alternately he was convicted of a violation of eighteen united states code section eight seventeen lines specifically with threatening the president of the united states this requires reading i'm sorry the statute itself i don't believe actually requires the mailing as it stands to release retrieve data i don't have the statutory language i do have the ninth circuit jury instructions and i and and the jury instruction follows the lines of the statute essentially there are two to two issues that the government has to prove beyond a reasonable doubt first as a defendant intentionally threatened either in writing or o kill or injure the president of united states and secondly under the circumstances in which the threat was made a reasonable person would perceive that it would be understood by persons hearing or reading it as as as a serious expression of an intention to kill or injure the president of the united states the first issue that is that arises as a list of shield is whether or not the investigation of this case violated mr essentially the government adopts the district court's holding which states that there was no confidential communication in existence at the time that mr romo and his councilor mr don the plant  communicated about this issue it's our position that the record speaks clearly to the contrary as as this i'm sure this court as you noted during the suppression hearing itself mr le plante testified that not only had he had previous confidential communications with mr rahman but during that communication and it is when asked if he would disclose his notes about that communication said notes are covered by the confidential communications privilege if you can i know there's three things going on here that get mixed up so it would have if you tell me which one you're talking about number one there's a federal eviden compulsion so which one of these because each one of them is going to rise and fall on different legal standards so i think you need to separate among those if you would it would help me ok thank you your honor i'm going to start with a with respect to that particular relationship between mr romo and mr plante it's our position that that privilege was fully in force and that there was no exception that applied to that particular privilege one question it's seems to me that the therapist could make a complaint or advice to law enforcement the f b i or otherwise saying this person taint and it's our position that that's the case because first of all mr rummel has been informed that the secret service agent is there specifically because his counsel has violated the privilege the secret service agent has entered into this interview already knowing everything that was disclosed during this company it's a communication problem and i'm still confused though about this due process violation because if that we would look at to see the claims fifth amendment violation well there there really two fifteen minute relations that are raised here the first is the due process violation and that is addressed in united states versus chasten but it's also addressed by the supreme court and jackie versus redmond and in that particular case the supreme court explicitly includes the kind of communications that took place between mr mr rollo and mr look plant who was a licensed social worker and licensed professional counselor so there's this due process right to here then there's that the fifth amendment privilege against self incrimination which goes to the voluntariness of the statement it's our position that because mr romo was under the impression at the time that this this on the idea that that it was absolutely correct for the therapist to alert the police when the f b i goes in interviews them and they give him miranda rights it seems to me that we have a that there was not an immediacy and he testified that there was an eminence he felt there was eminence but not an immediacy and that's on page eighteen of the excerpts of record and the tarasoff exception eleven zero two and that requirement says a mental health professional has a duty to warn or take reasonable precautions to provide protection from violent behavior the havior only the patient has communicated to the mental at least as one of those i'm more interested in is i'm assuming that it was correct for the therapist to disclose the threat even though i recognize your arguing not immediate enough but i think that the president of the united states and the special statute about that and what was said and what changes that is about the terrorist least for me that part's ok but then when the therapist testifies that's not ok so the question then becomes is that part of this there at least in my mind it seems to me it was there for the therapist to testify and the question is is that harmless in light of the admissible in my view of the ca there and specifically so because the therapist testified about he was he was he testified about the conversation the statically he had had with mr brown well about mr romo mailing this letter in addition he testified about the chain of events that that initiated the investigation in this case and that also leads to a second issue the united states versus canada issue that rose the trial  there what happened is the woman who was the head of white house mail actually testified that had she received a letter like that in the mail which by the way she never did but had she received that letter she would have considered it to be a threat we objected to that testimony at trial based upon the holding of united states versus hanna which specifically holds that the reasonable person the but it basically he's saying george bush you know who's coming to kill you so you have written documents and then you have his very clear statement to agent thomas and he's asking him what literally it's the same evidence but this there's no taint on either of those is there well there is isn't and in the sense of what we're what we're discussing however there is of course the concern of that which is our third argument that there is a lack of sufficiency with respect to those other two claims as well because when the secret service agent did speak with mr ramos he posed a hypothetical and so what ramos said was not a specific threat it was a response to a hypothetical question posed by the secret service agent and likewise with this inmate report that had the offensive language written on it that was something that was located in a tub a close hold located in the style that mr romo was staying at the time it's our position that those two those two alleged communication simply do not establish proof beyond a reasonable doubt of the two the secret service that he was going through the president's hand is that i guess i'm just having trouble understanding why that's no unequivocal evidence here is there's something about that statement that well on the record or is not is tainted by some other evidence the statement is just so i'm clear the statement that the secret service agent and the sec was made to him it's our position your honor that that particular statement was made in the context of a hypothetical and so therefore it didn't constitute an act of threat it was a statement in response to a hypothetical posed by the secret service agent if george bush ever appeared in the d stand no one took the stand all the evidence shows including the testimony from his therapist i told him i said i said that something dumb said you don't have to report this it's almost like a miranda warning from a cycle therapist i'm going to have to report this then he goes on after his counselor that in his pain to be confidential said i'm going to have to report it then the defendant says i threaten the president i wrote this letter explains what he had i think in the very first instance you're on a  school i think there's no question right there that that that's the crux of the first council first alternate in the count and a page one seventy seven of the excerpts of record as the actual and mr hammond read it where the two prong test in which we had to make a determination the jury what it was oral or writing and if that's the statute it's a new one the second part of is a reasonable person very if you fact you that the psychotherapist not the f b i agent use recent person reading this with the terminus to be a well i mean i think it goes in to and i think mr hammond would agree with me there was there was discussion on the record that he was he was fed up of the state system he was losing his good time and i think you want to spend some time in federal custody whether or not that's perceived as a better time to state custody as for he was concerned that he was going to lose his good time he's going to stay in state system for a while and they want to go on the federal custody so getting back to that the number one the letter little matter that we never found was the actual initiation of the instantiate the question i've got is whether you can distinguish chase in the sense that it seems to me the therapist should not have else what should we do the supervisor it's almost like it's an undercover thing with a therapist this is completely different fashion your honor we have a view that i'm watching out the district court and he came out where you're proposing we didn't find it i think it's our duty responsibilities establish why we didn't have a letter is there a sort of on your face like presenting hamlet without hamlet present in a way because someone might be looking for that letter i understand th was there was a time i think there's no question it's harmless when you read the context of those words a reasonable person with that quote it doesn't take a mystic it doesn't take an expert to decipher what those words mean whether or not it's a threat it doesn't person was just a method of explaining why we didn't have the letter which the defendant in that he wrote your honor and i think it evidence was so overwhelming that it's in the context of this case the second part is mr thomas and self separate apart miranda warnings given to the defendant the defendant waived them and once again it merely by his confession third part we have the actual document was introduced into evidence which is the only document we have attached t instruction to the jury at trial we don't know which of the three theories mr drama was convicted on what we do know is that at trial the bulk of the prosecution's evidence had to do with the first theory that being the letter that was allegedly written that came out of the discussions between mr romo and mr little plant obviously which it's our position that is testimony that you did prejudice and should not have been allowed at trial secondly ms roddick's testimony the woman who was the head of white house now mr sykora has has stated that this is very different she was the head of white house male she was in a secret service agent as was the corner expressed particular concern with that that the influence that the secret service agents interpretations of the threat alleged threaten that case may have had on the jury here we have the same concerns and there's also the issue of whether a reasonable person it's not just whether it was a threat but whether a reasonable person would first see that it would be understood by persons hearing or reading it a serious expression of an intention to kill or injure the president of the united states so it's not just whether it's a threat but it's also whether it's a serious indication and ms products testimony was that there's not this