Flemate

*862 MEMORANDUM ***

An indictment must be dismissed because of perjury before the grand jury only where the prosecutor knowingly uses perjury relating to a material fact. See United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir.1977), cert. denied, 435 U.S. 944 , 98 S.Ct. 1526 , 55 L.Ed.2d 541 (1978). We reject defendants’ argument that immaterial discrepancies and apparent verbal slips in grand jury testimony required the district court to dismiss the indictment. We also reject defendants’ argument that the prosecutor’s failure to advise the second grand jury of its right to compel the testimony of live witnesses required the district court to dismiss the indictment. We dismiss indictments only when the government’s conduct before the grand jury was “so excessive, flagrant, scandalous, intolerable, and offensive as to violate due process,” and that is not the case here. United States v. Edmonds, 103 F.3d 822, 825 (9th Cir.1996).

We reject defendants’ argument that the wiretap affidavit contained facts that were so misleading that the district court should have suppressed the wiretap evidence. Even if we were to ignore all of the allegedly misleading statements, there would…