Judge Marsha Berzon, U.S. Court of Appeals for the Ninth Circuit
Image: Jason Doiy/The Recorder
SACRAMENTO — A split Ninth Circuit panel on Wednesday upheld the conviction of a Lodi farmworker accused of providing material support to Pakistan-based terrorists.
Hamid Hayat, now 29, was sentenced to 24 years in prison in 2006 after a jury convicted him — in part on the testimony of an FBI informant — of training at a terrorist camp in Pakistan and returning to his Central Valley home to await orders to attack, presumably in the United States.
A U.S.-born citizen, Hayat spent much of his youth living with grandparents in Pakistan. He was arrested in 2005 after returning from a two-year stay. FBI agents said Hayat confessed to attending a terrorist training camp in 2000 and again in 2003 during a daylong interrogation that was partially videotaped.
Numerous media outlets scrutinized the informant's questionable claims about al-Qaida's leaders visiting Lodi and the fact that Hayat never committed any terrorist acts.
Hayat challenged his conviction on three grounds. The jury foreman, he said, displayed bias against him both in comments he made to jurors and to a magazine in a post-conviction interview. Sacramento U.S. District Judge Garland Burrell Jr. improperly allowed certain witness testimony for the prosecution while excluding testimony helpful to the defense. And the court also erred, Hayat charged, by limiting his cross-examination of the prosecution's star witness, Naseem Khan.
Writing for the majority, U.S. Court of Appeals for the Ninth Circuit Judge Marsha Berzon did find that the jury foreman, Joseph Cote, engaged in misconduct by talking to an alternate juror who was not sitting in deliberations and by sharing with the panel a case-related media report he had inadvertently overheard. But Cote's actions and comments — fellow jurors reported that he said Hayat and others "all look alike" when "in a costume" — did not reveal any intent to pre-judge the case.
"Although the evidence Hayat points to, taken together, may demonstrate that Cote was confident in his decision to convict, it does not establish that Cote was determined to convict before the close of evidence, or that Cote was actually biased against Hayat on account of his race, ethnicity, or religion."
Berzon and Judge Mary Schroeder also found that Burrell did not err when he barred as hearsay Hayat's attorney from asking Khan whether Hayat ever told him he had attended a nonterrorist religious camp in Pakistan and whether Hayat had said "he never intended to go to a camp." Testimony that Hayat attended a religious camp was already on the record, Berzon wrote. And Burrell's decision to stop the attorney's questions did not amount to plain error, she said.
Similarly, the majority backed the trial court's decision to allow an Islamic studies expert to testify that a note in Arabic found in Hayat's wallet in 2005 belonged to someone "completely ready" to "commit an act of warfare." Defense testimony that would have characterized the note as a Pakistani talisman was not allowed, nor was the appearance of a former FBI agent who suggested Hayat's interrogators used "leading questions."
Jurors watched the videotape of Hayat's questioning, Berzon said, and were able to decide for themselves whether it was conducted appropriately.
In a 25-page dissent, Judge A. Wallace Tashima called Hayat's conviction "a stark demonstration of the unsettling and untoward consequences of the government's use of anticipatory prosecution as a weapon in the 'war on terrorism.'"
Tashima found the trial court's decision to bar questioning of Khan about Hayat's comment that he "never intended on going to camp" amounted to "a critical blow to the defense." And allowing the Islamic studies expert to opine on "the type of person" who would carry the prayer found on Hayat "was not only inflammatory, it invaded the province of the jury," Tashima wrote.
"To paraphrase a famous line, in this case, the government has concluded that it is not for it to say what offense Hamid Hayat has committed, but it is satisfied that he committed some offense, for which he should be punished," Tashima said.
Hayat was represented on appeal by San Francisco criminal appeals lawyer Dennis Riordan, who didn't immediately respond to a request for comment.
