                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             FEB 15 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10217

              Plaintiff-Appellee,                D.C. No.
                                                 1:14-cr-00913-LEK-1
 v.

MARK FAAITA,                                     MEMORANDUM*

              Defendant-Appellant.


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

                          Submitted February 13, 2018**
                               Honolulu, Hawaii

Before: O’SCANNLAIN, CLIFTON, and IKUTA, Circuit Judges.

      Defendant-appellant Mark Faaita appeals the district court’s denial of his

motion to dismiss his indictment. We have jurisdiction under 28 U.S.C. § 1291.

Although Faaita concedes his appeal is untimely under Rule 4(b) of the Federal


      *
             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).
Rules of Appellate Procedure, this rule is not jurisdictional, see United States v.

Navarro, 800 F.3d 1104, 1109 (9th Cir. 2015), and the government does not

challenge the appeal’s timeliness. Accordingly, we may address it.

      The district court did not abuse its discretion in denying Faaita’s motion to

dismiss the 2014 indictment, even though it dismissed the prior 2011 indictment

with prejudice. In dismissing the 2011 indictment, the district court did not make

any finding that the government acted in bad faith, and such a finding would not

have been supported by evidence in the record. While the district court may

dismiss an indictment with prejudice when it expressly determines that the

government is operating in bad faith, see United States v. Hayden, 860 F.2d 1483,

1487–88 (9th Cir. 2015), the district court made no such express determination

here, and we decline to infer that the district court implicitly found bad faith, given

the lack of support for such a determination in the record. Accordingly, the district

court did not abuse its discretion in rejecting Faaita’s argument that the

government’s 2014 indictment was a continuation of bad faith conduct. Moreover,

the dismissal of the 2011 indictment with prejudice would not preclude the

government from seeking a new indictment, see United States v. Castiglione, 876




                                           2
F.2d 73, 76 (9th Cir. 1988), and the 2014 indictment charges different crimes and

transactions than were included in the 2011 indictment.1

      AFFIRMED




      1
       We deny Faaita’s motion to strike portions of the Government’s
supplemental excerpts of record.
                                         3
