U.S. v. Alferahin

• Decision Date: 11 January 2006
• Docket Number: No. 04-10590.,04-10590.
• Citation: 433 F.3d 1148
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Osama Musa ALFERAHIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

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.

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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.

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 Pradenas, 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 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.

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 permanent 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 naturalization of any person, or documentary or other evidence of naturalization or of citizenship").

At trial, the government contended that Alferahin deliberately withheld information about his first marriage from his application. According to the government, Alferahin had explained to an INS investigator that he omitted the information 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 second marriage to an American citizen. The disclosure of truthful information, the government contended, would have led immigration officials to investigate the dissolution of Alferahin's first marriage and to inquire into the validity of his second.

In opposition to the government's position, Alferahin provided 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 applicable" 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 testified that they considered information about his marital status "just not important." In addition, defense counsel cross-examined the government's witnesses on the likely consequences of a complete disclosure by Alferahin, suggesting that the INS would have processed his application for permanent 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 elements of the charged offense, the district court drafted instructions 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 Alferahin had "concealed a material fact," adding that the existence 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 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 citizenship 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 government's argument that Alferahin's omission had been material, the district judge noted that materiality was not one of the elements 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 information 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?" Alferahin'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.

The jury convicted Alferahin, and the district court sentenced 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 procuring 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 citizenship, 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 misrepresentations 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. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We address each argument in turn.

A.

Alferahin's first contention is that the district court submitted 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 appropriate. 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); ...