                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 26 2010

                                                                       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. 07-50378

             Plaintiff - Appellee,               D.C. No. CR-03-00398-RMT-24

  v.
                                                 MEMORANDUM *
ATIYEM ATIYENSALEM, a/k/a
ATIYEH ATIYENSALEM,

             Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                   Robert M. Takasugi, District Judge, Presiding

                        Argued and Submitted June 2, 2009
                              Pasadena, California

Before: RYMER, GRABER, and BEA, Circuit Judges.

       Atiyem Atiyensalem appeals his judgment of conviction following a jury

trial for one count of conspiracy to commit money laundering in violation of 18

U.S.C. § 1956. Atiyensalem was sentenced to 33 months’ imprisonment followed

by 36 months’ supervised release and was ordered to pay a $100 special


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
assessment fee. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291, and we affirm.1

      Even assuming that the government’s failure to disclose its intention to call

Officer Michael Chaffee violated Federal Rule of Civil Procedure 16, Atiyensalem

has failed to establish prejudice. There is no evidence in the record before us that,

given additional time, Atiyensalem would have been able to procure evidence to

impeach Officer Chaffee’s testimony or attack his knowledge of Arabic. See

United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997).

      We express no opinion on Atiyensalem’s ineffective assistance of counsel

claims. Such claims are ordinarily not appropriate for resolution on direct appeal,

and this case does not present one of the “extraordinary” circumstances that would

warrant our ruling on the issue. United States v. Jeronimo, 398 F.3d 1149,

1155–56 (9th Cir. 2005). Whether the temporary suspension of Atiyensalem’s

counsel’s license to practice law prejudiced Atiyensalem is best addressed by writ

of habeas corpus. Id.

      Atiyensalem argues for the first time on appeal that the district court erred in

the jury instructions it gave because it did not define the term “proceeds” in the

federal money laundering statute, 18 U.S.C. § 1956(a)(1)(A)(i), as “profits.” See


      1
          We recite the facts only as necessary to our disposition.

                                            2
United States v. Santos, 128 S. Ct. 2020 (2008); United States v. Van Alstyne, 584

F.3d 803, 814 (9th Cir. 2009). Because Atiyensalem did not raise this issue at trial,

we review the claim for plain error. Plain error is “(1) error, (2) that is plain, and

(3) that affects substantial rights.” United States v. Cotton, 535 U.S. 625, 631

(2002) (alteration and internal quotation marks omitted). If these three elements

are met, we may exercise our discretion to notice a forfeited error that

(4) “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (alteration and internal quotation marks omitted).

      We hold the district court did not err in its jury instructions because the

definition of proceeds in the present case is not limited to profits. Atiyensalem was

not charged with any other crime that would have resulted in his being convicted

for two different crimes for the same behavior. The indictment clearly set forth

conduct that could support only a charge of money laundering, or conspiracy to

commit money laundering. Thus, the “merger” problem inherent in the charging

instruments in Santos and Van Alstyne does not exist in this case. See Santos, 128

S. Ct. at 2032 n.3 (Stevens, J., concurring) (“I cannot agree with the plurality that

the rule of lenity must apply to the definition of ‘proceeds’ for [the sale of

contraband].”); see also Van Alstyne, 584 F.3d at 814 (“We therefore view the

holding that commanded five votes in Santos as being that ‘proceeds’ means


                                            3
‘profits’ where viewing ‘proceeds’ as ‘receipts’ would present a ‘merger’ problem

of the kind that troubled the plurality and concurrence in Santos.”).

        Further, the error in not defining proceeds as profits in the jury instructions,

if any, was harmless. At trial, Atiyensalem claimed that he loaned Mizyed

$50,000, and that the $215,000 he received a short while later—at the time Mizyed

sold pseudoephedrine to a known drug dealer to make methamphetamine in

Atiyensalem’s presence—was simply a return of the principal and interest on the

loan.

        The witnesses presented against Atiyensalem, witnesses that the jury

obviously believed, consistently characterized Atiyensalem’s share as coming from

the profits of the illegal operation—not from a salary, or proceeds, or receipts.

Rather, the term “profits” was the term consistently and exclusively used by these

witnesses. Thus, even though the instruction asked the jury to determine whether

Atiyensalem participated in the “proceeds” of the illegal operation—without

defining proceeds as profits—we find beyond a reasonable doubt that the jury

would have convicted Atiyensalem of money laundering, even if proceeds had

been defined as profits.

        Atiyensalem also contends there is insufficient evidence in the record to

support his conviction for money laundering because there is no evidence he


                                             4
shared in the “profits” of the operation. Because Atiyensalem moved for acquittal

because of insufficient evidence, we review this claim de novo to see if, viewing

the evidence in the light most favorable to the jury’s verdict, a rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979). As stated above, the term

“proceeds” was correctly left undefined here. But again, even if the term

“proceeds” should have been defined as “profits,” the witnesses who testified for

the government clearly stated that Atiyensalem knowingly invested in Mizyed’s

illegal operation and participated in the profits the operation generated. Thus, the

evidence is sufficient to sustain Atiyensalem’s conviction.

      AFFIRMED.




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