Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 848 F.2d 1243 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Seferino NIETO, Defendant-Appellant.

No. 87-3065.

United States Court of Appeals, Ninth Circuit.

Submitted May 17, 1988.* Decided May 27, 1988.

Before SKOPIL, SCHROEDER and ALARCON, Circuit Judges.


MEMORANDUM** 

Seferino Nieto was indicted on one count of conspiring to possess with intent to distribute heroin, in violation 21 U.S.C. § 846 (1982), and two counts of distribution of heroin, in violation 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B) (Supp. IV 1986).

Nieto made a pretrial motion that proof of an overt act in support of the conspiracy was required for a conviction under section 846. The district court concluded that section 846 does not require proof of an overt act. During trial Nieto proposed a jury instruction that included, as an essential element of the conspiracy, commission of an overt act. The district court refused to give the instruction. Nieto objected to the court's refusal. The district court instructed the jury that conspiracy required proof beyond a reasonable doubt (1) of an agreement to distribute heroin, and (2) that Nieto knowingly joined this conspiracy. The instruction did not require the jury to find proof of an overt act in furtherance of the conspiracy.

* Nieto contends that the district court erred in refusing to instruct the jury that proof of an overt act is necessary to convict him of conspiracy to distribute heroin in violation 21 U.S.C. § 846. We review de novo the issue whether the district court's instructions to the jury misstated the elements of a statutory crime. United States v. Mann, 811 F.2d 495, 496-97 (9th Cir. 1987).

We have held that " [p]roof of a violation of 21 U.S.C. § 846 requires showing the elements of (1) an agreement to violate the statute (2) with intent to commit the underlying substantive offense and (3) a subsequent overt act in furtherance of that agreement." United States v. Tavelman, 650 F.2d 1133, 1140 (9th Cir. 1981), cert. denied, 455 U.S. 939 (1982). "It is the duty of the district court to instruct the jury on all the essential elements of the crime charged." United States v. Combs, 762 F.2d 1343, 1346 (9th Cir. 1985). Because the district court did not instruct the jury that proof of an overt act was required for section 846 violation, the district court failed to "instruct the jury on all the essential elements of the crime charged." Id. Thus, the district court erred when it overruled Nieto's objections to the conspiracy instructions.

II

The United States argues that any error by the district court in failing to instruct the jury that proof of an overt is required in order to convict Nieto of violating section 846 was harmless. We agree.

We will reverse a jury verdict when there is error in the jury instructions only "if there is a reasonable possibility that error materially affected the verdict." United States v. Herbert, 698 F.2d 981, 986 (9th Cir.), cert. denied, 464 U.S. 821 (1983). There is no reasonable possibility that the district court's error in giving the jury instruction materially affected the verdict. In addition to his conspiracy conviction, Nieto was also convicted of two counts of distribution of heroin. The jury was instructed to consider each of the three counts in the indictment separately. The jury verdict on the two distribution counts shows that the jury found beyond a reasonable doubt that Nieto distributed heroin. There is no question that the distribution of heroin is an overt act in furtherance of a conspiracy to possess with intent to distribute heroin. Thus, the court's failure to give a conspiracy instruction that required an overt act as an element to prove conspiracy did not materially affect the verdict because the jury found beyond a reasonable doubt that the overt act had been committed. Cf. United States v. Moore, 604 F.2d 1228, 1233 (9th Cir. 1979) (failure to give instruction regarding one of the elements of the charged offense was harmless where the government proved the existence of the element by clear evidence).

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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