concurring:
I write separately because the district court’s failure to instruct on the knowledge element required for conviction on the communication counts was harmless beyond a reasonable doubt for another reason: The court correctly instructed on the knowledge element required to find Whitmore guilty of the underlying substantive offenses (Counts 26 and 31), the knowledge elements for each § 843(b) offense (Counts 25 and 30) and its underlying substantive offense are identical, and the jury returned guilty verdicts on those substantive offenses.
Whitmore challenges neither the sufficiency of the evidence nor the adequacy of the instructions on the knowledge element of the 21 U.S.C. § 841(a)(1) offenses. The underlying drug transaction was done entirely over the telephone in the case of Count 26, and in part over the phone and in part in person in the case of Count 31. It is therefore beyond question that the jury had to find that when Whitmore placed the telephone calls, he knew that he was doing so to facilitate the distribution of cocaine. This is the same knowledge required for a violation of 21 U.S.C. § 843(b). For this reason, Whit-more’s knowledge for purposes of the § 843(b) counts was not completely removed from the jury’s consideration; the jury in fact had a full opportunity to deliberate on that issue. Cf. United States v. Gaudin, 997 F.2d 1267, 1272 (9th Cir.), reh’g en banc granted, 5 F.3d 374 (9th Cir.1993).
We can thus be certain beyond a reasonable doubt that “the guilty verdict[s] actually rendered in this trial [were] surely unattributable to” the district court’s failure to include the knowledge requirement in the § 843(b) instruction. Sullivan v. Louisiana, -U.S.-,-, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993). Because such an error is harmless beyond a reasonable doubt, it is not an error “affecting substantial rights” and does not amount to plain error. Gaudin, 997 F.2d at 1271; cf. United States v. Shabani, 993 F.2d 1419, 1422 (9th Cir.1993) (“We have deemed omission of the overt act element [in a conspiracy case] harmless where the jury’s determination of guilt on another substantive count served as the functional equivalent of a finding of an overt act.”) (citing cases), cert. granted on other grounds, - U.S.-, 114 S.Ct. 1047, 127 L.Ed.2d 370 (1994).