                           NOT FOR PUBLICATION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


                                          2
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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