FILED
NOT FOR PUBLICATION
SEP 18 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10370
Plaintiff-Appellee, D.C. No.
3:12-cr-00803-CRB-1
v.
CARLOS MICHAEL MARTINEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted September 14, 2017**
San Francisco, California
Before: KOZINSKI and FRIEDLAND, Circuit Judges, and ARTERTON,***
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 concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Janet Bond Arterton, United States District Judge for
the District of Connecticut, sitting by designation.
page 2
“To be entitled to a Franks hearing . . . , [Martinez] must first make a
substantial preliminary showing that the affidavit contained a misleading omission
and that the omission resulted from a deliberate or reckless disregard of the truth.
Second, he must demonstrate that had there been no omission, the affidavit would
have been insufficient to establish probable cause.” United States v. Kyllo, 37
F.3d 526, 529 (9th Cir. 1994). Martinez failed to show that Officer Ichige’s
omission—that the IP address was dynamically assigned—was misleading or done
in deliberate or reckless disregard of the truth. Moreover, had the affidavit
included this fact, it would have still supported probable cause in light of the
information that had been obtained from the internet service provider. The district
court committed no error in denying Martinez a Franks hearing.
AFFIRMED