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Keywords

appealtestimonymotionvisacitizenship

appealtestimonymotionvisa

Related Cases

United States v. Fomichev

Facts

Fomichev, a Russian national, married Svetlana Pogosyan in 2006 to secure U.S. citizenship. After the marriage, Pogosyan applied for an alien relative visa for Fomichev, which was approved by the Department of Homeland Security. However, during an IRS investigation, Pogosyan revealed that their marriage was a sham, intended solely for immigration benefits. She recorded conversations with Fomichev, which led to his conviction for making false statements on immigration documents.

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.

Issue

Did the district court err in denying Fomichev's motion to suppress recordings of his conversations with his wife and her testimony, and should the sham marriage exception apply to the marital communications privilege?

Rule

The marital communications privilege protects confidential communications between spouses made during a valid marriage, unless the marriage is deemed irreconcilable at the time the statements were made. The sham marriage exception has traditionally applied only to the spousal testimonial privilege.

The marital communications privilege protects statements 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.

Analysis

The Ninth Circuit determined that the district court incorrectly extended the sham marriage exception to the marital communications privilege. The court emphasized that the privilege exists to protect the integrity of marriage and that the government failed to provide sufficient justification for modifying this longstanding rule. The court also noted that the district court did not assess whether the marriage was irreconcilable at the time of the recorded statements.

Conclusion

The Ninth Circuit vacated the district court's order denying the motion to suppress and remanded the case for further proceedings regarding the irreconcilability of the marriage.

Who won?

Dimitry Fomichev prevailed in the appeal because the Ninth Circuit found that the district court erred in its application of the marital communications privilege.

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