                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 29 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30182

              Plaintiff - Appellee,              DC No. CR 10-0322 TSZ

  v.
                                                 MEMORANDUM*
JAMES DAVID ALLEN, II,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                  Thomas S. Zilly, Senior District Judge, Presiding

                        Argued and Submitted July 7, 2014
                              Seattle, Washington

Before:       KLEINFELD, TASHIMA, and MURGUIA, Circuit Judges.

       Appellant James David Allen appeals the district court’s denial of his motion

to suppress evidence seized during a warrant-supported search of his home. He

argues that police officers intentionally or recklessly omitted from the warrant

affidavit information that would have negated probable cause. See Franks v.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Delaware, 438 U.S. 154 (1978). We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

       1.    The district court did not clearly err in finding that the investigating

officers did not intentionally or recklessly omit the challenged facts from the

warrant affidavit. The district court heard testimony from the investigating officers

at two Franks hearings. The district court credited the officers’ testimony, and

those credibility findings were not clearly erroneous. See Anderson v. Bessemer

City, 470 U.S. 564, 575 (1985) (“[W]hen a trial judge’s finding is based on his

decision to credit the testimony of one of two or more witnesses, each of whom has

told a coherent and facially plausible story that is not contradicted by extrinsic

evidence, that finding, if not internally inconsistent, can virtually never be clear

error.”).

       2.    We further conclude that the omitted information was not material to

probable cause. First, information that Jessikah Ramsey had an outstanding

warrant, in addition to an outstanding charge for making a false statement, would

not have undermined probable cause because the outstanding warrant was

cumulative evidence of Ramsey’s credibility. Second, that Ramsey’s false

statement charge was about Allen would not have changed the probable cause

determination because the affidavit included the false statement charge, and the


                                           2
additional details about the charge would not have materially changed the impact

on Ramsey’s credibility. Third, the neighbors’ statements that they had not heard

gunshots that day would not have undermined probable cause because the warrant

affidavit did not rely on Allen having fired a firearm that day. Finally, information

about Ramsey’s backpack would not have undermined probable cause because the

affidavit already indicated that Ramsey had a felony methamphetamine possession

conviction and that Ramsey had used methamphetamine with Allen the day before.

Accordingly, none of the challenged, omitted facts was material.

      The judgment of the district court is AFFIRMED.




                                          3
