United States v. Fomichev

899 F.3d 766 (2018)

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United States v. Fomichev

United States Court of Appeals for the Ninth Circuit
899 F.3d 766 (2018)


Dimitry Fomichev (defendant) came to the United States from Russia on a student visa. Fomichev met and married United States citizen Svetlana Pogosyan and subsequently filed to change his immigration status. The United States Department of Homeland Security determined that the marriage was bona fide and granted Fomichev a new visa status and conditional residence in the United States. Fomichev and Pogosyan later petitioned to remove the conditions. The petition reported a shared home address and included certifications that the petition was accurate, that the marriage was legitimate under California law, and that the marriage was not entered into for immigration purposes. The petition included copies of the couple’s joint tax returns. Pogosyan was approached and questioned by Internal Revenue Service (IRS) agents and Pogosyan admitted to the agents that the only purpose of the marriage was to establish Fomichev’s American citizenship. Pogosyan agreed to assist the IRS agents and secretly recorded several conversations with Fomichev in which Fomichev made potentially incriminating statements. The government (plaintiff) criminally charged Fomichev in federal district court for making false statements on immigration documents. Fomichev moved to suppress the recorded conversations between himself and Pogosyan, arguing that the conversations were protected under the marital-communications privilege. The district court denied the motion and admitted the recordings into evidence. Fomichev was convicted at trial. Fomichev appealed the district court’s admission of the recordings and the conviction. The government did not dispute that the conversations between Pogosyan and Fomichev were recorded during the marriage. The government argued that the marriage was not bona fide but instead a sham used for immigration purposes. The government acknowledged that a sham-marriage exception had only been applied to the spousal-testimonial privilege but argued that the exception should be extended to the marital-communications privilege as well. Neither party argued whether the marriage was irreconcilable at the time of the recordings.

Rule of Law


Holding and Reasoning (Christen, J.)

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