Accordingly, the second Olano prong is satisfied: the error, both as to the absence of a jury determination on an essential element of the offense and the failure to include that element in the indictment, was indeed “plain.” c. Did the plain error affect Thomas’s substantial rights? An error affects a defendant’s “substantial rights” if it is “prejudicial” and it “affected the outcome of the district court proceedings.” Gore, 154 F.3d at 47. “Though ‘prejudice’ is also required to show that an error is not ‘harmless,’ pursuant to Fed.R.Crim.P. 52(a), the important difference of plain error prejudice [in most cases] is that ‘[i]t is the defendant rather than the Government who bears the burden of pers , 2001), with United States v. Vazquez, 271 F.3d 93, 100-01 3d Cir. (2001) (en banc) (<HOLDING>), and United States v. Terry, 240 F.3d 65,
holding that any error was harmless and thus not plain error holding that constitutional error cannot be premised on error in a charge unless the error violated some right which was guaranteed to the defendant by the fourteenth amendment holding that sentencing error is harmless if the error did not affect the district courts selection of the sentence imposed holding at the governments urging that a similar error was an error in both the trial and sentencing holding that error in method by which interest from damages award was calculated was an error in substantive law not a clerical or mathematical error