United States v. Osama Musa Alferahin

433 F.3d 1148 UNITED STATES of America, Plaintiff-Appellee, v. Osama Musa ALFERAHIN, Defendant-Appellant. No. 04-10590. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 16, 2005. Filed January 11, 2006. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Lee Tucker, Tucson, AZ, for the defendant-appellant. Christina M. Cabanillas, Assistant United States Attorney, Tucson, AZ, for the plaintiff-appellee. Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CR-03-02051-JMR/JJM. Before: B. FLETCHER, GIBSON, * and BERZON, Circuit Judges. BETTY B. FLETCHER, Circuit Judge. 1 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 Alferahin'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 failing 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…

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 Alferahin’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 failing 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 assistance 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 Pradeñas, a citizen of Spain — on February 27, 1995. According to Alferahin, he divorced her in a religious 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…

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.