U.S. v. Chase

• Decision Date: 22 August 2003
• Docket Number: No. 01-30200.,01-30200.
• Citation: 340 F.3d 978
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Gene CHASE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 978

340 F.3d 978

UNITED STATES of America, Plaintiff-Appellee, v. Steven Gene CHASE, Defendant-Appellant.

No. 01-30200.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc March 25, 2003 — San Francisco, California.

Filed August 22, 2003.

Brett A. Purtzer, Law Offices of Monte E. Hester, Inc., Tacoma, WA, for the defendant-appellant.

Jeffrey J. Kent, Assistant United States Attorney, Eugene, OR, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief District Judge, Presiding. D.C. No. CR-99-60113-MRH.

Before: MARY M. SCHROEDER, Chief Judge, and HARRY PREGERSON, THOMAS G. NELSON, ANDREW J. KLEINFELD, SIDNEY R. THOMAS, SUSAN P. GRABER, M. MARGARET McKEOWN, WILLIAM A. FLETCHER, RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD R. CLIFTON, Circuit Judges.

Opinion by Judge GRABER; Concurrence by Judge KLEINFELD.

OPINION

GRABER, Circuit Judge:

A jury convicted Defendant Steven Gene Chase of violating 18 U.S.C. § 115(a)(1)(B) after he made a threat against agents of the Federal Bureau of Investigation. The jury acquitted him of a charge involving threats to other FBI agents. The threat underlying Defendant's conviction was expressed to a telephone operator at a Kaiser Permanente clinic. The threats as to which Defendant was acquitted were communicated, during therapeutic sessions, to his psychiatrist, who testified about them.

On appeal, Defendant argues that the psychotherapist-patient privilege precluded the psychiatrist's testimony about what he told her during therapeutic sessions. We agree and hold that the privilege applied; we decline to craft a "dangerous patient" exception to the testimonial privilege. Thus, the district court erred in admitting the psychiatrist's testimony regarding threats that Defendant had related during treatment. Nonetheless, we affirm Defendant's conviction, because the error was harmless.

BACKGROUND

Defendant began receiving treatment at Kaiser Permanente from psychiatrist Kay Dieter in 1997. He was suffering from irritability, depression, and symptoms of anger. Defendant experienced, among other things, episodes of rage and obsessive rumination against certain people, including those who participated in various legal proceedings in which Defendant was involved. Eventually Defendant was diagnosed with bipolar type II disorder. He received disability benefits due to his psychiatric condition. Defendant met with Dr. Dieter every couple of months for therapy and for management of his medication. Defendant met more often (ranging from bi-weekly to monthly) with psychologist Robert Schiff for psychotherapy.

During a counseling session on August 18, 1999, Defendant showed Dr. Dieter his day planner, which contained a list of names, addresses, and social security numbers. The list included two FBI agents who had investigated complaints lodged by Defendant. Defendant confided to Dr. Dieter that he had thought about injuring or killing these people and that he had threatened some of the listed individuals several times during the preceding five years.

Dr. Dieter became concerned that Defendant might act on his threats. Defendant told Dr. Dieter that he had no intention to act immediately on his homicidal thoughts. Nonetheless, Dr. Dieter warned Defendant that if he told her specifics about whom he planned to kill, she would have a duty to disclose the threats to the intended victims so that they could protect themselves.

Following this session, Dr. Dieter discussed with one of her supervisors her concerns regarding Defendant's threats. She asked whether she had a duty to warn potential victims. The supervisor suggested that Dr. Dieter try to elicit more information from Defendant before taking any further action.

On October 18, 1999, Defendant called Dr. Dieter to tell her that he had argued with his wife and was extremely upset. Defendant told Dr. Dieter that he had a life insurance policy that would pay off if anything should happen to him. Fearing that Defendant was losing his support system, Dr. Dieter met with a supervisor and with Kaiser Permanente's legal counsel to discuss again whether Defendant's threats should be disclosed. Legal counsel advised Dr. Dieter to contact the local police department in Corvallis, Oregon, Defendant's home town. Dr. Dieter contacted the Corvallis police on October 19. On October 25, agents of the FBI got in touch with her. She disclosed to the FBI agents the threatening statements that Defendant had made during therapeutic sessions and identified the people whom Defendant had threatened. Dr. Dieter's supervisors instructed her to continue to cooperate with the authorities and to attempt to elicit more information about Defendant's plans during their next appointment.

Defendant and Dr. Dieter met again on October 27. Dr. Dieter did not tell Defendant about her disclosures to the authorities or her instructions from her supervisors. Defendant related the details of another fight with his wife and told Dr. Dieter that his mother had just been diagnosed with cancer. Defendant reiterated his frustration with the legal system (including the FBI, which Defendant complained was not protecting him adequately) and said that, if a lien against his house was not dropped by the time he met with his lawyer on November 2, "he would get his guns, get in his vehicle and have himself some justice." Defendant told Dr. Dieter that he had gathered more information on the people he intended to kill and that he had located all but four of those on his list. Dr. Dieter repeated her admonition regarding her duty to warn Defendant's intended victims. Defendant alternated between claiming that he did not have any plans to act immediately and reiterating his threats.

On October 28, FBI Agent Donald McMullen spoke with Dr. Dieter and told her that the FBI was planning to interview Defendant and to execute a search warrant on his home, looking for weapons and the day planner containing the list of threatened individuals. Later that day, Defendant left several voice-mail messages for Dr. Dieter, telling her that he believed he was about to be arrested. (Apparently a neighbor of Defendant's, who was curious about why United States Marshals were questioning her about Defendant and speaking of arresting him, had called Defendant.) Defendant also spoke with two of the clinic's telephone operators, telling one that "there are FBI Marshals that are on their way out to get me and if that happens, people are going to die." Dr. Dieter did not return Defendant's calls. Instead, she notified Agent McMullen to alert him to the fact that Defendant knew that the authorities were on their way.

Agent McMullen and his team went to Defendant's home but, before proceeding, called for backup. Defendant's wife arrived while the agents were waiting. The agents prevented her from entering the house. A series of cell-phone negotiations ensued, involving Defendant, his wife, and his lawyer. Finally, a deal was struck whereby Defendant would put his gun on a table and leave the house. As agreed, Defendant walked into his yard, assisted McMullen over a wall, and allowed himself to be handcuffed. Defendant told McMullen about the gun on the table and about the location of the day planner; Defendant did not mention two other firearms that were hidden in the house. Defendant said that when he told the clinic operator that people were going to die if the agents came to his home, he meant that he would die. Defendant also referred to the threatening statements conveyed to Dr. Dieter as "hypothetical."

Defendant was arrested and charged on three counts: Count I (threatening to murder federal law enforcement officers who were preparing to execute a search warrant on his home); Count II (threatening to murder the FBI agents who, he complained, had failed to investigate his earlier complaints properly); and Count III (possession of firearms by a person adjudicated by the Social Security Administration to be mentally defective). The district court dismissed Count III before trial.

At trial, Defendant challenged the admissibility of (1) Dr. Dieter's testimony relating to statements that Defendant had made during therapeutic sessions and (2) evidence of threats that he had made against individuals other than federal law enforcement officers. The district court held that Dr. Dieter's testimony was admissible. The court reasoned that the federal psychotherapist-patient privilege did not apply because Dr. Dieter properly had determined that Defendant's threats were serious when uttered, that harm was imminent, and that disclosure to authorities was the only means of averting the threatened harm. The district court also held that evidence of other threats was admissible under Federal Rule of Evidence 404(b). The court determined that this evidence was relevant under Count II to Defendant's intent to retaliate against FBI agents for their perceived failure to investigate appropriately the people against whom Defendant had filed complaints.

Dr. Dieter testified at trial. She recounted the therapeutic sessions in which Defendant had threatened FBI agents and others (the basis of Count II). Two Kaiser Permanente telephone operators testified to the conversations they had with Defendant while federal agents were en route to his home (the basis of Count I).

Following the trial, the jury convicted Defendant on Count I (threatening the agents who were en route to execute the search warrant) but acquitted him on Count II (the threats communicated during sessions with Dr. Dieter). Defendant timely appealed his conviction, arguing that admission of Dr. Dieter's testimony violated the psychotherapist-patient privilege and that other-acts evidence was improperly admitted under Rule 404(b). A three-judge panel of this court affirmed the district court's evidentiary rulings and affirmed the conviction. United States v....