Cox

MEMORANDUM ***

Cox appeals his conviction for mail fraud. We affirm.

Cox first argues that the district court’s jury instruction as to mail fraud omitted necessary elements. Our review is limited under the Olmo plain error standard, because Cox did not object to the mail fraud instruction.

For the court to take notice of error to which no objection was made, the error must affect substantial rights, and we have discretion to take notice of the error only if it affects the fairness, integrity, or public reputation of judicial proceedings. 2 The instructions included the elements of falsity, unanimity on the falsehood, and scienter, albeit not as clearly as they might have, but they left out materiality. Nevertheless, under the Olcmo standard, “ ‘[i]t is *579 the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.’ ” 3 Materiality is indeed an element of the crime, but omission of an instruction on materiality is trial error, rather than structural error, and can be hannless. 4 Cox did not demonstrate prejudice, because the evidence left no room for doubt as to the falsity and materiality of the false date of birth and the false…