Updike

MEMORANDUM *

Updike appeals the district court’s refusal to dismiss the indictment against him after the government lost potentially exculpatory evidence. We affirm. Because the facts are familiar to the parties, we recount them only as necessary to explain our decision.

Whether Updike’s due process rights were violated is subject to de novo review. United States v. Patterson, 292 F.3d 615, 626 (9th Cir.2002). Factual findings, however, such as the presence or absence of bad faith, are reviewed for clear error. United States v. Hernandez, 109 F.3d 1450, 1454 (9th Cir.1997) (underlying factual findings reviewed for clear error); United States v. Bohl, 25 F.3d 904, 909 (10th Cir.1994) (bad faith is primarily a factual question of intent).

1. During its investigation of Updike, the government lost three original documents relevant to the investigation: two handwritten notes purportedly written by Joseph Alexander authorizing Updike to retrieve Alexander’s mail, and a small purple post-it note containing Updike’s cell phone number as well as various information about Alexander. The loss of the three original documents was not a due process violation under the principles announced…