F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

D M I T R Y F O M I C H E V , Defendant-Appellant. N o. 16-50227

D.C. No. 2:13-cr-00185- SVW -1

OPI NI ON

Appeal from the United States District Court for the Central District of California Stephen V. W ilson, District J u dg e, Presiding

Arg ued and Submitted Aug ust 10, 2017 Submission Vacated J a

nu ary 9, 2018 Resubmitted Aug ust 8, 2018 Pasadena, California

F iled Aug ust 8, 2018U N I T E D S T A T E S V

. F O M I C H E V 2

B efore: Kim McL a

n e W ardlaw, * Morg an Christen, and J ohn B . Owens, * * Circuit J udg es.
Opinion by J udg e Christen

SUMMARY * * *

Crim inal Law

The p a nel vac a t ed the district court’s order denying a defendant’s motion t o s u p p r e ss recording s of his conversations with his wife and his wife’s testimony describing those conversations, in a c a s e in which the defendant w as convicted of four counts of making false
statements on immig r ation documents in violation o f 18 U.S.C. §§ 1546(a) and 1001.

T h e panel held that the d istrict court erred by e x tend i n g t he sham marriag e e x ception, which has been applied t o t h e spousal testimonial privileg e, to the marital communications privileg e.

* Fo llo w in g J u d g e Ko zin sk i’ s retirem en t, J u d g e W ard law w as d raw n b y lo t to rep lace h im

. Nin th Circu i t Gen eral Ord er 3 .2 .h

. J u d g e W ard law h as read th e b rief

s, rev iew ed th e reco rd , an d listen ed to o ral arg u m en t.

** Ju dg e Ow en s w as d raw n to rep lace J u dg e Reinh ard t on th e p an el f o ll o w i n g J u d g e Reinh ard t ’ s d eath

. J u dg e Ow en s h as read th e b rief s,

rev iew ed th e reco rd , an d listen ed to o ral arg u m en t.

*** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. F O M I C H E V 3

B e cause the district court did not make a finding about whether the marriag e was irrecon c i lable when the I RS recorded the defendant’s statements, which would r ender the marital communications p rivileg e inapplicable, the panel remanded for the district court to rule on irreconcilability

.

T he panel held that sufficient evidence supported th e jury ’s f inding that the defendant understood the documents he sig ned.

COUNSEL

Daniel Saunders (arg

u ed), Kasowitz B enson Torres L L P, L os Ang eles, California, for Defendant-Appellant.

Christopher C. Kendall (arg u ed), Assista n t U nited States Attorney ; L awrence S. Middleton, Chief, Criminal D ivision; S an dra R. B rown, U nited States A ttorney ; United States Attorney ’s Office, L os Ang eles, California; for PlaintiffAppellee.U N I T E D S T A T E S V

. F O M I C H E V 4

OP INION

CHRI STEN, Circuit J udg e:
Dimitry F omichev appeals his jury conviction for four
counts of making false statements on immig ration documents in violation of 18 U.S.C. § 1546(a) and 18 U.S.C. § 1001. W e have jurisdiction under 28 U .S.C. § 1291. We v acate the district c ourt’s order denying F omichev’s motion to suppress and remand.

BACK G ROUND

F omichev was born in Russia and came to the United States in 2003 on a student visa. He met Svetlana Pog osy an in 2006, and they married later that y ear. I n 2007, Pog osy an applied for an alien relative visa for F omichev, and he a pplied
to adjust his immig ration status. The United States Department of Homeland Security found the m arriag e bona fide, approved the visa, and g ranted F o m i c h ev conditional

r esidence. Two y ears later, with counsel, F omichev a n d Pog osy a n petitioned to remove the conditions on F omichev’s residence, indicating a shared address, and certify ing that the
p e t i t ion and e vidence were true and c orrect a nd that t h e

m a r riag e was entered in accordance with the laws o f California and not for the p urpose of proc u ri n g an immig ration benefit. The couple attached copi e s of their jointly filed tax returns to the petition.

I n 2010, ag ents of the I nternal Revenue S e r vice approached Pog osy an, and she ag reed to meet with them at a coffee shop. Pog osy an g ave co n f l i cting answers to the
ag ents’ initial questions a

bout w here she and F omichev lived and about t h e i r tax returns, so the ag ents cautioned her thatU N I T E D S T A T E S V

. F O M I C H E V 5

ly ing to federal ag ents is a felony and that she could be culpable and owe back tax es for false returns. At that point, Pog osy a n stated s h e w a nted to “come clean” and tell the
ag ents the truth. Pog o s y an said that she ag reed to marry F omichev so that he could secure U.S. citiz enship, a nd that he
ag reed to pay her rent i n e x c hang e

. Pog osy an then assisted the ag ents’ investig ation by recording several telephone calls with F omichev and wearin g a c o ncealed recording device during an i n -person meeting with him. I n these recorded conversations, F omichev ex pressed concern reg arding his immig ration status, say ing
, among other thing s, “do not set us up, me a n d y o u, in reg ards to the immig ration a s n o o ne knows, . . . no one can prove any thing .”

I n J a nuary 2011, Pog o sy a

n testified before the g rand jury that F omichev ag reed to p rovide housing for her in return for the marriag e, that they never lived tog ether, that the marriag e

was not intended to last more than a couple of y ears, and that F omi c h e v needed to marry a U.S. citiz en to obtain citiz enship.

I n October 2 012, Pog osy an and F omichev filed for a divorce i n s t ate court. Their divorce was finaliz ed in December 2012.

P ROCEDURAL BACK G R OUND

I n March 2 013, the g overnment charg ed Fo m i c hev with three c ounts of subscribing to f alse income tax returns based

on his 2006, 2 007, and 2008 returns; two counts o f making false statements to the United States based o n certify ing that h i s m arriag e was not f or the p urpose o f procuring a n immig ration benefit; and two c o unts of making falseU N I T E D S T A T E S V

. F O M I C H E V 6

s t atements in immig ration documents based on the sa m e certifications.

F omichev filed a motion to suppress the recording s o f his conversations with Pog osy an and Pog osy an’s testimony describing those conversations. He a rg ued that this evidence

was e nt i t l e d to protection pursuant to the marital communications privileg e b ecause the statements were made while F o michev and Pog osy an were married. He also a rg u ed
t h a t the admission o f this evidence violated the F ou r t h Amendment. The g overnment opposed, arguing that F omichev was not e ntitled to invoke th e m a rital communications p rivileg e because F omichev married Pog osy a n for fraudulent purposes, and that F omichev had no

ex p ectation of privacy in t he communications because his wife had ag

reed to act as a g overnment informant.

After considering the arguments, the d i s trict court noted the parties’ ag reement that the marital communi cations privileg e would protect the challeng ed evidence from being introduced at trial “unless a recog niz e d ex ception to the privileg e a

pplie[ d] ” because the evidence the g o v e r n ment soug h t to introduce “ constitute[ d ] (1) words intend e d a s communication to the o ther s p ouse, (2) made during the

course of a valid marriag e, a nd (3) intended to be confidential.” The district court acknowledg ed that althoug h
courts h ave reg ularly applied the sham marriag e ex ception to the spousal testimonial privileg e, it had “found no cited case where the sham marriag e ex ception ha[ d] been applied to the marital communications privileg e .” I ndeed, the c o urt reasoned, “as the co m munications occurred more than four
y ears after F o michev and Pog osy an married, it cannot be said that they married for the purpose of invoking any ma r i t al privileg e.” The court also recog niz ed that our cases c autionU N I T E D S T A T E S V

. F O M I C H E V 7

a g ainst what the district court described as eng ag ing in “ t h e business of opining on which r easons for marriag e a re leg itimate or deserving

of marital privileg es and which ones

ar e not.” Nevertheless, the district court determined there

w a s no principled reason not to e x tend the sham marri a ge

ex c e ption to the marital c ommunications privileg e , and it did

so. The court found that: (1) F omi c h ev and Pog osy an married in 2006; (2) the initial plan was to find a place to live
to gether; (3) after looking at about twenty -five options, the couple sig ne d a lease for a residence in W hite O ak where F omichev was supposed to live but n ever did; (4) the couple did n ot reside tog ether at any time; a n d ( 5 ) t h e couple never slept in the same b ed or eng ag ed in sex ual re l a t i o ns. The
court concluded, “[ o] n the p a r ticular f acts o f t h [ e] case, the policy interests behind the marital communications privileg e would not be advanced, and wou l d surely be outweig hed b y the competing socie tal interest for truth and the administration of justice.”

Th e district court also rejected F omichev’s F ourth Amendme n t ar g ument. The court recog niz ed that we have
not decided whether the law r ecog niz es an ex p e ct a t i o n o f privacy when o ne spouse c onsents to el e c tronic monitoring
, and it relied on the Supreme C ourt authority g enerally establishing that individuals have no reasonable ex pectation of privacy in the statements they ma k e to g overnment informants.

The court denied F o m ichev’s motion to suppress, evidence of F omichev’s marital c ommunication s was admitted at trial, and the j u r y c o nvicted F omichev of four
counts of making false sta t e m e n ts or misrepresentations to the United States g overnment in viola t i o n of 1 8 U .S.C.U N I T E D S T A T E S V

. F O M I C H E V 8

§ 1546(a) and 18 U.S.C. § 1001. 1 The district court sentenced F omichev to three y e a rs o f probation, and F omichev timely appealed.

STANDARDS OF REVIEW

W e review de novo an o r d e r denying a motion to suppress, see United States v. Crews
, 502 F .3d 1 1 30, 1135 (9th Cir. 2 007), a

nd leg al conclusion s r e g arding the marital communications privileg e, see U nited States v. Griff

in
, 440 F

. 3d 1138, 1143 (9th Cir. 2006). W e review c halleng e s to the admission of ev idence f or a n abuse of discretion, see United States v

. Marashi
, 913 F

. 2d 724, 729 (9th Cir. 1990), and we make decisions on the sufficiency of the evidence de
novo, see United States v. Garrison
, 888 F .3d 1057, 1064 (9th Cir. 2018).

D ISCUSSION

F omichev’s challeng e to the district court’s ruling on his motion to suppres s primarily r elies on the marital communications privileg e, argu ing that th e d i s t r ict court erred by admitting statements he made to Pog osy a n in confidence during the c o u r s e o f their leg ally valid marriag e

. The
go v e r n ment urg es us to affirm the district court’s order denying F o m i c hev’s motion to suppress on o ne of three
g rounds: by ex tendin g t h e sham marriag e ex ception, b y deeming the marriag e irreconcilable at the time the contested
statements w ere made, or by finding F omichev’s s tatements to Pog osy an were made in furtherance of a joint criminal

1 T h e g o v ern m en t m o v ed to d i sm iss t h e tax co un t related t o th e 2 0 0 8
retu rn b ef

o re tri a l
, an d t

h e co urt later g ran t ed Fo m ich ev ’ s m o tio n f or j u d g m en t o f

acq u ittal o n

th e rem ain in g tax co un ts.U N I T E D S T A T E S V

. F O M I C H E V 9

activity

. The la s t a r gu ment is raised f or the first time on appeal, so we do not address it. S e e U n i t ed States ex rel. Kelly v. S

erco, Inc.
, 846 F .3d 3 2 5
, 336 (9th Cir. 2017). 2 F o m i chev separately argues that the admission o f the challeng ed evidence violated the F ourth Amendment. The
g overnment counters that F omiche v h a d no ex pectation o f privacy in the statements.

1. The District Court Erred by Extending the Sham M a r r i a g e E x c e p t i o n t o t h e M a r i t a l Com m unications P rivilege.

I t is n ot disputed that F omichev and Pog osy an we re married p ursuant to California law f rom J uly 2006 to December 2 012. The go v ernment argues that even thoug h F omichev and Pog osy an h a d been m a r r i e d for four y e ars at the time the subject statements were r ecorded, the marriag e

was never valid for purposes o f invoking a federal p r i v i l e g e because F omichev and Pog osy an had “ no close emo tional, social, or cultural ties.” The g overnment recog niz es that we have applied the sham marriag e ex c e ption only to the spousal testimonial privileg e, but it argues that there is no principled

reason not to ex tend th e e x ception to the marital communications privileg e, and that a l l o wing a defendant to hide behind the marital communicati o ns privileg e while
eng a g e d i n marriag e f

raud fails to balance the privileg e

2 In th e trial co urt, th e g o v ern m en t arg u ed Fo m ich ev w as n ot en titled
to in v o k e th e m arital co m m u n icatio n s p riv ileg e b ecau se Fo m ich ev ’ s

co n d u ct am o un ted to w itn ess tam p erin g , b u t it f

ai l e d t o cite to an y

au th ority su

p p o r t i n g su ch an ex cep tio n

. On ap p eal, t h e g o v ern m en t arg u es th e w ell- reco g n ized j o in t crim in al activ ity ex cep tio n —“ th e m arital

co m m un icatio n s p riv ileg e do es n o t ap p ly to statem en ts m ad e in f urth eran ce o f j o i n t crim in al activ i ty .” Un ited S ta tes v. Mo ntg o mery , 3 8 4 F.3 d 1 0 5 0
, 1 0 6 0 (9 th Cir. 2 0 0 4 ) (q u otin g Ma ra sh i
, 9 1 3 F.2 d at 7 3 1 ).U N I T E D S T A T E S V

. F O M I C H E V 10

a ga i nst society ’s strong interest in the administration o f justice. W e are not persuaded that the e x ception should be

ex tended.

F ederal Rule of Evidence 501 p rovides that, ex cept a s otherwise required by the Constitution, federal statute, o r Supreme Court rule, the privileg e o f a witness shall be
g overned by

the principles of common law as interpreted by United States courts “in the lig ht of reason a nd ex perience.” F ed. R. E vid. 5 01. Our c a se law r ecog niz es two p r i v i leg e s that arise from a mar i t a l r elationship: the marital communications privileg e and the spous a l testimonial privileg e. “B oth privileg es depend on the ex istence of a valid marriag e, as determined b y state law.” United States v

. Lustig
, 555 F .2d 737, 747 (9th Cir. 1977).

The marital communications privil e g e p r o t e c t s s t a t ements

or actions that are intended a s confidential c ommunications b e t ween spouses, made during the ex istence of a valid marriag e, United States v. Strobehn
, 4 21 F .3d 1017, 1021 (9th Cir. 2005), unless the marriag e had beco m e irreconcilable when the statements were made. See United S t a tes v

. Murphy
, 65 F .3d 758, 7 61 (9th Cir. 1995) ( “ S e p a r ation a nd irreconcilability are questions o f fact det e rmined b y the d i s t rict court.”). Either spouse may invoke the marital communications privileg e and the protection i t a ffords to stateme n t s m ade during a marriag e survives the marriag e

. See Lustig
, 555 F .2d at 747. The privileg e “ex ists t o i n s u re that spouses g enerally feel free to communicate their deepest feeling s to each o ther without f ear of eventual ex posure in a
court of law.” United States v. Roberson
, 859 F .2 d 1 3 7 6, 1380 (9th Cir. 1988); see U nited States v. W

h ite
, 974 F .2d 1135, 1138 (9th Cir. 1 992) (noting the purpose of the privileg e is to “protect [ ] t h e integ rity of marriag e[ ] a ndU N I T E D S T A T E S V

. F O M I C H E V 11

ensure[ ] that spouses f

reely communicate with one another”). B ecause m a r ital communications a re “presumptively confide n t i a l [
, ] t h e go v e r nment has the burden o f demonstrating that they

are not.” Marashi , 913 F .2d at 730.

The spousal testimonial privileg e, on the o t h er h and, prohibits one spouse from t e s t ify ing ag ainst the other in criminal cases during the course of their marriag e, and “the witness-spouse alone has a p r ivileg e to refuse to testify adversely

. ” Trammel v. United S tates , 445 U.S. 40, 53 (1980). The spousal testimonial privileg e en d s when a marriag e ends. Marashi
, 913 F .2d a t 729. The sham marriag e ex ception to the spousal testimonial privileg e is a

narrow ex ception that has ty pical l y arisen when there has been a close temporal prox imity between the d ate of a marriag e and the date when a w i t n e ss-spouse has been

ex p ected to testify

. See In re Grand Jury Proceedings ( 84-5)
, 777 F .2d 508, 509 (9th Cir. 1985) (per curiam) (considering applicability of sham marriag e e x ception b e c a use couple married on the eve of trial); United States v. A p o d a ca , 522 F .2d 568, 5 71 (10th Cir. 1975) (holding the spou sal testimonial privileg e c ould not be invoked by a witnessspouse b e cause she and the defendant “were married only three d ay s before trial”). W e have affirmed a district court’s ruling that the spousal testimonial p rivileg e was not available
to a witness-spouse because “ the purpose of the marriag e was for

. . . invoking the [ spousal testimonial] privileg e.” United States v. Saniti
, 6 04 F .2d 603, 604 & n.1 (9th Cir. 1979) (per curiam).

There is no question that the g overnment is free to try to prove that F omichev f

alsely c ertified that he did not marry for the purpose of obtain i n g an immig ration benefit. See Nakamoto v. Ashcroft
, 363 F .3d 874, 881–83 (9th Cir. 2004).U N I T E D S T A T E S V

. F O M I C H E V 12

The question before u s is limited to w hether the g overnment should b e allowed to u se F omichev’s private marital communications in order to prove its case.

The marital communications p r i v ileg e has long been
recog niz ed in o ur jurisprudence, see W olfle v. United States
, 291 U

. S. 7
, 14 (1934), and there a re g ood reasons it has withstood the te s t of time. L ike the phy sician-patient a nd clerg y

- penitent privileg es, the marital communications privileg e recog niz es that society has an enormously strong interest in preserving a particular social institution—here, the institution of marriag e. See Obergefell v. Hodges
, 135 S. Ct. 2 5 84, 2 593–94, 2601–02 ( 2015). W e afford special protectio n t o private communications ex chang ed in the confines of each of th ese relationships because the relationships are uniquely important, and because the law has long recog niz ed that they will b e co m p r omised if spouses, patients, and penitents are not secure in the knowle d ge t h at their commu n i cations will be kept confidential. See Trammel
, 4 45 U.S. at 51 (“The privileg es between p riest a nd penitent, attorney and c lient, and phy sician and patient

. . . . are rooted in the imperative need for confidence and trust.”). The law safeg

uards the c o n f

i d entiality of marital communications not because it f ails to recog niz e the risk that such a privileg e could be misused to obstruct justice, but because, as w e e x p lained in Griffin
, privacy is “reg a rded a s

so essential to the preservation o f the marriag e relationship a s to outweig h the disadvantag e s to the a dministration of justice which the pri v i l e g e entails.” 440 F .3d at 1 142 (quoting W olfle , 291 U.S. at 14).

W e h a ve never applied the sham marriag e ex ception t o the marital communications privileg e, and doing so would

ex p and the limited application the ex c e ption receives in theU N I T E D S T A T E S V

. F O M I C H E V 13

c o n t e x t of the spousal testimonial p r ivileg e. 3 T he g overnment bears the burden to persuade us that the sham marriag e

ex c e ption should be ex tended, and it has offered no convincing reason to modify this long standing rule. W e a re p a rticularly d isinclined to upset this precedent when i t appears that the parties m istakenly focused on litig ating

ex c e ptions to the marital communications privileg e, without
recog niz ing that it only e x tends to commun ications made during the marriag e or until a marriag e becomes i rreconcilable. See Marashi
, 913 F .2d at 729–3 0

. I r r e concilability was not the focus of the g overnment’s

a r gu ment in the d istrict court, but the g overnment d i d advance this argument in the district court and it c ontinues to arg ue this point o n appeal. B ecause the district court did not make a finding abo u t whether the subject marriag e was irreconcilable w hen the I RS r ecorded F omichev’s statements, we remand for the district court to rule on irreconcilability

.

3 We reco g n ize th at p eo p l e m arry f o r m an y d i f

f eren t relig io u s,

cu ltu ral, an d so cial reaso n s. Marriag es th at are en tered in to f o r p ractical

reaso n s m ay rip en in to lo v in g relatio n sh ip s , an d h ap p ily u n m arried

co u p les m ay d ecid e to m arry f o r estate plan n in g p urp o ses, to secure h ealth b en ef its, o r to in crease th eir ch an ces o f su c c e s s fu lly ad o p tin g ch ild ren , Pip er v. Ala ska Airlin es , In c. , No

. 9 3

- 3 5 5 7 5
, 1 99 4 W L 4 2 42 9 2 a t * 2

– 3 (9 th Cir. Au g

. 1 2
, 1 99 4 ). S ee Un ited S ta tes v. Orella n a -Bla n co , 2 9 4 F.3 d 1 1 4 3
, 1 1 5 1 (9 th Cir. 2 0 0 2 ) (“ J u st as m arriag es f o r m o n ey , h ard ly a

n o v elty
, or m arriag es am o n g p rin ce s a n d p rin cesses f o r reaso n s o f state

m ay be g enu in e an d n o t sh am m arriag es, so m ay m arriag es f o r g reen card s b e g enu i n e.”). Un d er o u r case law
, d eterm in in g th e ap p licab ility o f th e sh am m arriag e ex cep t io n req u ires a l i m ited in q u iry in to w h eth er p arties

m arried f o r th e p urp o se of in v ok in g th e testim o n ial p riv ileg e

. T h is is

co n sistent w i t h o u r p rev i o u s ad m o n itio n s th at co urts s h o u ld b e w ary of
p assin g j u d g m en t o n parties’ p erso n al reaso n s f o r m arry in g

. S

ee Ro b erso n , 8 5 9 F.2 d at 1 3 8 0 (o b serv in g th at ad j u d icatin g t

h e ap plicab ility

o f m arital priv ileg es can “ in v o l v e d istrict j u d g es in d if f icu lt an d

so m etim es in ap pro p riate in qu iries”).U N I T E D S T A T E S V

. F O M I C H E V 14

2. Suf

f icient Evidence Supported the Jury’s F inding that F om ichev Understood the Docu m e nts He Signed.

F omichev argu e s t hat his convictions must be vacated because there was insufficient evidence that he knew he was making false statem e n t s

. Specifically
, F omichev a rg ues the evidence offered was insuff i c i e n t to show that he had the Eng lish fluency to u nderstand the documents he sig ned. W e disag ree.

“W hen faced with a sufficiency of the evidence challeng e , we must consider the evidence prese n t e d a t trial in the lig ht
most favorable to the prosecution a n d then must determine whether the evidence is sufficient to a l low any rational trier of fact to find the essential elements of the crime bey ond a reasonable doubt.” Garrison
, 888 F .3d at 1063 (internal quotation marks omitted). F omichev had c o nversations, however simple, with the manag er of his apartment building
, and his accounting instructor and friend testif i e d that F omichev had an ex tensive vocabulary and aver a g e writing skills, as demonstrated b y his handwritten affid a v i t, in Eng lish, withdrawing one of hi s a p plications. The jury h ad sufficient evidence to find that F omichev’s Eng lish competency was such that he u nderstood what h i s sig nature certified.

3. We D e cline to Reach F om ichev’s Rem aining Argum ents

. The district court rejected F omichev’s argument that the admission of his statements ran afoul o f the F ourth Amendment, ruling tha t Fo michev had no ex pectation o f privacy because his wife s er ved as a g overnment informant.U N I T E D S T A T E S V

. F O M I C H E V 15

The district c ourt correctly observed that our circuit has not y et d e c i d e d whether the law recog niz es a reasonable

e x pectation o f privacy in marital communications where, a s here, one spouse consents to monitoring

. W e decline to reach this issue until the d istrict court decides whether the marriag e

was irreconcilable as o f the time F o michev’s statements were recorded. See Camreta v. Greene
, 563 U.S. 692, 705 (2011) (“[ A] long standing principle of judicial restraint requires that
courts avoid reaching constitutional questions in advance o f the n ecess i t y of deciding them.”) (internal quotation marks omitted).

W e also decline to reach F omichev’s argument that the district court a

bused its discretion by denying a mistrial a fter striking prejudicial t a x evasion evidence without a sufficiently forceful limiting instruction. This p rejudice analy sis may differ on remand, d epending on the district court’s ruling o n irreconcilability

. I f the d istrict court decides

on r emand that F omichev’s statements were improperly admitted, its ruling on the motion for a n e w trial can be revisited.

CONCLUSION

The d istrict court e r

roneously ex tended the s h a m m a r r iag e

ex c e ption to the marital communications pr i v i l e g e. W e vacate the district court’s den i al of F omichev’s motion to suppress. On remand, the d istrict court shall decide whether the marriag e was irreconcilable as of the time the challeng ed
statements were made. I n lig h t of this d ecision, we vacate the district court’s F ourth Ame n dment ruling and its denial o fU N I T E D S T A T E S V

. F O M I C H E V 16

Fo michev’s motion for new trial, both of which may b e reconsidered on remand.

VACATED a

nd REMANDED.