United States v. Hudson, CRIMINAL ACTION No. 13-20063-01-KHV

• Decision Date: 14 August 2013
• Docket Number: CRIMINAL ACTION No. 13-20063-01-KHV
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JOHN D. HUDSON, Defendant.
• Court: U.S. District Court — District of Kansas

UNITED STATES OF AMERICA, Plaintiff,

v.JOHN D. HUDSON, Defendant.

CRIMINAL ACTION No. 13-20063-01-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Date: August 14, 2013

MEMORANDUM AND ORDER

This matter is before the Court on defendant's Sealed Motion To Reconsider Defendant's Motion To Invoke Privilege Re: Statements To CI (Doc. #59) filed August 13, 2013. For reasons stated below, the Court overrules defendant's motion.

Defendant argues that all of his statements to a female Confidential Informant ("CI") are protected by the psychotherapist-patient privilege.¹ A psychotherapist-patient testimonial privilege applies to "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment." Jaffee v. Redmond, 518 U.S. 1, 15 (1996); see United States v. Romo, 413 F.3d 1044, 1047 (9th Cir. 2005).

Defendant argues that the record contains no evidence that he discussed psychological issues with the CI because "she was his girlfriend, not because he was seeking 'diagnosis or treatment' from her." Memorandum And Order (Doc. #52) at 10. This argument borders on the frivolous. As explained in a prior order, defendant bears the burden to show that his statements to the CI were "in the course of diagnosis or treatment." The record contains no evidence that the CI intended todiagnose or treat defendant, or that he expected her to do so. The record reveals only a close personal relationship - and not a psychotherapist-patient relationship - between the CI and defendant. Defendant may have expected his statements to her to remain confidential, but he has not shown that his expectations were legally protected because his statements were in the course of diagnosis or treatment. The CI did not testify why she thought that defendant expected his communications with her would remain confidential, and she certainly did not imply that any such expectation was based on a professional relationship, or because she was providing diagnosis or treatment. In sum, defendant has presented no credible evidence that his statements to the CI were in the course of psychiatric diagnosis or treatment.

In his motion to reconsider, as in his original motion, defendant does not argue that particular statements are privileged. Defendant apparently claims that all of his communications with the CI were confidential and therefore subject to privilege, but he offers no factual or legal support for a blanket privilege concerning all such communications.² To pursue his assertion of privilege, defendant must show how the privilege applies on a statement-by-statement basis.

Defendant argues that the Court erred by relying on the Ninth Circuit definition of "diagnosis and treatment" set forth in Romo. See Sealed Motion To Reconsider (Doc. #59) at 5-7 (citing United States v. Landor, 699 F. Supp.2d 913, 928 (E.D. Ky. 2009)). Defendant argues that rather than looking at a variety of factors such as the existence of medical records, the inquiry is limitedto "whether the privilege holder expected to receive treatment from the therapist." Sealed Motion To Reconsider (Doc. #59) at 7. Even under this limited inquiry, however, the Court finds that defendant has not shown that he made any statements to the CI with the expectation that he would receive treatment from her.³

In support of his argument that his statements to the CI were made in the course of diagnosis or treatment, defendant cites e-mail from the CI about his application to the Kansas Public Employees Retirement System for disability benefits. The e-mail included the CI's signature block with her full name and designation as LMSW (licensed master social worker). The signature block appears to be a standard signature block generated by the CI's work e-mail at the University of Kansas Medical Center. The fact that the CI used her office e-mail to communicate with defendant says little (if anything) about whether defendant made statements to her in the course of diagnosis or treatment. At most, defendant has shown that the CI was helping him with paperwork for his disability application - not that she was diagnosing or treating him. In short, defendant has notshown that he made any statements to the CI in the course of diagnosis or treatment,⁴ and the Court finds that reconsideration is not warranted.

IT IS THEREFORE ORDERED that defendant's Sealed Motion To Reconsider Defendant's Motion To Invoke Privilege Re: Statements To CI (Doc. #59) filed August 13, 2013 be and hereby is OVERRULED.

Dated this 14th day of August, 2013 at Kansas City, Kansas.

_________________

Kathryn H. Vratil

United States District Judge

1. At the suppression hearing, the CI testified to numerous statements which defendant made to her. Defendant makes a blanket assertion that all such statements are privileged.

2. Defendant maintains that the privilege extends to communications which are not made for the purpose of diagnosis or treatment, but are "designed to build trust between the patient and therapist." Sealed Motion To Reconsider (Doc. #59) at 6. Defendant has not shown that any specific discussions with the CI were "designed to build trust between the patient and therapist." He has only shown that he and the CI were involved in a romantic relationship and at some...