Did Defendant and His Girlfriend Marry Just so She Could Refuse to Testify Against Him?

Yes, says the court, partly because of evidence that the defendant really didn't like her any more.

From U.S. v. Bolen, decided Friday by Judge Mary Dimke (E.D. Wash.), an interesting illustration of how the legal rules related to the spousal testimonial privilege sometimes play out:

The spousal testimonial privilege "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.'" "[T]he privilege is not favored, and in consequence is narrowly construed."

"The Ninth Circuit recognizes a sham marriage exception to the marital privilege of not having to testify against a spouse." This exception is a "narrow" one "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."

While the "timing of a marriage will always be a factor," it is "only one of the factors." Other factors include whether "the marriage was entered into in good faith" and whether the spouses "plan to continue their marital relationship." … [T]he spousal testimonial privilege is not available when "the purpose of the marriage was for the purpose of invoking the marital privilege." …

Defendant Greer and MacGregor began dating in July 2015 and quickly moved in together because MacGregor had been homeless. Defendant Greer was arrested and detained on state charges, which form the basis for these federal charges, on January 15, 2022. MacGregor was interviewed by law enforcement shortly after Defendant Greer's arrest and made several incriminating statements about him. {The Court was not aware of the substance of these statements at the time it orally denied MacGregor's motion. However, MacGregor subsequently testified that she provided law enforcement photos of Defendant Greer's penis and identified Defendant Greer's penis in the photos of alleged child pornography.}

The court concluded that "the couple's May 8, 2022, marriage was designed for the purpose of MacGregor avoiding having to testify and Defendant Greer had no other intent to marry MacGregor"; here's an excerpt of the fairly long discussion:

[1.] Timing of the Marriage

On the surface, the timing of the marriage is inherently suspect. After roughly six-and-a-half years together, Defendant Greer and MacGregor engaged in an effort to marry and eventually married only after Defendant Greer's arrest on January 15, 2022, and after MacGregor made incriminating statements about Defendant Greer to law enforcement. {Notably, MacGregor did not testify as to any demonstrated intent to marry prior to Defendant Greer's arrest.}

Following Defendant Greer's arrest, recorded jail calls indicate Defendant Greer's apparent newfound preoccupation with getting married and MacGregor's apparent desperation to mitigate the potential legal damage of incriminating statements she made about Defendant Greer to law enforcement. Seven days after his arrest, Defendant Greer told MacGregor she needs to keep up her strength because of how hard she will have to work to get him out of custody. She responded by asking how much a marriage license costs. While the timing of the marriage is "only one" of the factors the Court must assess, the totality of the evidence, as discussed below, strongly weighs in favor of finding the marriage was designed for the purpose of MacGregor avoiding having to testify.

 [2.] Text Messages prior to Defendant Greer's Arrest

The Court has reviewed dozens of text messages Defendant Greer exchanged with Defendant Bolen and others beginning in October 2020 and continuing until the time of Defendant Greer's arrest. The messages strongly suggest Defendant Greer never possessed an intent to marry MacGregor prior to his arrest. Rather, these exchanges portray his and MacGregor's relationship as both unstable and in distress in the months leading up to his arrest.

The Court has reviewed messages exchanged between Defendant Greer and Defendant Bolen, with whom Defendant Greer apparently confided about MacGregor. The messages are reflective of dissatisfaction with the existing relationship. See, e.g., USA Trial Ex. 12 at 12-016-018 (discussing moving in together if Defendant Bolen gets a "big enough house," because Defendant Greer wants to "get away" from MacGregor); id. at 12-063 (Defendant Greer explaining he could not respond to Defendant Bolen's invitation to play video games because MacGregor was watching his every move, angering him); id. at 12-097-12-099 (Defendant Greer expressing displeasure that MacGregor was home for the week and that he could not play video games because she was home, referring to her as lazy and crazy); id. (the exhibit contains exchanges repeatedly and frequently expressing annoyance that Defendant Greer cannot play video games with Defendant Bolen because MacGregor was home).

The Court also considered messages Defendant Greer exchanged with two other individuals, which reflect a deep hostility to MacGregor. On September 3, 2021, Defendant Greer texted Ashley S. and Natasha H. about MacGregor: "As soon as we pulled away from you guys, she started bitching at me … and didn't stop until a few minutes ago." Ashley remarked in response: "I'm sorry Casey. If I had a spare room, I would let u stay here [sad emoji]. I feel so bad for you, no wonder you sit in the bathroom for 2 hours." Defendant Greer agreed, stating: "Yeah. I need my alone time from her and she even ruins that!" Ashley repeated the earlier sentiment: "I wish u could stay here dude." Defendant Greer again agreed, replying, "Same." Ashley later referred to MacGregor as a "little psycho," to which Defendant Greer responded, "Only a little! Try a lottle!" Ashley replied, "Haha crazy psycho." Defendant Greer again agreed, replying, "Definitely!" Ashley then remarked, "That's your future wife your talking about." Defendant Greer responded, "NO FUCKING WAY IN HELL!!!!"

On September 7, 2021, Defendant Greer again texted Ashley and Natasha about MacGregor: "I don't know who she's talking to but she's making me out to be the bad guy again, I went off on her because she wouldn't stop with her bullshit from the second I stepped in the door tonight." Ashley remarked that she "couldn't believe [he] called her a spoiled brat." Defendant Greer clarified "[t]hat's not all I called her": "Spoiled brat. Whiney little baby. Bit[c]h. I think there was more but I can't remember. She doesn't remember me calling her a bitch. … She's e[x]pecting me to apologize but it's not going to happen." Ashley responded: "Nothing to apologize for speaking your truth." Defendant Greer agreed: "Exactly." Defendant Greer also referred to MacGregor as a "[s]tupid fucking cunt."  Finally, while discussing that MacGregor was "looking at apartments," Defendant Greer noted that "if [MacGregor] moves, I can't go with her, making me homeless."  The references cited are merely examples of dozens of messages containing the same tone of discontent, and which never reflect any positive commentary about MacGregor.

The Court recognizes that ebbs and flows are ordinarily a natural part of relationships. Accordingly, the Court does not—and would not—base its finding on an up-and-down dynamic between Defendant Greer and MacGregor…. "We do not believe that courts can or should 'assess the social worthiness of particular marriages or the need of particular marriages for the protection of the privilege.'" … "The testimonial privilege applies with equal force to challenged marriages as it does to model marriages." … The Court likewise does not assess whether, after nearly two-and-a-half years, Defendant Greer and MacGregor's marriage is a "challenged" or "model" one.

Rather, it finds only that, based in part on the text messages referenced above, Defendant Greer did not have a bona fide intention to marry MacGregor prior to his arrest. Looking only to Defendant Greer's motive, the messages in the record plainly suggest that "the purpose of the marriage was for the purpose of invoking the marital privilege."

[3.] Jail Calls

The Court has reviewed a series of recorded jail calls made between Defendant Greer and MacGregor occurring after his arrest on state charges related to the conduct underlying the subsequent federal charges. The Court finds the jail calls reflect Defendant Greer entered into the marriage to avoid having MacGregor testify….

The calls reflect that, to Defendant Greer, the marriage was inexorably linked with his prosecution: Defendant Greer repeatedly was preoccupied with making sure the state prosecutor was aware of it. As with the text messages, the calls plainly suggest that "the purpose of the marriage was for the purpose of invoking the marital privilege." …

[4.] MacGregor's Testimony

The Court finds MacGregor's testimony decidedly not credible. She repeatedly invoked equivocal phrases—such as variations of "I do not recall" and "I do not remember"—at least ten times on cross-examination. In the Court's view, it was implausible for MacGregor not to remember details and conversations that were unambiguously memorable, based on the content of her calls with Defendant Greer….

The Court does not take lightly the task of assessing whether a marriage was entered into in good faith or for the purpose of wielding it as a shield in a criminal prosecution. However, the totality of the evidence compels the conclusion that Defendant Greer and MacGregor's marriage was "for the purpose of using the marriage ceremony in a scheme to defraud[.]" …

Ann Wick represents the government.

Comments

[Dr. Ed 2]

"After roughly six-and-a-half years together, Defendant Greer and MacGregor engaged in an effort to marry and eventually married only after Defendant Greer's arrest..."

In an earlier age, this would be described as "doing the right thing after six and a half years of living in sin." And the bumps in the relationship -- those are common for someone who has been married for nearly seven years, with or without "the minister."

If the judge wants to argue that the six and a half year relationship was a sham, fine, but what does Washington say about common law marriage? An intrepid attorney could argue that they only got legally married because they didn't realize that their common law relationship didn't offer them the protections they thought it did.

[Krayt]

So wouldn't their long marriage-like relationship similarly suffer protections of spousal-like secrets told in the night? Is the judge behaving honorably, trying to ignore that on a technicality?

He's sure acting like they are abusers of the law, not himself. They are trying to adhere to the letter of the law. He is trying to gut punch the spirit of the law.

[ReaderY]

In states with common-law marriage, and a number still have it, I suspect it would be fairly easy for this couple to convince a judge they had had a common-law marriage for years, making the piece of paper completely irrelevant.

I don’t think 9th Circuit is applying either the letter or the spirit of the law. This was a real couple with a real relationship. When they discovered their relationship needed more formalization to be legally recognized, they obtained it, as many similar couples have done in our history. This has always been permissable under our laws. The 9th Circuit is going against centuries of legal tradition on saying otherwise, tradition which I think is wise policy.

Frankly I think abolishing common-law marriage was a mistake. But given its abolition, I absolutely think the law should permit couples who have been living together without formalities to formalize their relationship without penalty. I think regarding such formalization as a “sham” deeply undermines society’s interests in giving people amnesty, in allowing people to regularize themselves and live productive and useful lives without penalizing them for how they conducted themselves in the past.

The 9th Circuit is doing the equivalent of trying to punish them for fornication for how they conducted themselves before they got formally married. Centuries of legal tradition strongly frowns on such draconian unmerciful Puritanism. Throughout our country’s history, once you get formally married, what happened in the past becomes forgiven, your marriage gets fully recognized as fully valid, and everything returns to normal.

[Dr. Ed 2]

My guess is that neither one is very bright, and that the cops bullied her into producing the picture of his penis. And how did she come to acquire said picture of his penis -- yep, the marital-type relations.

It's entirely possible that an attorney advised one of them that they had to get married to enjoy this privilege, and that led them to get married. But rules are rules, damn it, even if the perp is a creep.

And if neither one of them is very bright, this is exactly the reason why this exemption exists. Which raises the question of if this would be grounds for appeal of a subsequent conviction?

[David Nieporent]

In states with common-law marriage, and a number still have it, I suspect it would be fairly easy for this couple to convince a judge they had had a common-law marriage for years, making the piece of paper completely irrelevant.

It would not. I don't think you understand the concept of common law marriage. It's not an informal relationship that is eventually deemed to be a marriage because it lasts long enough and the parties live together.

A common law marriage — in the states that recognize it, which Washington does not, making this whole discussion academic anyway — is an actual marriage, just without the license. You must hold yourself out to the world as married. If you're not going around telling everyone "This is my wife," and filling out forms and applications and such identifying each other as spouses, then you don't have a common law marriage. No matter how monogamous or long-lasting your relationship is.

But given its abolition, I absolutely think the law should permit couples who have been living together without formalities to formalize their relationship without penalty.

WTF are you talking about? There's no "penalty." They are not being "punished." They're in exactly the same position they'd have been in if they hadn't entered into a sham marriage for the sole purpose of precluding her testimony — the latter of which being the actual factual finding of the actual person who heard the actual evidence.

[TwelveInchPianist]

Normally a sham marriage isn't just a marriage entered into to obtain a particular benefit, it's a marriage entered into in bad faith where there is no romantic relationship. 9th Circuit caselaw supports this:

The Tenth Circuit found a sham marriage in United States v. Apodaca, 522 F.2d 568 (10th Cir. 1975). In that case, the witness was a key prosecution witness who gave damaging testimony at several pretrial proceedings. The defendant had threatened her and attempted to coerce her not to testify. He was also under a court order not to contact her. He violated the order and, on the eve of the trial, they got married. The court found the marriage was a sham because no evidence showed a relationship between them prior to the marriage, although they knew each other, or an intention to live together as husband and wife. Even in immigration cases, which have developed a fairly harsh sham marriage doctrine, the major test is whether the couple intended to live together as husband and wife. See Lutwak v. United States, 344 U.S. 604, 73 S. Ct. 481, 97 L. Ed. 593 (1953).

There's little evidence that this couple didn't intend to live together as husband and wife, assuming he got out of jail.

[David Nieporent]

There's little evidence that this couple didn't intend to live together as husband and wife, assuming he got out of jail.

I understand that we're all just BSers on the Internet here, but you realize that there was an actual court proceeding, with actual testimony and actual documentary evidence, that the judge heard firsthand and considered, right? She didn't just opine out of the blue.

[TwelveInchPianist]

Your premise doesn't support your conclusion.

Remember a few months ago we were talking about an actual court proceeding, with actual testimony and actual documentary evidence, that the judge heard firsthand and considered, and the judge issues an adoption decree to a stranger for a kid with a legit de-facto family in a foreign jurisdiction who had never been within four thousand miles of the courthouse?

[Alpheus W Drinkwater]

If DMN had made the argument that trial judges are always right, then your reply would be germane.

[David Nieporent]

I actually don't remember that, no.

But my point is not, "Judges never make mistakes" — if they didn't, we wouldn't need appellate courts — but rather, "You're opining on the non-existence of evidence you haven't seen or assessed." You did not say, "The judge misinterpreted the evidence," but "There isn't evidence."

[ReaderY]

But there IS evidence. It’s in the record. This couple had known each other for years and were living together since 2015. Under the correct legal standard as articulated in the cases TwelveInchPianist and I have noted, that alone is enough to defeat a sham marriage claim.

[ReaderY]

You’re mistaken. In United States v. Fomichev, the 9th Circuit found that the couple involved had a sham marriage based on the fact that they never resided together, slept in the same bed, or had sex. Nobody disputes that the couple in this case regularly did all these things for years.

It doesn’t matter whether the purpose of getting the courthouse papers was to invoke the testimonial privelege, any more than it matters in an immigration case if they get formally hitched to avoid one of them being deported. As Fomichev illustrates, a marriage is not a sham under FEDERAL law if the couple has a real couple relationship including living together as a couple. And this couple certainly did. If they have that, they are ENTITLED to formalize their relationship to obtain legal benefits that come from recognized marital status.

I don’t think their text messages to each other were even admissable evidence as I think the spousal communication privilege protected them. It’s frankly none of the judge’s businesss if they quarreled or called each other names. The Fomichev factors - did they reside together? Did they share a bed? Did they have sex? - are all easily satisfied. The inquiry should have stopped with that. Any further intrusion into their relationship was outside of the judge’s authority and completely irrelevant to the question at hand.

[Roger S]

Yes, the judge should not be scrutinizing why they got married or whatever they argued about.

[Voize of Reazon]

The judge is scrutinizing why they got married because that is the test the relevant precedent requires her to apply.

[ReaderY]

It’s not. The core test for whether the marriage is a sham is whether the couple actually intended to live together. See e.g. US v. Blanco (9th Cir. 2002); US v. Fomichev (9th Cir. 2018).

Here the couple were actually living together! Of course they intended to live together. That makes the marriage real. It just doesn’t matter that the reason for choosing to formalize the relationship was to obtain legal benefits applicable only to recognized marriages, such as the testimonial privelege. Nor does it matter that they were having some quarrels at the time. They were in fact a couple, living together as a couple. That’s all that’s needed to make the marriage real for purposes of the federal sham marriage standard.

[ReaderY]

I see we agree on something. I made exactly this point below. Completely agree this was no sham marriage.

Many people for much of the history of this country only occassionally bumped into the law. It wasn’t uncommon for people to formalize their relationships when such an encounter happened and they realized the law required a piece of paper to document what was in fact really the case all along.

The law has traditionally been relatively kind and merciful to such people even after most states abolished common-law marriage. It would let them come down out of the hills to the county courthouse and document their relationship, and then recognize the marriage as valid for all purposes and carry on from then on.

The fact that these judges won’t let them do it, that they regard their doing what many couples in our history have done as some kind of fraud, is not just an abandonment of our common-law tradition but an indication of just how out of touch the elites who have become our judges have become with ordinary people and how they live. It’s MEAN. It elevates pieces of paper over people.

The common law strove to find ways to bring people living at the edges back into society, to allow people who had led irregular lives to regularize themselves and become recognized as in good standing. It also recognized that people don’t always live according to society’s ideals.

Common-law marriage was a way of balancing ideals of marriage with the way people often actually live their lives. I think its abolition was a mistake. And I think this case helps illustrate why.

[Squire Al]

An intrepid, or even a non-intrepid lawyer would know that Common Law marriage is not recognized in the State of Washington

[ReaderY]

But these people didn’t just have a common-law marriage-like relationship. They had formalized it and obtained the piece of paper. Formalizing what would be a common-law marriage in a state that had one, perhaps because the couple finds out the state they’re in doesn’t recognize it and needs something more formal to make it legally acceptable, has never in our history been considered a sham, and it has never been considered an improper purpose for formalizing an existing marriage-like relationship.

[JasonT20]

Whether or not the relationship was real, in the state of Washington, it is only a marriage after they have gotten the official documentation. Thus, it is perfectly fair to consider whether getting the formal marriage license was legitimate or designed only to avoid testimony. If there is evidence that they thought they were married under common law, but then found out that it doesn't work that way in their state, then they can present that at a hearing. Apparently, they had no such evidence, whereas the state had evidence to the contrary.

The whole point here is that the state presented evidence that they didn't have the level of commitment expected of a married couple and had no intention of making that kind of commitment prior to Greer's arrest and the woman's statements against him. This isn't a "oops, we didn't think we needed the piece of paper to formally establish what has been true for years, let's get it now" kind of thing. It's a "Shit, I'm going to go to jail unless we find a technicality so that my girlfriend I wanted to dump won't have to testify in court to things she has already said to police. We better get a marriage license now." kind of thing.

[David Nieporent]

But these people didn’t just have a common-law marriage-like relationship.

These people didn't have a common-law marriage-like relationship at all.

They had formalized it and obtained the piece of paper.

Yes, for the sole purpose of preventing her from being forced to testify.

You have invented a fantasy scenario in your head in which they thought they were husband and wife, realized after his arrest that the law didn't deem them such, and so they got married just to formalize things. That is not what the court found. The court — based on actual evidence — found they never had any thought or intention of marriage until he got arrested and they wanted to keep her from testifying.

[David Nieporent]

but what does Washington say about common law marriage?

https://google.gprivate.com/search.php?search?q=does+washington+state+recognize+common+law+marriage

[darkknight9]

Of all the reasons to get married... Cripes.

(Insert marital joke that I don't have the energy to think up)

[John F. Carr]

I never heard of a sham marriage exception to the spousal privilege rule. I think we do not have one in Massachusetts. Here a defendant was ordered not to marry the main witness against him. He did. Media coverage assumed the privilege applied. I understood the order to be a condition of pretrial release with a violation punishable only by holding the defendant until trial.

[ReaderY]

I think such an order is a violation of the constitutional right to marry. I think a judge who issues such an order is completely out of touch with the foundations of our law. I think the defendant not only should appeal, he should ask for a new new judge not prejudiced against people who wxercise their constitutional rights.

It’s like ordering someone not to talk to to a lawyer or not to confront the witnesses against them. People are entitled to exercise their legal rights. Judges have to live with it.

[David Nieporent]

A judge can in fact order a defendant not to communicate with witnesses as a condition of pretrial release.

[Dr. Ed 2]

Read the Goodridge (gay marriage) decision.
ReaderY is right -- at least in MA, it is a constitutional right.

[David Nieporent]

I'm sure that's responsive to something, but not to what I wrote.

[JasonT20]

Confronting a witness is a right you have at trial, not before the trial.

[John F. Carr]

You can lose constitutional rights as a condition of pretrial release. Orders for the defendant not to talk to witnesses are routine. His lawyer can do the talking.

[Martinned2]

I’ve always thought it is odd that spousal privilege (in the US, I’m not sure about other jurisdictions) also applies to things that happened before the wedding. If the point is to protect communication between spouses, why include things that were said or done when they weren’t married?

[John F. Carr]

America has two spousal privileges. Private communications between spouses are not admissible. One spouse can not be forced to testify against another. In the first case the relevant time is when they were talking privately. In the second case the relevant time is when one is testifying.

Some states to not recognize the second kind of spousal privilege. Some states expand it to allow one spouse to prevent the other from testifying.

[ReaderY]

For the same reason communications between an attorney and client are priveleged even before the client signs a formal retainer agreement or the attorney makes a formal appearance in court.

At common law the marriage relationship, like the attorney-client relationship, is based on the reality of the relationship, not the existence of a formal piece of paper attesting to it. What the spouses say to each other before formally getting married is priveleged for much the same reasons as what attorney and client say to each other is priveleged even before they sign formal papers attesting to the existence of the relationship. The relationship is the real thing in the world, not the piece of paper, in both cases.

[F.D. Wolf]

The contours of spousal privilege vary among jurisdictions in the United States. In federal court, only the witness-spouse can claim the privilege, and the party-spouse cannot prevent her from testifying. But that is not the common-law rule, nor is it the majority rule. In most jurisdictions, a party-spouse can prevent the testimony, subject to exceptions, such as the witness-spouse being the victim of the party-spouse in the case or the witness-spouse being a joint participant in the crime of the party-spouse.

As to the "sham marriage exception" to spousal privilege, it is not universally accepted. E.g., Glover v. State, 836 N.E.2d 414, 419 (Ind. 2005) ("[A]s a general proposition, we hold that a marriage valid under applicable law is sufficient to permit a witness to invoke the marital privilege.")

[David Nieporent]

If the point is to protect communication between spouses, why include things that were said or done when they weren’t married?

You're confusing two different privileges.

There's the spousal communications privilege, which only applies to private communications that happened during the marriage, and it survives the end of the marriage.

And there's the spousal testimonial privilege, which prevents a spouse from being forced to testify against the other spouse, about anything — premarital or marital communications, acts, etc. — but it only applies during the duration of the marriage.

[Voize of Reazon]

The marital testimonial privilege has its origins in the middle ages, and wasn't a species of communication privilege. Rather, it resulted from two principles of medieval justice:

• No-one with an interest in the proceedings was competent to testify either for or against the defendant, including the defendant himself
• Husband and wife were for many purposes a single legal person

With the result, as Lord Coke wrote in 1628, that "it hath beene resolved [...] by the Justices that a wife cannot be produced either against or for her husband."
The underlying doctrines have been abandoned or weakened in the intervening centuries, and what was a disqualification became a privilege, but a form of it persists today.

[TwelveInchPianist]

"Husband and wife were for many purposes a single legal person"

Apparently, the law got married since then. "By experience!"

[F.D. Wolf]

Fans of the Watergate scandal, particularly of theories that run counter to Woodward and Bernstein's official narrative, may recall the assertion that John Dean married his girlfriend Maureen "Mo" Biner for the same reason. The theory goes something like Dean (who ended up ratting everybody out) was the real mastermind of the Watergate break-in, and one of the main goals objectives of the break-in was the recovery of a binder which contained information and photos about women in a call-girl ring run out of the office, one of whom was Biner. The break-in occurred on June 17, 1972; Dean and Biner were married on October 13, 1972.

The call-girl theory of Watergate even got a mention on this fine website. https://reason.com/2022/06/16/the-weird-world-of-watergate/

[Roger S]

Dean was the White House, and a privilege should have blocked his testimony. He ratted everyone out before learning about the tapes which contradicted much of his testimony.

[Dr. Ed 2]

OR Biner was the innocent roommate of the ringleader and he married her to protect HER from having to testify about it -- remember it was a Dem ring.

Kennedy HAD stolen the 1960 election and Nixon WAS paranoid.

[ReaderY]

This couple had been living together since 2015. This alone makes their marriage not a sham. It doesn’t matter that they chose to get married shortly before he testified. It doesn’t matter that they had been having quarrels. A marriage is only a sham if there is no real relationship and no real intent to live together aaw a couple. The fact that this couple had in fact lived together as a couple for many years completely destroys any claim that this was not the case here.

At common law, marriage is fundamentally a relationship, not a piece of paper. When formal registration was instituted, common-law couples often registered their relationship in order to obtain one of the benefits of formal marriage, such as the testimonial privilege. They were entitled to do this. I don’t see why the abolition of common-law marriage should change this.

The 9th Circuit here has turned the history of marriage on its head. It has treated marriage as if it were the piece of paper itself, ignoring the relationship underlying it. The piece of paper is supposed to certify the existence of the marriage, but a marriage at common law was the relationship itself, the fact of being a couple, something that exists independently of the piece of paper.

These people, whatever their quarrels and troubles, whatever their thoughts about maybe splitting up, were in fact a couple who had in fact hitched their lives together. The evidence this was the case was overwhelming. Their formal marriage was therefore absolutely not a sham.

The 9th Circuit totally got this one wrong.

[Martinned2]

A marriage is only a sham if there is no real relationship and no real intent to live together aaw a couple.

What, pray tell, is your authority for this proposition?

[ReaderY]

See the dictionary definition of sham (“bogus, false”). See also the common-law definition of marriage, which means essentially living together and presenting oneself to the world as a couple. These people had a real couple relationship, not a bogus or false one. Since the marital testimonial privelege is a common-law privelege, the common-law conception of marriage, which requires no formal ceremony or piece of paper and is based solely ion the couple’s behavior, is highly relevant.

In states with common-law marriage, and a few still have it, this couple would easily be able to convince a court that they had in fact been married for years, making the piece of paper completely irrelevant.

A sham marriage involves people who create a piece of paper without actually having a relationship with each other or doing any of the acts normally associated with a marriage. This couple did the exact opposite, having done the behavior normally associated with a marriage for years without the piece of paper. Real marriage, at common law, is the behavior, not the piece of paper, the territory, not the map.

[Martinned2]

So that's a "no" on the having of authority, then. You're just projecting your own conservative values on the law.

[ReaderY]

See this article.
https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2705&context=faculty_publications

The ariticle discusses the sham marriage exception to the marital communications privelege in the context of United States v. Fomichev, a 2018 case where the court found the marrriage was a sham because couple, although formally married, “never resided together, slept in the same bed, or engaged in sexual intercourse.”

This couple regularly did all of these things, and had done them for years. THAT is why the claim the marriage was a sham is completely refuted here.

It doesn’t matter whether the state of Washington recognizes common law marriage or not. This is a federal case.

As US v. Fomichev illustrates, the federal definition of a “real” as distinct from a sham marriage, most commonly seen in immigration cases but in other contexts as well, follows the common law approach. The couple have to have lived together, had sex, and represented themselves as married. This couple easily did all of these things. And that’s that.

The 9th Circuit here just didn’t get that the federal caselaw on sham marriages is rooted in the common law understanding of what a “real” marriage is. That’s why they completely botched it here.

[Voize of Reazon]

You are reading too much into the "sham marriage' label. As explained in Fomichev, the test relevant to the spousal testimonial privilege is

whether parties married for the purpose of invoking the testimonial privilege.

Evidence that the marriage is "in name only" would certainly support such a finding, but as the 9th Circuit said the timing of the marriage could also support the same conclusion. If they had been living together for years and only decided to marry when the privilege became valuable it would be reasonable to conclude that they decided to pull the trigger to avail themselves of the privilege, even though the marriage wouldn't be a "sham" as most people would define it.

[David Nieporent]

In states with common-law marriage, and a few still have it, this couple would easily be able to convince a court that they had in fact been married for years, making the piece of paper completely irrelevant.

As I noted above, you're wrong. There is nothing in the record to remotely suggest they would have been deemed married under the standards that apply to common law marriages in states that recognize them.

[Commenter_XY]

David, I have been reading the back and forth with ReaderY. Where is ReaderY going off-track, in your opinion?

ReaderY makes a straightforward argument. The couple did things a 'married' couple would do. They made the vows. They cohabitate. Legally, they are married, right? Whether it is a sham marriage or not, their decisions legally binding (like beneficiary designations). I don't understand the sham marriage argument at all, it feels like the judge is trying to force a square peg (sham marriage) into a round hole (a legally married couple).

(Yes, the husband sounds like a total scumbag and he would not make it a month in prison, if the prison pop knew he diddled around with kids; if he is guilty of these things, I won't weep at his premature passing.)

[Absaroka]

1)Common law marriage means telling the world you are married. If you live with Ethel for 30 years but introduce her as 'my girlfriend', you don't have a common law marriage. It seems these two weren't presenting themselves as married, so they weren't.
2)Hubby gets in trouble and they do a quickie marriage. Legally, this is no different than if they had just met. They weren't married before, and got married only when the notion of testimony reared it's head. The court looked at the totality of the relationship and said 'sham marriage'. If they had been holding themselves out as married prior, they might have had a common law marriage and gotten the testimony privilege, but they hadn't, and thus don't..

If ReaderY's position was the law, then a couple who had lived together *while not claiming to be married* would still be married. There are people - lots of them, IMHE - who live together without wanting to be married. They would be unhappy about becoming involuntarily married.

[ReaderY]

My position is that centuries of tradition not only permit a couple who has been living “in sin” to rectify their situation and make it legal, our tradition permits them to do this even to obtain a benefit available only to married couples. When they do this, the marriage has never been considered a sham in our nation’s history and tradition.

The federal crime of fraudulent marriage for immigration purposes follows this tradition. It lets an existing cohabitating couple marry to enable one of them to avoid deportation, as long as they are in fact a genuine couple.

I think the 9th Circuit’s definition of sham marriage for testimonial purposes is, or at least should be, consident with the definition of fraudulent marriage for immigration purposes.

But if I am wrong in this, I think our nation’s history and tradition of permiting a cohabitating couple to rectify their status to obtain a legal benefit is so entrenched in our nation’s history and tradition that it passes the Dobbs “history and tradition” test and hence is part of the recognized constitutional right to marry. I think a law that doesn’t permit a genuine couple to rectify an existing relationship just because doing so would get them a legal benefit is inconsistent with the constitutional right to marry.

Accordingly, I think the defense lawyer here should raise both the legal claim that this isn’t a sham marriage under the correct standard, and the fallback that if it is, the definition of sham marriage involved violates the constitutional right to marry.

[John F. Carr]

The concept of a sham marriage is well known in American federal law. If a noncitizen marries a citizen the noncitizen can get a green card. So noncitizen pays citizen $5,000 to pretend to be married.

Married soldiers get (or got) more benefits than unmarried soldiers. There is (or was) a market for women to marry soldiers. They split the extra pay. I don't know if this is technically illegal.

Under state law (question asked below) I think sham marriages are the same as any other marriages.

[nonluddite]

Yeah! Where's your piece of paper ReaderY? You don't get to have an opinion without one, don't you know!

[Martinned2]

By "authority" we, lawyers, mean a court judgment or statute. Something other than ReaderY trying to promote his opinion to law just by pulling words out of his backside.

[ReaderY]

Between TwelveInchPiano and me you were given st least five cases. Stop yapping and look them up.

[Absaroka]

As DMN has pointed out, you don't have a common law marriage unless you hold yourself out as married ("I'd like you to meet my wife Alice").

If you eliminate that requirement, Betty and Charles couldn't live together without becoming married at some point, even if they had no wish to be married.

[Frank Drackman]

Seems like a lot of Perry Mason episodes hinged on this facet of Law.
"But Mr. Burger failed to understand the Mexican Divorce is not valid in California, I call Mary Jane Crotchrot to the stand!!" (Burger turns red)

Frank

[Gasman]

Did the judge annul the marriage, or is the marriage still legally recognized by the state?
If the marriage is still a legal marriage at the end of the judges bloviating, then without statutory exception, this is just something the judge pulled out of his ass.

[ReaderY]

No, there is such a thing as a sham marriage in federal law, most commonly applied in immigration cases. Marriage fraud is a federal crime in an immigration context. See 8 USC 1325(c). And the validity of the marriage under state law is irrelevant to whether it is marriage fraud under federal law. Lutwak v. US 704 (1953).

This couple easily met the standard for a “real” marriage under federal law. In the immigration marriage fraud context, there is caselaw as to what happens if a deportation order occurs when a marriage is on the rocks, and the couple patch things up to avoid one of them getting deported. Congress’ 1986 amendment to the definition of marriage fraud provided a standard: The federal validity of a marriage is irrefutable if the couple have lived together for at least two years. This couple did that.

[John F. Carr]

"and identified Defendant Greer’s penis in the photos"

SNL had a funny skit ages ago with a lineup of VIPs in Washington who had to drop their pants for ID. Bill Clinton was in the lineup. Clarence Thomas looked around at the competition and smiled.

I think it was SNL. Maybe Mad TV.

[ReaderY]

If she could do that, that’s evidence the marriage was real.

[David Nieporent]

It's evidence they were having sex, which is not evidence that they got married for any purpose besides keeping her from testifying.

[Alpheus W Drinkwater]

It was apparently evidence that not only did he possess child pornography, but he also was a participant. I don't know about you, but I'm not really rooting for him to beat the rap by means of a sham marriage.

[Drewski]

Now I understand why a few commenters are so stubbornly worked up over this. He's one of their own.

[ReaderY]

In this country, you don’t have to be a saint to have legal rights. Nor do you have to have a perfect leave-it-to-Beaver marriage to be married. People don’t lose their rights if people think they are scum. Even if they are scum.

[Drewski]

Except there is no right to fake a marriage to evade testifying, and nobody gives a shit about inventing such a "right" except: (a) Someone who's trying to do it, or (b) someone who wants them acquitted for another reason. It's just completely incredible that this question is so near and dear to your heart that you'd hammer out thousands of words over it on principle. It's a stupid principle. I'm far more willing to believe that you're a "child porn is free speech" type looking for collateral arguments.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

Yes, that is why he probably did that but we might be wrong to pursue that. If you can't convict a bastard on other grounds you should probalby let it alone. I don't want government doing means-ends testing on marriages.