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D 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 D, 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 D conditional residence. Two years later, with counsel, D and Pogosyan petitioned to remove the conditions on D'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. IRS agents approached Pogosyan, and she agreed to meet with them at a coffee shop. She gave conflicting answers to the agents' initial questions about where she and D lived and about their tax returns, so the agents cautioned her that lying to federal agents is a felony and that she could be culpable and owe back taxes for false returns. Pogosyan stated she wanted to 'come clean' and tell the truth. She agreed to marry D so that he could secure U.S. citizenship, and he agreed to pay her rent in exchange. In assisting agents, she recorded several telephone calls with D and wore a concealed recording device during an in-person meeting with him. Pogosyan testified before the grand jury that D 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 D needed to marry a U.S. citizen to obtain citizenship. In October 2012, Pogosyan and D filed for a divorce in state court. Their divorce was finalized in December 2012. P charged D with a number of crimes. D filed a motion to suppress the recordings of his conversations with Pogosyan and Pogosyan's testimony describing those conversations pursuant to the marital communications privilege because the statements were made while D and Pogosyan were married. 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 had been applied to the marital communications privilege.' 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 denied D's motion to suppress, and the evidence of D's marital communications was admitted at trial. D was convicted and appealed.

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