United States v. Alferahin

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.