US v. Alferhahin, No. 04-10590 (1-11-06). The 9th requires a "materiality" element in a prosecution for 18 USC 1425(a), which is knowingly procuring naturalization "contrary to law." The defendant failed to list a prior marriage. He argued that it was immaterial, as the divorce had been granted and that he would have received naturalized citizenship. Counsel, however, failed to ask for a materiality element in the instruction, and brushed aside the court's asking if it was required. The gov't argued that no materiality element was required. The 9th goes through the statute, analogous ones, and deems it required that the failure to disclose the fact (contrary to law) had to assessed as material. The court found the error to be plain, and that it affected the defendant's rights, and that it called into question the fairness and integrity of the proceedings.The 9th also found that counsel was ineffective. Reversed and remanded for a new trial. Berzon

Kaua v. Frank, No. 05-15059 (1-11-06). The state (Hawaii) cannot avoid Apprendi by arguing that an "public safety" element leading to an enhanced sentence is superfluous, because the key triggering facts are prior convictions. The district court granted relief, and the 9th affirmed. The state had always used a two prong approach, with separate findings. the state could not now ignore the "public safety" component under Apprendi.