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1 Counsel for both Defendants are referred to as “defense

counsel” unless otherwise indicated. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, ) 2:05-cr-240-GEB

 ) 

 Plaintiff, )

) ORDER

 v. )

)

UMER HAYAT, HAMID HAYAT, )

 ) 

 Defendants. )

 ) 

A Status Hearing was conducted on January 6, 2006, at

which Robert Tice-Raskin, Laura Ferris, and Steve Tyrell appeared on

behalf of the government, Johnny Griffin appeared on behalf of

Defendant Umer Hayat, and Wazhma Mojaddidi appeared on behalf of

Defendant Hamid Hayat.1 At the hearing, defense counsel requested

trial be set for January 24, 2006, or January 26, 2006. The

government opposed setting trial on either date, moved to exclude

time under the Speedy Trial Act, requested a hearing date on its

Motion for Protective Order, requested a status conference be held

on January 27, 2006, and proposed a briefing schedule for motions

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2

filed pursuant to Federal Rule of Criminal Procedure 12 (“Rule 12

Motions”). After hearing argument on all matters, the Court

scheduled trial to commence at 9:00 a.m. on February 14, 2006. This

Order summarizes some of the matters discussed at the Status Hearing

and provides additional information regarding pre-trial and trial

procedures. 

Motion to Exclude Time

The government argued time should be excluded under the

Speedy Trial Act because (1) it had requested a January 27, 2006,

hearing on its previously filed Motion for Protective Order, (2) it

would file an additional motion following the Status Hearing on

January 6, 2006, (“January 6 Motion”), and (3) the case was complex. 

Defense counsel argued time should not be excluded because the

Motion for Protective Order and the January 6 Motion could be

resolved quickly. Since the government indicated that calendaring

its Motion for Protective Order automatically excluded time from the

Speedy Trial Act from the day the hearing was calendared until the

motion was decided, this argument obviated a ruling under the Speedy

Trial Act. 

Motion for Protective Order

At the Status Hearing, the Motion for Protective Order was

scheduled for hearing at 3:00 p.m. on January 27, 2006. Opposition

to the Motion for Protective Order shall be filed no later than 4:30

p.m. on January 16, 2006, and reply to the opposition shall be filed

no later than 4:30 p.m. on January 23, 2006. 

January 6 Motion

On January 6, 2006, following the Status Hearing, the

government filed a motion under the Classified Information

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3

Protection Act (“CIPA”), in which it requests that the Court compel

defense counsel to obtain security clearance, appoint separate

defense counsel with security clearance, or conduct a hearing to

determine whether Defendants can knowingly, voluntarily, and

intelligently enter into an evidentiary stipulation regarding

evidence such as what is referenced in Exhibit A to the January 6

Motion. At the Status Conference, defense counsel asserted that the

January 6 Motion and the Motion for Protective Order are

interrelated. In order to allow both motions to be heard

simultaneously, the January 6 Motion is scheduled for hearing at

3:00 p.m. on January 27, 2006. Opposition to the motion shall be

filed no later than 4:30 p.m. on January 16, 2006, and reply to the

opposition shall be filed no later than 4:30 p.m. on January 23,

2006. 

CIPA Hearing

At the Status Hearing, a CIPA hearing was scheduled for

11:00 a.m. on January 27, 2006. 

Rule 12 Motions

Any Rule 12 motion shall be briefed and filed on or before

4:30 p.m. on January 13, 2006. Opposition to Rule 12 motions shall

be filed on or before 4:30 p.m. on January 23, 2006, and reply to

opposition shall be filed on or before 4:30 p.m. on January 30,

2006. Hearing on the motions will commence at 11:00 a.m. on

February 3, 2006. 

Evidentiary Disputes

 Any unresolved evidentiary disputes a party opines is

capable of being resolved in limine shall be briefed and filed on or

before 4:30 p.m. on January 13, 2006. Oppositions to in limine

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2 The proposed final jury instructions shall include both

the general and substantive instructions and are to be ordered in

the precise manner that a party desires them read to the jury. 

4

motions shall be filed on or before 4:30 p.m. on January 23, 2006;

reply to opposition shall be filed on or before 4:30 p.m. on January

30, 2006. Hearing on the motions will commence at 11:00 a.m. on

February 3, 2006. 

If the parties anticipate other evidentiary disputes that

cannot be resolved in limine, these disputes should be addressed in

their trial briefs. L.R. 16-285(a)(3). 

Trial Documents

No later than 4:30 p.m. on February 10, 2006, the parties

shall file the following documents: 

(1) proposed voir dire questions to be asked by the 

Court;

(2) proposed preliminary and final jury 

instructions;2

(3) proposed verdict form;

(4) trial briefs; and

(5) a joint statement or joint proposed jury

instruction that can be read to the jury in

advance of voir dire that explains the nature of

the case.

At the time of filing these documents, counsel shall also email a

copy of the proposed voir dire questions, proposed jury

instructions, proposed verdict form, and joint statement to be read

to the jury to the Court at geborders@caed.uscourts.gov. See L.R.

51-163(b)(1). 

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3 This includes four alternate jurors. 

4 As explained in United States v. Blouin, 666 F.2d 796, 798

(2d Cir. 1981), "the goal of the 'struck jury' system is to whittle

down an initially selected group . . . [to the amount of jurors] who

will serve as the petit jury." The selected group consists of the

jurors who will hear the case, plus the number of jurors required to

enable the parties to use the combined number of peremptory

challenges allotted to both sides for striking jurors from the

group. Typically extra jurors are included in the select group in

the event the minimum amount of jurors required for the "struck

system" is reduced "for cause" or some other reason.

5

The government’s exhibits shall be numbered on stickers

provided by the Court. Should Defendants elect to introduce

exhibits at trial, such exhibits shall be designated by alphabetical

letter on stickers provided by the Court. The parties may obtain

exhibit stickers by contacting the Clerk’s Office at (916) 930-4000.

Length of Trial

The parties estimate they will need twenty (20) court days

to present their cases-in-chief. 

Voir Dire

 After the Judge completes judicial voir dire, the parties

may conduct voir dire for up to forty five (45) minutes per side. 

Jurors

Sixteen jurors will be impaneled.3 The "struck jury"

system will be used to select the jury.4 At the beginning of the

voir dire process, approximately thirty-six prospective jurors,

randomly selected by the Jury Administrator, will be seated for voir

dire. The order of the jurors’ random selection is reflected by the

order in which they will be seated. The first twelve jurors on the

list will constitute the petit jury unless one or more of those

twelve is excused for some reason. The first randomly selected

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5 Attached is a copy of the form entitled Query re Excuse

Potential Juror. 

6

juror will be in jury seat number one, which is at the extreme

right-hand side of the jury box in the top row as the jury box is

viewed from the well of the courtroom. The ninth selected juror

will occupy the seat located at the extreme right-hand side of the

jury box in the bottom row. The remaining jurors will be similarly

seated. Assuming that the juror seated in the first seat is

excused, the juror in the second seat becomes the first, and the

other jurors’ numbers are changed accordingly; however, the jurors

continue to occupy their original assigned seats.5

Peremptory strikes will be exercised silently, by passing

the strike sheet between the parties, with the government going

first in each round. To use a challenge, the attorney will write

the seat number of the juror above the line next to the numbered

challenge. A party who does not use a challenge in any round waives

any further right to exercise that challenge and is required to

reflect this waiver by writing the word “pass” on the strike sheet.

If any party has a Batson or other objection to opposing

counsel’s use of a peremptory strike, it must be made immediately

upon recognition of the same, and before moving to another round. 

However, this ruling does not prevent a party from making such an

objection later based on information gained that justifies making

the objection at a later time. But any objection must be made

before the Court excuses that juror from further participation in

the voir dire process. Failure to do this constitutes waiver of a

Batson and any other objection. 

////

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7

Opening Statements

The parties are granted sixty (60) minutes per side for

opening statements. 

IT IS SO ORDERED.

Dated: January 9, 2006

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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8

Query re Excuse Potential Juror

Do you agree that Juror No. ____ should be excused for the reason

stated by the juror or for any other reason? (Check applicable box

below.)

Government's Attorney Defendant's Attorney 

RESPONSE: 9 9 9 9

 Yes No Yes No

 

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