United States v. Alferahin ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10590
Plaintiff-Appellee, D.C. No.
v.  CR-03-02051-JMR/
OSAMA MUSA ALFERAHIN, JJM
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Argued and Submitted
September 16, 2005—San Francisco, California
Filed January 11, 2006
Before: Betty B. Fletcher, John R. Gibson,* and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Betty Binns Fletcher;
Concurrence by Judge Berzon
*The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
287
290 UNITED STATES v. ALFERAHIN
COUNSEL
Lee Tucker, Tucson, Arizona, for the defendant-appellant.
Christina M. Cabanillas, Assistant United States Attorney,
Tucson, Arizona, for the plaintiff-appellee.
UNITED STATES v. ALFERAHIN 291
OPINION
B. FLETCHER, Circuit Judge:
Osama Musa Alferahin appeals his conviction under 18
U.S.C. § 1425(a) for knowingly procuring naturalization
“contrary to law.” The basis for this conviction was Al-
ferahin’s failure to disclose, on an application for permanent
resident status, that he had been previously married. On
appeal, Alferahin contends that the district court erred by fail-
ing to instruct the jury that 18 U.S.C. § 1425(a) contains a
requirement of “materiality.” Alferahin further contends that
his attorney’s failure to obtain an instruction on the issue of
materiality constituted a denial of his right to effective assis-
tance of counsel under the Sixth Amendment. We reverse his
conviction and remand for a new trial.
I.
Osama Musa Alferahin was born in Kuwait as a citizen of
Jordan. He has married twice. He married his first wife —
Alicia Jaremo Y Pradenas, a citizen of Spain — on February
27, 1995. According to Alferahin, he divorced her in a reli-
gious ceremony at the Islamic Cultural Center in Madrid,
Spain, on September 1, 1997. That divorce, however, was not
officially recorded in the Spanish civil registry until February
16, 2000.
Alferahin married his second wife — Reem Alferahin, a
naturalized citizen of the United States — on December 31,
1997, in Amman, Jordan. A little more than one month later,
on February 2, 1998, he applied for permanent residence in
the United States based on his status as the spouse of an
American citizen. Alferahin thus married his second wife and
applied for permanent residence in the United States after the
religious ceremony in Spain in which he claims to have
divorced his first wife, but before the Spanish civil registry
had recorded that divorce officially.
292 UNITED STATES v. ALFERAHIN
As part of Alferahin’s application for permanent residence,
his second wife signed and submitted a petition known as
Form I-130. Because Form I-130 involves an application for
permanent residence based on an alien’s marriage to an
American citizen, this form requires the petitioner to disclose
the existence of any and all previous marriages involving
either the United States citizen or the alien-spouse, as well as
the date of the dissolution of those marriages. Alferahin, who
testified that he prepared Form I-130 himself on behalf of his
wife, provided inaccurate information on this form. In
response to questions about the existence and dissolution of
previous marriages, Alferahin responded “N/A,” implying
that the questions were not applicable to him.
On the basis of the information submitted on Form I-130,
Alferahin obtained status as a permanent resident. Two years
later, in May of 2002, Alferahin became a naturalized citizen.
More than one year after obtaining citizenship — and more
than five years after he submitted his application for perma-
nent residence — Alferahin was arrested and charged with the
crime of knowingly procuring naturalization contrary to law.
See 18 U.S.C. § 1425(a) (punishing those who “knowingly
procure[ ] or attempt[ ] to procure, contrary to law, the natu-
ralization of any person, or documentary or other evidence of
naturalization or of citizenship”).
At trial, the government contended that Alferahin deliber-
ately withheld information about his first marriage from his
application. According to the government, Alferahin had
explained to an INS investigator that he omitted the informa-
tion because he “didn’t want to complicate the process.” The
government further emphasized that the omitted information
was pertinent to Alferahin’s application because his petition
for permanent residence depended on the validity of his sec-
ond marriage to an American citizen. The disclosure of truth-
ful information, the government contended, would have led
immigration officials to investigate the dissolution of Al-
UNITED STATES v. ALFERAHIN 293
ferahin’s first marriage and to inquire into the validity of his
second.
In opposition to the government’s position, Alferahin pro-
vided a culturally based explanation for the inaccuracies. He
explained that, in Moslem culture, a man may have multiple
wives and need not disclose his marital status; he claimed that
due to this cultural background, he had responded “not appli-
cable” based on his belief that the questions literally did not
apply to him. The defense also downplayed the significance
of the omitted information. For instance, Alferahin’s wife tes-
tified that they considered information about his marital status
“just not important.” In addition, defense counsel cross-
examined the government’s witnesses on the likely conse-
quences of a complete disclosure by Alferahin, suggesting
that the INS would have processed his application for perma-
nent residence in exactly the same fashion if Alferahin had
revealed the existence of his first marriage.
At the conclusion of the trial, the district court noted that
there were “no stock instructions on this particular crime.”
Since neither side had proposed jury instructions on the ele-
ments of the charged offense, the district court drafted instruc-
tions on its own for the attorneys to review. There was no
mention of the need for an instruction on materiality.
During closing arguments, however, both the prosecution
and the defense called the jury’s attention to the significance
of the omitted information. The prosecution argued that Al-
ferahin had “concealed a material fact,” adding that the exis-
tence of Alferahin’s first marriage “is a material fact because
we need to know if there’s some sort of marriage fraud going
on.”1 By contrast, the defense underscored the insignificance
1
At trial, the government’s witness in fact testified that he did not know
what influence multiple, simultaneous marriages would have had on the
INS’s decision regarding Alferahin’s application for permanent residence,
assuming the legality of those marriages in the jurisdiction where they
took place.
294 UNITED STATES v. ALFERAHIN
of the information, emphasizing that “we’re arguing over
what is an irrelevant fact” and noting that the government’s
witnesses had not testified that Alferahin’s application would
have been denied even if Alferahin had properly disclosed his
first marriage. Alferahin’s attorney argued: “No one is even
suggesting that Osama would not have been granted citizen-
ship if he had put Alicia’s name and their divorce dates . . .
on the I-130.”
During the middle of closing arguments, the district court
noted this emphasis on materiality and, sua sponte, raised the
question of a materiality instruction. Pointing to the govern-
ment’s argument that Alferahin’s omission had been material,
the district judge noted that materiality was not one of the ele-
ments included in the jury instructions and suggested that
“perhaps it should have been.” The government responded
that the proposed instructions “mirror[ed] the statute.” But the
government did not object to the materiality instruction,
adding that “we have always put in all of our proof with
respect to this case that it was material, to cover ourselves, . . .
because in other statutes that we were contemplating charging
the defendant with, materiality was always an issue.”
When the district court asked defense counsel whether a
materiality instruction was necessary, Alferahin’s attorney
responded: “I don’t think it’s appropriate.” The defense noted
that materiality was not part of the indictment, and he stated
that, if there had been an allegation that the omitted informa-
tion was material, he would have called an expert witness to
discuss the meaning of materiality, adding that “now it’s sort
of beyond the pale.” The district court asked: “Do you feel
that the elements in the instruction are complete and accurate
as far as what the government has to prove in the case?” Al-
ferahin’s attorney replied: “Yes.” Satisfied that the defense
considered the proposed instructions an accurate reflection of
applicable law, the judge submitted the instructions to the jury
unamended.
UNITED STATES v. ALFERAHIN 295
The jury convicted Alferahin, and the district court sen-
tenced Alferahin to time served, as well as to thirty-six
months of supervised release. The district court also revoked
Alferahin’s United States citizenship. See 8 U.S.C. § 1451(e)
(“When a person shall be convicted . . . of knowingly procur-
ing naturalization in violation of law, the court in which such
conviction is had shall thereupon revoke, set aside, and
declare void the final order admitting such person to citizen-
ship, and shall declare the certificate of naturalization of such
person to be canceled.”).
Alferahin argues that his conviction is invalid. We have
jurisdiction to consider his appeal under 28 U.S.C. § 1291.
II.
Alferahin makes two arguments on appeal: first, that the
district court erred in failing to instruct the jury that to convict
it must find beyond a reasonable doubt that his misrepresenta-
tions were material; and second, that his attorney’s failure to
procure an instruction on the issue of materiality constituted
ineffective assistance of counsel under Strickland v. Washing-
ton, 466 U.S. 668 (1984). We address each argument in turn.
A.
Alferahin’s first contention is that the district court submit-
ted legally erroneous jury instructions regarding the elements
of the crime. Defense counsel, however, raised no objection
at trial to the allegedly erroneous jury instructions. Indeed,
Alferahin’s attorney not only failed to object to the omission
of a materiality instruction, but he explicitly rejected the
judge’s suggestion that such an instruction might be appropri-
ate. When a defendant fails to raise a legal objection at trial
but raises the objection for the first time on appeal, we review
only for plain error. See FED. R. CRIM. P. 52(b); CHARLES
ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 856,
at 490-514 (3d ed. 2004). Therefore, we must determine not
296 UNITED STATES v. ALFERAHIN
only whether the jury instructions were incorrect, but whether
their submission to the jury was plainly erroneous.2
Under the plain error doctrine, a defendant must establish
(1) that the proceedings below involved error, (2) that the
error is plain, and (3) that the error affected the substantial
rights of the aggrieved party. See United States v. Olano, 507
U.S. 725, 732-35 (1993). In addition, a defendant must also
show that the error “ ‘seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings’ ” before we will
exercise our discretion pursuant to Rule 52(b) to correct the
plain error. See id. at 736 (quoting United States v. Atkinson,
2
The government argues that the decision by Alferahin’s attorney to
reject the materiality instruction constitutes a waiver that makes the dis-
trict court’s error unreviewable on appeal. See, e.g., United States v. Guth-
rie, 931 F.2d 564, 567 (9th Cir. 1991) (holding that a criminal defendant
had waived his right to complain of an omitted jury instruction because
defense counsel had refused the district court’s offer to provide it). Under
Ninth Circuit law, however, it is not enough simply for the defense attor-
ney to be implicated in the error. In order to constitute a waiver under
Ninth Circuit law, defense counsel must make an “intentional relinquish-
ment or abandonment of a known right.” Olano, 507 U.S. at 732 (distin-
guishing forfeiture, defined as “the failure to make the timely assertion of
a right,” from waiver, defined as “the ‘intentional relinquishment of a
known right,’ ” (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)));
see also United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (“Until
now, our invited error doctrine has focused solely on whether the defen-
dant induced or caused the error. . . . We now recognize, however, that we
must also consider whether the defendant intentionally relinquished or
abandoned a known right.” (citations omitted)).
The record in this case clearly indicates that Alferahin’s attorney did not
intentionally relinquish a known right. Rather, both defense counsel and
the district court were operating under a misapprehension of the applicable
law. Alferahin’s attorney explicitly stated that he considered the judge’s
erroneous instructions “complete and accurate as far as what the govern-
ment has to prove in the case.” In light of this record, it is impossible to
say that Alferahin’s attorney knowingly and intentionally abandoned a
known right. See Perez, 116 F.3d at 845 (conducting plain error review,
even where defense counsel had submitted erroneous jury instructions,
because “neither defendants, the government, nor the court was aware”
that the instructions omitted an element).
UNITED STATES v. ALFERAHIN 297
297 U.S. 157, 160 (1936)); see also United States v. Vences,
169 F.3d 611, 613 (9th Cir. 1999).
i.
[1] Federal law prohibits an alien from knowingly procur-
ing United States citizenship “contrary to law.” 18 U.S.C.
§ 1425(a). In United States v. Puerta, 982 F.2d 1297 (9th Cir.
1992), we held that § 1425(a) contains a materiality require-
ment. See id. at 1305. We concluded that, in order to obtain
a conviction under this section, the government must prove
(1) that the false information provided by the defendant has
a tendency to suggest that he was qualified for naturalization,
(2) that the production of truthful information would have led
to the discovery of facts relevant to the alien’s petition for
naturalization, and (3) that there must be evidence sufficient
to “give rise to a ‘fair inference’ ” that the applicant was statu-
torily ineligible for naturalization. Id. at 1300-01, 1303-04
(quoting Kungys v. United States, 485 U.S. 759, 783 (1988)
(Brennan, J., concurring)). We thus reversed the conviction of
an alien who had provided false information on his applica-
tion for permanent residence as to his date and place of birth,
finding that there was “no evidence” from which any finder
of fact could fairly infer that Puerta was actually ineligible for
naturalization. Id. at 1305.
[2] We emphasized in Puerta the uniqueness of a denatu-
ralization proceeding. Indeed, we stressed that we were “look-
[ing] to the standards governing materiality in the
denaturalization context as a guide to determining what is
‘contrary to law’ under 18 U.S.C. § 1425.” Id. at 1301(emphasis added). As a result, in Puerta we relied on Kungys
v. United States as the “leading denaturalization case.” Id.[3] In Kungys, the Supreme Court interpreted a statutory
provision that directed United States attorneys to begin denat-
uralization proceedings against any naturalized citizen who
procured citizenship “by concealment of a material fact or
298 UNITED STATES v. ALFERAHIN
willful misrepresentation.” Kungys, 485 U.S. 759, 764 (1988)
(plurality opinion) (quoting 8 U.S.C. § 1451(a)). While the
Kungys Court produced multiple opinions on the meaning of
“materiality,” all nine Justices agreed that a material misrep-
resentation must have at least “a natural tendency to produce
the conclusion that the applicant was qualified” for citizen-
ship. Id. at 771-72. Additionally, the Justices all agreed that
a misrepresentation would not be material unless an honest
representation “would predictably have disclosed other facts
relevant to [the applicant’s] qualifications.” Id. at 774.
In addition to these requirements, however, Justice Bren-
nan’s controlling opinion in Kungys emphasized that “citizen-
ship is a most precious right, and as such should never be
forfeited on the basis of mere speculation or suspicion.” Id. at
783-84 (Brennan, J., concurring) (citation omitted). Justice
Brennan therefore opined that the government also had to
support its assertion of materiality with “evidence sufficient
to raise a fair inference that a statutorily disqualifying fact
actually existed.” Id. at 783. Thus, the Kungys decision estab-
lished a more rigorous definition of materiality that is unique
to the context of denaturalization proceedings.
[4] Building on Kungys, we held in Puerta that the prohibi-
tion under 18 U.S.C. § 1425(a) on the procurement of citizen-
ship “contrary to law” incorporated not only a requirement of
materiality, but the unique definition of materiality articulated
in Justice Brennan’s controlling opinion in Kungys. See
Puerta, 982 F.2d at 1301, 1303-04. In doing so, we recog-
nized “the potential anomaly in Justice Brennan’s test in
Kungys, which contemplates a higher standard of materiality
in immigration law than does the criminal law generally.” Id.
at 1305. We concluded in Puerta — with complete awareness
of potentially incongruous constructions in the criminal law
— that relevant Supreme Court precedent in the context of
denaturalization required us to read § 1425(a) as containing a
heightened materiality requirement. Under Puerta, then, the
crime charged against Alferahin includes not only a require-
UNITED STATES v. ALFERAHIN 299
ment of materiality, but the more substantial requirement that
the government produce evidence sufficient to raise a fair
inference that Alferahin was statutorily ineligible for perma-
nent residence.
The government argues that Puerta was decided incorrectly
and that §1425(a) contains no materiality requirement. In sup-
port of this argument, the government relies on United States
v. Wells, 519 U.S. 482 (1997), a case in which the Supreme
Court held that there was no materiality requirement in a stat-
ute that criminalized “knowingly mak[ing] any false state-
ment or report” to a federal bank. Id. at 483 (quoting 18
U.S.C. § 1014 (1994)) (alteration in original). We are unper-
suaded that the Supreme Court’s decision in Wells under-
mines our decision in Puerta. First, Wells involved entirely
different statutory language (whereas Wells construed a stat-
ute prohibiting “false statements,” Puerta involved a statute
prohibiting the procurement of citizenship “contrary to law”)
and pertains to an entirely different statutory context (whereas
Wells involved a criminal statute, Puerta involved the unique
context of denaturalization proceedings). Moreover, the Wells
Court was careful to distinguish its holding from other cases
involving the issue of materiality, including the Kungys deci-
sion upon which we relied in Puerta. See Wells, 591 U.S. at
491-94 & n.10 (acknowledging the continuing viability of
Kungys and implicitly rejecting the broad rule that a require-
ment of materiality must always be explicit in the statutory
text). Given our reliance on “the standards governing materi-
ality in the denaturalization context,” 982 F.2d at 1300-01,
and our explicit recognition of potentially incongruous mate-
riality requirements in the criminal context, we think that
Wells does little to undermine either the reasoning or the hold-
ing of Puerta.3
3
Even if we were inclined to credit the government’s construction of
Wells and decide the Puerta case differently as a matter of first impression
(which we are not), it would still be inappropriate for us to overrule the
binding precedent of Puerta because there is still an adequate basis for
300 UNITED STATES v. ALFERAHIN
[5] Because we conclude that Puerta is still good law and
that 18 U.S.C. § 1425(a) contains a requirement of material-
ity, we find that it was error for the district court to fail to
instruct the jury on this element of the crime. See United
States v. Mendoza, 11 F.3d 126, 128-29 (9th Cir. 1993).
ii.
Having determined that the jury instructions were errone-
ous, we must now determine whether the error was plain.
Under the Supreme Court’s decision in United States v.
Olano, an error is plain when it is “clear” or “obvious” under
the law. 507 U.S. at 734.
[6] We conclude that the error contained in Alferahin’s jury
instruction was indeed plain. Our decision in Puerta unam-
biguously established materiality as an element of the crime
reconciling our holding in Puerta with the Supreme Court’s decision in
Wells. See Miller v. Gammie, 335 F.3d 889, 893, 900 (9th Cir. 2003) (en
banc) (noting that a panel may overhaul binding circuit precedent only
when “the relevant court of last resort [has] undercut the theory or reason-
ing underlying the prior circuit precedent in such a way that the cases are
clearly irreconcilable” (emphasis added)). For the same reasons, we are
not persuaded by the government’s reliance on two district court decisions
— one post-Wells and one pre-Wells — holding that § 1425(a) does not
contain a materiality requirement. See United States v. Biheiri, 293
F.Supp.2d 656, 658-59 (E.D. Va. 2003); United States v. Rogers, 898 F.
Supp. 219 (S.D.N.Y. 1995). We believe these decisions are based on a
flawed construction of § 1425(a) and that we are bound by our previous
decision in Puerta notwithstanding these contrary holdings. The govern-
ment’s citation to our decision in United States v. Hart, 291 F.3d 1084(9th Cir. 2002) (per curiam), is similarly unpersuasive. In Hart, we held
that a “false statement” on a passport application need not be material in
order to support a conviction under 18 U.S.C. § 1542. See id. at 1085(quoting Neder v. United States, 527 U.S. 1, 23 n.7 (1999) (citing Wells,
519 U.S. at 491)). That case, however, involved precisely the same statu-
tory language as the Supreme Court’s decision in Wells. Our holding in
Hart was therefore compelled by the Supreme Court’s reasoning in Wells.
Our holding in this case is not.
UNITED STATES v. ALFERAHIN 301
of knowingly procuring naturalization contrary to law under
§ 1425(a), and that decision was binding on the district court
in this case. We thus hold that a district court’s error is plain
when its jury instructions fail to incorporate an element of the
crime that has been clearly established by Ninth Circuit prece-
dent. See United States v. Perez, 116 F.3d 840, 846-47 (9th
Cir. 1997) (en banc) (finding plain error where a judge sub-
mitted incomplete jury instructions, despite the fact that
months-old circuit court precedent “clearly and unambigu-
ously required the submission of the ‘in relation to’ element
to the jury” in a prosecution for use of a firearm in relation
to drug trafficking); United States v. Gaudin, 28 F.3d 943,
951-52 (1994) (en banc) (finding plain error where a judge
failed to submit a “materiality” instruction because fifteen-
year-old Ninth Circuit precedent had established materiality
as an element), aff’d 515 U.S. 506 (1995).
iii.
We also conclude that the submission of the plainly errone-
ous jury instructions affected Alferahin’s substantial rights.
[7] It is a basic tenet of due process that a criminal defen-
dant’s conviction must rest upon a jury’s finding beyond a
reasonable doubt that he is guilty of each element of the crime
charged. See United States v. Gaudin, 515 U.S. 506, 511
(1995) (“The Constitution gives a criminal defendant the right
to demand that a jury find him guilty of all the elements of the
crime with which he is charged; one of the elements in the
present case is materiality; respondent therefore had a right to
have the jury decide materiality.”); see also Sullivan v. Louisi-
ana, 508 U.S. 275, 277-78 (1993) (“The prosecution bears the
burden of proving all elements of the offense charged, and
must persuade the factfinder ‘beyond a reasonable doubt’ of
the facts necessary to establish each of those elements” (cita-
tions omitted)); Carella v. California, 491 U.S. 263, 265
(1989) (“The Due Process Clause of the Fourteenth Amend-
ment denies States the power to deprive the accused of liberty
302 UNITED STATES v. ALFERAHIN
unless the prosecution proves beyond a reasonable doubt
every element of the charged offense. Jury instructions reliev-
ing States of this burden violate a defendant’s due process
rights.” (citing In re Winship, 397 U.S. 358, 364 (1970)));
Perez, 116 F.3d at 847 (“Failure to submit an essential ele-
ment to a jury relieves the prosecution of its obligation to
prove every element beyond a reasonable doubt.” (citing Car-
ella v. California, 491 U.S. 263, 265 (1989) (per curiam) (cit-
ing In re Winship, 397 U.S. 358, 364 (1970)))). Simply put,
Alferahin was not convicted of procuring naturalization con-
trary to law, as we have defined that crime; rather, he was
convicted of committing only some of the elements of that
crime. A defendant’s due process rights are unquestionably
implicated when his purported conviction rests on anything
less than a finding of guilt as to all the elements of the crime.
We recognize, as the government points out, that the omis-
sion of an element from jury instructions does not always “af-
fect” a defendant’s substantial rights and that the failure to
submit an element to the jury is not per se prejudicial. See,
e.g., United States v. Neder, 527 U.S. 1, 15 (1999) (holding
that “the omission of an element is an error that is subject to
harmless-error analysis”); United States v. Baldwin, 987 F.2d
1432, 1439 (9th Cir. 1993) (holding that a defendant had
failed to establish prejudice as a result of an omitted element
because the defendant’s conviction on other counts was “the
functional equivalent” of a finding as to the omitted element).
For example, in United States v. Neder, 197 F.3d 1122 (11th
Cir. 1999), on remand from 527 U.S. 1 (1999), the Eleventh
Circuit held that the omission of a materiality instruction was
harmless error. Id. at 1134. In that case, however, the govern-
ment’s evidence “incontrovertibly establishe[d] that Neder’s
false statements were material” to the charged crimes of tax
and bank fraud, and the defendant’s attorney did not even
argue to the jury or on appeal that it would be possible for a
factfinder to conclude that the defendant’s false statements
were immaterial. Neder, 527 U.S. at 16. Other cases have also
upheld convictions rendered on incomplete or erroneous jury
UNITED STATES v. ALFERAHIN 303
instructions, but like Neder, these cases have relied on the
existence of “strong and convincing evidence” that the miss-
ing element of the crime had been adequately proved by the
prosecution. Perez, 116 F.3d at 848; see also United States v.
Smith, 282 F.3d 758 (9th Cir. 2002) (holding that the omis-
sion of an element from jury instructions was not plain error
where the underlying fact supporting the element was “undis-
puted” based on the “uncontroverted testimony” of a govern-
ment witness).
In this case, we are unpersuaded that the evidence against
Alferahin was so strong or convincing that the omission of
materiality from the jury instructions did not affect his sub-
stantial rights. Quite the opposite: the record contains ample
support for Alferahin’s contention that he was prejudiced by
the omission of the materiality requirement. Defense counsel
presented evidence supporting the view that the information
omitted from Form I-130 was immaterial, including testimony
by Alferahin’s wife that they considered the information
about his first marriage unimportant and cross-examination of
INS officials regarding what actions the agency would have
taken if it had discovered the truth about Alferahin’s first mar-
riage. Defense counsel’s effort to minimize the significance of
information pertaining to Alferahin’s first marriage is also
evident in his attorney’s closing statements, in which he
argued that truthful disclosure would not have affected Al-
ferahin’s application for permanent residence and emphasized
that “we’re arguing over what is an irrelevant fact.”
[8] Unquestionably, a materiality instruction would have
buttressed the defense’s strategy of downplaying the impor-
tance of Alferahin’s misrepresentations. Obviously, if the dis-
trict court had directed the jury to consider the materiality of
Alferahin’s misrepresentations and explained the meaning of
“materiality” in the context of a denaturalization proceeding,
the defense would have had more traction. Indeed, the
defense’s approach to the case was quixotic; without the
materiality instruction, the jury properly would have disre-
304 UNITED STATES v. ALFERAHIN
garded Alferahin’s immateriality argument if it had followed
the instructions submitted by the district court. Because Al-
ferahin purported to contest — and, but for the omission from
the jury instructions of one of the elements of the crime,
might have effectively contested — the issue of materiality,
we find that the incomplete jury instructions were in fact prej-
udicial to him.4
iv.
Because the jury instructions were erroneous, the error was
plain, and the error affected Alferahin’s substantial rights, we
have “authority to order the correction” of the plain error
under Rule 52(b). Olano, 507 U.S. at 735. But the language
of Rule 52(b) is permissive, not mandatory, and therefore we
are not “required to do so.” Id.As the Supreme Court has instructed, “[t]he court of
appeals should correct a plain forfeited error affecting sub-
4
Because we find that the omission of the materiality instruction was
prejudicial to Alferahin, we need not address the question of whether an
error can “affect” a defendant’s substantial rights for purposes of plain
error analysis without actually prejudicing the defendant. That question
appears to be an open one, as both the Supreme Court and the Ninth Cir-
cuit have dodged it. See Olano, 507 U.S. at 735 (“We need not decide
whether the phrase ‘affecting substantial rights’ is always synonymous
with ‘prejudicial.’ ”); Perez, 116 F.3d at 847 (“[W]e need not make the
difficult determination of . . . ‘whether the phrase “affecting substantial
rights” is always synonymous with “prejudicial” ’ ” (quoting Olano, 507
U.S. at 735)). We express no opinion as to whether there is any difference
between an error that prejudices a defendant and one that affects his rights,
such that the error could be remedied on plain error review even though
it did not prejudice the defendant. In the present case, we conclude that
Alferahin has carried his burden of proving that the omission of the mate-
riality instruction had a “prejudicial impact on the jury’s deliberations” in
that it permitted the jury to convict him without considering the very ele-
ment his attorney attempted most vigorously to contest — namely, the
materiality of the information omitted from his application for permanent
residence. See Olano, 507 U.S. at 734 (quoting United States v. Young,
470 U.S. 1, 17 n.14 (1985)).
UNITED STATES v. ALFERAHIN 305
stantial rights if the error ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’ ” Id. at
736 (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)). We have relied on this so-called “final, discretionary
prong” of Olano and have declined to correct plain error
where we concluded that the greater threat to the integrity and
fairness of judicial proceedings would arise from the reversal
of a conviction on flawed jury instructions rather than from
affirming an imperfect verdict. See Perez, 116 F.3d at 848
(citing Johnson, 520 U.S. at 470). Sitting en banc in Perez, for
example, the Ninth Circuit declined to exercise its discretion
to correct the plain error of incomplete jury instructions
because the government’s “strong and convincing evidence”
demonstrated that a different decision by the jury would be
“extremely unlikely.” Id.; see also United States v. Johnson,
520 U.S. 461, 470 (1997) (refusing to reverse plain error of
an omitted materiality instruction where the evidence of mate-
riality was “overwhelming”); United States v. Uchimura, 125
F.3d 1282, 1287 (9th Cir. 1997) (same). In conducting this
final phase of plain error analysis, the Ninth Circuit has there-
fore instructed that “we consider all circumstances at trial
including the strength of the evidence against the defendant.”
Perez, 116 F.3d at 847 (quoting United States v. Campbell, 42
F.3d 1199, 1204 (9th Cir. 1994), cert. denied, 514 U.S. 1091(1995) (internal quotation marks omitted)).
[9] We conclude that it is appropriate to exercise our dis-
cretion to correct the plain error embodied in the incomplete
jury instructions and remand for a new trial. The government
produced evidence that the information about Alferahin’s first
marriage was relevant, insofar as his application for perma-
nent residence rested on the validity of his marriage to Reem
Alferahin. But that evidence fell far short of proving material-
ity, as we have defined that term in the context of § 1425(a).
In order to obtain a conviction against Alferahin under 18
U.S.C. § 1425(a), the government had to provide evidence
“giving rise to a ‘fair inference’ of ineligibility.” Puerta, 982
F.2d at 1304 (quoting Kungys, 485 U.S. at 783 (Brennan, J.,
306 UNITED STATES v. ALFERAHIN
concurring)). Proof of materiality in Alferahin’s case would
therefore require the government to produce evidence show-
ing that the disclosure of information about Alferahin’s first
marriage would have given rise to evidence that fairly sug-
gests the invalidity of Alferahin’s second marriage. The gov-
ernment did not make, much less attempt, such a specific
showing here. Indeed, the government’s evidence only hinted
at the possibility of the invalidity of Alferahin’s second mar-
riage.5 Accordingly, we reverse Alferahin’s conviction and
remand the case for a new trial.
5
The government contends that Alferahin has failed to controvert any of
the government’s evidence regarding the materiality of his misrepresenta-
tions. Specifically, the government points to the testimony of INS Agent
William Johnston, who explained at trial that information about an alien
spouse’s previous marriages is material because the agency would have to
determine whether those previous marriages had been terminated and
whether the alien’s present marriage to a United States citizen — on which
his application for permanent residence depends — was valid. The gov-
ernment argues that the jury would have reached the same result even if
the court had instructed on materiality, and it cites United States v. Wells
for the proposition that the truthful disclosure of Alferahin’s first marriage
would have had a “natural tendency to influence, or be[en] capable of
influencing, the decision of the decisionmaking body to which it was
addressed.” Wells, 519 U.S. at 489 (citing Kungys, 485 U.S. 759, 770
(1988) (plurality opinion)).
The government’s argument, however, misunderstands what materiality
requires in the present context. The government is correct to note, consis-
tent with the plurality opinion of the Supreme Court in Kungys, that the
truthful information must have a tendency to influence, or be capable of
influencing, the government’s decision in order to be material. Nonethe-
less, as we explained above Justice Brennan’s controlling opinion in
Kungys and this court’s decision in Puerta require more in the context of
denaturalization. In order to be material, the government must also provide
evidence “giving rise to a ‘fair inference’ of ineligibility.” Puerta, 982
F.2d at 1304 (quoting Kungys, 485 U.S. at 783 (Brennan, J., concurring)).
It is this higher standard that the government has failed to prove beyond
a reasonable doubt in Alferahin’s case.
UNITED STATES v. ALFERAHIN 307
B.
[10] Alferahin’s second contention is that his attorney
deprived him of his Sixth Amendment right to effective assis-
tance of counsel when he rejected the district court’s proffer
of a materiality instruction.6 Under Strickland, a defendant
6
The government contends that we should not reach Alferahin’s claim
of ineffective assistance of counsel because of the Ninth Circuit’s prefer-
ence for hearing such claims via habeas petitions, rather than on direct
appeal. We acknowledge that, “as a general rule, we do not review chal-
lenges to the effectiveness of defense counsel on direct appeal.” United
States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005) (citing United
States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003)), cert. denied, 126
S. Ct. 198 (2005). And we reiterate here the policy concern that informs
this rule — namely, that more complete development of the record in the
context of a habeas petition allows for a more effective inquiry into the
decisions of defense counsel. See United States v. Laughlin, 933 F.2d 786,
788-89 (9th Cir. 1991) (“[A] a habeas corpus proceeding is preferable [for
the adjudication of an ineffective assistance claim] as it permits the defen-
dant to develop a record as to what counsel did, why it was done, and
what, if any, prejudice resulted.”).
We have previously held, however, that a defendant need not wait for
collateral proceedings to obtain relief from an ineffective attorney. Thus,
we have made exceptions to our general rule, allowing claims of ineffec-
tive assistance of counsel to proceed “(1) where the record on appeal is
sufficiently developed to permit determination of the issue, or (2) where
the legal representation is so inadequate that it obviously denies a defen-
dant his Sixth Amendment right to counsel.” Jeronimo, 398 F.3d at 1156
(citing United States v. Daychild, 357 F.3d 1082, 1095 (9th Cir. 2004)).
Alferahin’s claim of ineffective assistance of counsel qualifies as an
exceptional case that merits review on direct appeal. Defense counsel’s
alleged ineffectiveness in this case stems from a specific and discrete con-
versation, recorded clearly in the record, in which Alferahin’s attorney
declined a highly favorable instruction on a clearly established element of
the crime with which his client was charged. The claim is limited specifi-
cally to this failure to request proper jury instructions and therefore does
not require, as many other claims of ineffective assistance do, an assess-
ment of defense counsel’s myriad decisions and actions throughout the
course of trial. In United States v. Swanson, we held that “the record is
sufficient for a review of the merits of [a defendant’s] constitutional
claim” for ineffective assistance of counsel when the defendant “relies
solely on the reported statements made by [his attorney] during final argu-
ment.” 943 F.2d 1070, 1072 (9th Cir. 1991). The instant case is similar to
Swanson: Alferahin contends that his attorney provided unconstitutionally
308 UNITED STATES v. ALFERAHIN
who complains that his attorney has provided ineffective
assistance must demonstrate two things to establish a claim
under the Sixth Amendment. First, the defendant must show
that his attorney’s performance “fell below an objective stan-
dard of reasonableness.” Strickland, 466 U.S. at 688. Second,
the defendant must show prejudice — that is, he must demon-
strate “a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have been
different.” Id. at 694.
[11] As to the first element of the Strickland inquiry, we
conclude that the performance of Alferahin’s attorney fell
below an objective standard of reasonableness. As far as defi-
cient performance is concerned, our holding in United States
v. Span, 75 F.3d 1383 (9th Cir. 1996), is precisely on point.
In that case, as in the present one, the defense attorney failed
to obtain an instruction on a critical element of the charged
crime and thereby abandoned one of his client’s most promis-
ing defenses. Id. at 1390. In Span, we observed: “Counsel’s
errors with the jury instructions were not a strategic decision
to forego one defense in favor of another. They were the
result of a misunderstanding of the law.” Id. We held in Span
that the attorney’s failure to procure favorable jury instruc-
tions constituted ineffective assistance of counsel. Id. at 1390-
91.
[12] As in Span, defense counsel in this case considered the
erroneous jury instructions “accurate as far as what the gov-
ernment has to prove in the case.” Moreover, during closing
arguments defense counsel indicated to the district court that
he would have produced additional testimony if he had under-
deficient assistance when, in a sidebar conference following the prosecu-
tion’s closing argument, the attorney rejected a proposed instruction that
would have supported one of the strongest aspects of the defendant’s case.
We therefore conclude that the record is sufficiently developed on this
point to permit our assessment of Alferahin’s Sixth Amendment claim on
direct appeal.
UNITED STATES v. ALFERAHIN 309
stood that the prosecutor was obliged to prove the materiality
of his client’s misrepresentations. It is thus clear from the
record that Alferahin’s attorney did not intend strategically to
forego the materiality instruction. Instead, he had no idea that
such an instruction was available to his client as a matter of
right. While the government suggests that there may be unar-
ticulated strategic reasons for the actions of defense counsel
in this case, it does not offer any such plausible explanations,
and we cannot imagine any. As we stated in Span: “We have
a hard time seeing what kind of strategy, save an ineffective
one, would lead a lawyer to deliberately omit his client’s only
defense, a defense that had a . . . likelihood of success, and
a defense that he specifically stated he [would have] had
every intention of presenting.” Id. at 1390.
[13] We turn, then, to the second element of the Strickland
inquiry: prejudice. For the reasons set forth in our plain error
analysis above, we conclude that Alferahin was prejudiced by
his lawyer’s decision to decline the proffered instruction on
materiality. Defense counsel produced significant evidence
relating to the immateriality of the defendant’s statements —
indeed, one of Alferahin’s attorney’s tactics throughout the
trial was to persuade the jury that the information omitted
from his application for permanent residence was not germane
to his admission to the country and that the INS would have
handled the application in exactly the same way even if it had
known about Alferahin’s first wife. A materiality instruction
would have helped defense counsel’s strategy of emphasizing
the unimportance of Alferahin’s misrepresentations, and the
decision by Alferahin’s attorney to refuse the materiality
instruction prevented the jury from considering the very the-
ory of the case on which the attorney was relying. Under these
circumstances, the attorney’s performance was prejudicial to
Alferahin, thereby satisfying the second prong of Strickland.7
7
The government contends that the attorney’s error was harmless — that
is, not prejudicial — precisely because defense counsel argued to the jury
310 UNITED STATES v. ALFERAHIN
III.
[14] We hold that the submission of incomplete jury
instructions was plain error in this case and that Alferahin’s
attorney provided constitutionally deficient assistance when
he declined an offer by the judge to instruct the jury on the
element of materiality. For these two independent reasons, Al-
ferahin is entitled to a new trial. REVERSED and
REMANDED.
BERZON, Circuit Judge, concurring in part:
I concur in all but Section II.A of the majority’s opinion
and the attendant holding of plain error. I see no reason to
resolve the plain error / invited error question, which I find
more difficult than the majority opinion suggests. What we
really have here, plain on the appellate record, is ineffective
assistance of counsel. Consequently, although I agree that the
rule of United States v. Puerta, 982 F.2d 1297 (9th Cir. 1992),
survives United States v. Wells, 519 U.S. 482 (1997), I would
not engage in a plain error analysis with regard to the materi-
ality instruction. Our holding that defense counsel did not pro-
vide constitutionally adequate assistance independently
entitles Alferahin to a new trial and so affords him complete
relief.
that Alferahin’s misrepresentations were immaterial. In other words, the
government contends that the omission of a materiality instruction was
harmless because the jury disbelieved Alferahin’s contention that the mis-
representations were not germane. The hole in the government’s logic is
evident: without a jury instruction on the issue of materiality, it is impossi-
ble to tell whether the jury believed or disbelieved Alferahin’s conten-
tions. The instructions used by the jury to convict Alferahin said nothing
of the government’s burden of proving materiality, and the government
cannot now argue it met a burden that was never imposed.