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Hamid Hayat

Other Federal Exonerations with Misconduct
Shortly after the 9/11 attacks on the United States, in October 2001, an agent with the Federal Bureau of Investigation in Oregon interviewed Naseem Khan, a 28-year-old immigrant from Pakistan about a money-laundering investigation.

Khan had no information to provide the agent about money-laundering, and it was later determined that the FBI had mistaken Khan for another man with the same name. But Khan said that two years earlier he had seen Ayman al Zawahiri, Osama bin Laden’s top lieutenant, at a mosque in Lodi, California, a small city in the state’s Central Valley. At the time, al Zawahiri was already on the FBI’s most-wanted list, and Khan said he had also seen two other men on the list in Lodi during the same period.

When the FBI interviewed Khan, he was working at a fast-food restaurant making $7 an hour. The government hired him as an informant, ultimately paid him more than $200,000, and instructed him to return to Lodi and gather more information on a possible terrorist cell in the community. He began work in December 2001. About eight months later, Khan met Hamid Hayat, who was about to turn 19 and then living in his parents’ garage. Hamid’s father, Umer, drove an ice cream truck.

Hayat was born in the United States but had lived in Pakistan from the age of 7 to 18, returning to California in 2000. He was a sickly young man. A severe attack of meningitis had impaired his cognitive abilities, and his many years in Pakistan left him with a shaky command of English. He preferred to converse in Pashto or Urdu.

During the next year, Khan and Hayat spoke often. Many of their conversations were not recorded, but Hayat said his father was linked to a terrorist organization in Pakistan and he had family members in Pakistan who recruited young men to wage jihad. After these conversations, Khan would relay this information to the FBI.

In their recorded conversations, Hayat made anti-Semitic remarks and spoke admiringly of fundamental Islamic leaders. He also said he was interested in attending a terrorist training camp, stating: ‘‘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.”

In April 2003, Hayat returned to Pakistan, accompanying his mother, who was traveling home for medical treatment. The family lived in Behboodi, a small town an hour’s drive from the capital of Islamabad. Khan and Hayat spoke occasionally by phone. Hayat said he had given money to Sipah-e-Sahaba, which the Pakistani government had declared was a terrorist organization. On one instance, Khan chastised Hayat for his laziness and using the hot weather as an excuse for not going to a training camp. He said if they ever met in Pakistan, Khan would force Hayat to go to a Madrassah, a school for teaching Islamic theology and religious law. Khan said he had spoken with Hayat’s father, Umer, whom Khan said had hoped his son would enter training. Hayat’s response: “Um-hmm … No problem, absolutely.” After a fight on the phone in October 2003, they didn’t speak for nearly two years.

Hayat was married while in Pakistan. He flew home to the United States on May 30, 2005. The flight to San Francisco was diverted to Narita International Airport near Tokyo because Hayat’s name had popped up on a “No Fly” list.

Hayat was removed from the plane and questioned by Lawrence Futa, an FBI legal attaché. He told Hayat that the FBI had received information that Hayat might be involved with terrorist organizations. Hayat said he would be helpful and told Futa about his time in Pakistan. He said he was not a member of any terrorist organization and had not attended any training camps. He said his goals upon returning to the United States were to become a truck driver and to improve his English. Futa would later testify that Hayat was thin and didn’t appear as someone who had been involved in rigorous training.

Hayat was allowed to fly home to California, arriving on May 31. He met with Khan shortly after his arrival. It was their first conversation since October 2003, and Hayat made no incriminating statements. He still believed Khan was a friend and confidante.

On June 3, FBI agents Tenoch Aguilar and Sean Wells interviewed Hayat at his parents’ home in Lodi. He again denied any involvement in terrorist activities and didn’t know why anybody would say otherwise. The agents asked him to come to the FBI’s office in Sacramento.

Hayat arrived at the FBI office around 10 a.m. on June 4. Aguilar interviewed him for approximately 20 minutes. The interview was not recorded. Aguilar showed Hayat photos that had been found in his luggage at the airport. They were of men firing rifles in the air and Hayat with a garland around his neck. Hayat said the photographs depicted the celebration after his wedding and that rifles were common in Pakistan as a way for people to protect themselves.

A second interview, also unrecorded, began at around noon with Agent Harry Sweeney. It would last four hours. Hayat again repeated that he had returned to Pakistan in 2003 to find a wife and to be with his mother while she received medical treatment. For the first three hours of the interview, he consistently said he had not engaged in any terrorist activities. Sweeney then asked whether it was possible that Hayat had gone to jihadi training and not realized it at the time. He asked this question several times, and Hayat finally said yes, that he had attended a camp in 2000, when he would have been 16 or 17. He said he had ridden a bus for 7 or 8 hours and showed up expecting religious training but instead found a jihadi camp with weapons and explosives. He ran away after several days.

Sweeney would later testify that this was an opening. About a half-hour later, he circled back, asking Hayat why the government would have a satellite image of Hayat in Pakistan in 2003. No such image existed, but Hayat now said that he had attended a training camp for about three months that involved weapons and explosives training. Again, Hayat said he had been misled and had thought the camp was for religious training. He said the camp was also a long bus ride from Behboodi in a foothills town called Balakot.

Hayat’s third interview began at 4:47 p.m. and was videotaped. His answers were confusing and rambling. He said he was tired and feeling the jet lag from his flight. (Islamabad is 13 time zones earlier than California.) He fell asleep during questioning and was increasingly monosyllabic in his responses. Agent Gary Schaaf told Hayat that his story made no sense, particularly the parts where Hayat said he had been fooled into attending the training camps. Hayat volunteered to return to the camps and gather intelligence for the FBI.

The interview ended at 7:09 p.m., and for the next five hours, Hayat remained in the FBI offices, eating pizza and drinking soda. Nobody saw him sleep.

The fourth interview, which was also recorded, began at 12:37 a.m. Hayat complained he was tired and had a headache and that his mind wasn’t working right.

An agent told him: “If you tell the truth, your mind is not working because you’re struggling to come up with answers. And you’re struggling and struggling. You’re fighting this. You know. I, I see you fighting it. I, I see your mind trying to work to come up with answers that are gonna satisfy me somehow.” He pressed further for details, telling Hayat that he needed to remember specific targets. In response, Hayat said, “Like I said, sir, you know, big buildings, and, you know, like hospitalities and, you know, finance buildings, banks and, what’s it called, ah, hmm, maybe like, you know, uh, stores, stores,” Hayat said. “What kind of stores?” the agent asked. “Stores, like food stores, anything like that,” Hayat replied.

The interview ended at 2:58 a.m., and Hayat was arrested a few minutes later.

The federal government’s first indictment against Hamid and Umer Hayat was filed on June 16, 2005. Hamid was charged with two counts of making false statements to federal agents. His father was charged with a single count of making false statements.

There were two superseding indictments, with the final version on January 26, 2006 charging Hamid with a single count of providing material support to terrorists and three counts of making false statements to federal agents. The indictment said that Hamid had received jihadist training in Pakistan and “intended to return to the United States and, upon receipt of orders from other individuals, to wage violent jihad against persons and real and personal property within the United States.” His father was charged with two counts of making false statements.

The Hayats each hired attorneys. Umer’s attorney was Johnny Griffin, an experienced litigator and former assistant U.S. attorney. Hamid hired Wazhma Mojaddidi. She had been in practice less than two years, mostly doing immigration law. She had never defended a client in a criminal case. Mojaddidi agreed to join forces with Griffin, ceding trial and discovery strategy as well as budgetary matters to him. The decision would have devastating consequences for Hamid Hayat.

While father and son were to be tried together, although ultimately before separate juries, the facts of their cases were quite different and were in conflict. Umer had given a mish-mash of statements to the FBI, stating both that his son had and had not attended a terrorist training camp. The government’s task was to convince a jury that it could sort out the lies from the truth. Hamid’s indictment went beyond lies and extended to planned terrorist actions. To disprove that intent would take time, but Griffin wanted to go to trial quickly, before the government could collect more evidence against his client. Mojaddidi acceded to his strategy.

Because the cases involved charges of terrorism, much of the potential evidence was covered under the Classified Information Procedure Act (CIPA), which provides a pathway for attorneys to gain access to sensitive government information that can be used to defend their clients.

But neither attorney applied for security clearances. Even the government was puzzled by this action. Prosecutors wrote Griffin and Mojaddidi on December 16, 2005 that they had inculpatory material, and that the foundation for this evidence would be established at a closed CIPA hearing. Without clearance, the defense attorneys could not attend. They anticipated other similar hearings. “For this reason as well, prudence dictates that you obtain security clearances.” The letter noted that CIPA clearance could take several months. Griffin and Mojaddidi did not apply. Two months later, on February 3, 2006, the Hayats signed a stipulation agreeing that their attorneys could be excluded from all hearings on classified information.

Separately, around the time that the second superseding indictment was filed, the government approached the Hayats about a plea arrangement. For Hamid, the deal offered a possible prison sentence of 7½ years in exchange for his cooperation and information on terrorist activities. He turned it down, proclaiming his innocence and that he could not offer any information that would be truthful.

The trial in U.S. District Court in Sacramento began on February 14, 2006, with Judge Garland Burrell Jr. presiding. While Khan was still a principal witness, his star was tarnished. The government no longer believed that Ayman al Zawahiri and his associates had ever been at a mosque in Lodi.

Along with Hayat’s confession, the government also presented the testimony of the FBI agents who interviewed him and the testimony of three expert witnesses. The first was Hassan Abbas, an expert on extremist groups, who testified about the location and nature of terrorist training camps in Pakistan. He testified about a training camp that had been run in Balakot in 2000-2001 but acknowledged he had never been there and didn’t know if it existed in 2003 and 2004.

Eric Benn was a senior imagery analyst with the Department of Defense. He presented four satellite photographs, two taken in 2001 and two from 2004, in an area near Balakot. He described the roads and buildings on the images and why these indicated the area was used for training purposes. Benn said that the probability that the area was a training camp was 50 percent or what he called a “good solid possible.”

Benn also testified that he had reviewed Hayat’s videotaped statements to the FBI. He said that when he factored those statements into his analysis, his confidence level increased to 60 or 70 percent. During her cross-examination, Mojaddidi attempted to poke holes in Benn’s analysis. First, she noted that Balakot was only 100 miles or so from where Hayat lived. In addition, Mojaddidi also noted that Hayat had said the camp was impassable by car, but Benn had said a good road led to the camp. She said that Benn was cherry-picking Hayat’s statements and would note that if the government had wanted to find out the truth about this camp, it should have made an on-site visit.

The government’s third expert was Khaleel Mohammed, a professor of religious studies at San Diego State University. His role was to explain to the jurors the contents and meaning of an Arabic prayer found in Hamid’s wallet. Mohammed said the translation was, “Oh Allah we place you at their throats and we seek refuge in you from their evils.” He also testified that a person who carried such a note would be a jihadist and “was completely ready. The person was in the act of being a warrior.”

The government had turned over to Mojaddidi the discovery material that had formed the basis of Mohammed’s research in preparation for his testimony. Mohammed had reached out to academic colleagues around the world for their advice on the meaning and context of the note, but there was no consensus that supported the stridency of his assertion. In addition, there was dissent over the translation itself, with some scholars saying the better translation was “Oh, Allah, we put you in front of them …”

Many Muslims carried similar prayers, known as ta’ wiz, on their person. They were harmless acts of faith. One scholar told Mohammed that most people probably didn’t even know what was written on the ta’ wiz they carried.

Mojaddidi cross-examined Mohammed about the lack of consensus among scholars, and she attempted to introduce the testimony of a rebuttal witness about the practice of carrying a ta’ wiz. But that witness, Anita Weiss, a professor of international studies at the University of Oregon, did not speak Arabic and was not allowed to testify that the prayer found in Hayat’s wallet was a ta’ wiz. Instead, her testimony was limited to a more general discussion of Pakistani culture, the roots of jihad, and other related issues.

In his closing argument, Assistant U.S. Attorney David Deitch said that the people consulted by Mohammed were “highly qualified colleagues . . . highly qualified Islamic scholars” whose “uniform opinion was that this was a piece of paper with a prayer on it that would be carried by a holy warrior, a violent jihadi who felt himself to be traveling in an enemy land, and who was ready to commit violent jihad.” That was false. There was no uniformity of opinion, but Mojaddidi did not object.

Neither father nor son testified, and that decision would be challenged on appeal. Along with Weiss, Mojaddidi presented testimony from 12 witnesses. Many of them were FBI agents who testified about their questioning of Hamid Hayat. One said the questions had been leading and that Hayat was very tired. Another agent, who had posed undercover as a convert to Islam, said he had met Hamid Hayat several times in 2002 and that the young man had never mentioned training camps and that his talk was “more boasting than actual substance.” Khan also testified for the defense, and Mojaddidi attempted to show he was not a credible witness, because much of what he told the FBI the agency now acknowledged wasn’t true.

The jury began deliberations on April 12, 2006. On April 24, Burrell received a note from Hamid Hayat’s jury. The contents weren’t disclosed, but Burrell told them to keep deliberating. The next day, Hamid Hayat was convicted on all four counts. Separately, Umer Hayat’s jury deadlocked, and a mistrial was declared. He then pled guilty on May 31, 2006 to lying to the government about the amount of money he brought to Pakistan on a trip in 2003. He received three years of supervised release.

After Hayat’s conviction, McGregor Scott, the U.S. Attorney for the Eastern District of California said, “We have detected, we have disrupted and we have deterred, and whatever was taking shape in Lodi isn’t going to happen now.” More than a year later, on September 11, 2007, Hayat was sentenced to 24 years in prison.

Hayat’s appeals began almost immediately, focusing on three specific areas. He was now represented by Dennis Riordan, a well-regarded attorney from Oakland.

Hayat’s first claim involved juror misconduct and a bias against Muslims. After the verdict, the jury foreman, Joseph Cote, had given an interview to the Atlantic Monthly magazine where he seemed to support taking a preventive approach, convicting people for crimes yet to be committed. “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.”

Hayat’s second appeals claim asserted that Burrell had erred in disallowing Mojaddidi to question Khan closely about an unrecorded conversation with Hamid Hayat where he said he never intended to go to a training camp and that he had been lying all along. The prosecution had objected to that line of questioning as hearsay.

Third, Hayat said that Burrell erred by allowing too much of Mohammed’s testimony. His attorneys argued that the witness was not an expert on Pakistani culture and that he had exceeded the limits of his expertise when he testified about the state of mind of a person who carried a note like the kind found in Hayat’s wallet.

The U.S. Court of Appeals for the Ninth Circuit ruled against Hayat in a 2-1 decision on March 13, 2013, nearly four years after the case was argued.

Writing for the majority, Justice Marsha Berzon said there was no clear proof of juror bias or misconduct, and that the statute under which Hayat was convicted allowed prosecution for acts yet to be committed.

The appellate court’s decision also supported Burrell’s exclusion of Khan’s hearsay testimony, because Mojaddidi had not made a proper argument for using the testimony. It also said Mohammed’s testimony about the prayer note was proper because he had never mentioned Hayat by name.

In his dissent, Justice A. Wallace Tashima wrote, “This case is 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.’’’

He wrote that Mojaddidi should have been allowed to question Khan about possible lies that Hayat told him and that Mohammed had strayed far from offering evidence about the prayer’s translation and possible meaning.

“The linguistic nicety of referring to ‘a person who would carry this supplication in his wallet’ rather than ‘Hayat’ cannot save Mohammed’s testimony. Moreover, Mohammed flatly and categorically testified that a person carrying this supplication ‘has to be involved in Jihad.’ It is plain on the record that ‘a person’ could have been no one but Hayat.”

After the circuit court’s decision, Hayat’s team filed a motion in U.S. District Court to vacate the conviction based on ineffective assistance of counsel. It claimed that Mojaddidi had failed to vigorously defend Hayat. She had not properly challenged the government’s witnesses at trial, thereby limiting possible appeals. She had failed to secure her own experts, who could explain to the jury about the prayer found in Hayat’s wallet and about the prevalence of false confessions and the circumstances that give rise to them.

Most important, Mojaddidi had failed to secure alibi witnesses, including members of Hayat’s extended family in Pakistan, who could have testified that he was never away for more than a few days and therefore couldn’t have been at a terrorist training camp for several months.

An American journalism student who was fluent in Urdu had traveled to Pakistan in 2014 to interview Hayat’s family. Their stories were in broad agreement. For example, an uncle said: “Hamid did not have any set routine during this time. During those days we were busy preparing for his wedding, and his house in Behboodi was also being rebuilt. At the time, Hamid’s age was around 20, but he was afraid of travelling alone. And he was also not allowed to spend the night away from home.”

Mojaddidi said she hadn’t pursued these witnesses because she didn’t know that federal court rules allowed her to take depositions of foreign residents in lieu of in-court testimony.

She also said she had rejected an alibi defense, because she didn’t think it was viable. She misunderstood the government’s case, which required proving that Hayat had been at a training camp for three months between October 2003 and November 2004. Mojaddidi would testify at an evidentiary hearing in 2018 that because she couldn’t account for every day of Hayat’s time in Pakistan, she didn’t think she could build an alibi defense. In reality, she just needed to show he hadn’t been gone for a single stretch of three months.

At the hearing, Mojaddidi said she had tried to find a better expert witness than Weiss to testify about the prayer. But she said she was unsuccessful, noting at the hearing that “in 2005 things were different, and these Muslim leaders or scholars weren’t as willing to go up against the government.”

But the motion for a new trial also said the problem was Mojaddidi’s inexperience. Unversed in criminal trials, she simply didn’t know how to find an expert witness, much less get that person qualified to testify before a jury, and Griffin’s involvement tied her hands in ways that she didn’t truly understand.

On January 10, 2019, U.S. Magistrate Judge Deborah Barnes recommended that Hayat receive a new trial based on ineffective assistance of counsel.

In a 116-page memorandum, Barnes wrote that there were numerous missteps that Mojaddidi had made preparing for trial and at the trial itself. These included not delaying the trial, not trying to find alibi witnesses, not properly challenging the testimony of the government’s expert witnesses, and not voicing an objection to Deitch’s clear mischaracterization of Mohammed’s testimony during closing arguments.

But the heart of the matter was Mojaddidi’s agreement to cede control to Griffin. “In sum,” Barnes wrote, “Griffin and Mojaddidi’s joint defense agreement amounted to joint representation of Hamid Hayat and was a conflict of interest that, given Griffin’s representation of Umer Hayat, caused Hamid’s defense to forego many viable litigation strategies.”

On July 30, 2019, Burrell adopted Barnes’s recommendation and vacated Hayat’s conviction. Hayat was released from federal prison on August 9, 2019, while prosecutors considered whether to retry him.

Speaking to reporters two days later, Hayat, now 36 years old, said “I still think this is a dream. I wake up, and I still think I’m in prison. I’ll never be able to pay back none of my brothers and sisters, none of my supporters. I’m your guys’ servant until the day of judgment.”

The government filed an unopposed motion to dismiss on February 14, 2020. It noted that the while the Ninth Circuit had affirmed Hayat’s conviction, the U.S. court had found his trial representation had been deficient. “Due to the passage of time,” prosecutors wrote, “the government now moves this Court to dismiss, in the interest of justice, the indictments in this case.” The motion was approved by Judge John Mendez February 18, 2020.

“While we are grateful for the dismissal, the 14 years Hamid spent behind bars on charges of which he was innocent remain a grave miscarriage of justice,” Riordan and Hayat’s family said in a joint statement. “Hamid’s exoneration is a cause for celebration, but the story of his case is tragedy that must not be repeated.”

– Ken Otterbourg

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Posting Date: 3/3/2020
Last Updated: 2/9/2021
Most Serious Crime:Supporting Terrorism
Additional Convictions:Other Nonviolent Felony
Reported Crime Date:2005
Sentence:24 years
Age at the date of reported crime:21
Contributing Factors:False Confession, False or Misleading Forensic Evidence, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No