# United States v. Osama Musa Alferahin

> Court of Appeals for the Ninth Circuit · January 11, 2006 · 433 F.3d 1148

URL: https://www.frixlaw.com/law-library/cases/9498606

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Osama Musa ALFERAHIN, Defendant-Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** January 11, 2006
- **Citations:** 433 F.3d 1148; 2006 U.S. App. LEXIS 575; 2006 WL 51181
- **Precedential status:** Published
- **Opinion:** Concurrence by Berzon
- **Judges:** Fletcher, Gibson, Berzon
- **Cited by:** 89 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9498606

## How later opinions describe it (automated extraction)

- 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”
- reversing on other grounds a conviction under § 1425(a) that was based on inaccurate information provided with Lawful Permanent Resident application

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9498606. Public record. Not legal advice.