U.S. v. Romo

• Decision Date: 05 July 2005
• Docket Number: No. 04-30131.,04-30131.
• Citation: 413 F.3d 1044
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Allen ROMO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1044

413 F.3d 1044

UNITED STATES of America, Plaintiff-Appellee, v. Robert Allen ROMO, Defendant-Appellant.

No. 04-30131.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 15, 2005.

Filed July 5, 2005.

Robin B. Hammond, Assistant Federal Defender, Federal Defenders of Montana, Billings, MT, for the appellant.

James E. Seykora, Assistant U.S. Attorney, Billings, MT, for the appellee.

Appeal from the United States District Court for the District of Montana; Sam E. Haddon, District Judge, Presiding. D.C. No. CR-02-00134-SEH.

Before: B. FLETCHER, McKEOWN, and GOULD, Circuit Judges.

McKEOWN, Circuit Judge:

Robert Romo appeals his conviction for threatening the President in violation of 18 U.S.C. § 871(a). Although he confessed to a licensed counselor that he made such a threat, he now claims that the counselor's trial testimony was admitted in violation of the psychotherapist-patient privilege. We conclude that the testimony was not privileged because Romo's statements to the counselor did not occur during the course of diagnosis or treatment. We are not persuaded that Romo's challenge to the testimony of the Director of Mail Analysis for the White House merits reversal, nor does Romo's challenge to the sufficiency of the evidence withstand scrutiny in light of the substantial evidence of his knowing and willful threats against the President.

BACKGROUND

This case arises out of a confession Romo made during a meeting with Donald LaPlante, the Program Director at the Dawson County Adult Correction and Detention Facility where Romo was incarcerated. LaPlante is a licensed professional counselor whose job included providing inmates with psychological counseling and a host of other duties, ranging from arranging social events to providing classes and acting as a case manager. Before the meeting that sparked the chain of events leading to Romo's conviction, LaPlante had provided Romo with mental health treatment during voluntary counseling sessions.

In October 2002, Romo requested a meeting with LaPlante. Although Romo did not have a counseling session scheduled and LaPlante did not know why Romo wanted to see him, the two met in a private visitation room at the detention facility. Romo immediately confessed that he had written a threatening letter to the President. Before Romo went any further, LaPlante warned that he would have to report the letter to law enforcement officials. Despite the warning, Romo went on to tell LaPlante exactly what he had written: that someone should put a bullet in the President's head and he would be the person to do it. Romo also told LaPlante that he had mailed the letter to the White House.

After the meeting, LaPlante called the Secret Service and reported to Agent David Thomas that Romo had sent a threatening letter to the President. LaPlante's call prompted Agent Thomas to interview Romo. Agent Thomas gave Romo his Miranda warnings. Romo repeated to Agent Thomas what he told LaPlante, that he had written and mailed a letter to the President stating that someone should put a bullet in the President's head and he was willing to do it. Romo elaborated that he would try to punch, hit, or shoot the President if the President came to the jail.

Around the same time as the meeting between LaPlante and Romo, Romo told Bertha Wiseman, a correctional officer, that he had his inmate transport sheet in his cell.¹ Because inmates were not allowed to keep the transport sheets in their cells, Wiseman searched Romo's cell to retrieve the sheet. On the transport sheet, which contained Romo's picture and name, were the words "So you know whos [sic] coming to kill you Mr. George W. Bush you fucking traitor." The lower right-hand corner of the sheet contained a thumb print and Romo's signature. During his interview with Agent Thomas, Romo acknowledged that he had written the words on the sheet, signed it, and put his thumb print on it.

At trial, LaPlante and Agent Thomas both testified that Romo told them he had written and sent a threatening letter to the President. The government did not produce the letter itself, but it explained that all mail sent to the White House between October 2001 and April 2002 had been delivered to a storage warehouse, not to the White House. Redirecting the mail was part of a post-September 11 security measure designed to reduce the risk of delivery of anthrax. Thus, Romo's letter was likely in a storage warehouse and not retrievable for trial because of the mountains of other mail stored there. Instead of the letter, the prosecution introduced the testimony of Gertrude Roddic, the Director of Mail Analysis for the White House, who offered up her extensive experience handling letters to the President. Although she had never seen Romo's letter, she testified that if she read a letter with the language Romo used, she would deem it a direct threat against the President. The government also introduced the inmate transport sheet. The jury convicted Romo.

ANALYSIS

I. THE PSYCHOTHERAPIST-PATIENT PRIVILEGE

Romo claims that his confession to LaPlante is protected by the psychotherapist-patient privilege. We review de novo both the district court's denial of Romo's motion to suppress, United States v. Garcia, 205 F.3d 1182, 1186 (9th Cir. 2000), and the district court's ruling on the scope of the privilege, United States v. Chase, 340 F.3d 978, 981 (9th Cir.2003) (en banc).

The Supreme Court has recognized a psychotherapist-patient testimonial privilege, holding that "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure. . . ." Jaffee v. Redmond, 518 U.S. 1, 15, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996).² Under Jaffee, to invoke the benefit of the privilege, Romo bears the burden of showing that 1) LaPlante is a licensed psychotherapist, 2) his communications to LaPlante were confidential, and 3) the communications were made during the course of diagnosis or treatment. As the contact between Romo and the therapist was not for diagnosis or treatment, this appeal can be resolved on the basis of the third element.

The district court found the privilege inapplicable because the meeting between LaPlante and Romo was not a counseling, treatment, or therapy session. The court's determination about the nature of the session is a finding of fact to which we owe deference. See United States v. Bynum, 362 F.3d 574, 578 (9th Cir.2004) (factual findings underlying the denial of a motion to suppress are reviewed for clear error). We will not disturb this finding of fact "unless upon review we are left with the definite and firm conviction that a mistake has been committed." United States v. Doe, 155 F.3d 1070, 1074 (9th Cir.1998) (en banc).

To determine whether the district court committed clear error, we consider the meaning of the third element of the privilege, the element that requires the communication to be made "in the course of diagnosis or treatment." Jaffee, 518 U.S. at 15, 116 S.Ct. 1923. The Supreme Court left the task of defining this and the other elements of the privilege to the lower courts, see id. at 18, 116 S.Ct. 1923, but in the few years since Jaffee, the courts have added little flesh to the "course of diagnosis or treatment" requirement.

Whether a meeting occurred "in the course of diagnosis or treatment" is a factual determination that rests upon consideration of the totality of the circumstances. Relevant factors may include the historical nature of the relationship between the individual and his confidante; the patient's purpose in making the communication; the nature of the contact; the timing and location of the communication; objective data, such as medical records, which corroborate the counseling contact; and whether mental health services were provided or requested during the communication. Standing alone, the fact that a therapist has previously provided mental health care to a patient does not establish that a subsequent meeting was in the course of diagnosis or treatment. Even in the face of an ongoing patient-therapist relationship, the patient and therapist may have contacts that do not involve therapy. Thus, we pay special attention to the particulars of the meeting during which the allegedly privileged information was exchanged.

We add texture to these factors by looking to the evidentiary rule on the psychotherapist-patient privilege that was proposed to Congress in 1972 by the Chief Justice.³ See Chase, 340 F.3d at 990 (because the Supreme Court has recognized the psychotherapist-patient privilege and cited favorably to Proposed Rule 504 as proposed, "the contents of the [Proposed Rule] have considerable force and should be consulted when the psychotherapist-patient privilege is invoked") (quoting 3 Weinstein's Federal Evidence § 504.02, at 504-07) (alteration in original). Proposed Rule 504 defines "psychotherapist" as a person authorized to practice medicine or reasonably believed by the patient to be so authorized "while engaged in the diagnosis or treatment of a mental or emotional condition." Proposed Fed. R. of Evid. 504(a)(2)(A), 56 F.R.D. 183, 240 (1972) (emphasis added).

According to the definition, the privilege applies only when a therapist practices his craft, not whenever a therapist and a patient communicate. The therapist's purpose—that is, whether to provide psychiatric care or not—whether he was held out as a therapist, and whether he actually delivered such care are indicators of whether the therapist was "engaged in diagnosis or treatment." Without citing to Proposed Rule 504, we have embraced this notion that the therapist's purpose and whether the therapist is held out as a counselor are relevant considerations. Oleszko v. State Comp. Ins. Fund, 243 F.3d 1154, 1157 (9th Cir.2001) (extending the psychotherapist-patient privilege to Employee Assistance Program consultants because...