NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 12 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 08-10409
Plaintiff - Appellee, D.C. No. 3:06-cr-00644-CRB-4
v.
MEMORANDUM *
THAO HEIU TRAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted November 3, 2009**
San Francisco, California
Before: HAWKINS and THOMAS, Circuit Judges, and TRAGER, *** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David G. Trager, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
Thao Hieu Tran (“Tran”) appeals his convictions for conspiracy to distribute
marijuana and possession with intent to distribute marijuana, claiming the district
court erred by denying his motion to suppress evidence obtained by wiretap because
the government omitted information from its wiretap application that would have
altered the finding of necessity for the wiretap. We affirm.
To receive an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154
(1978), the defendant must make a substantial showing that the government
intentionally or recklessly omitted or falsified information and that such information
was material to a finding of probable cause or necessity. See United States v. Staves,
383 F.3d 977, 984 (9th Cir. 2004). Tran has not met this standard. He makes
speculative claims that two individuals (already discussed at length in the supporting
affidavit) might have been of more assistance to the investigation. See Franks, 438
U.S. at 171 (attack must be “more than conclusory” and “allegations must be
accompanied by an offer of proof”).
Tran’s claim that the supporting affidavit was also misleading about the
possibility of successful surveillance is likewise unavailing. Many of the examples
cited by Tran did not occur until after the affidavit was executed and the wiretap
approved. The remaining instances of successful surveillance were disclosed in the
affidavit and do not undermine the necessity for a wiretap, especially in light of the
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stated goals of identifying co-conspirators in a wide-reaching international drug
conspiracy and obtaining proof beyond a reasonable doubt against those co-
conspirators. See United States v. Bennett, 219 F.3d 1117, 1120-22 (9th Cir. 2000);
see also United States v. McGuire, 307 F.3d 1192, 1198-99 (9th Cir. 2002).
The district court did not err by denying Tran’s motion to suppress evidence
without a Franks hearing.
AFFIRMED.
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