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NOT FOR PUBLICATION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