                                                                            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                            NOT FOR PUBLICATION                              JUN 07 2013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).


                                           2
      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.




                                           3
