United States v. Kostas Bairamis , 522 F. App'x 379 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30344
Plaintiff - Appellee, D.C. No. 3:10-cr-00103-TMB-1
v.
MEMORANDUM *
KOSTAS BAIRAMIS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted May 22, 2013
Anchorage, Alaska
Before: TASHIMA, TALLMAN, and N.R. SMITH, Circuit Judges.
Appellant Kostas Bairamis appeals his jury trial conviction for a drug
trafficking conspiracy under 21 U.S.C. §§ 841(a)(1), 846. Bairamis alleges that the
instructions his jury received constituted plain error because they (1) did not
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
include the elements of the object of the conspiracy, (2) did not define the required
level of intent for the object of the conspiracy, and (3) contained conflicting
knowledge requirements. Bairamis claims these errors were prejudicial. We have
jurisdiction under 28 U.S.C. § 1292, and we affirm.
Where, as here, the defendant fails to object to the jury instructions in the
district court, we review for plain error. Fed. R. Crim. P. 52(b); United States v.
Alghazouli, 517 F.3d 1179, 1183 (9th Cir. 2008).
In a conspiracy case, the jury instructions must define the elements,
including the necessary intent, for the underlying offense that is the object of the
conspiracy. United States v. McCaleb, 552 F.3d 1053, 1058–59 (9th Cir. 2009); see
also United States v. Ching Tang Lo, 447 F.3d 1212, 1232 (9th Cir. 2006). We
assume without deciding that the district court plainly erred in failing to give an
instruction defining the elements of the object of the conspiracy.
The general “knowingly” definition given to the jury did not conflict with
the requirement that the government prove Bairamis knew that the object of the
conspiracy was unlawful. While the government needed to prove that Bairamis
knew that the object of the conspiracy was unlawful, it did not need to prove that
Bairamis knew that the act of entering into the agreement was unlawful. See
United States v. Delgado, 357 F.3d 1061, 1068 (9th Cir. 2004).
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Finally, even if these instructions did constitute plain error, they did not
prejudice Bairamis because of the overwhelming evidence of his guilt. When a
missing element is uncontested and supported with overwhelming evidence such
that the verdict would have been the same without the error, we will deem the error
harmless. See United States v. Nguyen, 565 F.3d 668, 677–78 (9th Cir. 2009).
Given the substantial evidence introduced against Bairamis at trial, it is unlikely
that the verdict would have been different even if the instructions had not
contained the alleged errors.
AFFIRMED.
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