UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

WILLIAM T. WULIGER, DEFENDANT-APPELLANT

It is ORDERED that the petition for rehearing be, and it hereby is, DENIED.

WELLFORD, Senior Circuit Judge,

concurring:

As indicated in my initial separate opinion, I find this to be a very close case. United States v. Chan Chun-Yin, 958 F. 2d 440 (D.C.Cir.), cert. denied, — U.S. -, 112 S.Ct. 3010, 120 L.Ed.2d 884 (1992), is a basis for finding that the omission in the jury instruction may be harmless error. I find an insufficient basis to dissent from denial of a rehearing, but the court may deem it a proper candidate for rehearing en banc, because this controversy involves a statute and an interesting issue not previously considered by the Sixth Circuit.

This court “should not exercise [its] discretion [to correct the forfeited error] unless the error ‘seriously affect [s] the fairness, integrity or public reputation of judicial proceedings.’ United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)).” United States v. Olano & Gray, - U.S. -, -, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (emphasis added). I am not sure that the error in jury instruction did seriously or necessarily affect the fairness and integrity of the proceedings against Wul-iger, an experienced trial counsel.