Metropolitan News-Enterprise


Thursday, March 14, 2013


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Ninth Circuit Upholds Conviction in State’s First Terrorism Trial




The Ninth U.S. Circuit Court of Appeals yesterday affirmed the conviction and 24-year prison term imposed on a Lodi man found guilty, in the first trial related to foreign terrorism ever held in California, of providing material support to terrorists and lying to the FBI.

The divided panel rejected a number of contentions raised on behalf of Hamid Hayat, who is now serving his sentence at Federal Correctional Institution, Phoenix, according to the Bureau of Prisons. The defense argued that Hayat was the victim of anti-Muslim and anti-Pakistani bias on the part of the jury foreman, and that U.S. District Judge Garland E. Burrell of the Eastern District of California made a number of evidentiary errors.

 Judge Marsha Berzon wrote the majority opinion, joined by Senior Judge Mary M. Schroeder. Senior Judge A. Wallace Tashima argued in dissent that Hayat was convicted “based on dire, but vague, predictions that he might commit unspecified crimes in the future.”

Violent Jihad

Hayat, 29, was sentenced on his 25th birthday by Burrell, who called him “ready and willing to wage violent jihad,” according to an Associated Press account of the sentencing.

Prosecutors presented evidence that Hayat, who was born in Stockton but spent much of his life in Pakistan, attended an al-Qaida training camp in Pakistan and planned to attack targets in the United States, including attacks on hospitals, banks, grocery stores and government buildings.

Hayat and his father, Umer Hayat, now 55, were allegedly part of, or associated with, a terrorist sleeper cell. Jurors deadlocked on charges that Umer Hayat lied to the FBI; he subsequently entered into a plea agreement rather than be retried and was sentenced to time served.

In a motion for new trial, the defense cited comments attributed to Joseph Cote, the jury foreman, in an Atlantic Monthly article. Cote stated:

“[There are] so-called new rules of engagement, and I don’t want to see the government lose its case….Can we, on the basis of what we know, put this kid on the street? On the basis of what we know of how people of his background have acted in the past? The answer is no.”

Deferential Review

Under the deferential standard of review, Berzon wrote, the court cannot conclude that those comments require reversal. Cote’s comment about “people of his background” is at least as likely to refer to terrorists specifically, and thus to be a fair comment on the evidence, as to be a reference to Muslims or Pakistanis, she said.

The judge also rejected the claim that the district judge erred in allowing Khaleel Mohammed, an Islamic studies expert, to testify about a note found in the defendant’s possession. It contained a religious supplication, which Mohammed translated from the Arabic as “Oh Allah we place you at their throats and we seek refuge in you from their evils.”

Mohammed opined that the supplication was both uncommon and “not peaceful,” and that the type of person who would carry such a supplication was “[a] person who perceives him or herself as being engaged in war for God against an enemy.“

No Plain Error

This was not, Berzon wrote, an improper comment on the defendant’s state of mind, nor did the fact that the witness was not an expert on Pakistani culture make him unqualified. Noting that the defense did not object at trial, she said that the admission of the testimony was not plain error.

Nor, the judge went on to say, was it error to exclude expert testimony on FBI interrogation techniques. While the defense claimed Hayat was worn down by five hours of questioning and confessed to acts he did not commit, Berzon noted that the videotapes of the interrogation were played for the jury, saying the jurors could judge for themselves whether the environment was so coercive as to lend itself to false admissions.

Tashima argued in his dissenting opinion that Burrell “plainly erred in preventing Hayat from introducing exculpatory evidence and in allowing inflammatory expert testimony that usurped the jury’s role as finder of fact.”

The case is United States v. Hayat, 07-10457.


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