United States v. Phu Tan Luong

MEMORANDUM *

Appellant Phu Tan Luong appeals his conviction in the district court for 35 counts of healthcare fraud and aiding and abetting, 18 U.S.C. §§ 1347 , 2(a) and (b), and five counts of money laundering, 18 U.S.C. § 1957 . Because the parties are familiar with the facts, we do not recount them here, except as necessary to explain our decision. We affirm Luong’s conviction.

I. Entitlement to a Franks Hearing

Luong first contends that the district court erred in finding that he was not entitled to a hearing pursuant to Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978), to challenge a search warrant issued on April 30, 2004. Luong challenges the validity of that warrant because the affidavit on which it was based, written by Special Agent Alison Zybul, erroneously referred to the amount of Ensure billed by United Medical Supply (“UMS”) in “cans” rather than “units,” overstating the amount actually billed by a factor of two and a half. To be entitled to a Franks hearing a defendant must (1) make a substantial preliminary showing that the affidavit contained a misleading omission or false statement resulting from a deliberate or reckless disregard of…