Keith Deorio v. Betty Yee

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 11, 2018
• Docket: 16-56337
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 11 2018 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS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

2 16-56337 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

3 16-56337 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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