                                                                               FILED
                             NOT FOR PUBLICATION
                                                                                DEC 20 2016
                     UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No.    16-10104

              Plaintiff-Appellee,                  D.C. No.
                                                   1:14-cr-00208-SAB-1
 v.

BARRY HALAJIAN,                                    MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of California
                   Stanley Allen Bastian, District Judge, Presiding

                           Submitted December 16, 2016**
                              San Francisco, California

Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.

      Barry Stuart Halajian appeals his conviction under 18 U.S.C. § 1521 for

filing two false liens against federal officials. We affirm the district court’s order




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
refusing to dismiss the government’s indictment, and we affirm Halajian’s

conviction.

                                          I

      The district court did not err when it refused to dismiss the indictment in its

October 26, 2015 order.

      The district court properly found that the indictment was sufficient on its

face. The indictment tracked the language of the charged offense and

unambiguously set forth the elements necessary to convict Halajian under

Section 1521. Therefore, it informed Halajian of the allegations against him and

enabled him to plead double jeopardy in future prosecutions. United States v.

Davis, 336 F.3d 920, 922 (9th Cir. 2003). Indictments that are facially sufficient

cannot be dismissed based on allegations that the government lacks the evidence to

prove a conviction. United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996).

      Similarly, we reject Halajian’s claim that the government improperly

brought the indictment. Insofar as Halajian’s challenge amounts to an assertion that

the government lacked evidence when it decided to prosecute him, the district

court properly refused to make a mini-trial out of a motion to dismiss under

Federal Rule of Criminal Procedure 12. United States v. Kennedy, 564 F.2d 1329,

1338 (9th Cir. 1977).


                                          2
      Halajian’s Fifth and First Amendment arguments simply lack merit.

Regarding his Fifth Amendment challenge, Halajian has not established that the

government’s indictment rested on flagrant misconduct such as perjured testimony.

See United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974). Halajian’s First

Amendment argument likewise fails. Halajian has pointed to no evidence

suggesting politically motivated prosecution. And financial extortion is not

protected by the First Amendment. See United States v. Hutson, 843 F.2d 1232,

1235 (9th Cir. 1988).

      The district court properly denied Halajian’s motion to dismiss the

indictment.

                                          II

      We review the district court’s judgment that Halajian twice violated

Section 1521 deferentially, asking only whether “any rational trier of fact could

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

States v. Stanton, 501 F.3d 1093, 1099 (9th Cir. 2007) (emphasis in original)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

      The district court, reviewing the evidence, observed that Halajian filed two

liens against federal bankruptcy judges. The court found that virtually every

representation made on the liens–the listed creditor, the listed debtors, and the


                                           3
disputed collateral–was false. The record also shows that Halajian filed a notice, in

the bankruptcy court, informing the judges that he had filed perfected liens against

them. Such notice was accompanied by a demand that the bankruptcy court take

additional actions in Halajian’s case.

      Halajian argues that he cannot be guilty of violating Section 1521 because

the disputed collateral was not real. But this court has already determined that

defendants cannot fend off a conviction under Section 1521 by challenging the

validity of a false lien. United States v. Neal, 776 F.3d 645, 653 (9th Cir. 2015).

Halajians’s “focus on collateral is misplaced, because the collateral he listed in his

Lien Document is not relevant to whether he violated the statute.” Id. at 654.

      The judgment of the district court is therefore

      AFFIRMED.




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