                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 counsel, Fomichev and
Pogosyan petitioned to remove the conditions on Fomichev’s
residence, indicating a shared address, and certifying that the
petition and evidence were true and correct and that the
marriage was entered in accordance with the laws of
California and not for the purpose of procuring an
immigration benefit. The couple attached copies of their
jointly filed tax returns to the petition.

    In 2010, agents of the Internal Revenue Service
approached Pogosyan, and she agreed to meet with them at a
coffee shop. Pogosyan gave conflicting answers to the
agents’ initial questions about where she and Fomichev lived
and about their tax returns, so the agents cautioned her that
               UNITED STATES V. FOMICHEV                     5

lying to federal agents is a felony and that she could be
culpable and owe back taxes for false returns. At that point,
Pogosyan stated she wanted to “come clean” and tell the
agents the truth. Pogosyan said that she agreed to marry
Fomichev so that he could secure U.S. citizenship, and that he
agreed to pay her rent in exchange. Pogosyan then assisted
the agents’ investigation by recording several telephone calls
with Fomichev and wearing a concealed recording device
during an in-person meeting with him. In these recorded
conversations, Fomichev expressed concern regarding his
immigration status, saying, among other things, “do not set us
up, me and you, in regards to the immigration as no one
knows, . . . no one can prove anything.”

    In January 2011, Pogosyan testified before the grand jury
that Fomichev agreed to provide housing for her in return for
the marriage, that they never lived together, that the marriage
was not intended to last more than a couple of years, and that
Fomichev needed to marry a U.S. citizen to obtain
citizenship.

   In October 2012, Pogosyan and Fomichev filed for a
divorce in state court. Their divorce was finalized in
December 2012.

            PROCEDURAL BACKGROUND

    In March 2013, the government charged Fomichev with
three counts of subscribing to false income tax returns based
on his 2006, 2007, and 2008 returns; two counts of making
false statements to the United States based on certifying that
his marriage was not for the purpose of procuring an
immigration benefit; and two counts of making false
6              UNITED STATES V. FOMICHEV

statements in immigration documents based on the same
certifications.

    Fomichev filed a motion to suppress the recordings of his
conversations with Pogosyan and Pogosyan’s testimony
describing those conversations. He argued that this evidence
was entitled to protection pursuant to the marital
communications privilege because the statements were made
while Fomichev and Pogosyan were married. He also argued
that the admission of this evidence violated the Fourth
Amendment. The government opposed, arguing that
Fomichev was not entitled to invoke the marital
communications privilege because Fomichev married
Pogosyan for fraudulent purposes, and that Fomichev had no
expectation of privacy in the communications because his
wife had agreed to act as a government informant.

    After considering the arguments, the district court noted
the parties’ agreement that the marital communications
privilege would protect the challenged evidence from being
introduced at trial “unless a recognized exception to the
privilege applie[d]” because the evidence the government
sought to introduce “constitute[d] (1) words intended as
communication to the other spouse, (2) made during the
course of a valid marriage, and (3) intended to be
confidential.” The district court acknowledged that although
courts have regularly applied the sham marriage exception to
the spousal testimonial privilege, it had “found no cited case
where the sham marriage exception ha[d] been applied to the
marital communications privilege.” Indeed, the court
reasoned, “as the communications occurred more than four
years after Fomichev and Pogosyan married, it cannot be said
that they married for the purpose of invoking any marital
privilege.” The court also recognized that our cases caution
                UNITED STATES V. FOMICHEV                      7

against what the district court described as engaging in “the
business of opining on which reasons for marriage are
legitimate or deserving of marital privileges and which ones
are not.” Nevertheless, the district court determined there
was no principled reason not to extend the sham marriage
exception to the marital communications privilege, and it did
so. The court found that: (1) Fomichev and Pogosyan
married in 2006; (2) the initial plan was to find a place to live
together; (3) after looking at about twenty-five options, the
couple signed a lease for a residence in White Oak where
Fomichev was supposed to live but never did; (4) the couple
did not reside together at any time; and (5) the couple never
slept in the same bed or engaged in sexual relations. The
court concluded, “[o]n 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.”

    The district court also rejected Fomichev’s Fourth
Amendment argument. The court recognized that we have
not decided whether the law recognizes an expectation of
privacy when one spouse consents to electronic monitoring,
and it relied on the Supreme Court authority generally
establishing that individuals have no reasonable expectation
of privacy in the statements they make to government
informants.

    The court denied Fomichev’s motion to suppress,
evidence of Fomichev’s marital communications was
admitted at trial, and the jury convicted Fomichev of four
counts of making false statements or misrepresentations to
the United States government in violation of 18 U.S.C.
8                UNITED STATES V. FOMICHEV

§ 1546(a) and 18 U.S.C. § 1001.1 The district court sentenced
Fomichev to three years of probation, and Fomichev timely
appealed.

                 STANDARDS OF REVIEW

    We review de novo an order denying a motion to
suppress, see United States v. Crews, 502 F.3d 1130, 1135
(9th Cir. 2007), and legal conclusions regarding the marital
communications privilege, see United States v. Griffin,
440 F.3d 1138, 1143 (9th Cir. 2006). We review challenges
to the admission of evidence for an abuse of discretion, see
United States v. Marashi, 913 F.2d 724, 729 (9th Cir. 1990),
and we make decisions on the sufficiency of the evidence de
novo, see United States v. Garrison, 888 F.3d 1057, 1064 (9th
Cir. 2018).

                          DISCUSSION

    Fomichev’s challenge to the district court’s ruling on his
motion to suppress primarily relies on the marital
communications privilege, arguing that the district court erred
by admitting statements he made to Pogosyan in confidence
during the course of their legally valid marriage. The
government urges us to affirm the district court’s order
denying Fomichev’s motion to suppress on one of three
grounds: by extending the sham marriage exception, by
deeming the marriage irreconcilable at the time the contested
statements were made, or by finding Fomichev’s statements
to Pogosyan were made in furtherance of a joint criminal


    1
      The government moved to dismiss the tax count related to the 2008
return before trial, and the court later granted Fomichev’s motion for
judgment of acquittal on the remaining tax counts.
                  UNITED STATES V. FOMICHEV                            9

activity. The last argument is raised for the first time on
appeal, so we do not address it. See United States ex rel.
Kelly v. Serco, Inc., 846 F.3d 325, 336 (9th Cir. 2017).2
Fomichev separately argues that the admission of the
challenged evidence violated the Fourth Amendment. The
government counters that Fomichev had no expectation of
privacy in the statements.

    1. The District Court Erred by Extending the Sham
       Ma rri age Ex c e p t i on to th e Mari tal
       Communications Privilege.

    It is not disputed that Fomichev and Pogosyan were
married pursuant to California law from July 2006 to
December 2012. The government argues that even though
Fomichev and Pogosyan had been married for four years at
the time the subject statements were recorded, the marriage
was never valid for purposes of invoking a federal privilege
because Fomichev and Pogosyan had “no close emotional,
social, or cultural ties.” The government recognizes that we
have applied the sham marriage exception only to the spousal
testimonial privilege, but it argues that there is no principled
reason not to extend the exception to the marital
communications privilege, and that allowing a defendant to
hide behind the marital communications privilege while
engaged in marriage fraud fails to balance the privilege

    2
      In the trial court, the government argued Fomichev was not entitled
to invoke the marital communications privilege because Fomichev’s
conduct amounted to witness tampering, but it failed to cite to any
authority supporting such an exception. On appeal, the government
argues the well-recognized joint criminal activity exception—“the marital
communications privilege does not apply to statements made in
furtherance of joint criminal activity.” United States v. Montgomery,
384 F.3d 1050, 1060 (9th Cir. 2004) (quoting Marashi, 913 F.2d at 731).
10             UNITED STATES V. FOMICHEV

against society’s strong interest in the administration of
justice. We are not persuaded that the exception should be
extended.

    Federal Rule of Evidence 501 provides that, except as
otherwise required by the Constitution, federal statute, or
Supreme Court rule, the privilege of a witness shall be
governed by the principles of common law as interpreted by
United States courts “in the light of reason and experience.”
Fed. R. Evid. 501. Our case law recognizes two privileges
that arise from a marital relationship: the marital
communications privilege and the spousal testimonial
privilege. “Both privileges depend on the existence of a valid
marriage, as determined by state law.” United States v.
Lustig, 555 F.2d 737, 747 (9th Cir. 1977).

    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. 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
               UNITED STATES V. FOMICHEV                    11

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 witness-
spouse 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).

   There is no question that the government is free to try to
prove that Fomichev falsely certified that he did not marry for
the purpose of obtaining an immigration benefit. See
Nakamoto v. Ashcroft, 363 F.3d 874, 881–83 (9th Cir. 2004).
12              UNITED STATES V. FOMICHEV

The question before us is limited to whether the government
should be allowed to use Fomichev’s private marital
communications in order to prove its case.

    The marital communications privilege has long been
recognized in our jurisprudence, see Wolfle v. United States,
291 U.S. 7, 14 (1934), and there are good reasons it has
withstood the test of time. Like the physician-patient and
clergy-penitent privileges, the marital communications
privilege recognizes that society has an enormously strong
interest in preserving a particular social institution—here, the
institution of marriage. See Obergefell v. Hodges, 135 S. Ct.
2584, 2593–94, 2601–02 (2015). We afford special
protection to private communications exchanged in the
confines of each of these relationships because the
relationships are uniquely important, and because the law has
long recognized that they will be compromised if spouses,
patients, and penitents are not secure in the knowledge that
their communications will be kept confidential. See
Trammel, 445 U.S. at 51 (“The privileges between priest and
penitent, attorney and client, and physician and patient . . . .
are rooted in the imperative need for confidence and trust.”).
The law safeguards the confidentiality of marital
communications not because it fails to recognize the risk that
such a privilege could be misused to obstruct justice, but
because, as we explained in Griffin, privacy is “regarded as
so essential to the preservation of the marriage relationship as
to outweigh the disadvantages to the administration of justice
which the privilege entails.” 440 F.3d at 1142 (quoting
Wolfle, 291 U.S. at 14).

    We have never applied the sham marriage exception to
the marital communications privilege, and doing so would
expand the limited application the exception receives in the
                  UNITED STATES V. FOMICHEV                            13

context of the spousal testimonial privilege.3 The government
bears the burden to persuade us that the sham marriage
exception should be extended, and it has offered no
convincing reason to modify this longstanding rule. We are
particularly disinclined to upset this precedent when it
appears that the parties mistakenly focused on litigating
exceptions to the marital communications privilege, without
recognizing that it only extends to communications made
during the marriage or until a marriage becomes
irreconcilable.    See Marashi, 913 F.2d at 729–30.
Irreconcilability was not the focus of the government’s
argument in the district court, but the government did
advance this argument in the district court and it continues to
argue this point on appeal. Because the district court did not
make a finding about whether the subject marriage was
irreconcilable when the IRS recorded Fomichev’s statements,
we remand for the district court to rule on irreconcilability.


    3
       We recognize that people marry for many different religious,
cultural, and social reasons. 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,
Piper v. Alaska Airlines, Inc., No. 93-35575, 1994 WL 424292 at *2–3
(9th Cir. Aug. 12, 1994). See United States v. Orellana-Blanco, 294 F.3d
1143, 1151 (9th Cir. 2002) (“Just as marriages for money, hardly a
novelty, or marriages among princes and princesses for reasons of state
may be genuine and not sham marriages, so may marriages for green cards
be genuine.”). Under our case law, determining the applicability of the
sham marriage exception 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. See
Roberson, 859 F.2d at 1380 (observing that adjudicating the applicability
of marital privileges can “involve district judges in difficult and
sometimes inappropriate inquiries”).
14             UNITED STATES V. FOMICHEV

     2. Sufficient Evidence Supported the Jury’s Finding
        that Fomichev Understood the Documents He
        Signed.

    Fomichev argues that his convictions must be vacated
because there was insufficient evidence that he knew he was
making false statements. Specifically, Fomichev argues the
evidence offered was insufficient to show that he had the
English fluency to understand the documents he signed. We
disagree.

    “When faced with a sufficiency of the evidence challenge,
we must consider the evidence presented at trial in the light
most favorable to the prosecution and then must determine
whether the evidence is sufficient to allow any rational trier
of fact to find the essential elements of the crime beyond a
reasonable doubt.” Garrison, 888 F.3d at 1063 (internal
quotation marks omitted). Fomichev had conversations,
however simple, with the manager of his apartment building,
and his accounting instructor and friend testified that
Fomichev had an extensive vocabulary and average writing
skills, as demonstrated by his handwritten affidavit, in
English, withdrawing one of his applications. The jury had
sufficient evidence to find that Fomichev’s English
competency was such that he understood what his signature
certified.

     3. We Decline to Reach Fomichev’s Remaining
        Arguments.

    The district court rejected Fomichev’s argument that the
admission of his statements ran afoul of the Fourth
Amendment, ruling that Fomichev had no expectation of
privacy because his wife served as a government informant.
                UNITED STATES V. FOMICHEV                      15

The district court correctly observed that our circuit has not
yet decided whether the law recognizes a reasonable
expectation of privacy in marital communications where, as
here, one spouse consents to monitoring. We decline to reach
this issue until the district court decides whether the marriage
was irreconcilable as of the time Fomichev’s statements were
recorded. See Camreta v. Greene, 563 U.S. 692, 705 (2011)
(“[A] longstanding principle of judicial restraint requires that
courts avoid reaching constitutional questions in advance of
the necessity of deciding them.”) (internal quotation marks
omitted).

    We also decline to reach Fomichev’s argument that the
district court abused its discretion by denying a mistrial after
striking prejudicial tax evasion evidence without a
sufficiently forceful limiting instruction. This prejudice
analysis may differ on remand, depending on the district
court’s ruling on irreconcilability. If the district court decides
on remand that Fomichev’s statements were improperly
admitted, its ruling on the motion for a new trial can be
revisited.

                       CONCLUSION

    The district court erroneously extended the sham marriage
exception to the marital communications privilege. We
vacate the district court’s denial of Fomichev’s motion to
suppress. On remand, the district court shall decide whether
the marriage was irreconcilable as of the time the challenged
statements were made. In light of this decision, we vacate the
district court’s Fourth Amendment ruling and its denial of
16           UNITED STATES V. FOMICHEV

Fomichev’s motion for new trial, both of which may be
reconsidered on remand.

      VACATED and REMANDED.
