some cases, such as those involving the violation of certain constitutional rights, in which prejudice may not have to be shown.” United States v. Perez, 116 F.3d 840, 847 (9th Cir.1997) (en banc). However, the Perez court went on to conclude that the district court's error in that case — failing to instruct the jury on an element of a criminal offense — was not a "presumptively prejudicial” error. Id. The court also concluded that the error was not the sort of "structural error” that necessarily affected substantial rights. Id. at 847 n. 11. Those conclusions control here; if failure to instruct on an element of a criminal offense is not presumptively prejudicial and does not automatically affect substantial rights, then failure to instruct on an affirmative defense assuredly does not satisfy those standards.