very i've got the next case of the privilege issue it is the area where from both a common law privilege perspective and a fourth amendment constitutional perspective it it's a area of new law that i think there is a sound reason why this court and every other court in the country has never gone there before we before we talk about making new docket we just talk about the the old law the existing children there is discussion also of this your reconcile ability issue right that if you look at rover senate and and also byrd which is the seventh circuit case that roberson talked about they talk about it not as technically an exception to the privilege but as negating the foundational elements of the privilege specifically the existence of a marriage at that time if in that way that sounds like a really good fit f there is kind of a there's a factual and a legal response to that and i think why that doesn't apply in this instance is factual your honor is first of all what are we talking about we talk about separated because roberson talks about to have separated after their dinner after they got married and had dinner well and that was the intention from the get go right but did they are they were separated certainly physically in that they didn't live together  testimony is that from from the minute they decided to enter into this bargain that the deal was we'll stay married a year or two that's it for a purpose that really doesn't have much to do with what we think of as marriage well first of all that's part of the problem is the what we think of as marriage and that's that's the slippery slope that touch my hearts indicating we're trying to stay away from not delving into that and not making new law but with respect to the separation your honor if the court looks at roberson if the court looks at bird what the courts talk about in terms of separation and irreconcilable separate bill so irreconcilable separation is separation as a step toward dissolution of the marriage separation in the context of steps to terminate the marriage  right but if we define day one a couple decides to get married for a limited purpose and knows there's just that the only question is when they're getting divorced a year or two out and why isn't this a really good fit well what if the couple changes their mind in this instance they stayed married for more than six years the recorded conversation at issue took place four and a half years into the marriage now certainly the terms of their marriage are not the storybook i love you forever you love me forever that we think of or like to think of when we think of a couple getting married but there are any host of reasons why couples might get married for reasons other than that they could get married for financial security or to legitimize offspring or for health insurance or for tax advantages  any number of reasons why couples might enter into that contractual relationship apart from love and affection apart from the sexual relationship in this instance they reached a contract an agreement to get married for certain reasons he was going to get his green card she was going to get housing her cell phone paid for that was their agreement they stayed married under that agreement for again six and a half years and if the court looks at the factors that this and the seventh circuit in bird looked at what we're looking at is whether that marriage was over or effectively over so that they really weren't married at the time of the terms at the time of in the commenced well it did commence your honor when they got married when they performed that marriage and carried it out according to its agreed upon terms he covered her lodging he paid for her cell phone he used the marriage as a basis to apply for the green card that's why they got married and they were still married they had not taken it i just i guess that's that's the question is if you if you agree to a relationship that you call a marriage in the ghost of amounts of marriage but all the scenes you agree to live life together to plan together all of those things that we consider marriage whether that is in fact a marriage or sham and you know and if there if there's no intent to enter in what we think of as a marriage well because what we're looking at here are is not and again i don't roberson under the other cases we're not looking at whether the marriage was traditional we're not looking at the reasons they got married we're not looking at their lifestyle choices whether they had other boyfriends and girlfriends whether they live together whether they had sex or not what we're looking at is whether the marriage according to their concept of the marriage and the reasons why they entered into that marriage was over or was effectively over and  enter a relationship and google for mt is a marriage i mean let's say they meet and somebody pays two thousand dollars it goes with mounds of marriage never lived together and entire agreement is i'm going to shouldn't do that but we want to take a few minutes like you well there's there's no doubt i believe your honor that that is a legally binding marriage they are married by the state of california going to all i can say and further attempt to answer is under the law if they hadn't been married there would have been no need to file for and go through their divorce in december two thousand and twelve and the government in this instance recognized them as married when the government told the wife that if she didn't cooperate she would be on the hook for half of his tax liability and that's an acknowledgement by the government that this was a legally valid and binding marriage with all the attendant legal consequences and when it suited the government to recognize that marriage as lawful for purposes of that threat which was acknowledged by a stipulation a trial the government readily acknowledge that this was a lawful and binding marriage and yet they still felt it appropriate to listen in on conversations and list her as an informant to basically act in their stead and elicit incriminating statements from him during the course of that marriage when no steps have been taken at that point to terminate the marriage thank you thank you test that we need to look at here is using serial marriage if they agree i'm going to pay you money or your ply for a green card for me and then we shake hands and gossip of ways i do not believe that's really going to separate secretary so that they he can receive his health benefits is that a marriage oh give them a according to u s c i asked and this is what came out at trial what makes a marriage legitimate from their purposes i believe is a good rule generally speaking is whether or not the couple intend to spend a life together there are many formulation of we all come out of the family life together i don't think i would not know what this overly judge did but my guess was there wasn't any however that is not in the existing law the government has believed and continues to believe that the strongest argument in this case is the argument that you referenced at the start today which was the murphy rule the roberson rule which is out of here  the crime fraud exception for other privileges as i remain being ninth circuit law the drunk participant exception applies to situations where both people are both active participants at the time of the role of wasn't he continuing to pay her marry her rent until the first half of the starbucks interview yes your honor however at that point she was cooperated with law enforcement and so as a matter of honor i meant starbucks in the first the first half of the interview with the government agents until they said hey your name's on this tax return and you could be liable and she said ok i want to come clean yes everything sounds to me like she was participating certainly everything up to that point without a doubt would fall under the driver to ok and so then your point is that then she did agree to wear a wire and then she's not participating anymore in that in the crime fraud because she's no longer purchased perpetuating the yes that's a marriage is that it that was a problem and why the government didn't argue that three below never the last i see is a more appropriate argument in front of a circuit court which is that one can usually extend that privilege to apply to situations where the defendant from his perspective so in visions and both as robert just ok now i understand your answer and forgive me for taking a minute to get it but i now understand that that's been a question that i have so do you want to talk about that reconcilable differences exception yes so exception to people who are married for other purposes sorry say that again your honor there are no cases applying the reconcilable marriage exception to  marriage this sort of case is a new or is a new case it's fresh facts before the court ok i'm not saying we couldn't do it yeah but if we want to and reconcilable marriage exception we marriage being about romance i think that's wonderful but that's something the government decides no it is not wrong to people who are married and don't live together but they're married for  own i think in the example that you're coming up with the let's say you're trying to hide something about yourself when you're marrying someone for that purpose if your arrangement with that person per other person is this is why i want to get married to you we're never going to have sex but we're going to spend a life together we're going to live in the same house we're going to share everything or we don't live in the same house look at cancer you don't live in the same as let's say it's just we're both going to be married together and we're going to spend our lives together in this way is different from a some people do it the least our goal is to spend o lives together it's not to file an i seven fifty one petition to commit a crime against the government which also has to make a point this wouldn't even be the court or prosecutor or anyone making a moral judgment here  it a crime under u s c thirteen twenty five why would we have to do any of that inquiry into i think our case law is very protective we don't look around reasons for marriage and there's there's a lot been written on that so i don't need to remind you because i think you've been careful acknowledge it but to the four factors that we would have to talk about for the irreconcilable differences exception or the duration of the marriage which is just an objective fact doesn't go to motive the stability of the marriage at the time of the communication these folks intended to get divorced from the minute they inked the deal right whether the divorce action had been filed in the conduct of the parties since that filing where there whether they're living together or not and whether there is any proposed property settlement in this case we don't think there was even in the acquisition of of property but the reason if i haven't made it clear that i'd like to talk about not expanding the law and looking at this the applicability of this exception is it seems to me that is quite consistent with  advocating for well in our position we're advocated for all and certainly i don't think that there's anything wrong with what the court did below finding a but that's a new law that's new law that's true that's new law but if you look at the reasons of the court or teach related it winds up exactly with all the reasons that we're talking about advice in the face of our case law that talks about being very careful to second guess the motives of the all the many many different reasons people have for getting married because i would say that the the same strand flows throughout the sham marriage exception and the murphy roberson rule which is we always have to go back to this is a narrow privilege to protect marital intimacy and sort which is offset by and ministration of justice truth seeking all that that's the existing perception and the government believes that under the murphy roberson separating the aren't reconciled with all that is more than sufficient in this case i see that i'm  otherwise have no relationship whatsoever we do we don't you know and as soon as a deal is done i take the money you do whatever paperwork is done we have no further conflict i would argue your honor that as long as they are married that's up to you if you don't want to give an answer that's fine i said other any circumstances i mean is it your position that's on long as they go through a marriage ceremony it is a valid marriage that was a privilege attaches no matter what the actual relationship is or what the terms of what happens with i think under the law that is correct your honor i think that as long as it was a legally binding marriage which this unquestionably was right under california law then unless the exceptions that have been recognized by the court apply which putting aside a reconcile ability for a moment here the other two clearly don't then they have a right to those privileged communications and with respect to reconcile ability what we look at is objective factors to decide whether the marriage their marriage their concept of marriage not a courts or prosecutors was still in effect or was effectively over and roberson we look at whether a divorce action had been filed here there had been