* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Ricardo S. Martinez, United States District Judge for the Western District of Washington, sitting by designation. NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAMES JOSEPH EVERETT, Defendant - Appellant. No. 09-10051 D.C. No. 2:06-CR-00795-JAT-1

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding Submitted April 12, 2010 **

San Francisco, California Before: NOONAN and CALLAHAN, Circuit Judges, and MARTINEZ, District Judge. *** 

# FILED

APR 14 2010 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 James Everett appeals from his convic tion for bankruptcy fraud. He raises four issues on appeal: (1) the jury was not properly instructed on the source of the funds that were allegedly money laundere d and there was insufficient evidence to support his conviction for money laundering; (2) the Supreme Court’s definition of “proceeds” as “profits” when used in the statute defining money laundering was not presented to the jury; (3) the prejudicial spillover from the money laundering counts tainted the jury’s consideration of the other counts; and (4) the government failed to prove that his corporation was hi s alter ego. We affirm his conviction. In late April, 2002, Everett form ed a nominee corporation under Nevada law, Lott & Sires, Inc. On September 9, 2002, Everett filed for bankruptcy under Chapter 7, seeking to discharge in ex cess of $450,000 in debt. On January 3, 2003, Everett’s bankruptcy was discharged, excusing in excess of $400,000 in debt. In the meantime, on July 1, 2002, Everett arranged a lease/purchase agreement for a house on Doubletree Ranch Road in Paradise Valley, Arizona. Everett, through Lott & Sires, proceeded to make monthly lease payments of $5,500, and in August 2004, he purchased the $1,100,000 house. In August 2006, Everett was charged in a 34 count indictment with making false declarations in his bankruptcy pro ceeding by concealing his interest in Lott & Sires, the lease on the Doubletree house, tw o bank accounts, and his interest in his3 deceased mother’s estate. He was also charged with devising a scheme to defraud the bankruptcy court by concealing property. Counts 9 through 34 concerned the specific payments on the Doubletree home. At trial, Everett argued that Lott & Sires was owned by his law firm, and not by him. The jury found Everett guilty on all counts except count 7 which alleged th at he had falsely declared that his monthly income was $4,300. Everett filed a timely notice of appeal. We review de novo the district court’s denial of a motion for judgment of acquittal based on insufficient evidence, but our review of the underlying jury verdict is highly deferential. United States v. Dearing , 504 F.3d 897, 900 (9th Cir. 2007). “The evidence is sufficient to support a conviction if, ‘viewing the evidence in the light most fa vorable to the prosecution, anyrational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” United States v. Milwitt , 475 F.3d 1150, 1154 (9th Cir. 2007) (quoting Jackson v. Virginia , 443 U.S. 307, 319, (1979) (emphasis in original). “We review the district court’s formulation of a jury instruc tion for abuse of discretion, although we review de novo the question whether a jury instruction misstates an element of the crime.” Dearing , 504 F.3d at 900. Moreover, where a defendant fails to object to a jury instruction in the district court, we review for plain error, which requires that the court find clear or obvious error that affects the defendant’s rights. See United4 States v. Klinger , 128 F.3d 705, 710 (9th Cir. 1997); United States v. Karterman , 60 F.3d 576, 579 (9th Cir. 1995). 1 . The jury was properly instructed on the source of the proceeds used to pay for the Doubletree house and there was sufficient evidence to support Everett’s conviction for money laundering. Under 18 U.S.C. § 1956(a)(1)(B)(i) the government was required to show that th e property used by Everett “involves the proceeds of specified unlawful activity.” Here, the “specified unlawful activity” alleged in the indictment included Evere tt’s “false declarations, certifications, verifications and/or statements under perjury in a bankruptcy proceeding.” The government was not required to trace th e property used to a laundered account. See United States v. Golb , 69 F.3d 1417, 1422 (9th Cir. 1995). There was substantial evidence that funds used to pay for the Doubletree house had been hidden from the bankruptcy court, and that at least some of the funds came from Everett’s law firm’s associates’ earnings. Everett has failed to show that the jury was improperly instructed on the source of the funds or that there was insufficient evidence to support its verdict. 2 . The district court properly rejected Everett’s assertion that following the Supreme Court’s opinion in United States v. Santos , 128 S. Ct. 202 (2008), the jury should have been instructed that the term“proceeds” is properly defined as limited5 to “profits.” Here, the “proceeds of unl awful activities” are the same regardless of whether “proceeds” are defined as “reve nue” or “profits.” The money laundering charges were based on Everett’s “unlawful activities” consisting of false statements in bankruptcy proceedings designed to conceal assets belonging to the bankruptcy estate. As the district court noted, the “only expenses incurred would have be in advancing the scheme,” and Everett never claimed any such expenses. Accordingly, the district court properly rejected Everett’s request for a “ Santos ” instruction. 3. Everett has failed to show that there was any prejudicial spillover that tainted his conviction. To the extent th at Everett argues that the evidence on the single count for which he was acquitted (falsely telling the bankruptcy court that his monthly income was $4,300) tainted th e remaining counts, the district court properly concluded that the jury, having discerned that the evidence was insufficient to support that count, would not give that evidence undue weight when considering the other counts. To the exte nt that Everett argues that his conviction on the money laundering counts (Counts 9-34) influenced his conviction on the other counts, the argument fails. The evidence in support of the money laundering counts was not inflammatory, most of th e evidence was also admissible in support of Counts 1-3, and the government’s evidence was close to overwhelming. See6 United States v. Lazarenko , 564 F.3d 1026, 1043 (9th Cir. 2009). Furthermore, Everett’s argument is unsupported by case law and contrary to the general policy of trying related criminal counts together. See United States v. Whitworth , 856 F.2d 1268, 1277 (9th Cir. 1988). The district court properly rejected Everett’s prejudicial spillover objection. 4 . Everett has not shown that the jury was improperly instructed on the concept of alter ego or that there was insufficient evidence to support the jury’s determination that Lott & Sires was his alter ego. Everett admits that the jury was properly instructed that an alter ego determination required it to find that “there is such unity of interest and ownership that the separate personalities of the corporation and its owner cease to exist,” and that to observe the corporate form “would work an injustice.” Everett argue s that the instruction also should have provided that “the mere fact that it is a one-man corporation does not mean the corporation is the alter ego of that one man. ” We determine that the district court’s formulation of the jury instruction was notan abuse of discretion because Everett’s objection was not timely made in the district court and improperly sought to emphasize one of many factors relevant to a determination of “unity of interest.” Finally, the jury’s finding that the corporation was Everett’s alter ego is fully supported by evidence that Everett created Lott & Sires to conceal assets from the7 bankruptcy court and that the corporation’s sole activity was to facilitate Everett’s lease and purchase of the Doubletree house. See United States v. McNeil , 320 F.3d 1034, 1035 (9th Cir. 2003). Everett’s conviction is AFFIRMED

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