Just a quick question about this one. Judge (Betty) Fletcher holds that when a person is prosecuted for allegedly illegally procuring his naturalization (e.g., by filing an application that contains false information), the government must prove that the withheld information was material. She further concludes that the failure to give such a materiality instruction was prejudicial -- moreover, that the absence was also plain error -- here because the government did not introduce any evidence of materiality. ("The government did not make, much less attempt, such a specific showing here. . . . It is this higher standard that the government has failed to prove beyond a reasonable doubt.")
But here's the (somewhat) weird thing: She remands for a new trial. Why not instead enter a judgment of acquittal under Jackson, since Judge Fletcher admits that the evidence was insufficient? Presumably because such an argument wasn't made, I guess. (Though I haven't checked the briefs.) But if it wasn't, why wasn't it, especially since such an assertion would have been an obvious accessory to the central argument of the appeal. (Appellate counsel for the defendant was Lee Tucker of Tucson, Arizona.) Plus, wouldn't such an insufficiency claim be cognizable on habeas anyway; moreover, the failure to raise it earlier be ineffective assistance of counsel, particularly since the error was (as the court held) "plain"?
I'm basically just a bit confused as to why Alferahin has to potentially endure a second trial given that the court found that the evidence against him was insufficient as a matter of law. That just doesn't seem right to me.
