Hodges

MEMORANDUM *

Petitioner Melvin Hodges, Jr. appeals his conviction for possession with intent to distribute 10 kilograms of cocaine and 249 grams of heroin in violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(B). Hodges maintains he was entitled to a Franks evidentiary hearing. He also challenges the exclusion of testimony concerning third-party instructions in connection with his presence at the storage locker. We do not recite the facts as the parties are familiar with the background. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

We review de novo the district court’s denial of a Franks evidentiary hearing. United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir.2000). Whether probable cause is lacking because of alleged misstatements or omissions in the supporting affidavit is reviewed de novo. Id. We also review de novo the district court’s construction of a hearsay rule, United States v. Oretga, 203 F.3d 675, 682 (9th Cir.2000), but review the district court’s exclusion of evidence under the hearsay rule for an abuse of discretion. Id; see also United States v. Fowlie, 24 F.3d 1059, 1068 (9th Cir.1994)(addressing Fed.R.Evid. 804(b)(3), statement against penal…