By 2010, Svetlana Pogosyan and Dmitry Fomichev had been married for four years when agents with the Internal Revenue Service began asking questions about the couple.
Pogosyan, meeting with federal agents at a coffee shop, gave conflicting answers about where the two lived and about their tax returns. After being told it was a crime to lie to federal agents, Pogosyan said she wanted to “come clean”: She had agreed to marry her Russian husband, she said, according to court records, to help him secure U.S. citizenship.
In exchange, Fomichev agreed to pay her rent.
Pogosyan would agree to record phone calls with Fomichev, even wearing a concealed device during an in-person meeting. The recordings, in which Fomichev expressed concern about his immigration status, went on to be used against him in a trial that ended with his conviction in 2015 on four counts of making false statements to the U.S. government. In 2016, he was sentenced to three years of probation.
Fomichev’s challenge to his conviction found new life on Wednesday.
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed a trial judge’s ruling that allowed prosecutors to use the recordings against Fomichev. In the unanimous ruling, Judge Morgan Christen said the trial judge had misapplied the so-called “sham marriage exception” to the confidentiality protections that otherwise shield communications between married couples.
Christen noted that the Ninth Circuit has applied the sham marriage exception to allow a spouse to testify at trial—piercing the so-called “spousal testimonial privilege”—but has never extended it to allow communications between married couples to be presented as evidence. She said the federal judge overseeing the trial neglected to consider whether Fomichev and Pogosyan’s marriage was irreconcilable when the recordings were made. A finding that the marriage was irreconcilable could have rendered the marital communications privilege invalid.
In a footnote, Christen cautioned against judging the impetus for the couple’s nuptials.
“We recognize that people marry for many different religious, cultural, and social reasons,” Christen wrote. “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.”
Determining the applicability of the sham marriage exception, Christen wrote, “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.”
In federal district court, Fomichev’s lawyers at Kasowitz Benson Torres and Morgan, Lewis and Bockius argued that the recordings should not be admitted because his statements were made while he was still married to Pogosyan. Fomichev said the admission of the recordings as evidence would also violate his rights under the Fourth Amendment.
Daniel Saunders, the Kasowitz Benson partner in Los Angeles who argued for Fomichev, was not immediately reached for comment. And neither was Nathan Hochman, a Morgan Lewis partner in Los Angeles who also represented Fomichev.
Federal prosecutors argued Fomichev was not entitled to the marital communications privilege because he married for fraudulent reasons and that he had no expectation of privacy because his wife agreed to work as a government information.
Fomichev’s lawyers disputed the characterization of the marriage between Fomichev and Pogosyan as a “sham.” Fomichev, who arrived in the United States in 2003 on a student visa, married Pogosyan in 2006. The U.S. Department of Homeland Security concluded the marriage was bona fide and granted Fomichev conditional residence.
“Of course, people in this country and the world over enter into the contractual arrangement of marriage for a host of reasons having nothing to do with ‘love or affection,’ including financial security, familial connections, legitimization of offspring, career advancement, procreation, religion, tradition, even access to health insurance,” Hochman wrote in a court filing. “Mr. Fomichev respectfully submits that it is not the job of prosecutors in the United States attorney’s office to pronounce which motives are legitimate (i.e., ‘love and affection’) and which render the resulting marriage a ‘sham.’”
U.S. District Judge Stephen Wilson of the Central District of California ruled for the government and allowed the evidence, noting among other things that Pogosyan and Fomichev never lived together. “On 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,” Wilson said.
The appeals court has instructed Wilson to consider whether the marriage was irreconcilable as he decides whether to grant Fomichev’s request for a new trial.
Christen was joined on the panel by Judges Kim McLane Wardlaw and John Owens. Wardlaw and Owens were assigned to the case after Alex Kozinski abruptly resigned last year amid sexual harassment claims, and Stephen Reinhardt died in March.
Fomichev and Pogosyan were divorced in December 2012.
Watch the Ninth Circuit’s oral arguments below: