Professional Documents
Culture Documents
No. 13-4198
KIM KINDER,
Appellant,
v.
MICHAEL L. WHITE,
Defendant Appellee,
and
UNITED STATES OF AMERICA,
Plaintiff.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Thomas E. Johnston,
District Judge. (2:12-cr-00221-1)
Argued:
Decided:
ARGUED: Jonathan D.
DEFENDER, Charleston,
PUBLIC
James
Michael
offenses
duplex
arising
apartment
Virginia.
2014).
White,
from
who
an
was
charged
October
building
that
2009
with
fire
White
arson-related
that
owned
destroyed
in
Van,
West
production
of
Kinders
mental
health
records
for
use
during
from
privilege.
disclosure
by
the
psychotherapist-patient
We
and
insurance
information
before
White
was
Kinders
husband
proceeds,
Kinder
charging
her
indicted
to
pled
with
questions
during
the
conspiring
Whites
guilty
conspiracy
burn
for
to
duplex
to
commit
with
for
the
one-count
arson
in
plea
hearing,
Kinder
told
the
court that she was taking numerous medications, including antidepressants, anti-anxiety drugs, and muscle relaxers.
3
Kinder
also
revealed
to
the
court
she
had
received,
within
the
Kinder
claimed that she had been diagnosed with bipolar disorder and
schizophrenia.
period,
she
Kinder
was
also
explained
admittedat
least
that
once
during
that
time
involuntarilyas
an
recent
of
these
mental
health
admissions
had
occurred
Rule
17(c)
seeking
early
production
of
Kinders
history,
J.A. 18.
diagnosis,
treatment
and
drug
usage
and
court
outweigh[s]
determines
the
confidentiality.
opposed
mental
production
health
the
relevance
importance
of
of
such
information
maintaining
such
documents,
records
were
protected
arguing
from
The government
that
disclosure
Kinders
by
the
See
518
U.S.
at
15.
4
Without
objection,
Kinder
further
that
White
did
not
need
the
records
for
matter
of
colloquy.
trial
public
record
in
the
transcripts
of
her
plea
motion
privilege. 1
and
expressly
invoked
the
therapist-patient
determine
if
importance
of
Code
to
warrant
Whites
preliminary
order
camera
evidentiary
maintaining
27-3-1(b)(3).
in
need
[Kinders]
Thus,
directing
the
each
review,
91,
outweigh[ed]
confidentiality,
district
of
J.A.
the
court
four
W.
entered
hospitals
to
the
Va.
a
to
from
Kinder
psychiatrists,
they
fell
to,
within
or
the
any
diagnoses
scope
of
the
from,
her
patient-
The parties agreed below that Kinder did not waive[] her
privilege by responding to the [district courts] questions at
the plea hearing. J.A. 109.
therapist privilege. 2
question
the
of
whether
privilege
may
be
overcome
by
the
J.A.
111.
Observing
that
the
psychotherapist-
at
18
n.19,
the
psychotherapist-patient
district
where
necessary
to
privilege
constitutional rights.
an
exception
court
exists,
concluded
contemplates
that
an
exception
vindicate
J.A. 119.
the
district
criminal
[t]he
court
defendants
considered
whether
either
confront
to
the
Whites
witnesses
Sixth
Amendment
against
him
or
right
to
to
his
effectively
right
to
that
White
Process Clause.
could
obtain
the
records
under
the
Due
records
that
psychotherapist-patient
were
otherwise
privilege.
protected
Accordingly,
by
the
the
district
cast[]
substantial
during
the
raised
questions
testifying
time
before
of
the
about
the
doubt
on
purported
Kinders
grand
[Kinders]
conspiracy,
state
jury
and
of
mind
mental
J.A.
when
cooperating
acuity
124,
and
she
was
with
the
We
review
district
courts
evidentiary
rulings,
definition,
an
abuse
of
of
the
balancing
discretion
occurs
if
the
court
approach
was
erroneous
and
that
its
unless
it
is
contrary
to
the
United
States
518 U.S. at 7.
officer
were
protected
by
8
the
psychotherapist-patient
The
Supreme
Court
reasoned
that
[e]ffective
and
that
confidential
the
mere
communications
possibility
made
during
communications
of
disclosure
counseling
Id. at 10.
between
of
sessions
By protecting
psychotherapist
and
her
important
importantly,
privileges,
the
the
private
Court
interests.
found
that,
psychotherapist
Id.
like
privilege
at
11.
other
serves
Most
testimonial
the
greater
that
communications
between
privilege
a
Id. 4
protecting
psychotherapist
and
The Court
confidential
her
patient
probative
evidence.
Id.
at
910
benefit
produced
by
the
(quoting
Trammel
v.
of
the
psychotherapist-patient
privilege
is
sufficiently
weighty
to
course,
like
other
testimonial
privileges,
the
The Court
recognized
left
that
the
privilege
has
limits
but
the
Although it would
The
Court
serious
threat
hinted
of
harm
at
to
one
the
potential
patient
or
Id. at 18
exceptionwhere
to
others
can
a
be
Id.
See
United States v. Glass, 133 F.3d 1356, 1360 (10th Cir. 1998)
(applying the Jaffee rule in a criminal case, and creating a
narrow exception to the rule where disclosure [is] the only
means of averting [imminent] harm); cf. United States v. Chase,
340
F.3d
978,
992
(9th
Cir.
2003)
(en
banc)
(refusing
to
psychotherapist-patient
privileged
defendants
privilege
information
is]
constitutional
must
necessary
be
rights.
to
made
where
vindicate
J.A.
119.
a
And
[the
criminal
in
this
principle
ascertaining truth.
of
utilizing
all
rational
means
for
Co. v. United States, 449 U.S. 383, 389 (1981), that are more
11
important
than
the
relevant,
probative
effect
of
denying
evidence.
the
public
Accordingly,
the
when
use
the
of
Court
important
probative evidence.
interests
to
outweigh
the
need
for
her
patient
outweigh
the
(internal
before
promotes
need
for
quotation
under
compared
the
interests
entitled
the
existence
501,
interests
by
every
the
general
mans
of
by
Court
rule
evidence.
U.S.
at
added).
the
the
interests
518
(emphasis
Supreme
promoted
the
important
evidence.
omitted)
Rule
promoted
to
probative
marks
recognizing
privilege
sufficiently
to
910
Thus,
psychotherapist
in
Jaffee
privilege
first
against
that
the
public
is
But
now
that
the
and
evidentiary
privilege is invoked.
unnecessary
need
for
for
court
disclosure
to
any
weigh
the
time
the
Making the
privacy
eviscerate
and
the
the
evidentiary
effectiveness
of
need
the
for
disclosure
privilege.
would
Id.
at
17
(emphasis added).
Here, the district court appears to have employed precisely
such
weighing
evidentiary
of
Kinders
need.
Whites
privacy
motion
interest
for
versus
disclosure
Whites
was
made
is
sufficiently
relevant
to
outweigh
the
W. Va. Code
the
privilege,
J.A.
111,
ordered
the
disclosure
of
clear
federal
the
psychotherapist-patient
privilege
is
not
which
overrides
the
quest
13
for
relevant
evidence;
the
Glass, 133
courts
ruling
and
direct
that
Kinders
We reverse
mental
health
this
court
on
appeal
court,
that
Whites
White
did
or
in
the
district
court
belowwe
take
expressly
the
told
position
the
district
that
Kinders
THE COURT: All right. But youre not saying that she
waives the privilege and, therefore, you get access to
14
the records
hearing?
because
of
what
she
said
in
the
plea
[WHITES COUNSEL]:
No.
What Im saying is thats
what I understand this hearing to be about, that
whether or not this defendant, in connection with his
right of confrontation, is allowed to review those
notes made as they pertain to a diagnosis and
treatment.
THE COURT:
Well, I dont think you answered
question there and I want to be very clear on this.
my
49
(emphasis
No, Im not.
added).
Hence,
the
district
court
J.A. 109.
court
court
are
is
that
waived
arguments
and
will
not
not
15
raised
be
before
the
district
considered
on
appeal.
This fleeting
It is not the
(4th
Cir.
2006)
(single
conclusory
remark
in
brief
128
F.3d
166,
178
(3d
Cir.
1997)
([A]n
argument
in
issue.
his
brief
is
to
be
deemed
an
abandonment
of
that
Blackwelder v.
Millman, 522 F.2d 766, 771 (4th Cir. 1975) (internal quotation
marks
omitted).
The
court
does
not
follow
this
practice,
to
constituted
the
a
courts
waiver
of
questions
the
during
privilege
her
with
plea
respect
colloquy
to
her
records.
In sum, it would be most unusual for this court to address
sua sponte a non-jurisdictional issue rejected by both parties
below and not argued or briefed on appeal.
17
18
her
plea
hearing,
Kinder
testified
at
length
and
in
or
her
counsel
her
behalf,
raise
the
issue
witness
in
of
privilege.
Ultimately,
Kinder
served
as
the
star
the
own
proceeding,
in
Whites
criminal
Yet, unlike in
proceeding,
Kinder
open-court
testimony
in
her
own
proceeding,
Kinder
I.
White, a West Virginia businessman, owned a two-unit duplex
near Van, West Virginia.
difficulties.
express[ed]
this
frustration
to
Kim
Kinder,
an
$80,000 coverage for the duplex and $20,000 for its contents.
Id.
soon as possible.
Id.
20
After
to
cooperate
with
the
authorities.
Kinder
made
During the
Id.
arson
in
violation
of
18
U.S.C.
844(i).
The
requesting
the
Court
reduce
her
sentence
based
on
the
Plea Agreement at 4,
that
she
took
numerous
medications,
including
antiKinder
also revealed that she had been diagnosed with bipolar disorder
and
schizophrenia.
She
did
not
know,
however,
which
drugs
[her]
that
schizophrenia.
this
Tr.
of
is
what
Plea
Hrg
am
at
prescribing
12,
United
you
States
for
v.
Kinder
detailed
her
extensive
psychiatric
issues
and
the
district
courts
questions.
She
explained,
for
example, that it was just just pretty much the way my life
has went for the past 26 years, is in and out of hospitals and
emergency rooms and what because I didnt know, they couldnt
tell me what was wrong with me.
Id. at 11.
Marys
Hospital.
Hospital,
And
she
Thomas
identified
Memorial
at
Hospital,
least
one
of
and
her
Kinder also
shared, for example, that she felt her doctors did not really
care[] enough to sit down and find out what was going on and
most . . . would just, you know, write me more drugs and send me
home.
Id. at 13.
22
And
J.A. 97-98.
own
criminal
proceeding.
He
sought
Kinders
treatment
government
records
opposed
were
psychotherapist-patient
Whites
protected
privilege
motion,
from
arguing
disclosure
recognized
in
that
by
Jaffee
the
v.
the
[were]
camera review.
district
sufficiently
J.A. 91.
court
found
relevant
that
.
the
to
requested
warrant
in
23
preliminary
order
directing
each
of
the
four
hospitals
to
the
scope
Nevertheless,
of
the
observing
psychotherapist-patient
that
the
privilege.
psychotherapist-patient
necessary
to
constitutional rights.
vindicate
criminal
defendants
J.A. 119.
the
perfect
including
storm
of
facts
role
as
Kinders
justifying
an
co-conspirator,
exception
Kinders
self-
own
sentence),
the
importance
of
Kinders
testimony
and
her
ability
relate information.
granted
Whites
to
accurately
J.A. 123.
motion
for
perceive,
process,
and
early
production
of
records
and
White
on
several
arson-related
counts,
and
the
Id.
White
Only Kinders
II.
Kinder argues that in deciding whether her mental health
records were protected from disclosure by the psychotherapistpatient privilege, the district court engaged in the type of
balancing
Jaffee.
analysis
the
Supreme
Court
expressly
rejected
in
25
appeal,
[w]e
review
factual
findings
underlying
an
341
consideration,
F.3d
I
331,
must
334
(4th
Cir.
agree
with
White:
In re Grand Jury
2003).
Upon
Kinder
careful
waived
her
an
precludes
us
certainly
initial
from
matter,
reaching
do
the
not
believe
privilege-waiver
that
waiver
issue.
964-65 (4th Cir. 2013) (quoting Harris Trust & Sav. Bank v.
Salomon Smith Barney, Inc., 530 U.S. 238, 245 n. 2 (2000)).
Nevertheless,
while
White
did
not
call
his
argument
below
J.A. 65
Court could have properly found that Ms. Kinder had waived any
26
hospitalizations
in
open
court,
thus
she
had
no
Appellees
Br. at 11.
Moreover,
we
review
judgments,
not
opinions
and,
F.3d
Cir.
281,
291
(4th
2012)
(quoting
Crosby
v.
courts
judgment
production of records.
granted
Whites
motion
City
of
Here, the
for
early
Quicken
518 U.S.
counseling sessions with a police officer who had been sued for
use of excessive force were protected from disclosure by the
27
psychotherapist-patient privilege.
confidence
disclosure
and
of
trust
and
that
confidential
the
mere
possibility
communications
made
of
during
Id. at
10.
The
Supreme
privileges,
the
Court
found
that,
psychotherapist
like
privilege
other
testimonial
serves
the
greater
good
concluded
of
transcendent
that
communications
importance.
privilege
between
Id.
The
protecting
psychotherapist
Court
confidential
and
her
patient
probative
evidence.
Id.
at
910
(quoting
Trammel
v.
free
discovery
construed.
In
of
re
the
Grand
truth,
Jury
they
Subpoena,
must
341
be
narrowly
F.3d
at
335
(quoting Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998).
They are thus recognized only to the very limited extent that
excluding relevant evidence has a public good transcending the
normally predominant principle of utilizing all rational means
for ascertaining truth.
Id.
28
Accordingly,
like
other
privileges,
the
psychotherapist-
Jaffee,
518
U.S.
at
18
n.19.
The
Supreme
Court
Id.
Id. at 15 n.14
patient
psychotherapist-patient
may
waive
the
privilege
by
(4th Cir.), cert. denied, 134 S. Ct. 549 (2013) (citations and
parentheticals omitted).
In
Bolander,
the
patient
failed
to
assert
the
that
deposition,
[he]
was
asked
questions
about
his
He did not
the
program.
.
[program],
including
documents
generated
by
the
without
the
asserting
the
patient
privilege,
[the
Id.
involving
the
longstanding
attorney-client
privilege,
to
In Hawkins, we
patient
in
the
psychotherapy
context,
and
can
waive
it
the
sort
of
thing
that
would
waive
the
attorney-client
privilege).
In Hawkins, a former husband alleged that his former wife
illegally recorded telephone conversations between him and his
girlfriend.
In
her
deposition,
the
former
wife
answered
questions about whether her lawyer had advised her regarding the
wiretap:
30
asked
information
during
regarding
deposition
confidential
clearly
communications
elicited
[the
former
wife] may have had with [her lawyer], and was objectionable on
its face on the ground of attorney-client privilege, neither
[the former wife] nor her attorney asserted an objection.
In
answering
objection,
the
the
former
question
wife
without
waived
the
raising
privilege
Id. at 384.
Id.
privilege
as
to
the
And [b]ecause
Id.
also, e.g., Hanson v. United States Agency for Intl Dev., 372
F.3d 286, 294 (4th Cir. 2004) (Implied waiver occurs when a
party
claiming
the
privilege
has
voluntarily
disclosed
31
not
covered
disclosure
by
the
privilege.).
vitiates
the
This
confidentiality
is
because
that
such
constitutes
the
reasoning
intuitive:
behind
Id.
waiver
in
such
circumstances
is
legitimacy
as
truth-seeking
process.
Privileged
Indeed,
by
general
perception
that
the
courts
It
disclosures
that
has,
are
therefore,
likely
to
been
lead
suggested
to
Id. at
that
privileged
all
material
deeming
communications
Id. at 1647.
impliedly
waived,
this
Circuit
transactions
and
communications
with
his
attorney
where
he
Cir. 2001).
We have also recognized implied waiver in the context of
communications that predated the commencement of the litigation
where the waiver issue had been raised.
For example, in In re
Grand
defendant
Jury
Subpoena,
we
held
that
the
waived
the
conversation
with
Federal
Bureau
of
Investigation
agents, the defendant had reported that he had answered the form
question as he did on the advice of an attorney.
any
client
privilege
associated
authorized
his
with
attorney
them
to
was
waived,
convey
to
when
the
the
lawyer
Circuit,
privilege
must
privileges
be
including impliedly.
such
construed
as
the
narrowly
psychotherapist-patient
and
may
be
waived,
disclosure
to
third-parties
before
the
litigation
at
hand
court,
numerous
Kinder
medications,
told
the
district
including
court
that
anti-depressants,
she
took
anti-anxiety
She explained
that her metal health deteriorated after the birth of her son
and that it was just just pretty much the way my life has
went for the past 26 years, is in and out of hospitals and
emergency rooms and what because I didnt know, they couldnt
tell me what was wrong with me.
Id. at 11.
attempts.
34
Kinder
wards:
detailed
Logan
Memorial
Regional
Hospital,
identified
at
her
least
and
admissions
Hospital,
Highland
one
of
her
St.
to
four
Marys
Hospital.
treating
hospital
psych
Hospital,
Thomas
Id.
at
7.
She
physicians
by
name.
Kinder also shared, for example, that she felt her doctors did
not really care[] enough to sit down and find out what was
going on and most . . . would just, you know, write me more
drugs and send me home.
Id. at 13.
and who knows who elsewas present in the public gallery during
the proceeding to hear this entire discussion.
J.A. 97-98.
He
her
extensive
testimony
in
open
court,
Kinder
White sought.
disclosed
confidential
information
on
[the
She voluntarily
pertinent]
subject
waiver
here
was
prompted
by
the
district
courts
about
the
testimony
resulting
same).
in
waiver
331
(holding
that
Nor
is
it
predated
dispositive
the
that
commencement
the
of
defendant
waived
the
attorney-client
36
The
district
court
therefore
did
not
err
in
III.
For the reasons above, I would affirm the district courts
grant
of
Whites
motion
for
early
37
production
of
records.