### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 07-30084

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. JOHN C. AUSTER, Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana

Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges. JERRY E. SMITH, Circuit Judge:
Knowing that his therapist, Dr. Fred Davis, would convey his threat to its target, John Auster informed Davis that unless the managers of his workers’ compensation claim continued to pay the benefits that he believed hewas owed, hewould “carry out his plan ofviolent retribution” against them and others. The authorities were called, Auster arrested and indicted for extortion. Though denying his motion to dismiss the indictment, the district court ruled that communications between Auster and his therapist were inadmissible at trial under United States Court of Appeals

Fifth Circuit 

### F I L E D February 11, 2008 Charles R. Fulbruge III ClerkNo. 07-30084

1 See, e.g., Hutchinson v. Patel , 637 So. 2d 415, 424 (La. 1994) (citing L A
. R EV
. STAT
. A NN . 9:2800.2).

2 In argument to the district court, Auster’s lawyer conceded that Auster “was in fact on occasion told that his threats of violence would be communicated to CCMSI.” Likewise, when Ginzburg related toAuster, after Auster had threatened CCMSI on a separate occasion, that CCMSI had been warned, Auster stated that “he had expected that [Ginzburg] would do just that.” Auster introduced into evidence a letter from Davis to CCMSI wherein Davis stated that “I have had to exercise my duty to warn, with [Auster’s] knowledge, several times when he was in danger of acting violently

. . . . Mr. Auster is well aware of my position regarding violence and has agreed that he understands that I have such an obligation. This understanding has not interfered in his reporting of homicidal intentions in the past.” 2 the psychotherapist-patient privilege. The government appeals that interim order, and we reverse and remand, because Auster had no reasonable expectation of confidentiality when he made his threat.

I. Auster, a retired New Orleans police officer, has been receiving workers’ compensation benefits since 1989. Cannon Cochran Management Services, Inc. (“CCMSI”), manages Auster’s benefit claim. Auster is treated for paranoia, anger, and depression and has threatened various individuals over the years. He often makes his threats during sessions with his two therapists, Davis and Dr. Harold Ginzburg, and his therapists then relay

### SSpursuant to their “duty to
w arn” 1

### SShis threats to their targets. Auster admits that he is aware that his threats are communicated in that way. 2 Auster’s relationship with CCMSI is strained. His anger regarding the administration ofworkers’ compensation settlement is a frequent topicoftherapy. In the past, after particularly troubling sessions, Auster’s therapists have felt compelled to warn CCMSI employees about his potential for violence. In September 2006, CCMSI informed Auster that it would stop paying a portion of his benefits beginning on October 1, 2006. On September 13, Auster discussed the pending partial termination of benefits with Davis, specificallyNo. 07-30084

3 Title 18 U.S.C. § 1951 states that (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement ofany article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance ofa plan or purpose to do anything in violation ofthis section shall be fined under this title or imprisoned not more than twenty years, or both.

. . . . (2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use ofactual or threatened force, violence, or fear, or under color of official right. 3 threatening CCMSI personnel, city authorities, and police officials. Davis sent Keith Smith, a CCMSI employee responsiblefor Auster’s claim, a letter warning that it was Auster’s position that if“CCMIS [sic] persists in their position,” that would “serve as a provocation for him to carry out his plan ofviolent retribution against a list ofpersons he feels have caused him injury.” Davis alerted CCMSI that Auster had stated that he possessed “stockpiles ofweapons and supplies to provide the basis for his actions.” October 2 was marked as the date of “violent retribution.” When Smith received Davis’s letter, he became concerned, bought a gun for self-defense, and called the police, who notified the FBI; Auster was arrested on September 29. The United States filed an extortion complaint against Auster under 18 U.S.C. § 1951, 3 alleging that he made his threat with knowledge and intent that Davis would convey it to CCMSI, thereby causing CCMSI to submit to his demands. The magistrate judge and district court, respectively, held detention hearings and took evidence. A uster unsuccessfully moved to dismiss the complaint; a grand jury indicted him for “attempt[ing] to obtain property of CCMSI with the consent of CCMSI having been induced by the wrongful use of threatened force, violence and fear, in that the defendant did communicate to CCMSI, via his treating psy-No. 07-30084

4 “In every state, the therapist-patient relationship is given some level of protection in court cases; but all such privilege laws contain exceptions that allow a psychologist’s records or testimony to be admitted as evidence in certain circumstances.” Mary Alice Fisher, Protect- (continued...) 4 chotherapist,” his threat of violence if his benefits were reduced. Before the indictment issued, Auster unsuccessfully argued to the magistrate judge that the communications between him and Davis were privileged.After a hearing, the court suppressed the communications, citing the psychotherapist-patient privilege.

II. A. “‘Except as otherwise required by the Constitution of the Uni ted States’ or other authority listed in Rule 501, . . . privilege[s] ‘shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light ofreason and experience.’” U nited Statesv. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (quoting F ED
. R. E VID
. 501). We review factual findings underlying a privilege ruling for clear error and the application oflegal principles de novo

. Id

.
B. “For more than three centuries it has nowbeen recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right toevery man’s evidence.” U nited Statesv. Bryan, 339 U.S. 323, 331 (1950) (internal citations and quotations omitted). This “fundamental principle,” Trammel v. United States, 445 U.S. 40, 50 (1980), counsels that privileges “are not lightly created nor expansively construed, for they are in derogation of the search for truth.” United States v. Nixon, 418 U.S. 683, 710 (1974). The psychotherapist-patient privilege is a recognized privilege. 4 ThoughNo. 07-30084

4 (...continued) ing Confidentiality Rights: theNeed for an Ethical Model , A M
. PSYCHOLOGIST, Jan. 2008, at 10.

5 The Court added that [a]lthough it would be premature to speculate about most future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means ofa disclosure by the therapist. Jaffee , 518 U.S. at 18 n.19. Although we decline to rule on whether there is a dangerous-patient exception to the psychotherapist-patient privilege, we note that the foregoing footnote demonstrates that the Court viewed the privilege as limited in scope. Moreover, because the Court contemplated that the privilege must give way in some instances involving dangerous patients, even where there is confidentiality, it follows a fortiori that the privilege is inapplicable in similar situations involving dangerous patients where there is no confidentiality. 5 declining to“delineate [the privilege’s] full contours” in a way thatwould “govern all conceivable future questions in this area,” Jaffeev. Redmond, 518 U.S. 1, 18 (1996), the Court recognized that this privilege can be appropriate in certain circumstances. 5 The Court, however, mindful of the burden imposed on the judiciary’s truth-seeking function, unambiguously limited the psychotherapist-patient privilege’s applicability to those instances in which the patient’sstatement was made in confidence, holding that the “privilege coversc onfidential communications made tolicensed psychiatristsand psychologists[, and] confidential communications made tolicensed social workers in thecourseofpsychotherapy.” I d

. at 15 (emphasis added). Jaffee ’s explicit confidentiality requirement is fatal to Auster’s claim of privilege. Because Auster knew , when he made the September 13 threat, that it w ould be forwarded to CCMSI, his privilege claim fails, because he had no reasonable basis to conclude that the statement was confidential. As a matter oflaw, where the confidentiality requirement has not been satisfied, the psycho-No. 07-30084

6 See, e.g., 1 C HARLES MCCORMICK , MCCORMICK ON E VIDENCE § 72 (Kenneth S. Broun ed., 6th ed. 2006) (requiring for all privileges that “[t]he communications must originate in a confidence that they will not be disclosed

. . . .”) (quoti ng 8 J OHN H. WIGMORE , E VIDENCE IN T RIALS AT COMMON L AW § 2285 (John T. McNaughton ed., rev. ed. 1961)). For a helpful discussion ofthe privilege as recognized in federal court under rule 501 and as recognized in Jaffee , seegenerally 2 STEPHEN A. SALTZBURG ,MICHAEL M. MARTIN & D ANIEL J. CAPRA, F EDERAL R ULES OF E VIDENCE MANUAL § 501.02[6] (LexisNexis 9th ed. 2006).

7 Thedistrict courtfound that “[t]hecommunication tohisongoing, treating psychotherapist was confidential and concerned the subject matter ofAuster’s treatment.” That factual finding ofconfidentiality is clearly erroneous. As noted, s eesupra note 2, Auster’s lawyer conceded that Auster “was in fact on occasion told that his threats ofviolence would be communicated to CCMSI.” Davis and Ginzburg also have informed Auster that they have a legal duty to convey his threats to those at risk, and, in a letter Auster introduced into evidence, Davis stated unequivocally that “Mr. Auster is well aware of my position regarding violence and has agreed that he understands that I have such an obligation.”

8 Tarasoffv. Regents of the Univ. ofCal., 551 P.2d 334 (Cal. 1976) (recognizing duty of mental health therapists to warn third parties of potential violence in certain circumstances). Tarasoff , a nationally recognized authority, triggered what hasbeen described as“ethical-legal confusion” for mental health practitioners. Fisher, supra note 4, at 4.

9 Under Louisiana law, “[w]hen a patient has communicated a threat of physical violence, which is deemed to be significant in the clinical judgment of the treating psychologist or psychiatrist

. . . against a clearly identified victim or victims, coupled with the apparent intent and ability to carry out such threat, the psychologist . . . or the psychiatrist . . . treating such patient and exercising reasonable professional judgment, shall not be liable for a breach of confidentiality for warning of such threat or taking precautions to provide protection from the patient’s violent behavior.” L A
. R EV
. STAT
. A NN . 9:2800.2. This has been construed as a “duty to warn.” Hutchinson, 637 So. 2d at 424.

10 See, e.g., Jaffee

, 518 U.S. at 13 n.12 (“At the outset of their relationship, the ethical therapist must disclosetothe patient the relevant limitson confidentiality.”) (internal citations and quotations omitted). 6 therapist-patient privilege

### SS as with other privileges6

### SS does not apply. Auster was informed repeatedly by his therapists that hisviolent threats, although made during therapy, would be communicated to his potential victims. 7 That is unremarkable; his therapists have a T arasoff duty8 to convey “significant” “threat[s] ofphysical violence” against “clearly identified

. . . victims,”9 and they also have an ethical duty to inform Auster ofthat legal duty. 10 Consequent-No. 07-30084

11 Auster argues that the letter Davis sent was not a Tarasoffletter, given that on September 20, 2006, Davis sent CCMSI another letter indicating that if Auster persisted in his threats, Davis would send a Tarasoff letter. Auster does not explain how Davis legally and ethically could have sent the September 13 letter toCCMSI, detailing Auster’stherapy, unless that letter fell under theTarasoffexception totheconfidentiality obligation. The district court, likewise, ruled that “Dr. Davis complied with the duty to protect by informing CCMSI of potential threats,” a factual finding that we see no reason to question. But whether it was a Tarasoffletter, in Davis’s clinical opinion, is ultimately beside the point: The controlling question is whether Auster had a “reasonable expectation of confidentiality,” Robinson, 121 F.3d at 976, when he made the threat. Because he knew he was making a threat of physical violence against specific victims to commence on a specific date, he also knew that his statement was ofthe sort that Davis had a duty todisclose. Under these circumstances, any expectation of confidentiality would have been “manifestly unreasonable.” Id

.

12 See United States v. Chase , 340 F.3d 978 (9th Cir. 2003) (en banc); United States v. Hayes, 227 F.3d 578 (6th Cir. 2000).

13 See United Statesv. Glass, 133 F.3d 1356 (10th Cir. 1998) (recognizing a dangerouspatient exception to the psychotherapist-patient privilege). 7 ly, when Auster made the threat, he knew it would be relayed to CCMSI. 11 He therefore had no “reasonable expectation ofconfidentiality,” Robinson, 121 F.3d at 976, in histhreatening statement, and without such a reasonableexpectation, there is no privilege.

C. The federal circuits are in disagreement in this regard. The Sixth and Ninth Circuits have held that such statements, though made without a reasonable expectation of confidentiality, are nonetheless privileged, 12 and the Tenth Circuit has held that, in such situations, the psychotherapist-patient privilege must give way, though for reasons different from those we have articulated. 1 3 We respectfully disagree with those circuits that have extendedJ affeeby holding that even if a patient knows that a threat is not made in confidence, any statements made to the therapist are privileged in a federal trial. T hose courts have held, thus, that confidentiality is not a requirement for the applicability of the psychotherapist-patient privilege, the Ninth Circuit’s holding being explicit inNo. 07-30084

14 See Chase

, 340 F.3d at 985-87.

15 SeeHayes, 227 F.3d at 589 (Boggs, J., dissenting) (“Hayeswaived any privilege purely and simply

. . . by continuing to threaten after he had been given notice that his threats would not be held in confidence.”).

16 See, e.g., United States v. Pipkins, 528 F.2d 559, 563 (5th Cir. 1976) (“It is vital to a claim ofprivilege that the communication have [sic ] been made and maintained in confidence. Thus courts have refused to apply the privilege to information that the client intends his attorney to impart to others, or to communications made in the presence of third parties.”) (internal citations omitted). 8 that regard. 14 That view 

### S S which is not in accord with Jaffeeor testimonial privileges generally15

### SSis open to question. In support for their position, the Sixth and Ninth Circuits assert that “[i]f the federal evidentiary privilege were tied to the states’ disclosure laws, then similarly situated patientswould face different rules ofevidence in federal criminal trials,” Chase

, 340 F.3d at 987, and “it cannot be the case that the scope of
a federal testimonial privilegeshould vary depending upon state determinations of what constitutes ‘reasonable’ professional conduct,” Hayes, 227 F.3d at 584. But this misunderstands the effect ofstate law. Federal law does not depend on state law but instead is turning on the lack of confidentiality, regardless of the reason. Though, in certain instances, state law may play a role in negating confidentiality (just as other factors can nullify it, e.g., the presence ofthird parties16 ), the operative test isa federal one: whether therewas a “reasonable expectation of confidentiality” when the statement was made. Likewise, both the Sixth and Ninth Circuits erroneously conclude that in weighing the pros and cons ofextending the psychotherapist-patient privilege, the harm in permitting material obtained from a therapy session intoa criminal trial outweighs its benefits. This is a miscalculation. It is true that in J affee , 518 U.S. at 10, the Court noted that the “private ends” served by a psychotherapist-patient privilege include “an atmosphere of confidence and trust,” something that is necessary f

or effective therapy. And, at the same time, the Court ob-No. 07-30084

17 In fact, after “hold[ing] that confidential communications between a licensed psychotherapist and her patients in the courseofdiagnosisor treatment are protected from compelled disclosure,” Jaff

ee, 518 U.S. at 15, the Court added a footnote that underscores the appropriateness ofa per se rule requiring confidentiality before the privilege is applicable: “Like other testimonial privileges, the patient may of course waive the protection,” i d

. at 15 n.14. By both expressly noting the possibility ofwaiver and tying the psychotherapist-patient privilege to other testi monial privileges (which all require that the statements be made in confidence), the Court reiterated the fundamental nature of confidentiality.

18 Cf

. Case Comment, Sixth Circuit Holds That Tarasoff Disclosures Do Not Vitiate Psychotherapist-Patient Privilege , 114 H ARV
. L. R EV
. 2194, 2199 (2001) (“The critical question is thus whether a significant number of patients who disclose their violent impulses to their psychotherapists even after learning of the Tarasoff exception would become unwilling to do so when advised that if they actually acted on those impulses, their psychotherapists might have to testify against them. The H ayes majority offered no rationale for its belief that there would be many such patients, and, in fact, psychological literature suggests that few patients would react in this way. Those patients who remain in therapy even after being advised of the limits on confidentiality typically do so because they recognize their need for help and believe that psychotherapy may provide it.”) (internal citations omitted).

19 The Sixth and Ninth Circuits concedeSS as they mustSS that these warnings have at least some marginal effect on a patient’s willingness to speak openly with his therapist. See Hayes, 227 F.3d at 584-85; Chase , 340 F.3d at 990.

9 served that the privilege can be relatively costless, because “[w]ithout a privilege, much ofthe desirable evidence to which litigants

. . . seek access
. . . is unlikely to come into being.” I d

. at 12. These considerations led the Court to conclude that the psychotherapist-patient privilege, at least in some form, should be recognized. But, as theJaffeeCourt implicitly recognized by explicitly requiring confidentiality, 1 7 this cost-benefit calculation is inapt where the patient al ready knowstheconfidencewill not be kept. Consider the marginal impact on effective therapy of allowing a statement into evidence that the patient knew would be communicated to third parties when he uttered it. 18 In such a case, the “atmosphere of confidence and trust” has already been severely undermined. 1 9 Now, the patient’s target and deepest enemy, “the person the deranged individual hates so much that he plans to kill him,” Chase , 340 F.3d at 997 (Kleinfeld, J., concurring), knows the patient’s secret. And for sincere threats, the target canNo. 07-30084

20All are “concerned about deranged murderous individuals stopping valuable therapy because” they do not trust their therapists, but if that were to happen, “it doubtless already [will] haveoccurred [when the patient learnsthat] the psychotherapist [will] betray[] their confidences to their worst enemies.” Chase , 340 F.3d at 997 (Kleinfeld, J., concurring).

21 “[O]nce information is released, both client and psychologist losecontrol over redisclosure.” Fisher, supra note 4, at 10. 10 now defend himself. If the therapist’s professional duty to thwart the patient’s plans has not already chilled the patient’s willingness to speak candidly, it is doubtful that the possibility that the therapist might also testify in federal court will do so. 20 The deleterious effect ofa Tarasoffwarning on the “atmosphere of confidence and trust” is further reinforced by the knowledge that the intimate details of therapy will be spread to more than just the target of the threat. 21 There is, after all, no obligation that the target keep the Tarasoff warning confidential, and it is unrealisticto believe that hewill doso; there are likely mutual acquaintances between the target and the patient

### SS e.g., friends, co-workers, family

### SS and the target will almost certainly tell them, iffor no other reason than to let them knowthat there is a potentially serious problem with the patient and that everyone ought to be on the lookout for trouble. Thus, knowing that anyone, or everyone, might be privy to the secret will embarrass the patient and will detrimentally affect his relationships with others. Such a T arasoffdisclosure might alsocost the patient hisjob. The marginal increase, therefore, in effective therapy achieved by privileging psychotherapistpatient communications at trial, but still allowing the therapist towarn threatened third parties, is de minimis

. Moreover, it is not even true, under the Sixth and Ninth Circuits’ standard, that a therapist cannot assist in having a patient locked away. Both courts acknowledge that a psychotherapist can testify in civil commitment hearings. See id. at 991; Hayes, 227 F.3d at 585. Though there is a legal distinction be-No. 07-30084

22 Cf. O’Connor v. Donaldson, 422 U.S. 563, 575 (1975) (“A finding of ‘mental illness' alone cannot justify a State’s locking a person up against his will . . . .”) (emphasis added)

.

23 Moreover, “[i]n the event that a patient actually carried out or attempted tocarry out threats that his psychotherapist had already disclosed, the psychotherapist’s testimony could be critically important in establishing such elements as identity, motive, and absence of mistake.” Case Comment, supra note 18, at 2199.

24 The Ninth Circuit posits that the lack ofconfidentiality is not dispositive, because it is a legal “fiction that the patient knows that a disclosure for one purpose (warning a potential target ofviolence) is a disclosure for all purposes (including incriminating testimony in a federal criminal trial),” and, if “a patient actually does know the law[, then]

. . . the legal rule itself, whatever it may be, will govern the patient’s expectations.” Chase , 340 F.3d at 988-89. (continued...) 11 tween criminal incarceration and involuntary civil commitment, the nuance

### SSin terms of trust and confidence

### SSlikely does not matter much to the fellow committed. 22 Because, “by definition,” patients “reject the prospect of [forced] hospitalization,” Hayes, 227 F.3d at 585, “reason and experience” dictate that it is unlikely that many patients will be dissuaded from seeking therapy by the additional chance that, aside from being committed against their will because of what they say totheir therapists, they may alsobecriminally incarcerated based in part on those same statements. The slight marginal therapeutic benefit of allowing the therapist to divulge confidences and to testify in civil commitment hearings, but not in federal criminal trials, must then beweighed against the marginal increase in “having truth vindicated and justice done.” Chase , 340 F.3d at 997 (Kleinfeld, J., concurring). The public interest at stake in a criminal trial of any sort is substantial, more so than in a civil case likeJaffee

. But the criminal issues that are raised by cases like Auster’s are of a more serious sort still, because the Tarasoff duty does not come into play lightly. Those cases are the ones that are the most serious, so any marginal increase in the admissibility of probative evidence in criminal proceedings is especially valuable. 23 Consequently, where a patient has no reasonable expectation ofconfidentiality, the cost-benefit scales favor disclosure. 24No. 07-30084

24 (...continued) Even ifwewere toaccept thatJaffeepermits us to interpret “confidential” to mean merely confidential-at-lawand not (the more intuitive) confidential-in-fact, the above discussion demonstrates that we should not. As explained, the slight marginal benefit on effective therapy achieved by recognizing the privilege’sapplicability wherea patient knowsa threatwill beconveyed is substantially outweighed by the marginal costs. The Ninth Circuit’s position is thus a doctrinal cul-de-sac

, interesting but leading nowhere.

25 See, e.g., id. at 986 (“Almost all states

. . . recognize the distinction between confidentiality (which is affected by the Tarasoff duty) and testimonial privilege (which is not).”).

26 SeeJaffee

, 518 U.S. at 12 (“[A]ll 50 states and the District ofColumbia have enacted into law some form of psychotherapist privilege.”).

27 See Guerrier v. Florida, 811 So. 2d 852, 855 (Fla. App. Ct. 2002) (“[T]he Legislature intended to allowadmission ofthe psychiatrist’s testimony in a subsequent prosecution ofthe dangerous patient for offenses committed against the victim.”).

28 SeeW. VA
. CODE § 27-3-1 (“Confidential information may be disclosed

. . . . [p]ursuant to an order of any court based upon a finding that the information is sufficiently relevant to a proceeding before thecourt tooutweigh the importance ofmaintaining the confidentiality established by this section

. . . [in order t]o protect against a clear and substantial danger of imminent injury by a patient or client to himself, herselfor another . . . .”); CONN
. G EN
. STAT
. § 52-146c (“[I]n civil and criminal actions

. . . all communications shall be privileged and a psychologist shall not disclose any such communications

. . . . [unless i]fthe psychologist believes in good faith that there is risk ofimminent personal injury to the person or toother individuals (continued...) 12 TheSixth and Ninth Circuitsalsoopine that because the majority of states permit psychotherapists to issue Tarasoff or other similar warnings but not to testify at trial, the federal courts should not let them testify either. 25 This justification too is wanting. There is not a uniform consensus among the states regarding statements made with no reasonable expectation of confidentiality. 26 Even a cursory review of the laws of the states reveals wide divergences. For instance, in California “a psychotherapist not only must disclose toauthorities or intended victims the existence ofa dangerous patient, [he] also may testify to threats made during the course oftherapy.” Chase , 340 F.3d at 986 (citing CAL
. E VID
. CODE § 1024). A decision from an appellate court suggests that Florida follows California. 27 States like West Virginia, Connecticut, and Wyoming also seem to favor the testimony’s admission. 28 North Carolina’s codeNo. 07-30084

28 (...continued) or risk ofimminent injury to the property ofother individuals.”); WYO
. STAT
. A NN
. § 33-27-123 (“In judicial proceedings, whether civil, criminal, or juvenile . . . a patient. . . may refuse to disclose or prevent the disclosure of confidential information [except] . . . . [w]here an immediate threat of physical violence against a readily identifiable victim is disclosed to the psychologist . . . .”).

29 See N.C. G EN
. STAT
. § 8-53.3 (“Any

. . . judge in the district in which the action is pending may
. . . compel disclosure, either at the trial or prior thereto, if in his or her opinion disclosure is necessary to a proper administration of justice.”).

30 See Tex. R. Evid. 510 (limiting the privilege to civil cases). It is uncertain whether Virginia followsTexas in this regard. The particular provision of the Virginia code cited inJ affee is expressly limited to civil matters. SeeJaffe , 518 U.S. at 11 n.12 (citing VA
. CODE A NN
. § 8.01-400.2).

31 The Sixth and Ninth Circuits also focus on the fact that it does not benefit the mentally ill to incarcerate them, and, implicitly, that it is not particularly blameworthy where the mentally ill make threatening remarks during therapy, even if the threats violate the law. This is a policy question for Congress, not the courts, because “such tender concern for criminal evidence is [not] required by the common law, or by reason and experience, when the patient has been put on notice.” Hayes, 227 F.3d at 588 (Boggs, J., dissenting). 13 contemplates judges’ deciding on a case-by-case basis whether to exclude such evidence, 29 and Texas does not recognize the psychotherapist-patient privilege at all in criminal cases. 30 Moreover, for the reasons laid out above, it would not significantly

### SSifat all

### SSundermine state laws to hold that a defendant cannot claim the protections ofthe psychotherapist-patient privilege ifhe had actual knowledge, when making the statements, that they would not be kept confidential. It is unlikely that any patient, knowing that his threats will be relayed to the relevant target, will besubstantially deterred from seeking therapy by the additional possibility that, although the therapist will not testify in a state criminal trial, the patient may some day be on trial for a federal crime, and his therapist might be called to testify. In summary, because Auster concedes that he had actual knowledge that his threat would be conveyed to CCMSI, his threat was not confidential, and, under Jaffee

, the psychotherapist-patient privilege does not apply. 31No. 07-30084

14 III. Because Auster’s non-confidential statement cannot, as a matter of law, be privileged, we need not address whether the district court improperly suppressed evidence sua sponte , erroneously placed the burden of disproving the privilege on the government, or abused its discretion in failing to hold an evidentiary hearing. We also need not decide whether there is a dangerous-patient or crime-fraud exception to the psychotherapist-patient privilege. For the foregoing reasons, the order of suppression is REVERSED, and this matter is REMANDED for further proceedings.