UNITED STATES V. MOHAMUD
35
provided the late supplemental notice on its own initiative.
Our review of the unclassified and classified record supports
that the district court did not clearly err in finding no
prosecutorial misconduct.17
As the district court recognized, it had the power to
suppress evidence, or even dismiss the indictment or grant a
new trial, under its supervisory and statutory authority. See
Stinson, 647 F.3d at 1210 (stating that a court may exercise
its supervisory powers “to remedy a constitutional or
statutory violation; to protect judicial integrity by ensuring
that a conviction rests on appropriate considerations validly
before a jury; or to deter future illegal conduct” (citation
omitted)); see also Fed. R. Crim. P. 16(d)(2). However, the
district court determined that suppression as a sanction for the
late supplemental FISA notice was not warranted here, and
we agree.
We conclude that, under the circumstances of this case,
the district court did not err in denying Mohamud’s motion to
suppress premised on the late supplemental FISA notice.18
17
We do not reach whether suppression is necessary as a deterrent in
light of the government’s apparent self-correction of its practices. See
United States v. Dreyer, 804 F.3d 1266, 1280 (9th Cir. 2015) (en banc).
18
We also conclude that the district court did not abuse its discretion
in denying discovery and an evidentiary hearing to explore the
government’s late disclosure. Mohamud’s reliance on United States v.
Hernandez-Meza, 720 F.3d 760, 769 (9th Cir. 2013), is misplaced because
the record here does not “suggest[] that the government may have
deliberately withheld” the supplemental FISA notice. Therefore, we
decline Mohamud’s alternative request to remand for further fact finding.
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