United States v. Romo ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-30131
Plaintiff-Appellee,
v.  D.C. No.
CR-02-00134-SEH
ROBERT ALLEN ROMO,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
February 15, 2005—Seattle, Washington
Filed July 5, 2005
Before: Betty B. Fletcher, M. Margaret McKeown, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge McKeown;
Concurrence by Judge B. Fletcher
7795
UNITED STATES v. ROMO 7799
COUNSEL
Robin B. Hammond, Assistant Federal Defender, Federal
Defenders of Montana, Billings, Montana, for the appellant.
James E. Seykora, Assistant U.S. Attorney, Billings, Mon-
tana, for the appellee.
OPINION
McKEOWN, Circuit Judge:
Robert Romo appeals his conviction for threatening the
President in violation of 18 U.S.C. § 871(a). Although he con-
fessed 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 con-
clude 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 chal-
lenge 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 profes-
sional 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
7800 UNITED STATES v. ROMO
of events leading to Romo’s conviction, LaPlante had pro-
vided 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 threaten-
ing 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 threat-
ening 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 Presi-
dent’s head and he was willing to do it. Romo elaborated that
he would try to punch, hit, or shoot the President if the Presi-
dent 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
1
Inmate transport sheets contain identifying information about inmates
and are prepared when inmates are transported between prison and court.
A transport package had been prepared for Romo in mid-October, near the
time he met with LaPlante.
UNITED STATES v. ROMO 7801
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 Analy-
sis for the White House, who offered up her extensive experi-
ence 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).
7802 UNITED STATES v. ROMO
[1] The Supreme Court has recognized a psychotherapist-
patient testimonial privilege, holding that “confidential com-
munications 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 (1996).2 Under Jaffee, to invoke the benefit of the privi-
lege, 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 dur-
ing 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 counsel-
ing, 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. The Supreme Court left the task of defining this
and the other elements of the privilege to the lower courts, see
id. at 18, but in the few years since Jaffee, the courts have
2
Although Romo roots his privilege claim in the Fifth Amendment’s
Due Process Clause, the psychotherapist-patient privilege is not predicated
on the Constitution. Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir.
1999). Rather, the privilege is an evidentiary one. Id.
UNITED STATES v. ROMO 7803
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 consider-
ation 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 tim-
ing 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 thera-
pist 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 evidenti-
ary rule on the psychotherapist-patient privilege that was pro-
posed 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 [Pro-
posed Rule] have considerable force and should be consulted
when the psychotherapist-patient privilege is invoked”) (quot-
ing 3 Weinstein’s Federal Evidence § 504.02, at 504-07)
3
The Proposed Rules were drafted by the Judicial Conference Advisory
Committee on Rules of Evidence, approved by the Judicial Conference of
the United States and by the Supreme Court, and submitted to Congress
by the Chief Justice. Trammel v. United States, 445 U.S. 40, 47 (1980).
Among the Proposed Rules were nine testimonial privileges, including a
psychotherapist-patient privilege. Proposed Fed. R. of Evid. 501-513, 56
F.R.D. 183, 230-61 (1972). Congress did not adopt the Proposed Rules.
Trammel, 445 U.S. at 47.
7804 UNITED STATES v. ROMO
(alteration in original). Proposed Rule 504 defines “psycho-
therapist” as a person authorized to practice medicine or rea-
sonably believed by the patient to be so authorized “while
engaged in the diagnosis or treatment of a mental or emo-
tional condition.” Proposed Fed. R. of Evid. 504(a)(2)(A), 56
F.R.D. 183, 240 (1972) (emphasis added).
[2] 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 their purpose is to provide counseling, they are held
out as counselors, and their job is to “extract personal and
often painful information” to help clients). In short, the thera-
pist’s intent and indicia that psychotherapy services were pro-
vided during the encounter figure into the determination
whether a communication occurred in the course of diagnosis
or treatment.
[3] Proposed Rule 504 also highlights that the patient’s pur-
pose in communicating with his therapist may factor into our
analysis. The psychotherapist-patient privilege protects “con-
fidential communications, made for the purposes of diagnosis
or treatment of [a] mental or emotional condition.” Proposed
Federal Rule of Evidence 504(b), 56 F.R.D. at 241 (emphasis
added). See, e.g., United States v. Schwensow, 151 F.3d 650,
657-58 (7th Cir. 1998) (holding that statements made to vol-
unteers for an Alcoholics Anonymous Hotline were not privi-
leged because the appellant approached the volunteers to
obtain an address for a detoxification center, not to obtain
UNITED STATES v. ROMO 7805
treatment or a diagnosis); Tesser v. Bd. of Educ., 154 F. Supp.
2d 388, 393 (E.D.N.Y. 2001) (“[W]hether the privilege
attaches requires consideration of the nature, timing and the
purpose of the communication.”); Barrett v. Vojtas, 182
F.R.D. 177, 181 (W.D. Pa. 1998) (when appellants did not
seek treatment, but rather were ordered to see the psychother-
apist, the ensuing psychotherapist-patient relationships were
not the type contemplated when the Supreme Court recog-
nized the privilege).
[4] Romo’s purpose is of no help because we know nothing
about his specific intentions, although the circumstances of
the meeting do not suggest in the slightest that he was seeking
counseling. The record is devoid of evidence that the meeting
involved therapy, diagnosis, or treatment of any kind.
LaPlante noted in a contemporaneous writing that he did not
consider the conversation privileged, which indicates that his
purpose was not to provide therapy. Consistent with
LaPlante’s view, he provided no therapy or other mental
health care at the meeting. Romo simply blurted out the infor-
mation about the threat and seemed to understand that
LaPlante would not keep his confession as a secret.4 That
LaPlante had previously provided Romo with therapy does
not mean that every interaction between the two constituted
a therapy session, and this particular meeting involved no
therapy.
[5] The diverse nature of LaPlante’s work at the Dawson
County facility bolsters the district court’s conclusion that
LaPlante did not provide mental health care during the meet-
ing at issue. LaPlante’s job was not limited to counseling pris-
4
Even though LaPlante told Romo that he would report threatening
statements, that comment does not implicate our analysis. Had Romo
established the elements of the privilege, LaPlante’s warning that he had
a duty to report threats would not have abrogated the psychotherapist-
patient privilege. Chase, 340 F.3d at 988-89 (rejecting the argument that
the privilege is destroyed when a patient is told that a communication will
be reported to law enforcement).
7806 UNITED STATES v. ROMO
oners. His duties were wide-ranging and included providing
rehabilitative classes, acting as a case manager, and coordinat-
ing social and religious services. LaPlante’s job title reflected
the breadth of his duties; he was denoted as a “program direc-
tor,” not a “therapist” or “counselor.” When LaPlante met
with inmates, he sometimes provided counseling, but the pur-
pose of the encounters varied from visit to visit. This variety
of duties precludes an assumption that LaPlante’s meeting
with Romo was a psychotherapy session or that Romo and
LaPlante had established an exclusive psychotherapist-patient
relationship.
[6] In sum, the evidence squarely supports the district
court’s conclusion that the meeting between LaPlante and
Romo did not occur during the course of diagnosis or treat-
ment. Indeed, on this record, we are without any evidence
suggesting that the session was related to therapy or diagno-
sis. Accordingly, we affirm the district court’s finding that
Romo’s statements to LaPlante are not privileged.
II. ADMISSIBILITY OF RODDIC’S TESTIMONY
The prosecution endeavored to strengthen its case with tes-
timony from Gertrude Roddic, the Director of Presidential
Correspondence in the Division of Mail Analysis for the
White House. Roddic testified that her office would have
deemed Romo’s letter a direct threat to the President. Romo
argues that Roddic offered expert testimony, which is inad-
missible on the issue of whether a reasonable person would
have foreseen that a statement would be interpreted as a seri-
ous threat. United States v. Hanna, 293 F.3d 1080, 1086 (9th
Cir. 2002) (holding that judge abused his discretion by per-
mitting expert testimony on whether a reasonable person
would foresee communication as threatening because laypeo-
ple are qualified to analyze the question). We agree.
Roddic worked at the White House for over fifteen years in
various jobs that involved presidential correspondence. Her
UNITED STATES v. ROMO 7807
current position requires her personally to read between three
hundred and one thousand letters every day. Her division ana-
lyzes every single piece of mail sent to the President “from
Dear Sir to Sincerely.” The division, according to Roddic’s
estimate, processes between 20,000 and 400,000 pieces of
mail each day. Her office employs a specific protocol for han-
dling potentially threatening letters that involves identifying
such letters and immediately notifying the Secret Service.
After Roddic explained her duties, the prosecutor asked the
following hypothetical question: “If in fact you received,
either yourself or one of your analysts, a letter that said some-
thing to the effect that someone should put a bullet in the head
of the President of the United States, would you consider that
a serious threat?” The question incorporated the language that
Romo confessed to writing to the President. Over an objection
by Romo’s counsel, Roddic testified that her office would
consider such a letter a direct threat.
[7] Roddic’s statement that the letter would have been
deemed a threat was expert testimony, although the threat lan-
guage was so explicit that expert testimony was hardly called
for. The testimony was based, not on her personal reaction to
Romo’s letter, which she had never seen, but on her fifteeen
years’ experience analyzing letters to the President and on
office protocol. Her statement, a response to a hypothetical
question based on experience, was a classic example of expert
testimony. United States v. Figueroa-Lopez, 125 F.3d 1241,
1246 (9th Cir. 1997) (holding that testimony based, not on
perception, but on education, training, and experience is
expert testimony).
[8] Roddic testified on the issue that was the heart of the
case—whether a reasonable person in Romo’s position would
foresee that the letter would be interpreted as a serious threat.
Hanna, 293 F.3d at 1084 (liability under 18 U.S.C. § 871(a)
requires that a reasonable person would foresee that the state-
ment would be interpreted by those to whom the maker com-
7808 UNITED STATES v. ROMO
municates the statement as a serious threat); Roy v. United
States, 416 F.2d 874, 877-78 (9th Cir. 1969) (same). No
expert testimony was necessary on that point because the
average juror requires no assistance assessing what a reason-
able person would foresee. Hanna, 293 F.3d at 1086; Fed. R.
Evid. 702 (expert testimony is admissible only when scien-
tific, technical, or other specialized knowledge will assist the
trier of fact). Not only was the jury without need for Roddic’s
expert assistance, but her evaluation of Romo’s language was
particularly unhelpful. Her position makes her highly sensi-
tive to threats and far from an accurate bellwether of what a
reasonable person would foresee. We therefore hold that the
district court abused its discretion by admitting Roddic’s
expert testimony that Romo’s letter would have been consid-
ered a threat by the White House mail office.
[9] Nonetheless, admission of Roddic’s testimony was
harmless. Nonconstitutional evidentiary errors are harmless
when the government shows “a ‘fair assurance’ that the ver-
dict was not substantially swayed by the error.” United States
v. Bauer, 132 F.3d 504, 510 (9th Cir. 1997). We have no
doubt the jury would have convicted Romo even without
Roddic’s testimony. Deciding whether a reasonable person
would have foreseen that Romo’s letter would be perceived as
a threat did not require the jury to make a difficult call. Romo
announced that he would put a bullet through the President’s
head. A clearer threat is difficult to imagine. Roddic’s single
line of testimony was mere decorative icing on a cake thickly
frosted with evidence that a reasonable person would have
foreseen that Romo’s letter would be perceived as threaten-
ing.
III. SUFFICIENCY OF THE EVIDENCE
[10] Romo next challenges his conviction on the ground
that the government presented insufficient evidence. He spe-
cifically notes that the government failed to produce the letter
he wrote. The jury’s finding must stand if, “after viewing the
UNITED STATES v. ROMO 7809
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original). The essential
elements of threatening the President are the knowing and
willful deposit for conveyance in the mail or for a delivery
from any post office or by any letter carrier a writing contain-
ing a threat to take the life of, to kidnap, or to inflict bodily
harm on the President, or otherwise knowingly or willfully
making such a threat. 18 U.S.C. § 871(a).5 To obtain a convic-
tion under 18 U.S.C. § 871(a), the government must prove
that a statement is a true threat, which has been defined as
a statement, written or oral, [made] in a context or
under such circumstances wherein a reasonable per-
son would foresee that the statement would be inter-
preted by those to whom the maker communicates
the statement as a serious expression of an intention
to inflict bodily harm upon or to take the life of the
President.
Hanna, 293 F.3d at 1084 (quoting Roy, 416 F.2d at 877).6
5
In its entirety, 18 U.S.C. § 871(a) provides:
Whoever knowingly and willfully deposits for conveyance in the
mail or for a delivery from any post office or by any letter carrier
any letter, paper, writing, print, missive, or document containing
any threat to take the life of, to kidnap, or to inflict bodily harm
upon the President of the United States, the President-elect, the
Vice President or other officer next in the order of succession to
the office of President of the United States, or the Vice President-
elect, or knowingly and willfully otherwise makes any such threat
against the President, President-elect, Vice President or other
officer next in the order of succession to the office of President,
or Vice President-elect, shall be fined under this title or impris-
oned not more than five years, or both.
6
The recent decision in United States v. Cassel, 408 F.3d 622 (9th Cir.
2005), does not change our view. Id. at 633 (holding that “speech may be
deemed unprotected by the First Amendment as a ‘true threat’ only upon
7810 UNITED STATES v. ROMO
[11] It is unequivocal that Romo intentionally wrote a
threat against the President and placed it in the mail. The stat-
ute does not require receipt of the threat by the intended recip-
ient. Romo does not dispute that he wrote and mailed a letter
stating that someone should put a bullet in the President’s
head and that he would like to do it. LaPlante and Agent
Thomas both testified that Romo confessed to writing and
sending the letter.7 Romo clarified his threat by writing on his
transport sheet, which contained his picture, name, and thumb
print, “So you know whos [sic] coming to kill you Mr.
George W. Bush you fucking traitor.” And if that were not
enough evidence, Romo told Agent Thomas that he would hit
or shoot the President if he had the opportunity.
[12] Although the government did not produce the letter
itself, it offered a reasonable and credible explanation. As a
security response to the anthrax scare that followed the Sep-
tember 11 terrorist attacks, see, e.g., Stephen Engelberg &
Judith Miller, Sign of Escalating Threat, N.Y. Times, Oct. 17,
2001, at A1 (providing a description of the anthrax crisis,
proof that the speaker subjectively intended the speech as a threat”). Cas-
sel leaves untouched the reasonable person analysis for presidential threats
because it did not address whether statutes like 18 U.S.C. § 871(a) require
intent. Id. at 633 n.8 (“We are not faced with the question of what effect
our holding has on other specific statutes that we have previously held do
not require the government to prove subjective intent.”). Because Romo
has not raised First Amendment issues and Cassel does not alter the analy-
sis of presidential threats, we employ the decades-old approach to analyz-
ing threats under 18 U.S.C. § 871(a). See, e.g., Roy, 416 F.2d at 877.
7
Romo’s statements to Agent Thomas were entirely voluntary. Agent
Thomas delivered Miranda warnings, and Romo has not pointed to any
evidence that the state compelled him to speak or would have penalized
him had he remained silent. See United States v. Antelope, 395 F.3d 1128,
1137 (9th Cir. 2005) (explaining that under McKune v. Lile, 536 U.S. 24,
53 (2002) (O’Connor, J., concurring), “the key factor in assessing a pris-
oner’s self-incrimination claim was whether the disputed penalty . . .
amounted to an ‘atypical and significant hardship’ within the prison con-
text”).
UNITED STATES v. ROMO 7811
which involved anthrax sent to Congress in letters), no mail
sent to the President between October 2001 and April 2002
was delivered to the White House. Instead, the mail was
stored in a warehouse. Then between April 2002 and early
2003, the White House mail division began processing only
a small percentage of the mail received, based on a priority
list, with the remainder of the mail going to the warehouse.
As Romo mailed his letter sometime in early October 2002,
it likely would have been sent to the warehouse and no mem-
ber of the White House mail correspondence division would
have directly received Romo’s letter. By the time of Romo’s
trial, White House personnel had begun sorting through the
stored mail, but they had not completed the gargantuan task.
The sheer volume of the accumulated mail prevented officials
from picking out a particular letter, like Romo’s, for analysis
or for introduction at trial. Just as a needle might remain in
a haystack despite efforts to find it, Romo’s letter apparently
remained buried among the mail inside the warehouse.
Romo does not seriously dispute that the language in the
letter, which stated that “someone should put a bullet in your
head, and I’m willing to do it,” constituted a true threat.
Although he emphasizes that he would not have been able to
act on the threat because of his incarceration, his argument
has no legal significance. Because the threat itself is the
crime, a defendant can be guilty of a violation of 18 U.S.C.
§ 871(a) even when he is incapable of carrying out the threat.
United States v. Mitchell, 812 F.2d 1250, 1255-56 (9th Cir.
1987), overruled on other grounds by Planned Parenthood of
the Columbia/Willamette, Inc. v. Am. Coalition of Life Activ-
ists, 290 F.3d 1058, 1066-70 (9th Cir. 2002) (en banc).
[13] Viewed in the light most favorable to the prosecution,
we conclude that the evidence was sufficient to show that
Romo wrote and sent a threatening letter to the President in
violation of 18 U.S.C. § 871(a).
AFFIRMED.
7812 UNITED STATES v. ROMO
B. FLETCHER, Circuit Judge, concurring:
I concur in the result but I must take exception to one point
of analysis in the majority’s opinion. It is not necessary to
reach the issue of patient-psychotherapist privilege to decide
this case. Overwhelming evidence that Romo violated 18
U.S.C. § 871 by threatening the life of the President was pre-
sented at trial, including the testimony of a Secret Service
Agent that Romo confessed to sending a threatening letter and
a signed transport sheet on which Romo repeated his threat
against the President, signed his name, and stamped his thumb
print. The therapist’s testimony only repeated the Secret Ser-
vice Agent’s testimony. If admitting the therapist’s testimony
was error, it was harmless error. See United States v. Bauer,
132 F.3d 504, 510 (9th Cir. 1997). Nevertheless, the majority
opinion reaches the issue of whether the therapist’s testimony
should have been excluded as privileged. I respectfully dis-
agree with the majority’s conclusion that Romo’s conversa-
tion with his therapist LaPlante was not privileged.
The Supreme Court affirmed a patient-psychotherapist
privilege under Rule 501 of the Federal Rules of Evidence in
Jaffee v. Redmond, 518 U.S. 1, 15 (1996). The requirements
of the privilege are: (1) the communications must be confi-
dential; (2) the therapist must be a licensed psychotherapist;
and (3) the communications must occur in the course of diag-
nosis or treatment. Id. I agree with the majority that the first
two factors are not in doubt. LaPlante is a licensed psycho-
therapist and Romo’s communications to LaPlante were con-
fidential. I disagree with the majority’s conclusion that
Romo’s communications did not occur in the course of diag-
nosis or treatment.
Prior to Romo mailing a threatening letter to the President,
LaPlante in his capacity as a licensed professional counselor,
met with Romo on multiple occasions to provide Romo with
mental health treatment. Romo and LaPlante’s most recent
UNITED STATES v. ROMO 7813
meeting, before the meeting where the letter was discussed,
was a confidential counseling session.
Romo went to LaPlante, on the day in question, to discuss
the letter because he was troubled by what he had done.
LaPlante said that at the session Romo “was concerned that
he had done something very dumb. I asked him what that was.
He indicated that he wrote a letter to the President.” At the
session LaPlante listened to Romo and discussed Romo’s con-
cerns. At the suppression hearing LaPlante said he would not
turn over his notes from the session without permission from
Romo or a court order.
The meeting between Romo and LaPlante mirrors the char-
acteristics of a counseling session. When a patient contacts his
therapist, with whom he has an on-going patient-therapist
relationship, to discuss a problem the patient is having and the
patient and therapist subsequently meet and discuss the prob-
lem the resulting conference is a counseling session. This is
exactly the course of events that occurred between Romo and
his therapist LaPlante. To conclude otherwise disregards the
reality of the psychiatrist-patient relationship and the nature of
psychiatric treatment.