U.S. v. Auster

• Decision Date: 11 February 2008
• Docket Number: No. 07-30084.,07-30084.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. John C. AUSTER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

517 F.3d 312

UNITED STATES of America, Plaintiff-Appellant, v. John C. AUSTER, Defendant-Appellee.

No. 07-30084.

United States Court of Appeals, Fifth Circuit.

February 11, 2008.

Stephen A. Higginson (argued), and Diane Hollenshead Copes, Asst. U.S. Attys., Duane Evans, New Orleans, LA, for U.S.

Michael S. Fawer (argued), Smith & Fawer, Covington, LA, Michael Warren Hill, Smith & Fawer, New Orleans, LA, for Auster.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before HIGGINBOTHAM, DAVIS and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

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.

I.

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 relay—pursuant to their "duty to warn"¹— his threats to their tar"gets. Auster admits that he is aware that his threats are communicated in that way.²

Auster's relationship with CCMSI is strained. His anger regarding the administration of workers' compensation settlement is a frequent topic of therapy. In the past, after particularly troubling sessions, Auster's therapists have felt compelled to warn CCMSI employees about his potential for violence.

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 "violent retribution."

When Smith received Davis's letter, he became concerned, bought a gun for self-defense, and called the police, who notified the FBI; Auster was arrested on September 29. The United States filed an extortion complaint against Auster under 18 U.S.C. § 1951,³ alleging that he made his threat with knowledge and intent that Davis would convey it to CCMSI, thereby causing CCMSI to submit to his demands. The magistrate judge and district court, respectively, held detention hearings and took evidence.

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 were reduced.

Before the indictment issued, Auster unsuccessfully argued to the magistrate judge that the communications between him and Davis were privileged. After a hearing, the court suppressed the communications, citing the psychotherapist-patient privilege.

II.

A.

"`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.

B.

"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, 70 S.Ct. 724, 94 L.Ed. 884 (1950) (internal citations and quotations omitted). This "fundamental principle," Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186 (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, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974).

The psychotherapist-patient privilege is a recognized privilege.⁴ Though declining to "delineate [the privilege's] full contours" in a way that would "govern all conceivable future questions in this area," Jaffee v. Redmond, 518 U.S. 1, 18, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), the Court recognized that this privilege can be appropriate in certain circumstances.⁵ The Court, however, mindful of the burden imposed on the judiciary's truth-seeking function, unambiguously limited the psychotherapist-patient privilege's applicability to those instances in which the patient's statement was made in confidence, holding that the "privilege covers confidential communications made to licensed psychiatrists and psychologists[, and] confidential communications made to licensed social workers in the course of psychotherapy." Id. at 15, 116 S.Ct. 1923 (emphasis added).

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 psychotherapist-patient privilege—as with other privileges⁶— does not apply.

Auster was informed repeatedly by his therapists that his violent threats, although made during therapy, would be communicated to his potential victims.⁷ That is unremarkable; his therapists have a Tarasoff duty⁸ to convey "significant" "threat[s] of physical violence" against "clearly identified ... victims,"⁹ and they also have an ethical duty to inform Auster of that legal duty.¹⁰ Consequently, when Auster made the threat, he knew it would be relayed to CCMSI.¹¹ He therefore had no "reasonable expectation of confidentiality," Robinson, 121 F.3d at 976, in his threatening statement, and without such a reasonable expectation, there is no privilege.

C.

The federal circuits are in disagreement in this regard. The Sixth and Ninth Circuits have held that such statements, though made without a reasonable expectation of confidentiality, are nonetheless privileged,¹² and the Tenth Circuit has held that, in such situations, the psychotherapist-patient privilege must give way, though for reasons different from those we have articulated.¹³ 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.¹⁴ That view— which is not in accord with Jaffee or testimonial privileges generally¹⁵—is open to question.

In support for their position, the Sixth and Ninth Circuits assert that `TIN the federal evidentiary privilege were tied to the states' disclosure laws, then similarly situated patients would face different rules of evidence in federal criminal trials," Chase, 340 F.3d at 987, and "it cannot be the case that the scope of a federal testimonial privilege should vary depending upon state determinations of what constitutes `reasonable' professional conduct," Hayes, 227 F.3d at 584. But this misunderstands the effect of state law. Federal law does not depend on state law but instead is turning on the lack of confidentiality, regardless of the reason. Though, in certain instances, state law may play a role in negating confidentiality (just as other factors can nullify it, e.g., the presence of third parties¹⁶), the operative test is a federal one: whether there was a "reasonable expectation of confidentiality" when the statement was made.

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, 116 S.Ct. 1923, 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, 116 S.Ct. 1923. These considerations led the Court to conclude that the...