FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-50227 Plaintiff-Appellee, D.C. No. v. 2:13-cr-00185- SVW-1 DMITRY FOMICHEV, Defendant-Appellant. OPINION Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding Argued and Submitted August 10, 2017 Submission Vacated January 9, 2018 Resubmitted August 8, 2018 Pasadena, California Filed August 8, 2018 2 UNITED STATES V. FOMICHEV Before: Kim McLane Wardlaw,* Morgan Christen, and John B. Owens,** Circuit Judges. Opinion by Judge Christen SUMMARY*** Criminal Law 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. * Following Judge Kozinski’s retirement, Judge Wardlaw was drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Wardlaw has read the briefs, reviewed the record, and listened to oral argument. ** Judge Owens was drawn to replace Judge Reinhardt on the panel following Judge Reinhardt’s death. Judge Owens has read the briefs, reviewed the record, and listened to oral argument. *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. FOMICHEV 3 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 panel held that sufficient evidence supported the jury’s finding that the defendant understood the documents he signed. COUNSEL Daniel Saunders (argued), Kasowitz Benson Torres LLP, Los Angeles, California, for Defendant-Appellant. Christopher C. Kendall (argued), Assistant United States Attorney; Lawrence S. Middleton, Chief, Criminal Division; Sandra R. Brown, United States Attorney; United States Attorney’s Office, Los Angeles, California; for Plaintiff- Appellee. 4 UNITED STATES V. FOMICHEV OPINION CHRISTEN, Circuit Judge: Dimitry Fomichev appeals his jury conviction for four counts of making false statements on immigration documents in violation of 18 U.S.C. § 1546(a) and 18 U.S.C. § 1001. We have jurisdiction under 28 U.S.C. § 1291. We vacate the district court’s order denying Fomichev’s motion to suppress and remand. BACKGROUND 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. Two years later, with ...
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