United States v. Atiyensalem

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NOT FOR PUBLICATION FEB 26 2010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
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We recite the facts only as necessary to our disposition.
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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
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‘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
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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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