Houston Tax Attorney
Can the IRS record conversations between a husband and wife and use the recordings as evidence for tax crimes? The court addressed this in United States v. Fomichev, No. 16-50227 (9th Cir. 2018) holding that marital communications are privileged even in the case of a sham marriage.
Facts & Procedural History
Fomichev was born in Russia and came to the United States in 2003 on a student visa. He met Pogosyan in 2006 and was married to her in the same year. Pogosyan was a U.S. citizen.
Two years later, Fomichev applied for and was granted a conditional residence visa.
In 2010, the IRS special agents interviewed Pogosyan and she admitted that the marriage was a sham to allow Fomichev to gain U.S. citizenship. The IRS special agents then recorded phone conversations and had Pogosyan wear a recording device. This captured conversations between Fomichev and Pogosyan about Fomichev’s immigration status.
In 2011, Pogoysan told the grand jury that she agreed to marry Fomichev to help him obtain U.S. citizenship, in exchange for Fomichev paying her rent.
Pogoysan and Fomichev divorced in 2012. It isn’t clear whether Pogoysan filed her tax returns jointly with Fomichev and pursued innocent spouse relief or if she filed as married filing separately.
Nevertheless, Fomichev was convicted of filing false tax returns and making false statements on U.S. immigration documents.
On appeal, the question was whether the communications between Pogoysan and Fomichev were protected by the marital communication privilege.
The Spousal Testimonial Privilege
Before considering the marital communications privilege, we should stop to consider the spousal testimonial privilege.
The spousal testimonial privilege prohibits one spouse from testifying against the other in criminal cases during the course of their marriage. This privilege belongs to the witness-spouse who can refuse to testify. This privilege does not end until the marriage ends.
There is a sham marriage exception. This exception applies when spouses are married with the intent of invoking this privilege. For example, a marriage three days before trial in which the new spouse was to testify adversely to the other new spouse would trigger this exception.
The Marital Communications Privilege
The marital communications privilege is different than the spousal testimonial privilege.
The marital communications privilege protects communications between spouses during marriage, unless the marriage had become irreconcilable when the statements were made. Communications between spouses are protected given that marriage relationships are deemed to be uniquely important. The law has long recognized that they will be compromised if spouses are not secure in the knowledge that their communications will be kept confidential. Either spouse may invoke the marital communications privilege. The protection the privilege affords to statements made during a marriage survives the marriage.
The question the appeals court had to address was whether the sham marriage exception for the spousal testimonial privilege should be extended to the marital communications privilege.
Communications in Sham Marriages are Protected
In this case, the IRS presented evidence consisting of communications between Pogosyan and Fomichev during their marriage. The trial court admitted the statements by extending the sham marriage exception to the marital communications privilege. Absent this exception, these statements would not be admissible given the marital communications privilege.
The government argued that communications made during a sham marriage would not be protected. The appeals court found no basis for extending this exception to the marital communications privilege. Thus, communications between spouses are not admissible as evidence even if there is a sham marriage.
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