United States v. Barry Halajian , 671 F. App'x 629 ( 2016 )

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NOT FOR PUBLICATION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).
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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
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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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