                                                                              FILED
                            NOT FOR PUBLICATION                                  AUG 13 2012

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



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 11-30329

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00085-RHW

  v.
                                                 MEMORANDUM*
ADRIAN A. WASHINGTON,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                   Robert H. Whaley, District Judge, Presiding

                            Submitted August 9, 2012**
                               Seattle, Washington

Before: BLACK,*** GRABER, and RAWLINSON, Circuit Judges.

       Defendant Adrian A. Washington appeals his conviction for possession of a

firearm by a convicted felon, claiming the district court erred by denying his



        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Susan H. Black, Senior United States Circuit Judge for
the Eleventh Circuit, sitting by designation.
motion for a Franks hearing. We review Washington’s challenge de novo, see

United States v. Flyer, 633 F.3d 911, 916 (9th Cir. 2011), and 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. United States v. Garcia-

Cruz, 978 F.2d 537, 541 (9th Cir. 1992). If, after the alleged falsehoods are

excised and the alleged omissions are included, an affidavit would still provide a

basis for a finding of probable cause, the errors and omissions are immaterial. Id.

      Washington challenges an affidavit supporting a warrant to search his home

for evidence of a drive-by shooting. Washington claims the affiant intentionally or

recklessly stated that his prior arrest for first-degree assault involved a gun, when it

in fact involved a knife. This claim is immaterial because even if the disputed text

is excised, the affidavit contains sufficient facts for a finding of probable cause.

Specifically, the affidavit contains the following undisputed facts: (1) the victim of

a drive-by shooting described his attackers as two men in a silver 2000 Mercedes-

Benz; (2) officers located a silver 1999 Mercedes-Benz with two shell casings

resting on the driver’s-side wiper blade; (3) the shell casings were similar to those

found at the scene of the shooting; (4) the vehicle was registered to Washington


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and parked at Washington’s address; (5) Washington had previously been arrested

for first-degree assault; (6) Washington’s brother contacted law enforcement and

claimed he committed the drive-by in Washington’s car as retaliation for an

assault. These facts “reveal[] a fair probability that contraband or evidence” of the

drive-by would be found at Washington’s home. United States v. Celestine, 324

F.3d 1095, 1102 (9th Cir. 2003).

      Washington also alleges that the affiant intentionally or recklessly omitted

(1) additional details regarding the confession by Washington’s brother; (2)

witness speculation regarding other possible suspects; and (3) a telephone call

made by Washington to the police three hours after the shooting. The inclusion of

the alleged omissions does not vitiate probable cause when considered with the

undisputed facts. Accordingly, a Franks hearing is unwarranted.

      AFFIRMED.




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