United States v. Dmitry Fomichev
899 F.3d 766 (2018)
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Rule of Law:
The sham marriage exception, typically applied to the spousal testimonial privilege, does not extend to the marital communications privilege, which protects confidential statements made during a valid marriage unless the marriage was irreconcilable at the time of the communication.
Facts:
- Dmitry Fomichev, a Russian national, came to the United States in 2003 on a student visa.
- Fomichev met Svetlana Pogosyan in 2006, and they married later that year.
- In 2007, Pogosyan applied for an alien relative visa for Fomichev, and he applied to adjust his immigration status; the Department of Homeland Security found the marriage bona fide, approved the visa, and granted Fomichev conditional residence.
- In 2009, Fomichev and Pogosyan petitioned to remove the conditions on Fomichev’s residence, indicating a shared address and certifying that the marriage was not for the purpose of procuring an immigration benefit.
- In 2010, agents of the Internal Revenue Service approached Pogosyan, who, after being cautioned about lying, stated she agreed to marry Fomichev so he could secure U.S. citizenship in exchange for rent.
- Pogosyan then assisted the agents by recording several telephone calls and an in-person meeting with Fomichev, during which Fomichev expressed concern about his immigration status, stating, “do not set us up, me and you, in regards to the immigration as no one knows, . . . no one can prove anything.”
- In January 2011, Pogosyan testified before the grand jury that the marriage was for immigration purposes, they never lived together, and it was not intended to last.
- Pogosyan and Fomichev filed for divorce in state court in October 2012, which was finalized in December 2012.
Procedural Posture:
- In March 2013, the government charged Fomichev in federal district court with three counts of subscribing to false income tax returns and four counts of making false statements to the United States government on immigration documents.
- Fomichev filed a motion in the district court to suppress the recordings of his conversations with Pogosyan and Pogosyan’s grand jury testimony, arguing they were protected by the marital communications privilege and violated the Fourth Amendment.
- The district court denied Fomichev's motion to suppress, extending the sham marriage exception to the marital communications privilege and rejecting his Fourth Amendment argument.
- Evidence of Fomichev’s marital communications was admitted at trial, and a jury convicted Fomichev of four counts of making false statements on immigration documents.
- The district court sentenced Fomichev to three years of probation.
- Fomichev, as the defendant-appellant, timely appealed his conviction to the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does the "sham marriage exception" to the spousal testimonial privilege also apply to the marital communications privilege, thereby allowing the admission of otherwise confidential spousal communications in a criminal case where the marriage was allegedly entered into for fraudulent purposes?
Opinions:
Majority - Christen
No, the "sham marriage exception" to the spousal testimonial privilege does not extend to the marital communications privilege. The Ninth Circuit held that the district court erred by extending the sham marriage exception to the marital communications privilege, emphasizing the distinct nature of the two marital privileges under federal common law. The marital communications privilege protects confidential statements made during a valid marriage and survives the marriage, aiming to preserve the institution of marriage and ensure spouses feel free to communicate without fear of future exposure. This privilege exists unless the marriage had become irreconcilable at the time the statements were made. The court noted that the sham marriage exception has been narrowly applied only to the spousal testimonial privilege, typically when a marriage is entered into solely for the purpose of invoking that privilege (e.g., shortly before trial to prevent a spouse from testifying). The government failed to provide a convincing reason to expand this exception to the broader marital communications privilege, which carries a strong presumption of confidentiality. The court also found sufficient evidence to support the jury's finding that Fomichev understood the documents he signed, based on his English competency. However, because the district court did not make a finding regarding whether the marriage was irreconcilable at the time Fomichev's statements were recorded, the panel remanded the case for that determination and declined to address Fomichev's Fourth Amendment and mistrial arguments until then.
Analysis:
This case significantly clarifies the distinction between the marital communications privilege and the spousal testimonial privilege, reinforcing the robust protection afforded to confidential spousal communications. By refusing to extend the sham marriage exception, the court signals a strong judicial reluctance to intrude upon the sanctity of marital privacy and the societal interest in encouraging open communication between spouses. This ruling will likely make it more challenging for the government to admit private spousal conversations in marriage fraud cases unless it can definitively prove the marriage was irreconcilable at the time of the communications, rather than merely proving the marriage was entered into for fraudulent purposes. It also serves as an important reminder to district courts to carefully delineate and apply the specific requirements of each privilege.
