US v. Fomichev, No. 16-50227 (8-8-18)(Christen w/Wardlaw & Owens). Remember Shakespeare's Sonnet 116 (see below)?  This comes into play here, on an appeal from convictions for making false statements on immigration documents related to a marriage.  The defendant, here on a student visa from Russia, allegedly married not for love, but to secure immigration benefits (Russian into marriage?  Alt marriage facts?).  The marriage, in California in 2007, had been found valid by Homeland Security.  An investigation by the IRS led to the spouse "coming clean" that it was a marriage of convenience, to secure immigration benefits.  The marriage did end in divorce in 2012.  However, before that, the IRS recorded conversations between the two as to their deepest fears and concerns (that the marriage was not a real marriage, with a meeting of souls). 

The district court denied a motion to suppress based on the marital privilege.  The court held that the marriage was a sham; they had never lived together nor been intimate.  As such, the court extended the sham marriage exception of the spousal privilege (spouses testifying against one another) to the marital communications prong of the marital privilege.  The 9th was uneasy with this expansion.  The opinion delineates the two prongs, and why a sham marriage may be a limited exception to the spousal testimony, but that courts should be wary of extending the exception to the other prong under FRE 501.  The 9th describes how a marriage can grow, and change, and deepen.  But, there has to be a marriage. If it is irreconcilable at the time that spouses engage in marital communications, then the privilege does not exist.  

The 9th reasoned that the privilege only exists if the marriage is valid and is not irreconcilable.  Here, hint hint, the marriage may have been irreconcilable when the recordings were made.  This point was made but not argued by the prosecutor before the court, nor did the court rule on the issue.  Thus, the case is remanded to determine whether the marriage was irreconcilable at the time of the statements were recorded.  The court should reconsidered its ruling and the new trial motion after it had been a determination.

Let me not to the marriage of true minds Admit impediments. Love is not love Which alters when it alteration finds, Or bends with the remover to remove: O no; it is an ever-fixed mark, That looks on tempests, and is never shaken; It is the star to every wandering bark, Whose worth's unknown, although his height be taken. Love's not Time's fool, though rosy lips and cheeks Within his bending sickle's compass come; Love alters not with his brief hours and weeks, But bears it out even to the edge of doom. If this be error and upon me proved, I never writ, nor no man ever loved.   The decision is here:   http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/08/16-50227.pdf