710 F.3d 875 (9th Cir. 2013), 07-10457, United States v. Hayat

Docket Nº:07-10457.
Citation:710 F.3d 875
Opinion Judge:BERZON, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Hamid HAYAT, Defendant-Appellant.
Attorney:Dennis P. Riordan and Donald M. Horgan, San Francisco, CA, for Defendant-Appellant. S. Robert Tice-Raskin and Laura L. Ferris, Assistant U.S. Attorneys, Sacramento, CA; and Sharon Lever, Deputy Chief, Counterterrorism Section, U.S. Department of Justice, Washington, D.C., for Plaintiff-Appellee.
Judge Panel:Before: MARY M. SCHROEDER, A. WALLACE TASHIMA, and MARSHA S. BERZON, Circuit Judges. Opinion by Judge BERZON; Dissent by Judge TASHIMA. TASHIMA, Circuit Judge, dissenting:
Case Date:March 13, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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710 F.3d 875 (9th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,


Hamid HAYAT, Defendant-Appellant.

No. 07-10457.

United States Court of Appeals, Ninth Circuit.

March 13, 2013

Argued and Submitted June 10, 2009.

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Dennis P. Riordan and Donald M. Horgan, San Francisco, CA, for Defendant-Appellant.

S. Robert Tice-Raskin and Laura L. Ferris, Assistant U.S. Attorneys, Sacramento, CA; and Sharon Lever, Deputy Chief, Counterterrorism Section, U.S. Department of Justice, Washington, D.C., for Plaintiff-Appellee.

Appeal from the United States District Court for the Eastern District of California, Garland E. Burrell, District Judge, Presiding. D.C. No. CR-05-00240-GEB.


Opinion by Judge BERZON; Dissent by Judge TASHIMA.

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BERZON, Circuit Judge:

Hamid Hayat, born in California in September 1983 and raised largely in Pakistan, was convicted of providing material support to terrorists, in violation of 18 U.S.C. § 2339A, and of making false statements to government officials, in violation of 18 U.S.C. § 1001. The terrorism statute criminalizes providing " material support or resources" to terrorists. The prosecution's case was that Hayat violated the statute by providing his services to terrorists when he attended a terrorist training camp in Pakistan and returned to this country to await orders to carry out a terrorist attack. The jury found him guilty of that conduct. No party has questioned the applicability of the statute to such conduct.

Hayat appeals on three bases: First, he maintains that he was denied a fair trial because the jury's foreperson was biased against him. Second, he asserts that the district court imposed an unconstitutional limitation on his cross-examination of the government's key witness. Third, he contends that the district court erred in admitting expert testimony offered by the government and excluding expert testimony offered by the defense. Additionally, Hayat asks us to review the district court's dismissal without prejudice of his motion to vacate his convictions under 28 U.S.C. § 2255.

We affirm the judgment of the district court. We dismiss for lack of jurisdiction the appeal of the dismissal of the § 2255 motion. The district court correctly dismissed the motion without prejudice to the filing of a § 2255 petition when this appeal is final.


Hamid Hayat is a U.S. citizen of Pakistani descent. He lived in the United States until he was seven and then, between the ages of seven and eighteen, with his grandparents in Pakistan. Hayat returned to the United States in 2000 to live with his parents in Lodi, California. Three years later, in April 2003, he traveled to Pakistan with his family. He spent just over two years in Pakistan on this second stay, returning to the United States in late May 2005. Days after his return, Hayat was arrested by FBI agents and charged with providing material support to terrorists and making false statements to government officials. The events giving rise to Hayat's arrest are as follows:

In October 2001, FBI agents in Oregon interviewed Naseem Khan, a 28-year-old Pakistani immigrant, in connection with a money laundering investigation. Khan informed the agents that he had regularly observed Ayman al Zawahiri, Osama bin Laden's second-in-command and one of the FBI's 22 most-wanted terrorists, at a mosque in Lodi, California, in 1999. Khan later told the agents that he had also seen two other individuals on the FBI's 22 most-wanted list in Lodi during the same period.1

The FBI then hired Khan as a confidential informant and asked him to return to Lodi to gather additional information on a suspected terrorist cell. Khan agreed. He began his work as an informant in Lodi in December 2001.2 Approximately eight

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months later, in August 2002, Khan met Hayat, who was nineteen years old at the time and living in his parents' garage. As explained in greater detail below, recorded conversations between Khan and Hayat indicated that Hayat's father was linked to a terrorist organization in Pakistan and that Hayat's uncle and grandfather were recruiters for " jihad." 3

Between August 2002 and October 2003 Khan and Hayat spoke regularly. Khan recorded seven of these conversations, took notes on others, and reported to the FBI soon after every conversation with Hayat, summarizing for the agents those conversations that were not recorded. The recorded conversations were introduced at trial, as was testimony by Khan regarding unrecorded conversations. Because Khan and Hayat frequently spoke to each other in Pashto and Urdu, the jurors were provided with English translations of the pertinent parts of the recorded conversations.

In the recorded conversations, Hayat made several anti-American and anti-Semitic remarks. At one point, for example, he expressed pleasure over the murder of Wall Street Journal reporter Daniel Pearl because his death meant that " [n]ow they can't send one Jewish person to Pakistan." In addition, Hayat at times spoke approvingly of Islamic fundamentalist groups such as Jaish-e-Mohammed and indicated his respect for their leaders. He also professed to know and to admire Pakistanis who had engaged in " jihad." Some of these people Hayat knew because they had studied in a madrassah, or religious school, in Pakistan run by his grandfather, which Hayat had also attended. Hayat told Khan that his grandfather was a prominent cleric and that after 9/11, Pakistani President Musharraf had sent him and others to Afghanistan to persuade the Taliban to hand over Osama bin Laden. Hayat also described to Khan a terrorist training camp in Pakistan— he said he had seen a video of it— and, on a few occasions, expressed interest in attending such a camp.

Five of the recorded conversations took place while Hayat and Khan were both in Lodi. At one point, when the two were discussing travel to Pakistan and a possible meeting with Hayat's uncle, Hayat said " I have one objective now. If I went to Pakistan, now, see, straight away, I'll stay at home for one or two weeks, then I'm going for training, friend." (Underlined portion spoken in English).

Hayat traveled with his family to Pakistan in April 2003. Two of the recorded conversations took place when he was there. Like the earlier conversations, they covered a wide range of topics. On one occasion, Khan scolded Hayat for being lazy and not going to a training camp. In response, Hayat protested that the camp was closed during hot weather and that had the camp been open, he " would have been there." On another occasion, Khan relayed to Hayat a conversation in which Hayat's father explained that " [Hayat wi]ll enter the Madrassah, and, God Willing, he [will] go for training!" Hayat responded to Khan: " Um-hmm.... No problem, absolutely." (Underlined portion spoken in English).

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In another of the recorded conversations, Hayat explained to Khan how to send money to Sipah-e-Sahaba (" SSP" ), a Pakistani organization that Pakistan declared a terrorist organization in 2002. During a conversation with Khan, Hayat expressed admiration for members of SSP who die as " martyrs." Hayat boasted that he gave more money to SSP than any other member of his Pakistani madrassah, and stated that he gave money to SSP because his money was more likely to be used to acquire " weapons, books and everything" than if he gave to other groups, which wasted money. (Underlined portion spoken in English). Hayat also reported that when someone told him that he could go to jail for giving SSP money, he replied, " Fuck you. Who cares, man, who goes to jail, man? .... Fuck, look what's America doing...." (Underlined portion spoken in English).

Hayat made several statements to Khan indicating Hayat's knowledge of his family's involvement in terrorist activities. For example, Hayat explained that his father in Lodi had sent money to SSP. Hayat also told Khan that his grandfather, who was the leader of the madrassah Hayat attended in Pakistan, had called a special meeting in 1999 where he recommended that his students leave the madrassah to go participate in jihad. In addition, Hayat explained that if someone were interested in attending a training camp, that person could contact Hayat's maternal uncle, who would either accompany that person " to the Jehad people's office," or make a phone call to that office on the interested person's behalf.

Hayat's direct interactions with American law enforcement began when he attempted to reenter the United States in May 2005. On May 30, 2005, Hayat's return flight to San Francisco was diverted to Japan because Hayat's name appeared on the federal government's " No Fly" list.4 Hayat was interviewed in Japan by FBI agent Lawrence Futa. Futa questioned Hayat about his two-year stay in Pakistan, including whether Hayat had joined a terrorist organization or attended a terrorist training camp. Hayat denied joining a terrorist group or attending a training camp while in Pakistan. Futa concluded that Hayat " posed [no] immediate threat" and could be permitted to return to the United States. Hayat left Japan and flew to San Francisco that same evening.

Four days later, on June 3, 2005, FBI agents Tenoch Aguilar and Sean Wells interviewed Hayat at his parents' home in Lodi. After again explaining the reason for his family's trip to Pakistan— because of his mother's health— and his activities while in Pakistan, Hayat again denied having attended a terrorist training camp and stated that " he would never be involved with anything related to terrorism, and didn't know why anybody would say otherwise." After eliciting this response, Aguilar and Wells asked Hayat to come to the FBI office in...

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