                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              NOV 15 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10391

              Plaintiff-Appellee,                D.C. No.
                                                 1:11-cr-00506-LEK-1
 v.

FOUINA C. TOILOLO, AKA Flex,                     MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                     Argued and Submitted October 18, 2016
                               Honolulu, Hawaii

Before: WALLACE, FARRIS, and WATFORD, Circuit Judges.

      Fouina C. Toilolo appeals his conviction on retrial for conspiracy to

distribute and possess methamphetamine, in violation of 21 U.S.C. § 846. We

have jurisdiction under 28 U.S.C. § 1291. We affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Toilolo argues the government’s repeated violations of its discovery

obligations constituted outrageous conduct amounting to a due process violation

requiring dismissal of the indictment, or, in the alternative, were sufficient to

require the district court to dismiss the indictment under its supervisory powers.

Toilolo also argues the district court erred in denying his motion to exclude

testimony and wiretap evidence from his retrial based on the government’s failure

to disclose other wiretap evidence before his first trial.

      We review a district court’s denial of a motion to dismiss an indictment on

due process grounds de novo. United States v. Restrepo, 930 F.2d 705, 712 (9th

Cir. 1991). Rulings on motions to dismiss an indictment under the court’s

supervisory powers are reviewed for abuse of discretion. Id. Factual findings

upon which the decision was based are reviewed for clear error. Id. We review a

district court’s evidentiary rulings for abuse of discretion. United States v.

Whittemore, 776 F.3d 1074, 1077-78 (9th Cir. 2015).

      At the outset, we agree with the district court that the government’s

prosecution of Toilolo and his co-defendants at the first trial was “sloppy,

inexcusably tardy, and almost grossly negligent.” In response to the numerous

Brady, Giglio, Jencks Act, and Rule 16 violations committed by the government,

the district court imposed increasingly severe sanctions including: recalling


                                            2
several witnesses for additional cross-examination by the defense; giving a jury

instruction regarding government misconduct; granting each defendant an

additional opening statement; striking the testimony of one of the government’s

key witnesses; staying the trial for three days to allow the defense to review

additional discovery materials and deducting those days from the time allotted to

the government’s case-in-chief; and referring the first-chair AUSA to the Justice

Department’s Office of Professional Responsibility. The jury deadlocked on the

conspiracy charge against Toilolo, for which the court declared a mistrial. Toilolo

argued in six different motions filed during and after the trial that because of the

government’s discovery violations, the indictment against him should have been

dismissed.

      Dismissing an indictment on due process grounds historically has been

employed in a “slim category of cases” involving police brutality or “physical or

psychological coercion against the defendant.” United States v. Simpson, 813 F.2d

1462, 1465-66 (9th Cir. 1987) (collecting cases) (internal quotation marks and

citations omitted). “To violate due process, governmental conduct must be ‘so

grossly shocking and so outrageous as to violate the universal sense of justice.’”

United States v. Barrera-Moreno, 951 F.2d 1089, 1092 (9th Cir. 1991) (quoting

Restrepo, 930 F.2d at 712). Toilolo does not point to misconduct on the part of the


                                           3
prosecution in the first trial that meets the “extremely high” due process dismissal

standard. United States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991).1

      The district court did not abuse its discretion by refusing to dismiss the

indictment under its supervisory powers. A court may dismiss an indictment under

its supervisory powers for “flagrant” conduct resulting in “substantial prejudice” to

the defendant where “no lesser remedial action is available.” See United States v.

Kearns, 5 F.3d 1251, 1253 (9th Cir. 1993); United States v. Chapman, 524 F.3d

1073, 1087 (9th Cir. 2008) (quoting United States v. Jacobs, 855 F.2d 652, 655

(9th Cir. 1988), and Barrera-Moreno, 951 F.2d at 1092). Here, the district court’s

factual finding that the government did not act flagrantly was not clearly

erroneous. Barrera-Moreno, 951 F.2d at 1091. The district court also determined

that any prejudice from the government’s discovery violations could be minimized

through the “lesser remedial action” of the extensive sanctions it imposed—a



      1
         Toilolo argues that during the first trial, the government deliberately
misrepresented to the court its reasons for not calling Amako Malepeai to testify.
The government told the court in an ex parte hearing that it would not be calling
Malepeai as a witness because it had failed to turn over text messages between
Malepeai and another witness under the Jencks Act. According to Toilolo, the
government deliberately concealed from the court the existence of wiretaps of
Malepeai from 2001 and 2002 and the government’s misrepresentation amounted
to a due process violation. Toilolo did not expressly raise this argument to the
district court, but even if we were to reach the issue, Toilolo’s claim is too
speculative to support dismissal of the indictment on due process grounds.
                                          4
decision to which we owe “substantial deference.” Chapman, 524 F.3d at 1083.2

Accordingly, the district court did not abuse its discretion in refusing to dismiss the

indictment under its supervisory powers.

      Finally, the district court did not abuse its discretion in refusing to exclude

testimony and wiretap evidence from Malepeai at Toilolo’s retrial. Even if the

government’s failure to produce the 2001 and 2002 wiretaps in advance of the first

trial was a Giglio violation, the potential remedy for such a violation—a new

trial—is exactly what Toilolo received when he was retried. Toilolo received the

2001 and 2002 wiretaps well in advance of his retrial with sufficient time to review

them such that any prejudice from the non-disclosure before the first trial had

lapsed.3

      AFFIRMED.




      2
         Even if we accept Toilolo’s argument on appeal that the government’s
failure to disclose the 2001 and 2002 Malepeai wiretaps prior to the first trial was
“flagrant misbehavior” rather than negligence or gross negligence, see Chapman,
524 F.3d at 1085, Toilolo does not convincingly articulate any resulting prejudice
given that Malepeai did not testify at the first trial.
      3
       Notably, Toilolo did not impeach Malepeai with the 2001 and 2002
wiretaps during the retrial.
                                           5
