Russian accused of a sham marriage to gain citizenship invoked a “marital communications privilege”

The panel vacated the district court’s order denying a defendant’s motion to suppress recordings of his conversations with his wife and his wife’s testimony describing those conversations, in a case in which the defendant was convicted of four counts of making false statements on immigration documents in violation of 18 U.S.C. §§ 1546(a) and 1001.

The panel held that the district court erred by extending the sham marriage exception, which has been applied to the spousal testimonial privilege, to the marital communications privilege.

Because the district court did not make a finding about whether the marriage was irreconcilable when the IRS recorded the defendant’s statements, which would render the marital communications privilege inapplicable, the panel remanded for the district court to rule on irreconcilability.

The marital communications privilege protectsstatements 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. See United States v. Murphy, 65 F.3d 758, 761 (9th Cir. 1995) (“Separation and irreconcilability are questions of fact determined by the district court.”). Either spouse may invoke the marital communications privilege and the protection it affords to statements made during a marriage survives the marriage. See Lustig, 555 F.2d at 747. The privilege “exists to insure that spouses generally feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law.” United States v. Roberson, 859 F.2d 1376, 1380 (9th Cir. 1988); see United States v. White, 974 F.2d 1135, 1138 (9th Cir. 1992) (noting the purpose of the privilege is to “protect[] the integrity of marriage[] and ensure[] that spouses freely communicate with one another”). Because marital communications are “presumptively confidential[,] the government has the burden of demonstrating that they are not.” Marashi, 913 F.2d at 730.

The spousal testimonial privilege, on the other hand, prohibits one spouse from testifying against the other in criminal cases during the course of their marriage, and “the witness-spouse alone has a privilege to refuse to testify adversely.” Trammel v. United States, 445 U.S. 40, 53 (1980). The spousal testimonial privilege ends when a marriage ends. Marashi, 913 F.2d at 729. The sham marriage exception to the spousal testimonial privilege is a narrow exception that has typically arisen when there has been a close temporal proximity between the date of a marriage and the date when a witness-spouse has been expected to testify. See In re Grand Jury Proceedings (84-5), 777 F.2d 508, 509 (9th Cir. 1985) (per curiam) (considering applicability of sham marriage exception because couple married on the eve of trial); United States v. Apodaca, 522 F.2d 568, 571 (10th Cir. 1975) (holding the spousal testimonial privilege could not be invoked by a witnessspouse because she and the defendant “were married only three days before trial”). We have affirmed a district court’s ruling that the spousal testimonial privilege was not available to a witness-spouse because “the purpose of the marriage was for . . . invoking the [spousal testimonial] privilege.” United States v. Saniti, 604 F.2d 603, 604 & n.1 (9th Cir. 1979) (per curiam).


Anton Vialtsin, Esq.
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