Sarkis Karunyan v. United States

FILED

UNITED STATES COURT OF APPEALS JUN 13 2014

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

SARKIS KARUNYAN, a married man; No. 12-15651

GMS MEDICAL SUPPLY

INCORPORATED, an Arizona D.C. No. 2:10-cv-00198-ROS corporation, District of Arizona, Phoenix Plaintiffs - Appellants,

v. ORDER

UNITED STATES OF AMERICA;

LAUREN HANOVER, in his individual capacity and official capacity as Special Agent with the United States Department of Health and Human Services, Office of the Inspector General,

Defendants - Appellees.

Before: O’SCANNLAIN, GRABER, and NGUYEN, Circuit Judges.

The Memorandum disposition filed on March 13, 2014, is amended by the

Amended Memorandum disposition filed concurrently with this order.

With these amendments, Judge O’Scannlain has voted to grant Appellees’

petition for panel rehearing, and Judges Graber and Nguyen have voted to deny it.

Appellees’ petition for panel rehearing is DENIED. No further petitions for

panel rehearing or petitions for rehearing en banc…

ORDER

The Memorandum disposition filed on March 13, 2014, is amended by the Amended Memorandum disposition filed concurrently with this order.

With these amendments, Judge O’ Scannlain has voted to grant Appellees’ petition for panel rehearing, and Judges Graber and Nguyen have voted to deny it.

Appellees’ petition for panel rehearing is DENIED. No further petitions for panel rehearing or petitions for rehearing en banc shall be accepted.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED JUN 13 2014

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

SARKIS KARUNYAN, a married man; GMS MEDICAL SUPPLY INCORPORATED, an Arizona corporation, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA; LAUREN HANOVER, in his individual capacity and official capacity as Special Agent *709 with the United States Department of Health and Human Services, Office of the Inspector General, Defendants-Appellees.

No. 12-15651

D.C. No. 2:10-cv-00198-ROS

AMENDED MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, Senior District Judge, Presiding

Argued and Submitted January 17, 2014 San Francisco, California

Plaintiff…

dissenting:

Because I am persuaded that probable cause supported Sarkis Karunyan’s arrest and that Agent Lauren Hanover’s investigation did not violate the Due Process Clause, I respectfully dissent.

Hanover knew that someone committed fraud by convincing Medicare to pay for unnecessary medical equipment. Karu-nyan’s complaint acknowledges that Hanover knew that the proceeds from that fraud were originally paid to Karunyan. This is sufficient to demonstrate “a fair probability that [Karunyan] had committed a crime.” Grant v. City of Long Beach, 315 F.3d 1081, 1085 (9th Cir.2002).

Rodis v. City and County of San Francisco, 558 F.3d 964 (9th Cir.2009), is not applicable to this case. Rodis requires that an officer making an arrest for a specific intent crime “have probable cause [of specific intent] in order to reasonably believe that a crime has occurred.” Id. at 969 (emphasis added). The majority does not dispute that Hanover reasonably believed that the perpetrator, acting with specific intent, committed a crime. The issue is simply whether Karunyan’s receipt of the proceeds of the crime made it reasonable for Hanover to believe that Karu-nyan had committed that…