concluding that it was appropriate for the court to exercise its discretion to notice the plain error in the jury instructions, which omitted a required materiality element, because the evidence in the record "fell far short of proving materiality”
How later courts described this case
- concluding that it was appropriate for the court to exercise its discretion to notice the plain error in the jury instructions, which omitted a required materiality element, because the evidence in the record "fell far short of proving materiality”
- holding that trial counsel was deficient, where he “did not intend strategically to for[ ]go [a] materiality instruction” but rather “had no idea that such an instruction was available to his client as a matter of right”
- finding counsel’s performance deficient when he “did not intend strategically to forego the materiality instruction” but “had no idea that such an instruction was available to his client as a matter of right”
- refusing to apply invited error where it appeared that “both defense counsel and the district court were operating under a misapprehension of the applicable law”
Written by the judges who cited it.
The opinion
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 , 117 S.Ct. 921 , 137 L.Ed.2d 107 (1997), I would not engage in a plain error analysis with regard to the materiality instruction. Our holding that defense counsel did not provide constitutionally adequate assistance independently entitles Alferahin to a new trial and so affords him complete relief.