                                                                            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                           NOT FOR PUBLICATION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
