Keith Deorio v. Betty Yee ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 11 2018
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
KEITH R. DEORIO, an individual, No. 16-56337
Plaintiff-Appellant, D.C. No.
2:15-cv-04793-RGK-RAO
v.
BETTY T. YEE, President of the California MEMORANDUM*
Franchise Tax Board in her Official
Capacity; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted November 15, 2017
Pasadena, California
Before: HAWKINS, PARKER,** and IKUTA, Circuit Judges.
Plaintiff-Appellant Keith DeOrio appeals from a judgment of the United
States District Court for the Central District of California. The District Court
granted summary judgment in favor of Defendants-Appellees, dismissing the
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barrington D. Parker, United States Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
Appellant’s claims: (i) a procedural due process challenge to Section 19195 of the
California Revenue and Taxation Code (“Section 19195”) and Section 494.5 of the
California Business and Professions Code (“Section 494.5”) and (ii) a Fourth
Amendment claim regarding an investigation into the Appellant’s medical center
and the Appellant’s subsequent arrest on suspicion of the unlicensed practice of
medicine.
With respect to the Appellant’s procedural due process challenge, we
conclude that it fails for substantially the reasons stated in Franceschi v. Yee, No.
14-56493, slip op. at 9–13 (9th Cir. April 11, 2018). First, procedural due process
does not require a second, pre-suspension hearing when the Appellant had a full
and fair opportunity to dispute his tax delinquency each year when assessed (and,
indeed did so in certain years). See id. Second, Section 494.5 is not retroactive
because it is the current refusal to discharge the tax obligations that can subject the
taxpayer to license revocation. See id. at 18–19. Additionally, we find no merit in
the Appellant’s contention that he is statutorily entitled to license reinstatement
because Section 495.4 contains no such requirement.
We see no merit to the Appellant’s Fourth Amendment claim. First, the
undercover operations in question by Investigator McKenzie fit squarely within the
invited informer doctrine, as the District Court correctly concluded. See Maryland
v. Macon, 472 U.S. 463, 470 (1985) (“An undercover officer does not violate the
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Forth Amendment merely by accepting an offer to do business that is freely made
to the public.”). Second, there was ample probable cause for the Appellant’s
arrest. For example, as the District Court correctly concluded, Dr. Briones-
Colman’s expert opinion supports probable cause. Dr. Briones-Colman reviewed
the transcripts of the undercover recordings, the advertising material, and
Investigator Fuller’s investigation report in reaching her conclusion that the
Appellant had unlawfully held himself out as a physician and had practiced
medicine without a license. See United States v. Underwood, 725 F.3d 1076, 1081
(9th Cir. 2013) (expert opinions may of offered in a probable cause analysis).
Third, we find no merit in the Appellant’s contention that Fuller engaged in
judicial deception. The Appellant contends that Fuller deceived Assistant Deputy
District Attorney Fong into pursuing the arrest of the Appellant. The Appellant
rests his argument on an email exchange between a government attorney
representing the investigator defendants and Deputy District Attorney Campbell,
who took over the Appellant’s criminal case but who played no role in securing the
warrant for the Appellant’s arrest. As the District Court correctly concluded, the
email exchange is unreliable hearsay written nearly a year after the arrest warrant
by someone who was trying to reconstruct the thought process of someone who
was involved in the arrest of the Appellant. As such, it is mere speculation, and
insufficient to raise a genuine issue of material fact whether Fuller “deliberately or
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recklessly made false statements or omissions that were material to the finding of
probable cause.” KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004) (citation
omitted).
We have considered the Appellant’s other arguments and conclude they are
meritless.
AFFIRMED.
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