United States v. Fouina Toilolo

MEMORANDUM

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.

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.…