FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DMITRY FOMICHEV,

Defendant-Appellant.

No. 16-50227

D.C. No.

2:13-cr-00185-

SVW-1

OPINION

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted August 10, 2017

Submission Vacated January 9, 2018

Resubmitted August 8, 2018

Pasadena, California

Filed August 8, 2018
2 UNITED STATES V. FOMICHEV

Before: Kim McLane Wardlaw,* Morgan Christen,

and John B. Owens,** Circuit Judges.

Opinion by Judge Christen

SUMMARY***

Criminal Law

The panel vacated the district court’s order denying a

defendant’s motion to suppress recordings of his

conversations with his wife and his wife’s testimony

describing those conversations, in a case in which the

defendant was convicted of four counts of making false

statements on immigration documents in violation of 18

U.S.C. §§ 1546(a) and 1001.

The panel held that the district court erred by extending

the sham marriage exception, which has been applied to the

spousal testimonial privilege, to the marital communications

privilege. 

* Following Judge Kozinski’s retirement, Judge Wardlaw was drawn

by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Wardlaw

has read the briefs, reviewed the record, and listened to oral argument.

** Judge Owens was drawn to replace Judge Reinhardt on the panel

following Judge Reinhardt’s death. Judge Owens has read the briefs,

reviewed the record, and listened to oral argument.

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. FOMICHEV 3

Because the district court did not make a finding about

whether the marriage was irreconcilable when the IRS

recorded the defendant’s statements, which would render the

marital communications privilege inapplicable, the panel

remanded for the district court to rule on irreconcilability.

The panel held that sufficient evidence supported the

jury’s finding that the defendant understood the documents he

signed.

COUNSEL

Daniel Saunders (argued), Kasowitz Benson Torres LLP, Los

Angeles, California, for Defendant-Appellant.

Christopher C. Kendall (argued), Assistant United States

Attorney; Lawrence S. Middleton, Chief, Criminal Division;

Sandra R. Brown, United States Attorney; United States

Attorney’s Office, Los Angeles, California; for PlaintiffAppellee.
4 UNITED STATES V. FOMICHEV

OPINION

CHRISTEN, Circuit Judge:

Dimitry Fomichev appeals his jury conviction for four

counts of making false statements on immigration documents

in violation of 18 U.S.C. § 1546(a) and 18 U.S.C. § 1001. 

We have jurisdiction under 28 U.S.C. § 1291. We vacate the

district court’s order denying Fomichev’s motion to suppress

and remand.

BACKGROUND

Fomichev was born in Russia and came to the United

States in 2003 on a student visa. He 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 United States

Department of Homeland Security found the marriage bona

fide, approved the visa, and granted Fomichev conditional

residence. Two years later, with counsel, Fomichev and

Pogosyan petitioned to remove the conditions on Fomichev’s

residence, indicating a shared address, and certifying that the

petition and evidence were true and correct and that the

marriage was entered in accordance with the laws of

California and not for the purpose of procuring an

immigration benefit. The couple attached copies of their

jointly filed tax returns to the petition.

In 2010, agents of the Internal Revenue Service

approached Pogosyan, and she agreed to meet with them at a

coffee shop. Pogosyan gave conflicting answers to the

agents’ initial questions about where she and Fomichev lived

and about their tax returns, so the agents cautioned her that
UNITED STATES V. FOMICHEV 5

lying to federal agents is a felony and that she could be

culpable and owe back taxes for false returns. At that point,

Pogosyan stated she wanted to “come clean” and tell the

agents the truth. Pogosyan said that she agreed to marry

Fomichev so that he could secure U.S. citizenship, and that he

agreed to pay her rent in exchange. Pogosyan then assisted

the agents’ investigation by recording several telephone calls

with Fomichev and wearing a concealed recording device

during an in-person meeting with him. In these recorded

conversations, Fomichev expressed concern regarding his

immigration status, saying, among other things, “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 Fomichev agreed to provide housing for her in return for

the marriage, that they never lived together, that the marriage

was not intended to last more than a couple of years, and that

Fomichev needed to marry a U.S. citizen to obtain

citizenship.

In October 2012, Pogosyan and Fomichev filed for a

divorce in state court. Their divorce was finalized in

December 2012.

PROCEDURAL BACKGROUND

In March 2013, the government charged Fomichev with

three counts of subscribing to false income tax returns based

on his 2006, 2007, and 2008 returns; two counts of making

false statements to the United States based on certifying that

his marriage was not for the purpose of procuring an

immigration benefit; and two counts of making false
6 UNITED STATES V. FOMICHEV

statements in immigration documents based on the same

certifications.

Fomichev filed a motion to suppress the recordings of his

conversations with Pogosyan and Pogosyan’s testimony

describing those conversations. He argued that this evidence

was entitled to protection pursuant to the marital

communications privilege because the statements were made

while Fomichev and Pogosyan were married. He also argued

that the admission of this evidence violated the Fourth

Amendment. The government opposed, arguing that

Fomichev was not entitled to invoke the marital

communications privilege because Fomichev married

Pogosyan for fraudulent purposes, and that Fomichev had no

expectation of privacy in the communications because his

wife had agreed to act as a government informant.

After considering the arguments, the district court noted

the parties’ agreement that the marital communications

privilege would protect the challenged evidence from being

introduced at trial “unless a recognized exception to the

privilege applie[d]” because the evidence the government

sought to introduce “constitute[d] (1) words intended as

communication to the other spouse, (2) made during the

course of a valid marriage, and (3) intended to be

confidential.” The district court acknowledged that although

courts have regularly applied the sham marriage exception to

the spousal testimonial privilege, it had “found no cited case

where the sham marriage exception ha[d] been applied to the

marital communications privilege.” Indeed, the court

reasoned, “as the communications occurred more than four

years after Fomichev and Pogosyan married, it cannot be said

that they married for the purpose of invoking any marital

privilege.” The court also recognized that our cases caution
UNITED STATES V. FOMICHEV 7

against what the district court described as engaging in “the

business of opining on which reasons for marriage are

legitimate or deserving of marital privileges and which ones

are not.” Nevertheless, the district court determined there

was no principled reason not to extend the sham marriage

exception to the marital communications privilege, and it did

so. The court found that: (1) Fomichev and Pogosyan

married in 2006; (2) the initial plan was to find a place to live

together; (3) after looking at about twenty-five options, the

couple signed a lease for a residence in White Oak where

Fomichev was supposed to live but never did; (4) the couple

did not reside together at any time; and (5) the couple never

slept in the same bed or engaged in sexual relations. The

court concluded, “[o]n the particular facts of th[e] case, the

policy interests behind the marital communications privilege

would not be advanced, and would surely be outweighed by

the competing societal interest for truth and the

administration of justice.”

The district court also rejected Fomichev’s Fourth

Amendment argument. The court recognized that we have

not decided whether the law recognizes an expectation of

privacy when one spouse consents to electronic monitoring,

and it relied on the Supreme Court authority generally

establishing that individuals have no reasonable expectation

of privacy in the statements they make to government

informants.

The court denied Fomichev’s motion to suppress,

evidence of Fomichev’s marital communications was

admitted at trial, and the jury convicted Fomichev of four

counts of making false statements or misrepresentations to

the United States government in violation of 18 U.S.C.
8 UNITED STATES V. FOMICHEV

§ 1546(a) and 18 U.S.C. § 1001.1 The district court sentenced

Fomichev to three years of probation, and Fomichev timely

appealed.

STANDARDS OF REVIEW

We review de novo an order denying a motion to

suppress, see United States v. Crews, 502 F.3d 1130, 1135

(9th Cir. 2007), and legal conclusions regarding the marital

communications privilege, see United States v. Griffin,

440 F.3d 1138, 1143 (9th Cir. 2006). We review challenges

to the admission of evidence for an 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).

DISCUSSION

Fomichev’s challenge to the district court’s ruling on his

motion to suppress primarily relies on the marital

communications privilege, arguing that the district court erred

by admitting statements he made to Pogosyan in confidence

during the course of their legally valid marriage. The

government urges us to affirm the district court’s order

denying Fomichev’s motion to suppress on one of three

grounds: by extending the sham marriage exception, by

deeming the marriage irreconcilable at the time the contested

statements were made, or by finding Fomichev’s statements

to Pogosyan were made in furtherance of a joint criminal

1 The government moved to dismiss the tax count related to the 2008

return before trial, and the court later granted Fomichev’s motion for

judgment of acquittal on the remaining tax counts.
UNITED STATES V. FOMICHEV 9

activity. The last argument is raised for the first time on

appeal, so we do not address it. See United States ex rel.

Kelly v. Serco, Inc., 846 F.3d 325, 336 (9th Cir. 2017).2

Fomichev separately argues that the admission of the

challenged evidence violated the Fourth Amendment. The

government counters that Fomichev had no expectation of

privacy in the statements.

1. The District Court Erred by Extending the Sham

Marriage Exception to the Marital

Communications Privilege.

It is not disputed that Fomichev and Pogosyan were

married pursuant to California law from July 2006 to

December 2012. The government argues that even though

Fomichev and Pogosyan had been married for four years at

the time the subject statements were recorded, the marriage

was never valid for purposes of invoking a federal privilege

because Fomichev and Pogosyan had “no close emotional,

social, or cultural ties.” The government recognizes that we

have applied the sham marriage exception only to the spousal

testimonial privilege, but it argues that there is no principled

reason not to extend the exception to the marital

communications privilege, and that allowing a defendant to

hide behind the marital communications privilege while

engaged in marriage fraud fails to balance the privilege

2

In the trial court, the government argued Fomichev was not entitled

to invoke the marital communications privilege because Fomichev’s

conduct amounted to witness tampering, but it failed to cite to any

authority supporting such an exception. On appeal, the government

argues the well-recognized joint criminal activity exception—“the marital

communications privilege does not apply to statements made in

furtherance of joint criminal activity.” United States v. Montgomery,

384 F.3d 1050, 1060 (9th Cir. 2004) (quoting Marashi, 913 F.2d at 731).
10 UNITED STATES V. FOMICHEV

against society’s strong interest in the administration of

justice. We are not persuaded that the exception should be

extended.

Federal Rule of Evidence 501 provides that, except as

otherwise required by the Constitution, federal statute, or

Supreme Court rule, the privilege of a witness shall be

governed by the principles of common law as interpreted by

United States courts “in the light of reason and experience.” 

Fed. R. Evid. 501. Our case law recognizes two privileges

that arise from a marital relationship: the marital

communications privilege and the spousal testimonial

privilege. “Both privileges depend on the existence of a valid

marriage, as determined by state law.” United States v.

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

The marital communications privilege protectsstatements

or actions that are intended as confidential communications

between spouses, made during the existence of a valid

marriage, United States v. Strobehn, 421 F.3d 1017, 1021 (9th

Cir. 2005), unless the marriage had become irreconcilable

when the statements were made. See United States v.

Murphy, 65 F.3d 758, 761 (9th Cir. 1995) (“Separation and

irreconcilability are questions of fact determined by the

district court.”). Either spouse may invoke the marital

communications privilege and the protection it affords to

statements made during a marriage survives the marriage. 

See Lustig, 555 F.2d at 747. The privilege “exists to insure

that spouses generally feel free to communicate their deepest

feelings to each other without fear of eventual exposure in a

court of law.” United States v. Roberson, 859 F.2d 1376,

1380 (9th Cir. 1988); see United States v. White, 974 F.2d

1135, 1138 (9th Cir. 1992) (noting the purpose of the

privilege is to “protect[] the integrity of marriage[] and
UNITED STATES V. FOMICHEV 11

ensure[] that spouses freely communicate with one another”). 

Because marital communications are “presumptively

confidential[,] the government has the burden of

demonstrating that they are not.” Marashi, 913 F.2d at 730.

The spousal testimonial privilege, on the other hand,

prohibits one spouse from testifying against the other in

criminal cases during the course of their marriage, and “the

witness-spouse alone has a privilege to refuse to testify

adversely.” Trammel v. United States, 445 U.S. 40, 53

(1980). The spousal testimonial privilege ends when a

marriage ends. Marashi, 913 F.2d at 729. The sham

marriage exception to the spousal testimonial privilege is a

narrow exception that has typically arisen when there has

been a close temporal proximity between the date of a

marriage and the date when a witness-spouse has been

expected to testify. See In re Grand Jury Proceedings (84-5),

777 F.2d 508, 509 (9th Cir. 1985) (per curiam) (considering

applicability of sham marriage exception because couple

married on the eve of trial); United States v. Apodaca,

522 F.2d 568, 571 (10th Cir. 1975) (holding the spousal

testimonial privilege could not be invoked by a witnessspouse because she and the defendant “were married only

three days before trial”). We have affirmed a district court’s

ruling that the spousal testimonial privilege was not available

to a witness-spouse because “the purpose of the marriage was

for . . . invoking the [spousal testimonial] privilege.” United

States v. Saniti, 604 F.2d 603, 604 & n.1 (9th Cir. 1979) (per

curiam).

There is no question that the government is free to try to

prove that Fomichev falsely certified that he did not marry for

the purpose of obtaining an immigration benefit. See

Nakamoto v. Ashcroft, 363 F.3d 874, 881–83 (9th Cir. 2004). 
12 UNITED STATES V. FOMICHEV

The question before us is limited to whether the government

should be allowed to use Fomichev’s private marital

communications in order to prove its case.

The marital communications privilege has long been

recognized in our jurisprudence, see Wolfle v. United States,

291 U.S. 7, 14 (1934), and there are good reasons it has

withstood the test of time. Like the physician-patient and

clergy-penitent privileges, the marital communications

privilege recognizes that society has an enormously strong

interest in preserving a particular social institution—here, the

institution of marriage. See Obergefell v. Hodges, 135 S. Ct.

2584, 2593–94, 2601–02 (2015). We afford special

protection to private communications exchanged in the

confines of each of these relationships because the

relationships are uniquely important, and because the law has

long recognized that they will be compromised if spouses,

patients, and penitents are not secure in the knowledge that

their communications will be kept confidential. See

Trammel, 445 U.S. at 51 (“The privileges between priest and

penitent, attorney and client, and physician and patient . . . .

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

The law safeguards the confidentiality of marital

communications not because it fails to recognize the risk that

such a privilege could be misused to obstruct justice, but

because, as we explained in Griffin, privacy is “regarded as

so essential to the preservation of the marriage relationship as

to outweigh the disadvantages to the administration of justice

which the privilege entails.” 440 F.3d at 1142 (quoting

Wolfle, 291 U.S. at 14).

We have never applied the sham marriage exception to

the marital communications privilege, and doing so would

expand the limited application the exception receives in the
UNITED STATES V. FOMICHEV 13

context of the spousal testimonial privilege.3 The government

bears the burden to persuade us that the sham marriage

exception should be extended, and it has offered no

convincing reason to modify this longstanding rule. We are

particularly disinclined to upset this precedent when it

appears that the parties mistakenly focused on litigating

exceptions to the marital communications privilege, without

recognizing that it only extends to communications made

during the marriage or until a marriage becomes

irreconcilable. See Marashi, 913 F.2d at 729–30. 

Irreconcilability was not the focus of the government’s

argument in the district court, but the government did

advance this argument in the district court and it continues to

argue this point on appeal. Because the district court did not

make a finding about whether the subject marriage was

irreconcilable when the IRS recorded Fomichev’s statements,

we remand for the district court to rule on irreconcilability.

3 We recognize that people marry for many different religious,

cultural, and social reasons. Marriages that are entered into for practical

reasons may ripen into loving relationships, and happily unmarried

couples may decide to marry for estate planning purposes, to secure health

benefits, or to increase their chances of successfully adopting children,

Piper v. Alaska Airlines, Inc., No. 93-35575, 1994 WL 424292 at *2–3

(9th Cir. Aug. 12, 1994). See United States v. Orellana-Blanco, 294 F.3d

1143, 1151 (9th Cir. 2002) (“Just as marriages for money, hardly a

novelty, or marriages among princes and princesses for reasons of state

may be genuine and not sham marriages, so maymarriages for green cards

be genuine.”). Under our case law, determining the applicability of the

sham marriage exception requires a limited inquiry into whether parties

married for the purpose of invoking the testimonial privilege. This is

consistent with our previous admonitions that courts should be wary of

passing judgment on parties’ personal reasons for marrying. See

Roberson, 859 F.2d at 1380 (observing that adjudicating the applicability

of marital privileges can “involve district judges in difficult and

sometimes inappropriate inquiries”).
14 UNITED STATES V. FOMICHEV

2. Sufficient Evidence Supported the Jury’s Finding

that Fomichev Understood the Documents He

Signed.

Fomichev argues that his convictions must be vacated

because there was insufficient evidence that he knew he was

making false statements. Specifically, Fomichev argues the

evidence offered was insufficient to show that he had the

English fluency to understand the documents he signed. We

disagree.

“When faced with a sufficiencyof the evidence challenge,

we must consider the evidence presented at trial in the light

most favorable to the prosecution and then must determine

whether the evidence is sufficient to allow any rational trier

of fact to find the essential elements of the crime beyond a

reasonable doubt.” Garrison, 888 F.3d at 1063 (internal

quotation marks omitted). Fomichev had conversations,

however simple, with the manager of his apartment building,

and his accounting instructor and friend testified that

Fomichev had an extensive vocabulary and average writing

skills, as demonstrated by his handwritten affidavit, in

English, withdrawing one of his applications. The jury had

sufficient evidence to find that Fomichev’s English

competency was such that he understood what his signature

certified.

3. We Decline to Reach Fomichev’s Remaining

Arguments.

The district court rejected Fomichev’s argument that the

admission of his statements ran afoul of the Fourth

Amendment, ruling that Fomichev had no expectation of

privacy because his wife served as a government informant. 
UNITED STATES V. FOMICHEV 15

The district court correctly observed that our circuit has not

yet decided whether the law recognizes a reasonable

expectation of privacy in marital communications where, as

here, one spouse consents to monitoring. We decline to reach

this issue until the district court decides whether the marriage

was irreconcilable as of the time Fomichev’s statements were

recorded. See Camreta v. Greene, 563 U.S. 692, 705 (2011)

(“[A] longstanding principle of judicial restraint requires that

courts avoid reaching constitutional questions in advance of

the necessity of deciding them.”) (internal quotation marks

omitted).

We also decline to reach Fomichev’s argument that the

district court abused its discretion by denying a mistrial after

striking prejudicial tax evasion evidence without a

sufficiently forceful limiting instruction. This prejudice

analysis may differ on remand, depending on the district

court’s ruling on irreconcilability. If the district court decides

on remand that Fomichev’s statements were improperly

admitted, its ruling on the motion for a new trial can be

revisited.

CONCLUSION

The district court erroneouslyextended the shammarriage

exception to the marital communications privilege. We

vacate the district court’s denial of Fomichev’s motion to

suppress. On remand, the district court shall decide whether

the marriage was irreconcilable as of the time the challenged

statements were made. In light of this decision, we vacate the

district court’s Fourth Amendment ruling and its denial of
16 UNITED STATES V. FOMICHEV

Fomichev’s motion for new trial, both of which may be

reconsidered on remand.

VACATED and REMANDED.