                                                                            FILED
                           NOT FOR PUBLICATION                               FEB 26 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10507

              Plaintiff - Appellee,              D.C. No. 1:11-cr-00506-LEK-10

 v.
                                                 MEMORANDUM*
WALTER DOMINGUEZ, AKA LUK
135, AKA Paisa, AKA W,

              Defendant - Appellant.


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

                     Argued and Submitted February 12, 2016
                               Honolulu, Hawaii

Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.

      Walter Dominguez appeals his conviction for possession of, and conspiracy

to possess and distribute, cocaine and methamphetamine. Dominguez argues that

various trial errors warrant dismissal of the indictment. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       The government concedes that it was “sloppy, inexcusably tardy, and

almost grossly negligent” and does not dispute the district court’s findings that it

committed numerous Brady, Giglio, Jencks Act, and Rule 16 violations. The

district court imposed increasingly severe sanctions to address these violations.

Dominguez argues that the court’s sanctions were not sufficient and contends that

the district court abused its discretion by denying his motions to dismiss the

indictment.

      We disagree. A district court may dismiss an indictment when a defendant’s

right to due process is violated, or, under its supervisory powers, for “flagrant”

conduct resulting in “substantial prejudice.” United States v. Kearns, 5 F.3d 1251,

1253 (9th Cir. 1993). The government’s conduct did not violate Dominguez’s due

process rights because it was not “so grossly shocking and outrageous as to violate

the universal sense of justice.” Id. The district court’s factual finding that the

government did not act “flagrantly” was not clearly erroneous, United States v.

Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991), nor did the district court

abuse its discretion by deciding that Dominguez did not suffer “substantial

prejudice,” United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991). This case

is distinguishable from United States v. Chapman, in which we affirmed dismissal

of an indictment because the prosecutor acted “flagrantly” and the defendant


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suffered substantial prejudice such that the judge “d[idn]’t see any way th[e] trial

c[ould] go forward.” 524 F.3d 1073, 1080 (9th Cir. 2008). Here, the district court

determined that any prejudice from the violations could be minimized by granting

a continuance to allow the defense to review late-produced evidence, recalling

government witnesses, instructing the jury why the trial was being delayed and the

witnesses recalled, allowing the defense to give second opening statements after

the government rested, and striking some of the government’s key testimony.

Given the “substantial deference” we owe the district court—which is “most

familiar with the evidence and the background of the case on trial”—we find no

abuse of discretion in its decision to impose sanctions rather than dismiss the

indictment. Id. at 1083 (quoting Arizona v. Washington, 434 U.S. 497, 514

(1978)).

      As to Dominguez’s other allegations, the district court did not plainly err by

refusing to dismiss the indictment based on the government’s comment in closing

argument regarding whether “the guilty [should] go free.” This comment was a

reflection of the evidence presented, not a suggestion that “evidence not presented

to the jury, but known to the prosecutor, support[ed] the charges against the

defendant.” United States v. Weatherspoon, 410 F.3d 1142, 1147–48 (9th Cir.

2005) (quoting United States v. Young, 470 U.S. 1, 18 (1985)).


                                           3
      The district court did not abuse its discretion by refusing to compel

production of John Tai’s journals. Aside from speculation, Dominguez did not

explain why Tai’s journals would be relevant to the issues at trial. See United

States v. Reed, 726 F.2d 570, 577 (9th Cir. 1984) (noting that Federal Rule of

Criminal Procedure 17(c) “requires a showing of relevancy, admissibility, and

specificity” before a court will compel production). Nor did the district court

abuse its discretion by conditioning Dominguez’s theory of defense instruction on

reintroduction of Tai’s testimony. The district court struck Tai’s testimony as a

sanction, but it ruled that the government would be allowed to reintroduce the

testimony if the defense referred to Tai’s testimony in its case. Given the district

court’s “broad discretion” to determine whether and what sanctions to impose, this

was not error. See United States v. Sterling, 742 F.2d 521, 524–25 (9th Cir. 1984).

      The district court did not abuse its discretion by admitting video and audio

recordings of Dominguez’s meeting with a cooperating witness or by admitting

evidence of his past conviction for conspiracy to sell cocaine. Dominguez’s

statements were admissible as statements “offered against an opposing party,” Fed.

R. Evid. 801(d)(2)(A), and the witness’s statements were admissible to provide

context for Dominguez’s statements, id. 801(c). Dominguez’s prior conviction




                                           4
was admissible to prove his knowledge, intent, or absence of mistake in engaging

in the enterprise. Id. 404(b).

      Last, because there was no individual error at trial, there was not cumulative

error sufficient to violate Dominguez’s due process rights. United States v.

Martinez-Martinez, 369 F.3d 1076, 1090 (9th Cir. 2004). We observe that even if

a “residue of prejudice” remained after the court imposed significant sanctions, the

government’s evidence against Dominguez was overwhelming. United States v.

Berry, 627 F.2d 193, 200–01 (9th Cir. 1980) (recognizing that the court must

“affirm a conviction if there is overwhelming evidence of guilt”).

      AFFIRMED.




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