U.S. v. Chase

• Decision Date: 21 August 2002
• Docket Number: No. 01-30200.,01-30200.
• Citation: U.S. v. Chase, 301 F.3d 1019 (9th Cir. 2002)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Gene CHASE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

301 F.3d 1019

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 May 6, 2002.

Filed August 21, 2002.

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

Michael W. Mosman, United States Attorney, and 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, District Judge, Presiding. D.C. No. CR-99-60113-MRH.

Before: TROTT and T.G. NELSON, Circuit Judges, and SHADUR,^* District Judge.

PER CURIAM Opinion; Dissent by Judge SHADUR.

PER CURIAM:

Steven Gene Chase ("Chase") timely appeals his jury conviction for violating 18 U.S.C. § 115(a)(1)(B) ("Section 115(a)(1)(B)") by threatening to murder federal law enforcement officers who were preparing to execute a search warrant on his home. Chase contends that the trial court erred (1) when it permitted his psychiatrist, in contravention of the psychotherapist-patient privilege, to give testimony on information she had learned during her therapy sessions with him, and (2) when it allowed the jury, in violation of Fed.R.Evid. ("Rule") 404(b), to hear testimony about asserted threats that Chase had made about individuals other than the federal law enforcement officers.

We hold that the district court correctly found that the psychiatrist's testimony was not barred by the psychotherapist-patient privilege, and that the court did not err in admitting evidence of other threats. Accordingly, we affirm the district court's judgment.

I BACKGROUND

In 1997 Chase began receiving treatment for irritability, anger symptoms, and depression from psychiatrist Kay Dieter at a clinic in Salem, Oregon. Chase, who was receiving Social Security disability benefits due to his mental and physical problems, was later diagnosed with a bipolar type II disorder with episodes of intense anger and obsessive rumination against certain individuals. Chase met with Dr. Dieter every few months for counseling and medication management, seeing Psychologist Robert Schiff more frequently for psychotherapy. From the beginning of his treatment with Dr. Dieter, Chase had expressed anger and threats toward a number of people associated with his former business and legal proceedings. Chase exhibited a great deal of volatility during his therapy sessions, sometimes contrasting anger with mildness during the same session and often reflecting a sharp change in that respect from one session to the next.

During an August 18, 1999 counseling session, Chase showed Dr. Dieter his appointment book containing a list of names, addresses and social security numbers of people Chase had encountered in his business and legal dealings, including two FBI agents who had been assigned to investigate complaints that he lodged. Chase confided to Dr. Dieter that he had thoughts about injuring or killing those people and that he had threatened several of them on occasion during the previous five years. He also told Dr. Dieter that he had begun drinking.

As a result of that meeting Dr. Dieter became concerned about the possibility that Chase might act on his threats, although when she confronted him with her concerns Chase denied any intention to take immediate action. Dr. Dieter warned Chase that if he told her specifics about whom he planned to kill she would have a duty to alert those people. Following that meeting Dr. Dieter discussed with her supervisor her concerns as to Chase's ongoing threats and whether she had a duty to warn Chase's potential targets. Her supervisor suggested that she attempt to obtain more information from Chase before taking any action.

Dr. Dieter next spoke with Chase on October 18, when he called her to confide that he was extremely upset about an argument he had just had with his wife. During that conversation he also mentioned that his life insurance policy would pay off if anything should happen to him, a statement that caused Dr. Dieter to fear that he was losing his support system. Later that day Dr. Dieter again consulted with a supervisor and with the clinic's legal counsel, who instructed her to get in touch with the police department in the town where Chase lived. Dr. Dieter did that the next day, and on October 25 she heard from the FBI. She disclosed to FBI agents the threatening statements Chase had made during the therapy sessions and described whom he had threatened. Her supervisors instructed her to cooperate further by attempting to elicit more information about Chase's plans during their next appointment on October 27.

At that appointment Dr. Dieter said nothing to Chase about her conversations with the authorities. Chase reported another fight with his wife and the fact that his mother had just been diagnosed with cancer. He continued to express his frustration with the legal system and said that if a lien against his house was not dropped by the time he met with his attorney the following Tuesday (November 2), "he would get his guns, get in his vehicle and have himself some justice." Chase told Dr. Dieter that he had located all but four of the people on his list and was targeting their children as well. Dr. Dieter again warned Chase about her obligation to alert Chase's intended targets, and Chase assured her that he would not act on any of his impulses.

FBI Agent Donald McMullen ("McMullen") spoke with Dr. Dieter on October 28, telling her that because of the information she had provided, the FBI was planning to interview Chase at his home and to execute a search warrant for weapons and for Chase's appointment book containing the names of his targets. Later that day Dr. Dieter received several voice mail messages from Chase indicating that he believed he was about to be arrested. Apparently Chase had received a telephone call from a neighbor who asked him why United States Marshals were questioning her about him and talking about arresting him. Chase spoke also with two of the clinic's telephone operators, telling one of them 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 Chase's calls, but she did call McMullen to warn him that Chase was aware that law enforcement people were coming.

After arriving outside of Chase's home, McMullen stopped Chase's wife from entering the home, and, in a series of cell phone negotiations involving Chase, his wife, and Chase's attorney, arranged for Chase to leave his gun on a table and step outside of his home. Chase then walked into his yard, assisted McMullen over a retaining wall, and permitted McMullen to handcuff him without incident. Chase told McMullen about the gun he had left on a table and the location of his appointment book, but he did not mention two other firearms hidden in the home. Chase said that when he told the clinic operator that people were going to die if the Marshals came to his home, he meant that he was going to die. Chase also referred to the statements he made to Dr. Dieter about killing people as "hypothetical."

Chase was arrested and charged on three counts: (1) threatening to murder federal law enforcement officers preparing to execute a search warrant at his home in connection with the statement he made to the clinic operator on October 28, (2) threatening to murder the FBI agents who in his view had failed properly to investigate his complaints, and (3) possession of firearms by a person adjudicated by the Social Security Administration as a mental defective. The last charge was subsequently dismissed by the district court.

Before trial, Chase challenged the admissibility of (1) Dr. Dieter's testimony about statements he had made during their counseling sessions and (2) evidence of threats he had made against individuals other than federal law enforcement officials. In holding Dr. Dieter's testimony admissible, the court concluded that the psychotherapist-patient privilege did not apply because Dr. Dieter had properly determined (1) that Chase's threats were serious when uttered, (2) that harm was imminent, and (3) that disclosure to authorities was the only means of averting the threatened harm. As for the evidence of other threats related to the charge in Count II, the court deferred ruling until the trial, at which time it held that the evidence was admissible under Rule 404(b) as relevant to Chase's intent to retaliate against the agents for what he perceived to be their failure to take proper official action against his antagonists against whom he had filed complaints alleging federal offenses. We note that the defense did not request that 12256 Count I be severed from Count II for trial. The evidence in question can be summarized as follows:

• Parveen Gupta, Chase's former business associate, testified that Chase had enlisted the assistance of the police to carry out a meritless citizen's arrest of Gupta and his wife.

• Alex Myers, the Guptas' attorney, testified that Chase had played with a gun's magazine clip and its bullets (there was no gun involved — just the clip and bullets) while Myers took his deposition.

• Don Dickman and Ronald Palmeri, attorneys for Chase's former employee, testified about Chase's threatening and erratic behavior during the course of a lawsuit that the employee had filed against him.

• Monica Stauss, Dickman's secretary, testified that she had received a threatening telephone call from Chase.

• Sarria Hodge, a paralegal for one of Chase's former attorneys, testified that Chase had shown her a gun and threatened to "blow away" the sheriff, his wife's ex-husband, his former attorney and the entire law office.

• Two attorneys of Chase's wife's ex-husband testified that Chase knew personal information about them.

• Greg Kennedy, Chase's wife's ex-husband, testified that Chase...