Questionable Marriage Doesn’t Remove Communications Privilege

The government can’t use private marital communications to prove that the marriage was entered into for the purpose of immigration fraud, the U.S. Court of Appeals for the Ninth Circuit held Aug. 8.

The communications privilege made inadmissible at trial communications that were secretly recorded by the wife after she agreed to cooperate with investigators, the court said in an opinion by Judge Morgan Christen.

It protects confidential communications between spouses so long as the marriage was not irreconcilable when the communications were made.

The court recognizes an exception to a different privilege, the spousal testimonial privilege, for situations where people marry so one can refuse to testify against the other. In such cases, the marriage usually takes place close in time to when the testimony is expected.

But the exception shouldn’t be extended to private communications, it said.

Limiting the exception keeps courts out of the business of inquiring into people’s reasons for marrying, which can be varied and still be valid, the court said.

However, the district court in this case didn’t look into whether the marriage was irreconcilable. If the government can prove on remand that it was, the recordings will be admissible, the court said.

Judges Kim McLane Wardlaw and John B. Owens concurred.

Kasowitz Benson Torres LLP represented Fomichev. The U.S. Attorney’s office represented the government.

The case is United States v. Fomichev, 2018 BL 282670, 9th Cir., 16-50227, 8/8/18

To contact the reporter on this story: Alisa Johnson in Washington at ajohnson@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com