United States v. Auster, No. 07-30084 (5th Cir.
|IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
February 11, 2008
UNITED STATES OF AMERICA, PLAINTIFF-
The opinion of the court was delivered by: Jerry E. Smith, Circuit
Knowing that his therapist, Dr. Fred Davis, would convey his threat to
its target, John Auster informed Davis that unless the managers of his
workers' compensation claim continued to pay the benefits that he
believed he was owed, he would "carry out his plan of violent
retribution" against them and others. The authorities were called,
Auster arrested and indicted for extortion. Though denying his motion to
dismiss the indictment, the district court ruled that communications
between Auster and his therapist were inadmissible at trial under the
psychotherapist-patient privilege. The government appeals that interim
order, and we reverse and remand, because Auster had no reasonable
expectation of confidentiality when he made his threat.
Auster, a retired New Orleans police officer, has been receiving workers'
compensation benefits since 1989. Cannon Cochran Management Services, Inc.
("CCMSI"), manages Auster's benefit claim. Auster is treated for paranoia,
anger, and depression and has threatened various individuals over the
years. He often makes his threats during sessions with his two therapists,
Davis and Dr. Harold Ginzburg, and his therapists then relaySSpursuant to
their "duty to warn"*fn1 SShis threats
to their targets. Auster admits that he is aware that his threats are
communicated in that way.*fn2
In September 2006, CCMSI informed Auster that it would stop paying a
portion of his benefits beginning on October 1, 2006. On September 13,
Auster discussed the pending partial termination of benefits with Davis,
specifically threatening CCMSI personnel, city authorities, and police
officials. Davis sent Keith Smith, a CCMSI employee responsible for
Auster's claim, a letter warning that it was Auster's position that if
"CCMIS [sic] persists in their position," that would "serve as a
provocation for him to carry out his plan of violent retribution against a
list of persons he feels have caused him injury." Davis alerted CCMSI that
Auster had stated that he possessed "stockpiles of weapons and supplies to
provide the basis for his actions." October 2 was marked as the date of
Auster unsuccessfully moved to dismiss the complaint; a grand jury
indicted him for "attempt[ing] to obtain property of CCMSI with the
consent of CCMSI having been induced by the wrongful use of threatened
force, violence and fear, in that the defendant did communicate to CCMSI,
via his treating psychotherapist," his threat of violence if his benefits
"'Except as otherwise required by the Constitution of the United States'
or other authority listed in Rule 501, . . . privilege[s] 'shall be
governed by the principles of the common law as they may be interpreted by
the courts of the United States in the light of reason and experience.'"
United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (quoting FED.
R. EVID. 501). We review factual findings underlying a privilege ruling
for clear error and the application of legal principles de novo. Id.
"For more than three centuries it has now been recognized as a fundamental
maxim that the public (in the words sanctioned by Lord Hardwicke) has a
right to every man's evidence." United States v. Bryan, 339 U.S. 323, 331
(1950) (internal citations and quotations omitted). This "fundamental
principle," Trammel v. United States, 445 U.S. 40, 50 (1980), counsels
that privileges "are not lightly created nor expansively construed, for
they are in derogation of the search for truth." United States v. Nixon,
418 U.S. 683, 710 (1974).
Jaffee's explicit confidentiality requirement is fatal to Auster's claim
of privilege. Because Auster knew, when he made the September 13 threat,
that it would be forwarded to CCMSI, his privilege claim fails, because he
had no reasonable basis to conclude that the statement was confidential.
As a matter of law, where the confidentiality requirement has not been
satisfied, the psycho- therapist-patient privilegeSSas with other
privileges*fn6 SSdoes not apply.
We respectfully disagree with those circuits that have extended Jaffee by
holding that even if a patient knows that a threat is not made in
confidence, any statements made to the therapist are privileged in a
federal trial.Those courts have held, thus, that confidentiality is not a
requirement for the applicability of the psychotherapist-patient
privilege, the Ninth Circuit's holding being explicit in that regard.*fn14 That viewSSwhich is not in accord
with Jaffee or testimonial privileges generally*fn15 SSis open to question.
Likewise, both the Sixth and Ninth Circuits erroneously conclude that in
weighing the pros and cons of extending the psychotherapist-patient
privilege, the harm in permitting material obtained from a therapy session
into a criminal trial outweighs its benefits. This is a miscalculation. It
is true that in Jaffee, 518 U.S. at 10, the Court noted that the "private
ends" served by a psychotherapist-patient privilege include "an atmosphere
of confidence and trust," something that is necessary for effective
therapy. And, at the same time, the Court observed that the privilege can
be relatively costless, because "[w]ithout a privilege, much of the
desirable evidence to which litigants . . . seek access . . . is unlikely
to come into being." Id. at 12. These considerations led the Court to
conclude that the psychotherapist-patient privilege, at least in some
form, should be recognized.
The deleterious effect of a Tarasoff warning on the "atmosphere of
confidence and trust" is further reinforced by the knowledge that the
intimate details of therapy will be spread to more than just the target of
the threat.*fn21 There is, after all,
no obligation that the target keep the Tarasoff warning confidential, and
it is unrealistic to believe that he will do so; there are likely mutual
acquaintances between the target and the patientSSe.g., friends, co-
workers, familySS and the target will almost certainly tell them, if for
no other reason than to let them know that there is a potentially serious
problem with the patient and that everyone ought to be on the lookout for
Moreover, it is not even true, under the Sixth and Ninth Circuits'
standard, that a therapist cannot assist in having a patient locked away.
Both courts acknowledge that a psychotherapist can testify in civil
commitment hearings. See id. at 991; Hayes, 227 F.3d at 585. Though there
is a legal distinction be- tween criminal incarceration and involuntary
civil commitment, the nuanceSSin terms of trust and confidenceSSlikely
does not matter much to the fellow committed.*fn22 Because, "by definition," patients "reject the
prospect of [forced] hospitalization," Hayes, 227 F.3d at 585, "reason and
experience" dictate that it is unlikely that many patients will be
dissuaded from seeking therapy by the additional chance that, aside from
being committed against their will because of what they say to their
therapists, they may also be criminally incarcerated based in part on
those same statements.
The Sixth and Ninth Circuits also opine that because the majority of
states permit psychotherapists to issue Tarasoff or other similar warnings
but not to testify at trial, the federal courts should not let them
testify either.*fn25 This
justification too is wanting. There is not a uniform consensus among the
states regarding statements made with no reasonable expectation of
Moreover, for the reasons laid out above, it would not significantlySSif
at allSSundermine state laws to hold that a defendant cannot claim the
protections of the psychotherapist-patient privilege if he had actual
knowledge, when making the statements, that they would not be kept
confidential. It is unlikely that any patient, knowing that his threats
will be relayed to the relevant target, will be substantially deterred
from seeking therapy by the additional possibility that, although the
therapist will not testify in a state criminal trial, the patient may some
day be on trial for a federal crime, and his therapist might be called to
testify. In summary, because Auster concedes that he had actual knowledge
that his threat would be conveyed to CCMSI, his threat was not
confidential, and, under Jaffee, the psychotherapist-patient privilege
does not apply.*fn31
Because Auster's non-confidential statement cannot, as a matter of law, be
privileged, we need not address whether the district court improperly
suppressed evidence sua sponte, erroneously placed the burden of
disproving the privilege on the government, or abused its discretion in
failing to hold an evidentiary hearing. We also need not decide whether
there is a dangerous-patient or crime-fraud exception to the
*fn1 See, e.g., Hutchinson v. Patel, 637
So. 2d 415, 424 (La. 1994) (citing LA. REV. STAT. ANN. 9:2800.2).
*fn3 Title 18 U.S.C. § 1951 states that
*fn5 The Court added that
*fn7 The district court found that
"[t]he communication to his ongoing, treating psychotherapist was
confidential and concerned the subject matter of Auster's treatment." That
factual finding of confidentiality is clearly erroneous. As noted, see
supra note 2, Auster's lawyer conceded that Auster "was in fact on
occasion told that his threats of violence would be communicated to
CCMSI." Davis and Ginzburg also have informed Auster that they have a
legal duty to convey his threats to those at risk, and, in a letter Auster
introduced into evidence, Davis stated unequivocally that "Mr. Auster is
well aware of my position regarding violence and has agreed that he
understands that I have such an obligation."
*fn9 Under Louisiana law, "[w]hen a
patient has communicated a threat of physical violence, which is deemed to
be significant in the clinical judgment of the treating psychologist or
psychiatrist . . . against a clearly identified victim or victims, coupled
with the apparent intent and ability to carry out such threat, the
psychologist . . . or the psychiatrist . . . treating such patient and
exercising reasonable professional judgment, shall not be liable for a
breach of confidentiality for warning of such threat or taking precautions
to provide protection from the patient's violent behavior." LA. REV. STAT.
ANN. 9:2800.2. This has been construed as a "duty to warn." Hutchinson,
637 So. 2d at 424.
*fn11 Auster argues that the letter
Davis sent was not a Tarasoff letter, given that on September 20, 2006,
Davis sent CCMSI another letter indicating that if Auster persisted in his
threats, Davis would send a Tarasoff letter. Auster does not explain how
Davis legally and ethically could have sent the September 13 letter to
CCMSI, detailing Auster's therapy, unless that letter fell under the
Tarasoff exception to the confidentiality obligation. The district court,
likewise, ruled that "Dr. Davis complied with the duty to protect by
informing CCMSI of potential threats," a factual finding that we see no
reason to question. But whether it was a Tarasoff letter, in Davis's
clinical opinion, is ultimately beside the point: The controlling question
is whether Auster had a "reasonable expectation of confidentiality,"
Robinson, 121 F.3d at 976, when he made the threat. Because he knew he was
making a threat of physical violence against specific victims to commence
on a specific date, he also knew that his statement was of the sort that
Davis had a duty to disclose. Under these circumstances, any expectation
of confidentiality would have been "manifestly unreasonable." Id.
*fn13 See United States v. Glass, 133
F.3d 1356 (10th Cir. 1998) (recognizing a dangerous-patient exception to
the psychotherapist-patient privilege).
*fn15 See Hayes, 227 F.3d at 589
(Boggs, J., dissenting) ("Hayes waived any privilege purely and simply . .
. by continuing to threaten after he had been given notice that his
threats would not be held in confidence.").
*fn17 In fact, after "hold[ing] that
confidential communications between a licensed psychotherapist and her
patients in the course of diagnosis or treatment are protected from
compelled disclosure," Jaffee, 518 U.S. at 15, the Court added a footnote
that underscores the appropriateness of a per se rule requiring
confidentiality before the privilege is applicable: "Like other
testimonial privileges, the patient may of course waive the protection,"
id. at 15 n.14. By both expressly noting the possibility of waiver and
tying the psychotherapist-patient privilege to other testimonial
privileges (which all require that the statements be made in confidence),
the Court reiterated the fundamental nature of confidentiality.
*fn19 The Sixth and Ninth Circuits
concedeSSas they mustSS that these warnings have at least some marginal
effect on a patient's willingness to speak openly with his therapist. See
Hayes, 227 F.3d at 584-85; Chase, 340 F.3d at 990.
*fn21 "[O]nce information is released,
both client and psychologist lose control over redisclo-sure." Fisher,
supra note 4, at 10.
*fn23 Moreover, "[i]n the event that a
patient actually carried out or attempted to carry out threats that his
psychotherapist had already disclosed, the psychotherapist's testimony
could be critically important in establishing such elements as identity,
motive, and absence of mistake." Case Comment, supra note 18, at 2199.
Even if we were to accept that Jaffee permits us to interpret "confidential" to mean merely confidential-at-law and not (the more intuitive) confidential-in-fact, the above discussion demonstrates that we should not. As explained, the slight marginal benefit on effective therapy achieved by recognizing the privilege's applicability where a patient knows a threat will be conveyed is substantially outweighed by the marginal costs. The Ninth Circuit's position is thus a doctrinal cul-de-sac, interesting but leading nowhere.
*fn25 See, e.g., id. at 986 ("Almost
all states . . . recognize the distinction between confidentiality (which
is affected by the Tarasoff duty) and testimonial privilege (which is
*fn27 See Guerrier v. Florida, 811 So.
2d 852, 855 (Fla. App. Ct. 2002) ("[T]he Legislature intended to allow
admission of the psychiatrist's testimony in a subsequent prosecution of
the dangerous patient for offenses committed against the victim.").
*fn29 See N.C. GEN. STAT. § 8-53.3
("Any . . . judge in the district in which the action is pending may . . .
compel disclosure, either at the trial or prior thereto, if in his or her
opinion disclosure is necessary to a proper administration of
*fn31 The Sixth and Ninth Circuits
also focus on the fact that it does not benefit the mentally ill to
incarcerate them, and, implicitly, that it is not particularly blameworthy
where the mentally ill make threatening remarks during therapy, even if
the threats violate the law. This is a policy question for Congress, not
the courts, because "such tender concern for criminal evidence is [not]
required by the common law, or by reason and experience, when the patient
has been put on notice." Hayes, 227 F.3d at 588 (Boggs, J.,