Case o' The Week: (Her) Honor and a Privilege - Fomichev and FRE 501 Marital Communication Privileges

 Till death (or interrogating federal agents) do us part.

United States v. Fomichev, 2018 WL 3748658 (9th Cir. Aug. 8, 2018), decision available here.

Players: Decision by Judge Christen, joined by Judges Wardlaw and Owens.

Facts: Fomichev, born in Russia, came to the States. Id. at *1. He met a woman, Pogosyan, and they married soon after. Id.

  Pogosyan applied for a visa for him, Homeland Security found the marriage bona fide, and Fomichev obtained conditional residence. Id.

  Years later, IRS agents confronted Pogosyan about where she and Fomichev lived and their tax returns. Id. She said she wanted to “come clean” and admitted she had only agreed to marry Fomichev so he could secure US citizenship – he’d pay her rent in return. Id.

  She made a recorded call to Fomichev, and he made incriminating statements (urging her to “not set him up.”) Id.

  They divorced, and Fomichev went to trial on immigration and tax charges. Id. at *2. Fomichev moved to suppress the recordings with his ex-wife, arguing that they were protected under the marital communications privilege. Id. The court extended the “sham marriage exception” to the privilege, and denied the motion. Id.

  Fomichev was convicted. Id. at *3.

Issue(s): “Fomichev’s challenge . . . 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.” Id. “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 against society’s strong interest in the administration of justice.” Id. at *3.

  “[T]he government is free to try to prove that Fomichev falsely certified that he did not marry for the purpose of obtaining an immigration benefit . . . . 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.” Id. at *4.

Held: “We are not persuaded that the exception should be extended.” Id. at *3.

Of Note: Fomichev is an important win for FRE 501 privileges -- the marital communications privilege will not be weakened by a new exception urged by the government. The opinion is also a thoughtful recognition that marriages come in all cultural stripes and flavors -- Judge Christen is appropriately reluctant to wade into this intensely private aspect of our lives, and opine on what is and isn't a "sham" marriage. See id. at *5 & n.3.

  However, there are complications. 

  The Ninth notes well-established law holding that the marital communications privilege does not extend to communications that take place after the “marriage becomes irreconcilable.” Id. at *5. The district court in this case made no findings about whether this marriage was “irreconcilable” when Fomichev made his statements to his wife. The Ninth therefore remands the case to the district court to rule on “irreconcilability.” Id.

  Given the district court’s previous musings on the “sham marriage,” “irreconcilability” may be a tough row to hoe, on remand.

How to Use: The government had an additional (worrisome) argument on appeal: that Fomichev’s statements to his wife were not entitled to the privilege, because they were made “in furtherance of a joint criminal activity.” Id. That “well-recognized exception,” id. at *3 & n.2, might have carried the day for the government. The Ninth, however, found that this argument was “raised for the first time on appeal, so we do not address it.” Id. 

  This declination comes despite the fact that the government argued in the district court that the statements amounted to witness tampering. Id. at *3 & n.2. The government, explains Judge Christen, “failed to cite any authority [in the district court] supporting such an exception.” Id.

  Fomichev is a commendable and honest application of appellate waiver against the government: tuck this waiver discussion away for use in future appeals.

                                               

For Further Reading: This panel of three active Ninth Circuit judges was an unusual draw, of late. No visiting District or out-of-circuit judges, no Senior Circuit judges -- a statistical anomaly.

  It was also notable because two of the three jurists had been drawn to replace former judges on the panel (Judges Kozinski and Reinhardt). If you have access to the Daily Journal, Nicolas Sonnenburg has written an interesting article on these delicate judicial switches: 9th Circuit case reassignment policy raises tricky questions, SF Daily Journal Friday Aug. 10, 2018.

Image of bridge, groom, and gavel from http://www.theweddinglawyer.co.uk/home/ .

Steven Kalar, Federal Public Defender, ND Cal FPD. Website at www.ndcalfpd.org

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