## Facts

- Dmitry Fomichev entered the United States on a student visa, married a U.S. citizen, and obtained conditional permanent resident status.
- Fomichev and his spouse jointly filed immigration paperwork seeking removal of conditions, representing they lived together and that the marriage was valid and not for immigration purposes; they submitted joint tax returns.
- The spouse later told federal agents the marriage’s sole purpose was to secure Fomichev’s immigration benefits and agreed to cooperate.
- With government assistance, the spouse secretly recorded conversations with Fomichev in which he made statements implicating him in marriage-based immigration fraud.
- The government charged Fomichev with four counts of making false statements or misrepresentations in violation of 18 U.S.C. § 1546(a) and 18 U.S.C. § 1001, relying heavily on the recordings and the immigration filings.
- The district court denied Fomichev’s motion to suppress the recordings under the marital communications privilege, admitted them at trial, and a jury convicted him on all counts.

## Issues

1. Whether confidential communications between spouses during a legally valid marriage are protected by the federal marital communications privilege when the marriage is alleged to have been entered solely for immigration purposes, and whether a “sham-marriage exception” should apply.
2. If admitting the recordings violated the marital communications privilege, whether the error was harmless or required reversal of the convictions.

## Decision

- The Ninth Circuit declined to recognize a “sham-marriage exception” to the federal marital communications privilege.
- The court held the secretly recorded conversations were privileged confidential marital communications and should have been excluded.
- The erroneous admission was not harmless because the recordings were central to proving knowledge and intent, and their admission more likely than not affected the verdict.
- The court reversed the convictions and remanded for further proceedings.
- The court declined to address a warrant-scope argument raised for the first time on appeal.

## Legal Principles

- The marital communications privilege bars disclosure of confidential communications made between spouses during a legally valid marriage; either spouse may invoke it.
- For this privilege, the key inquiry is the legal validity of the marriage under applicable state law, not the spouses’ subjective motives for marrying.
- Exceptions recognized for the adverse spousal testimonial privilege do not automatically transfer to the marital communications privilege because the privileges serve different purposes and operate differently.
- Nonconstitutional evidentiary error warrants reversal unless it is more probable than not that the error did not affect the verdict.

## Conclusion

Because the couple was legally married and the communications were confidential marital communications, the recordings were privileged despite allegations of an immigration-motivated “sham” marriage; admitting them was prejudicial error requiring reversal and remand.


United States v. Fomichev, 899 F.3d 766 (9th Cir. 2018)