* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 12, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-20459

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NIKOLOAS PARASIRIS,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-02-CR-717-ALL

--------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Nikoloas Parasiris appeals his conviction for making false

statements to federally licensed firearms dealers in violation of

18 U.S.C. § 924(a)(1)(A). He argues that the trial court erred

in refusing to provide the jury with a definition of “residence”;

that the trial court erred in denying his motion for judgment of

acquittal; and that the trial court erred in denying his posttrail motion for arrest of judgment.
No. 03-20459

-2-

Parasiris stated on Alcohol Tobacco and Firearms (ATF) form

4473 that his “residence address” was 7602 Muirwood Lane in

Houston, Texas. Even assuming that the definition of “residence”

was an essential element of the offense which should have been

defined for the jury, the lack of such instruction to the jury

was harmless. Neder v. United States, 527 U.S. 1, 9-11, (1999);

see also United States v. Green, 293 F.3d 886, 890 (5th Cir.

2002), cert. denied, 123 S. Ct. 1783 (2003). Under any

reasonable definition of “residence,” the evidence indicated that

the Muirwood house was not Parasiris’ “residence address” when he

filled out the ATF form and, in fact, that Parasiris did not

think the Muirwood house was his “residence address.” See United

States v. Slaughter, 238 F.3d 580, 583-84 (5th Cir. 2001). For

the same reason, the district court did not abuse its discretion

by denying a requested instruction on Parasiris’ defensive

theory. United States v. Correa-Ventura, 6 F.3d 1070, 1076 (5th

Cir. 1993). 

Parasiris argued in his FED. R. CRIM. P. 29 motion for

judgment of acquittal that the term “residence” was ambiguous and

in his motion to reconsider the denial of his FED. R. CRIM. P. 29

motion that, based upon extra-circuit law, the term “residence”

should be considered “fundamentally ambiguous.” The standard of

review to assess his sufficiency challenge is whether “a

reasonable trier of fact could [have] f[ou]nd that the evidence

established guilt beyond a reasonable doubt.” United States v.
No. 03-20459

-3-

Bell, 678 F.2d 547, 549 (5th Cir. 1982)(en banc); see Jackson v.

Virginia, 443 U.S. 307, 319 (1979). Even if the term “residence”

was “arguably ambiguous” or “fundamentally ambiguous,” the jury

could have, based upon the evidence presented at trial, found

that Parasiris made a false statement on the ATF form in

violation of 18 U.S.C. § 924(a)(1)(A). See United States v.

Thompson, 637 F.2d 267, 270 (5th Cir. 1981); United States v.

Culliton, 328 F.3d 1074, 1078-79 (9th Cir. 2003); United States

v. McKenna, 327 F.3d 830, 841 (9th Cir. 2003).

Upon the defendant’s motion, the court must arrest judgment

if the indictment does not charge an offense. FED. R. CRIM. P.

34. “An adequate indictment (1) enumerates each prima facie

element of the charged offense, (2) notifies the defendant of the

charges filed against him, and (3) provides the defendant with a

double jeopardy defense against future prosecutions. United

States v. Nevers, 7 F.3d 59, 62 (5th Cir. 1993) (internal

citations omitted). 

The indictment stated that Parasiris acquired firearms from

two licensed firearms dealers by supplying false and fictitious

written statements to the dealers, namely by representing that he

“lived at 7602 Muirwood Lane in Houston, Texas, at a time when he

. . . well-kn[e]w he did not live at that address,” in violation

of 18 U.S.C. § 924(a)(1)(A). The explanation by the Government

of why it believed Parasiris gave a false statement was not a

prima facie element of the offense. See 18 U.S.C.
No. 03-20459

-4-

§ 924(a)(1)(A). The explanation of the alleged false statement

did, however, satisfy the second requirement of an adequate

indictment as it described the facts and circumstances

surrounding the offense in such a manner as to inform the

defendant of the particular offense charged. See Nevers, 7 F.3d

at 62. In this case, there is no indication that the indictment

misled, prejudiced, or confused Parasiris regarding the conduct

which led to his prosecution. As noted by the trial court, the

only blank dealing with an address on the ATF form was the

“residence address” question. Accordingly, Parasiris was

“sufficiently apprised of what he must be prepared to meet and

was not hampered in his defense preparation.” United States v.

Gordon, 780 F.2d 1165, 1172 (5th Cir. 1986).

AFFIRMED.