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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

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

 ) 

 Plaintiff, )

)

 v. ) ORDER 

 )

HAMID HAYAT, )

) 

Defendant. ) 

 ) 

Defendant Hamid Hayat filed a motion for a new trial under

Federal Rule of Criminal Procedure 33 on October 27, 2006. The

government filed an opposition on February 3, 2007, and Hayat filed

a reply on March 20, 2007. Hearings were held on April 6 and April

13, 2007. For the following reasons, Hayat’s motion is denied.

I. Background

On April 25, 2006, a jury returned guilty verdicts on all

four counts charged in the second superceding indictment: three

counts of violating 18 U.S.C. § 1001 (making false statements to FBI

officials), and one count of violating 18 U.S.C. § 2339A (providing

material support to terrorists). Hayat’s trial commenced on

February 14, 2006. The jury began deliberations on April 12, 2006. 

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II. Standard of Review

Federal Rule of Criminal Procedure 33 provides that

“[u]pon the defendant’s motion, the court may vacate any judgment

and grant a new trial if the interest of justice so requires.” Fed.

R. Crim. P. 33(a). A Rule 33 motion for a new trial can be granted

“[i]f the court concludes that, despite the abstract sufficiency of

the evidence to sustain the verdict, the evidence preponderates

sufficiently heavily against the verdict that a serious miscarriage

of justice may have occurred.” U.S. v. Alston, 974 F.2d 1206, 1211-

12 (9th Cir. 1992) (quoting U.S. v. Lincoln, 630 F.2d 1313, 1319

(8th Cir. 1980)). In evaluating whether a Rule 33 motion should be

granted, “[t]he district court . . . may weigh the evidence and in

so doing evaluate for itself the credibility of the witnesses.” 

Alston, 974 F.2d at 1211 (quoting Lincoln, 630 F.2d at 1319). 

A new trial “should be granted ‘only in exceptional cases

in which the evidence preponderates heavily against the verdict.’” 

U.S. v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (quoting 2

Wright, Federal Practice and Procedure, Criminal § 553 at 487

(1969)). “The court may not reweigh the evidence and set aside the

verdict simply because it feels some other result would be more

reasonable. The evidence must preponderate heavily against the

verdict, such that it would be a miscarriage of justice to let the

verdict stand.” U.S. v. Martinez, 763 F.2d 1297, 1312-13 (11th Cir.

1985) (internal citations omitted).

III. Analysis

A. Juror Bias/ Misconduct

Hayat argues that he is entitled to a new trial because

the foreman of the jury, Joseph Cote, harbored a bias against him

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and because Cote and another juror, Deborah Horn, engaged in

prejudicial misconduct. (Mot. at 69, 95.) 

“The Sixth Amendment guarantees criminal defendants a

verdict by impartial, indifferent jurors. The bias or prejudice of

even a single juror would violate [a defendant’s] right to a fair

trial.” Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998);

Tinsley v. Borg, 895 F.2d 520, 523-24 (9th Cir. 1990). “[T]o obtain

a new trial [based on a claim that a juror was dishonest during voir

dire], a party must first demonstrate that a juror failed to answer

honestly a material question on voir dire, and then further show

that a correct response would have provided a valid basis for a

challenge for cause.” McDonough Power Equip., Inc. v. Greenwood,

464 U.S. 548, 556 (1984). 

When considering a claim that juror misconduct justifies

granting a new trial motion, “[t]he test is whether or not the

misconduct . . . prejudiced the defendant to the extent that he

[did] not receive[] a fair trial.” U.S. v. Klee, 494 F.2d 394, 396

(9th Cir. 1974). “In conducting their deliberations, jurors have a

duty to consider only the evidence which is presented to them in

open court. Evidence not presented at trial . . . is deemed

extrinsic.” U.S. v. Navarro-Garcia, 926 F.2d 818, 820 (9th Cir.

1991) (internal citations, quotation marks, and brackets omitted);

see also Thompson v. Borg, 74 F.3d 1571, 1574 (9th Cir. 1996)

(“Juror misconduct typically occurs when a member of the jury has

introduced into its deliberations matter which was not in evidence

or in the instructions.”). “When information not placed in evidence

reaches the jury during its deliberations, the defendant is entitled

to a new trial if ‘there existed a reasonable possibility that the

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extrinsic material could have affected the verdict.’” U.S. v.

Bagley, 641 F.2d 1235, 1240-41 (9th Cir. 1981) (quoting U.S. v.

Vasquez, 597 F.2d 192, 193 (9th Cir. 1979)).

“In evaluating a claim of juror misconduct [or bias], we

begin with the presumption that the juror is impartial, [faithfully

performed official duties, and followed the instructions given by

the court].” U.S. v. Collins, 972 F.2d 1385, 1403 (5th Cir. 1992);

U.S. v. Eldred, 588 F.2d 746, 752 (9th Cir. 1978); see also Alston,

974 F.2d at 1210. “‘[I]t is incumbent upon the defendant to prove

otherwise.’” Collins, 972 F.2d at 1403 (quoting U.S. v. Wayman, 510

F.2d 1020, 1024 (5th Cir. 1975)); U.S. v. Elias, 269 F.3d 1003, 1021

(9th Cir. 2001). 

A defendant making a claim of juror bias or misconduct

will not be allowed “to evade the prohibition of [Federal Rule of

Evidence] 606(b) under the guise of a Rule 33 motion.” Ortega v.

U.S., 270 F.3d 540, 547 (8th Cir. 2001). Rule 606(b) prescribes: “a

juror may not testify as to any matter or statement occurring during

the course of the jury’s deliberations or to the effect of anything

upon that or any other juror’s mind or emotions as influencing the

juror to assent to or dissent from the verdict or indictment or

concerning the juror’s mental processes in connection therewith.” 

Fed. R. Evid. 606(b). However, “a juror may testify about (1)

whether extraneous prejudicial information was improperly brought to

the jury’s attention, (2) whether any outside influence was

improperly brought to bear upon any juror, or (3) whether there was

a mistake in entering the verdict onto the verdict form.” Id. 

Additionally, “[s]tatements which tend to show deceit during voir

dire are not barred by [Rule 606(b)].” U.S. v. Henley, 238 F.3d

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1111, 1121 (9th Cir. 2001) (quoting Hard v. Burlington N. R.R., 812

F.2d 482, 485 (9th Cir. 1987)). 

[T]he . . . purpose behind Rule 606(b) is to

preserve one of the most basic and critical

precepts of the American justice system: the

integrity of the jury. Rule 606(b) allows for a

system in which jurors may engage in

deliberations with the utmost candor, performing

in an uninhibited way the fact-finding duties

with which they are charged. In this manner, the

Rule provides jurors with an inherent right to

be free from interrogation concerning internal

influences on the decision-making process. Such

internal influences have been held to include

pressure of one juror on another; juror

misunderstanding of court instructions; a

verdict achieved through compromise; juror

misgivings about the verdict; and juror

agreement on a time limit for a decision.

Accordingly, Rule 606(b) prevents the

unwarranted badgering of jurors that would

invariably arise in its absence in an alleged

attempt to search for the “truth” as to the

manner in which each and every jury reaches a

verdict.

Moreover, Rule 606(b) does not exist in a

vacuum. To the contrary, the Rule exists as just

one portion of the overall justice system, which

is likewise designed to protect the

constitutional rights of the defendant,

including the defendant’s Sixth and Fifth

Amendment rights to a fair trial and an

impartial jury under the Constitution.

***

Against this backdrop, a court facing

post-verdict allegations of jury misconduct

shall rely on the essence of Rule 606(b), which

provides that if the case involves an extraneous

or external influence on the jury, then a

post-verdict interrogation of jurors is

permitted in order to adequately protect the

defendant’s constitutional rights. Conversely,

if the case involves an internal influence, the

Rule does not permit the post-verdict

interrogation of jurors. In the latter instance,

the preservation of the integrity of the jury

system outweighs any potential violation of the

defendant’s constitutional rights. In this way,

the internal influence versus external influence

distinction in the Rule is designed to balance

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the preservation of the integrity of the jury

system and the rights of the defendant.

U.S. v. Logan, 250 F.3d 350, 379-80 (6th Cir. 2001) (internal

citations omitted).

1. Jury Foreman Cote

Hayat seeks a new trial, arguing that the jury foreman,

Joseph Cote, harbored a disqualifying racial and religious bias

which he failed to disclose during voir dire, and that he committed

prejudicial misconduct. (Mot. at 69, 95.) Specifically, Hayat

argues that Cote made hangman gestures before deliberations, made

racist remarks during deliberations, made an improper telephone call

to alternate juror Watanabe during deliberations, brought extraneous

information into the jury room during deliberations, and made

inappropriate remarks to a reporter from the Atlantic Monthly after

the trial concluded. (Id. at 80-85.) Hayat contends that Cote’s

conduct and statements as a whole reveal his presence on the jury

denied Hayat his constitutional right to a fair and impartial jury. 

(Reply at 3-4.)

The government counters that “contrary to [Hayat]’s

claim[s], there is no substantial and admissible evidence to suggest

that [Cote] harbored a disqualifying racial or religious bias or

that [he] engaged in any form of cognizable and prejudicial

misconduct.” (Opp’n at 4.) 

The hangman gesture allegations are based on fellow juror

Arcelia Lopez’s averments that, during trial, Cote “gestured as if

he was tying a rope around his neck and then pulling the rope in an

upward motion[, and] then said ‘Hang Him.’” (Mot. at 80; Lopez Aff.

¶ 3.) These allegations combined with statements Cote allegedly

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At the April 6 and 13, 2007 hearings, Hayat’s counsel made 1

much ado about Cote’s “misrepresentation” at the April 6 hearing

that the London subway bombings occurred after Hayat’s trial

concluded. However, Cote’s misrecollection of the date of the London

bombings does not adversely affect his credibility.

7

made to the Atlantic Monthly during a post-trial interview prompted

the trial judge to hold an evidentiary hearing on April 6, 2007,

during which Cote was asked questions concerning those allegations

and statements. The salient magazine statements attributed to Cote

follow: there are “so-called new rules of engagement, and I don’t

want to see the government lose its case”; it is “better to run the

risk of convicting an innocent man than to let a guilty one go”;

and, although Hayat appears to be a “nice young man,” considering

that the young Pakistani men who carried out the London bombings

also seemed like nice young men, “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.” (Mot. at 84-85; Ex. H to Mot. at 93.)

At the April 6 evidentiary hearing, Cote categorically and

convincingly denied making the hangman gestures that Lopez alleged

he made, and further testified that he did not have thoughts

attributed to him in the Atlantic Monthly article before the

commencement of the Hayat jury deliberations. Cote’s testimony was

credible.1

Subsequently, Lopez appeared at a further evidentiary

hearing on April 13, 2007. In a supplemental affidavit, and in the

April 13 evidentiary hearing, Lopez again accused Cote of making the

hangman gestures and “hang him” statement. (Second Lopez Aff. ¶ 4.)

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A redacted version of Lopez’s April 27, 2006 affidavit was 2

filed on October 27, 2006, along with Hayat’s motion for a new

trial. However, portions of the unredacted version of the affidavit

became part of the record for purposes of this motion at the April

13, 2007 hearing, when it was cited by counsel for the government

and the defense.

8

a. Hangman gestures

 Hayat argues that the hangman gestures Cote allegedly

made “quite clearly suggest[] a prejudgment as to [Hayat]’s guilt

[and] extraordinary vindictiveness that Cote had sworn to disavow

during voir dire.” (Mot. at 90.) Hayat further argues that the

gestures “suggest[] that [Cote] had not been truthful when he swore

that he would keep an open mind and not permit passion or prejudice

[to] sway his deliberations.” (Id. at 90-91.)

Cote’s testimony that he did not make a hangman gesture or

“hang him” statement is diametrically opposite Lopez’s testimony on

these issues. Lopez testified on April 13, 2007, that Cote made a

hangman gesture and stated “hang him” in the jury deliberation room

on the second day of trial. Lopez authored two affidavits which

differ concerning how many jurors were present when Cote made the

alleged hangman gesture on the second day of trial. In Lopez’s

affidavit dated April 27, 2006, she avers Cote made the gesture “in

the presence of [herself] and one other juror,” whereas in Lopez’s

second affidavit dated April 11, 2007, she avers that Cote made the

gesture “in the presence of [herself] and other jurors.” (Compare 2

Lopez Aff. ¶ 3 with Second Lopez Aff. ¶ 4.) During the April 13

hearing, Lopez explained this discrepancy, testifying: “when the

gesture was made, in the section that we were in next to the table,

it was just me, Mr. Cote and Mr. Monty Hall in the immediate area. 

A few steps just behind us is where the rest of the jurors were. 

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Since Hall was an alternate juror, he did not participate 3

in the deliberations.

Although these statements were made during deliberations, 4

the consideration of these statements does not violate Rule 606(b)

because the evidence is relevant on the issue of whether Cote was

truthful when he said he did not make the hangman gesture, and this

determination has probative value on whether Cote was deceitful

during voir dire.

9

But they were not adjacent to us, or surrounding, or behind any of

us. They were adjacent but they were next to the restrooms.”

It is puzzling why Lopez was precise in her April 27, 2006

affidavit, that Cote made the gesture “in the presence of [herself]

and one other juror [(Hall)],” and yet in her April 11, 2007

affidavit, stated that the gesture was made in the presence of

several other jurors. Moreover, although Hayat’s counsel

interviewed other jurors post trial, no information has been

provided that any other juror saw Cote make a hangman gesture before

jury deliberations.

Lopez also declares in her April 11, 2007 affidavit, that

she “told [Cote during deliberations] that he . . . constantly made

the hangman gesture since the beginning of trial and expressed his

desire to find Hamid guilty,” and that Cote responded she “was

crazy.” (Second Lopez Aff. ¶ 6.) Lopez further declares that Mr.

Varno, a fellow juror, heard this accusation against Cote and

responded “that it wasn’t Cote who was making the gesture, but that

Mr. Hall was making the gestures during trial.” (Id.) Varno 3 4

connoted that Lopez was confused since she mistakenly identified

Cote as having done what Hall did. The record indicates Lopez could

be confused about the name of the juror who made hangman gestures

before jury deliberations. Lopez had previously confused the

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At the April 13 hearing, Lopez stated that she first 5

recalled Cote making the hangman gesture on the second day of trial,

but that he continued to make the gesture as the trial continued,

and into deliberations. It is possible that, consistent with Cote’s

testimony at the April 6 hearing and consistent with Varno’s

statement, only Hall made the gesture prior to deliberations. If

Cote made hangman gestures during deliberations, Lopez is probably

confused about which juror, Hall or Cote, made the gesture prior to

deliberations. 

10

identity of two jurors. In her April 27, 2006 affidavit, Lopez

misidentified juror Deborah Horn as juror Rebecca Harris, when Lopez

mistakenly said Harris was the author of a document concerning

Hepatitis C that was read during deliberations. (Lopez. Aff. ¶ 11; 5

see also Wedick Aff. ¶ 9, Berkeley-Simmons Aff. ¶ 18.)

Further, Lopez’s explanation as to why she failed to tell

the trial judge about Cote making a hangman gesture on the second

day of trial is unconvincing. See Bristow v. Terhune, 2005 WL

1335240, at *12 (E.D. Cal. May 26, 2005) (indicating that the trial

court concluded that a juror’s credibility is belied when the juror

“had numerous opportunities to talk to the court if there were

problems during deliberations, but she did not do so”). The

following exchange occurred on this point at the April 13 hearing:

The Court: You state in your April 11, 2007

affidavit that you conclude hangman gestures

were inappropriate. Did you conclude that when

you first observed it on the second day of

trial?

Ms. Lopez: Yes, I did.

The Court: When you used the word

“inappropriate,” what does that mean to you? 

What are you connoting?

Ms. Lopez: To me that was a very obvious way for

Mr. Cote to show his stand, or his opinion, so

early in the trial when it was not appropriate. 

We were not in deliberations at the time, so for

him to show such a gesture I felt was unfair. I

felt that it compromised the integrity of the

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Further, Lopez’s averment in her April 27 affidavit that 6

she “deeply regret[s her] decision” indicates she may desire to get

the guilty verdict reversed. (Lopez Aff. ¶ 13.) See Chambers v.

Cockrell, 2003 WL 22017036, at *25 (N.D. Tex. Aug. 26, 2003)

(quoting the trial court’s finding that a juror “simply had a change

of heart regarding the jury’s verdict of death, and her testimony at

the motion for new trial hearing was merely an attempt to get the

case reversed”). 

Although evidence of a juror’s post-trial regret or remorse

about a verdict is not admissible to impeach the verdict, Lopez’s

regret is not being considered for that purpose; rather, it is being

considered on whether she has a motive to get the verdict reversed. 

11

case.

The Court: Did you think it was wrong?

Ms. Lopez: Pardon?

The Court: You thought it was wrong?

Ms. Lopez: I know it was wrong.

The Court: Why didn’t you tell me about it?

Ms. Lopez: I should have. That was a mistake on

my part.

The Court: Why didn’t you?

Ms. Lopez: I don’t have an answer for that. I

just know that I was wrong in not reporting it.

Additionally, Lopez’s version of what happened is not

credited because Lopez states in her April 27, 2006 affidavit that

she was not truthful when she was polled about the jury verdict. 

(Lopez Aff. ¶ 13.) Lopez declares that when she was polled on April

24, 2005, she “responded to the Court that [she] agreed with the

verdict,” when, “[i]n fact, [she] did not.” (Id.) Each juror was

polled individually and answered affirmatively when questioned

whether the guilty verdict was his or her verdict; it is astonishing

that Lopez said otherwise shortly after affirming that the verdict

was her verdict. See generally Bristow, 2005 WL 1335240, at *12 6

(stating that a state “appellate court concluded that the absence of

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Rule 606(b) prohibits the Court from probing into whether 7

or not Cote, or any other juror, made a hangman gesture during

deliberations.

12

details in [the affidavit of a juror who alleged she did not agree

with the jury’s verdict but was intimidated by her fellow jurors],

her failure to apprise the court during deliberations of any

inappropriate behavior, and her failure to speak up when

individually polled, justified the trial court’s conclusion that no

juror misconduct occurred.”).

For all of the stated reasons, Lopez’s version of who made

hangman gestures before deliberations is not believed. Therefore,

Hayat has not proved that Cote made hangman gestures or stated “hang

him” prior to jury deliberations.7

A remaining issue is whether, if another juror made a predeliberation hangman gesture, that gesture needs to be investigated. 

The Seventh Circuit held otherwise in U.S. v. Kimberlin, 805 F.2d

210, 243 (7th Cir. 1986), where “[o]ne juror, during trial and in

presence of all others, said ‘They ought to hang him now, so we can

go home,’ or words to that effect.” The district court concluded

that the hangman statement allegation did “not require a hearing

because the only types of inquiry which would aid the court in

assessing possible effects of such alleged conduct are not permitted

by [Rule 606(b)].” Id. The Seventh Circuit agreed, stating, “Rule

[606(b)] would not permit a juror to testify to the effect of the

communication upon his [or her] mind or emotions, or concerning his

[or her] mental processes in connection with the verdict. Thus, a

hearing would be fruitless unless these statements, if made, would

be presumed to be prejudicial.” Id. at 244.

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“The important thing is . . . that each juror ke[pt] an

open mind until the case [was] submitted to the jury. . . . What is

involved here is the premature discussion among [certain] jurors

themselves about the case. Assuming that there was juror

misconduct, it is still true that not every incident of juror

misconduct requires a new trial.” Klee, 494 F.2d at 396. A

question is whether the jurors made up their minds about Hayat’s

guilt before deliberation. The record does not so indicate. The

jury deliberated for ten days, and during the course of their

deliberations, requested guidance from the court on various issues

(RT 4655, 4732), and requested a replay of Hayat’s videotaped

confessions and the testimony of one of the FBI investigators (RT

4558, 4782). See Klee, 494 F.2d at 396 (denying new trial premised

on premature deliberations and expressions of guilt by nine jurors

where, among other things, the trial judge “correctly observed that

‘the only genuine issue in dispute was defendant’s state of mind. On

this point the jury demonstrated its open-mindedness by requesting

re-reading of the instructions on willfulness before bringing in its

verdict.’”). Therefore, Hayat’s motion for a new trial on this

ground is denied. 

b. Statements to Atlantic Monthly

Hayat alleges that in a post-trial interview, Cote made

several inappropriate statements to Amy Waldman, a reporter for the

Atlantic Monthly. (Mot. at 84-85.) Hayat argues these “statements

suggest[] that, when deliberating, [Cote] likened [Hayat] to the

young Pakistani men responsible for the London subway bombings [and

that this] suggests that Cote flatly disregarded his assurance that

he harbored no prejudices against Pakistanis or Muslims, as well as

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his promise to disregard whatever he had read in the media.” (Id.

at 91.) Hayat also argues the statements indicate Cote “was

untruthful when he assured the Court and the parties that during

deliberations, he would consider only the evidence adduced in this

case and that he would ‘absolutely’ disregard any media reports.” 

(Id. at 91-92.)

Hayat further contends that Cote’s statements regarding

“new rules of engagement” and “not want[ing] to see the government

lose its case,” and that it was “absolutely” better to run the risk

of convicting an innocent man than letting a guilty one go free,

“suggest that, during voir dire, Cote had concealed the impact that

the allegations of terrorism would have on his thinking, and that he

had ignored his oath[] to apply a presumption of innocence and to

require the government to prove its charges beyond a reasonable

doubt.” (Id. at 92.)

The government counters that Cote’s alleged statements

related to the London bombings are “double hearsay and therefore of

questionable reliability”; the statements are barred by Rule 606(b);

and the meaning of the statements and what they reveal about Cote’s 

“mindset during deliberations, or voir dire, is uncertain” since

“the mere fact that [Cote] recalled the London bombings or that some

of the bombers were Pakistani does not suggest he is prejudiced

against Pakistanis or Muslims.” (Opp’n at 146, 147, 148). The

government further contends that the statements fall “woefully short

of constituting substantial evidence that [Cote] purposefully

concealed a bias against [Hayat] during voir dire or otherwise

purposefully lied to the parties and the Court when he promised to

base his decisions only on the evidence adduced at trial.” (Id. at

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The article suggests that the jurors had great difficulty 8

in deciding whether to convict Hayat. For example, the article

states: 

Hayat’s intent was the last issue the jurors discussed,

when they had wrapped everything else up. To Cote, it

was just a subset of the main charges, but he called it

“the most perplexing question in the entire indictment”

- the least damning, legally speaking, from his

perspective, yet perhaps the most weighty morally.

After the judge denied their request for a dictionary,

the jurors spent an entire morning wrestling with what

the word intending meant. Starr Scaccia said she was

the only juror who was truly convinced that Hayat would

have carried out an act of terrorism; her fellow jurors

“didn’t feel he had the guts to do it.” The truth, Cote

kept saying to me, was that they just didn’t know.

This was their conundrum: Do you send a man to prison –

ostensibly for training and lying - when the real

question is whether he is a threat, and most of you

don’t think he is? “That’s what made the verdict so

tough,” Cote said. “Because we thought in the gut,

‘Maybe he may not do it.’” But what Cote called the

“literal world,” defined by the boundaries of law and

evidence, did not allow for shades of gray.

15

152-53.)

With regard to Cote’s alleged statements related to new

rules of engagement, the government argues the statements are double

hearsay; that “Rule 606(b) bars consideration of the[se] statements

to prove whether [Cote] understood the law regarding presumption of

innocence and burden of proof, followed that law, or even refused to

do so”; and that “an examination of all the quoted foreman

statements, in context, makes it clear that [Cote] did not ignore

his oath [or] misapprehend the law.” (Id. at 154, 155, 156.) 

Even assuming Cote made all of the statements in the

Atlantic Monthly article, when read as a whole, the article reveals

that the jurors, and Cote himself, thoroughly and thoughtfully

deliberated regarding Hayat’s guilt or innocence. The statements 8

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During our interview, Cote said several times that the

jurors were not asked to decide whether Hayat was

capable of engaging in terrorism. “Believe it or not,

that’s the only way I can sleep nights,” he said. And

yet they did decide it, Cote said, concluding that the

evidence suggesting that Hayat would act - the

scrapbook, the prayer, and so on - was stronger than

the evidence that he would not.

(Ex. H to Mot. at 92); 

The “punch line,” Cote said, was that he thought these

cases were more than a jury could handle. “We’re not

being asked, ‘Did the defendant commit the crime?’ -

whether it’s larceny, murder, whatever. Now you’re

being asked, ‘Is the defendant capable of doing a

crime?’ And I don’t think that that is in the . . .

level of understanding of the juror.”

The doubt “works on you,” added Cote, who used the

phrase “the haunt.” What haunted him was having to

weigh, with inconclusive evidence, the risk that the

man before the jurors was dangerous against the

countervailing risk of depriving an innocent man of his

liberty. He and his fellow jurors had no extraordinary

talents to bring to bear on that task; they were

Americans who had been selected for jury duty because

of their very ordinariness. As Cote saw it, they were

ill-equipped to handle what was being asked of them. 

(Id. at 92-93);

This preventive approach, Cote said, means that “just

as there are people in prison who never committed the

crime, this may also happen. Not this particular case,

I’m saying, but future cases.”

(Id. at 93) (emphasis added).

16

in the article do not reveal that Cote had a racial or religious

bias against Hayat, that he was dishonest during voir dire, or that

he was an unfair or impartial juror.

c. Statements during deliberations

Hayat supports his contention that Cote made racist

remarks during deliberations with the affidavits of Lopez, juror

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Theresa Berkeley-Simmons and investigator James Wedick, where they

explain that during deliberations, in a discussion about government

witness Naseem Khan’s misidentification of Ayman al-Zawihiri, a

well-known alleged terrorist, in Lodi, California, Cote stated that

all Egyptians look alike when dressed in the same garb. (Id. at 81-

82; Lopez Aff. ¶ 6; Berkeley-Simmons Aff. ¶¶ 4-14; Wedick Aff. ¶ 6.) 

Hayat argues that this statement and Cote’s “other inappropriate

racial remarks” reveal that Cote harbored a racial and religious

bias. (Mot. at 83; Berkeley-Simmons Aff. ¶ 13; Lopez Aff. ¶ 6.)

Hayat contends the “statements suggest that [Cote] had not been

truthful when, in voir dire, he stated that he could remain

impartial and that he harbored no prejudice against Muslims,

Pakistanis, Pakistani-Americans or those with Islamic beliefs.” 

(Mot. at 91.)

The government counters, first arguing that “given the

context and nature of the statement, [it] does not believe that the

statement evidences an ‘actual bias’ on the part of [Cote] such that

it is admissible as an exception to Rule 606(b).” (Opp’n at 143-

44.) The government explains “it is far from clear whether Cote’s

reported statement is a ‘racist statement’ or what it reveals about

[Cote’s] views in general with respect to individuals of different

races, nationalities or creeds.” (Id. at 143.) The government

contends that “the remark related to a legitimate topic of

discussion by the jury: whether the cooperating witness had

misidentified Al Zawihiri in Lodi. Indeed, according to Cote, he

was trying to explain that identification of individuals can be

problematic.” (Id.) 

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The government further argues that “assuming that [Cote’s]

statement related to individuals looking alike is admitted as some

evidence of potential bias, and even assuming its veracity, it is

clear that the statement does not constitute substantial evidence of

bias by [Cote] sufficient to warrant a further evidentiary hearing,

or come close to establishing actual bias on the part of [Cote].” 

(Id. at 144.)

The only concrete example that Hayat provides to support

his contention that Cote made racist remarks during trial (that all

Egyptians wearing the same garb look alike) is not racist, in light

of the context in which it was made, since Cote was trying to

explain how Khan could have misidentified certain individuals. 

d. Telephone call to alternate juror Watanabe

Hayat alleges that on April 20, 2006, Cote telephoned

alternate juror Marta Watanabe and asked her a question about Lopez. 

(Mot. at 84; Wedick Aff. ¶ 8.) Hayat argues this communication

“violated the Court’s instructions and admonitions on not

communicating with any outside party about the case, . . .

misconduct which . . . gives rise to a finding of disqualifying

bias.” (Mot. at 92.)

The government responds that “[a] review of the actual

allegations makes it clear that the communications between Cote and

Watanabe, in fact, were ex parte contacts and that there is no

reasonable possibility of prejudice to [Hayat].” (Opp’n at 177.) 

The government asserts the conversation did “not pertain to any fact

in controversy in the prosecution or any law applicable to the

case,” and “Watanabe did not impart any information germane to

deliberations to foreman Cote or vice versa.” (Id. at 178, 180.)

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Since there is no indication that Cote’s telephone call to

Watanabe constituted prejudicial misconduct, Hayat’s motion is

denied on this ground.

 e. Media reports in deliberation room

Hayat alleges that one day during deliberations, Cote

talked with other members of the jury about a media report he had

heard relating to the trial. (Mot. at 83.) Specifically,

Berkeley-Simmons avers that “[a]t one point during deliberations,

Mr. Cote began to discuss something he had learned from media

reports about Hayat’s attorney, Wazhma Mojaddidi.” (BerkeleySimmons Aff. ¶ 14.) Additionally, Lopez avers in her April 27, 2006

affidavit, that “during deliberations Mr. Cote shared with jury

members that he overheard something concerning a media report

relating to the trial. The information he shared was clearly not

something that was provided during testimony.” (Lopez Aff. ¶ 8.) 

In Lopez’s April 11, 2007 affidavit, she further avers, for the

first time, that:

Mr. Cote often discussed topics that he read

about in the media with the other jurors. . . . 

One day during trial and during a break in the

jury room, Cote told the jury that he had read

about government attorney, David Deitch. He

said that Deitch was an attorney from Washington

D.C. who had a good record in these ‘types of

cases,’ and that if the government would let him

lead during trial they would win the case. When

he made this comment, I did not want to be a

part of the conversation and so I walked out and

went to the restroom. When I returned, Mr. Cote

was telling the jurors that it didn’t matter

whether defense counsel, Wazhma Mojaddidi, won

the case because she had stated that she would

not take any more cases like this one.

(Second Lopez Aff. ¶ 8.)

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Hayat argues this discussion violated the court’s

instruction concerning media reports and “injected into

deliberations extrinsic information relating to the case.” (Mot. at

99.) The government counters that even if the allegations are

assumed to be true, they “fail to demonstrate that [the jury] was

exposed to any sort of prejudicial extrinsic material.” (Opp’n at

170.) The government argues “there is no reasonable possibility

that the extrinsic media material from . . . Cote could have

affected the verdict.” (Id. at 171.)

Even assuming the truth of the allegations regarding

Cote’s statements and conduct, given their context and content,

there is no reasonable possibility that they affected the verdict. 

f. Cumulative effect

Hayat argues that when viewed collectively, Cote’s

statements and actions reveal that Cote harbored a disqualifying

bias against Hayat. (Reply at 6; April 6 and 13, 2007 hearings.) 

The government rejoins that the allegations of Cote’s bias, even

when viewed collectively, do not substantiate Hayat’s claim. (Opp’n

at 158.)

The determination as to whether a juror is biased must be

founded on an examination of all relevant evidence of bias and

misconduct in the aggregate rather than in isolation. Green v.

White, 232 F.3d 671, 678 (9th Cir. 2000). However, considering all

evidence of Cote’s alleged bias and misconduct, Hayat has not shown

that Cote was not a fair and impartial juror. Therefore, Hayat is

not entitled to a new trial based on Cote’s alleged bias or

misconduct.

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Hayat also argues it was misconduct for juror Starr 9

Scaccia to tell other jurors about a news story regarding one of the

dismissed jurors. (Mot. at 99.) However, Hayat has not established

a “‘reasonable possibility’ that th[is] evidence affected the jury’s

deliberations.” U.S. v. Plunk, 153 F.3d 1011, 1025 (9th Cir. 1998),

overruled on other grounds by U.S. v. Hankey, 203 F.3d 1160, 1169

n.7 (9th Cir. 2000).

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2. Juror Deborah Horn9

Hayat also contends that juror Deborah Horn “committed

misconduct when she injected into a critical stage of the

deliberations written material prepared outside the jury room that

contained factual information extrajudicially obtained.” (Mot. at

6.) Specifically, investigator Wedick avers that Horn stated that

“on Monday, April 24, 2006, while deliberations were still in

progress, she brought into the jury room a typewritten 6-page

statement written in 20 point font that she had prepared over the

previous weekend” and that “she read the typewritten statement to

the other jurors.” (Wedick Aff. ¶ 9; see also Lopez Aff. ¶ 11;

Berkeley-Simmons Aff. ¶ 18.) Wedick further avers that Horn told

him that the typewritten statement that “she had typed on her

computer,” “described the impact of the trial on her health and

mental condition” and “contained information concerning Hepatitis C,

which related to [Hayat]’s testimony that he had cared for his

mother when afflicted by the disease.” (Wedick Aff. ¶ 9.) 

The government argues Horn’s letter “constituted intrinsic

statements related to jury deliberations, which are incompetent to

challenge the verdict.” (Opp’n at 175.) The government contends

that “the mere fact that a juror creates a writing outside of the

jury room about a case does not mean that the writing, even if used

during deliberations, constitutes improper extrinsic evidence. If

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the writing represents matters properly intrinsic to jury

deliberations, such as the kind of common knowledge which most

jurors are presumed to possess, the writing is not considered

extrinsic evidence at all.” (Id. at 173-74.) The government 

contends that even assuming Horn made the alleged statements, “all

such statements plainly represented a permissible summation of a

juror’s intrinsic thoughts about the case, including her personal

experience and general knowledge with respect to the illness of

hepatitis, and her application of this experience to making

credibility determinations related to Hamid Hayat’s defense.” (Id.

at 175.)

A court examining a claim of a juror’s improper use of

extrinsic evidence must determine whether the particular materials

that a juror allegedly brought into the jury room are, in fact,

improper extrinsic materials, or are merely “the kind of common

knowledge which most jurors are presumed to possess.” Rodriguez v.

Marshall, 125 F.3d 739, 745 (9th Cir. 1997), overruled on other

grounds by Payton v. Woodford, 299 F.3d 815 (9th Cir. 2002); U.S. v.

Bagnariol, 665 F.2d 877, 888 (9th Cir. 1981) (discounting claim of

prejudice where extraneous information was something “any reasonable

juror already knew”).

Jurors are permitted to utilize their life experiences and

common knowledge during deliberations. Hard v. Burlington N. R.R.

Co., 870 F.2d 1454, 1462 (9th Cir. 1989); Grotemeyer v. Hickman, 393

F.3d 871, 878, 879 (9th Cir. 2004) (“The mere fact that the jury

foreman brought her outside experience [as a medical doctor] to bear

on the case [did not] violate Grotemeyer's constitutional right to

confrontation. . . . That a physician is on the jury does not

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deprive a defendant of his constitutional right to an impartial

jury, even though the physician will doubtless have knowledge and

experience bearing on any medical questions that may arise.”). 

“Many trials, including this one, boil down to a question of who is

lying. It is hard to know who is lying without some understanding,

based on past personal experience, of the circumstances of the

witnesses.” Grotemeyer, 393 F.3d at 879. Since Horn’s statements

comprised her non-extraneous background experiences and “related

merely to [her] own internal mental processes” concerning jury

deliberation issues, they constituted intrinsic statements involved

with matters internal to the jury deliberation process. Statements

regarding such matters are not admissible under Rule 606(b) and are

insufficient to support Hayat’s motion. U.S. v. Vig, 167 F.3d 443,

450 (8th Cir. 1999).

B. Lack of Evidence to Corroborate Confession

Hayat also argues he is entitled to a new trial because

the government failed to meet the requirements of the “corpus

delecti” rule requiring independent proof that the crime charged was

actually committed. (Mot. at 5 (citing Smith v. U.S., 348 U.S. 147

(1954)).) Hayat contends that “the key evidence offered as

independent corroboration of the two necessary elements of the

charged offense – Dr. Mohammed’s claim that Hayat possessed a jihadi

state of mind and Eric Benn’s sixty to seventy percent probability

estimation that a training camp existed in Balakot, Pakistan – was

legally inadmissible and probatively worthless,” and that therefore,

the court should exercise its Rule 33 power to grant a new trial. 

(Mot. at 5.) The government disagrees, arguing there was sufficient

evidence to corroborate both Hayat’s jihadi state of mind, and his

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attendance at a Pakistani training camp. (Opp’n at 1-2.)

“All elements of [an] offense must be established by

independent evidence or corroborated admissions.” Smith v. U.S.,

348 U.S. 147, 157 (1954). “[O]ne available mode of corroboration is

for the independent evidence to bolster the confession itself and

thereby prove the offense ‘through’ the statements of the accused.” 

Id. The corroborating, independent evidence need not be

overwhelming to sustain a conviction. U.S. v. Taylor, 802 F.2d

1108, 1117 (9th Cir. 1986).

1. Mens rea

Hayat argues that the indictment charged him with

providing material support to terrorists “knowing and intending”

that such support was to be used to commit acts of terrorism and

that, therefore, “[h]aving alleged that Hayat possessed the intent

to personally wage violent jihad in the United States, the

government had to prove that state of mind or suffer an acquittal.” 

(Mot. at 35, 36.) Hayat contends that Mohammed’s testimony cannot

be used as corroborating evidence of Hayat’s intent because it is

prohibited by Federal Rule of Evidence 704(b) since Mohammed opined

that carrying the supplication meant that Hayat had the state of

mind required to commit the charged crimes. (Id. at 37-38.) Hayat

further argues that Mohammed’s testimony regarding the supplication

was inadmissible because it was beyond the scope of his expertise,

unreliable, and not helpful to the jury. (Id. at 39.) Hayat argues

that when Mohammed’s testimony bearing on Hayat’s state of mind is

stricken from the record, there is no evidence that independently

corroborates Hayat’s mens rea. (Id. at 44.)

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The government responds that “the defense mistakenly

argues that the government assumed a higher burden of proof by

charging [Hayat]’s intent in the conjunctive, ‘knowing and

intending’” and that it was entitled to prove one or both of the

mens rea theories set forth in § 2339A. (Opp’n at 26.) The

government further argues that Dr. Mohammed’s testimony was

permissible under Rule 704(b) because it did not necessarily compel

a conclusion concerning Hayat’s mens rea. (Id. at 42.) The

government contends that “the Court properly admitted Dr. []

Mohammed’s expert testimony related to the jihadi supplication. Dr.

Mohammed was wholly qualified to opine regarding the meaning of the

Arabic supplication; his opinion was reliable and obviously helpful

to the jury; and he did not impermissibly opine that [Hayat] himself

had the requisite criminal mens rea.” (Id. at 1-2; 53.)

An indictment can charge an element in the conjunctive and

the government’s proof can be in the disjunctive. U.S. v. Booth,

309 F.3d 566, 572 (9th Cir. 2002) (“When a statute specifies two or

more ways in which an offense may be committed, all may be alleged

in the conjunctive in one count and proof of any one of those

conjunctively charged acts may establish guilt.”). Additionally,

the Court has wide discretion in its determination to admit and

exclude expert testimony. Hamling v. U.S., 418 U.S. 87, 108 (1974);

U.S. v. Chang, 207 F.3d 1169, 1171 (9th Cir. 2000) (“We view ‘[t]he

admissibility of expert testimony [as] a subject peculiarly within

the sound discretion of the trial judge, who alone must decide the

qualifications of the expert on a given subject and the extent to

which his opinions may be required.’”). 

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This issue was not raised during trial. 10

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Mohammed’s testimony was not inadmissible under Federal

Rule of Evidence 704(b), which prohibits an expert witness from

stating an opinion or inference as to whether a defendant did or did

not have the mental state or condition constituting an element of

the crime charged, because Mohammed did not testify that Hayat had a

particular mens rea, and his testimony did not necessarily compel a

conclusion regarding Hayat’s mens rea. See U.S. v. Gonzales, 307 10

F.3d 906, 911 (9th Cir. 2002) (“[The expert witness] never directly

and unequivocally testified to [the defendant’s] mental state; he

never stated directly that [the defendant] had the intent to

distribute. Rather, he indicated his firm conviction that a

‘person’ possessing the evidence in question would, in fact, possess

the drugs for the purpose of distributing. Even if the jury

believed the expert’s testimony, the jury could have concluded that

[the defendant] was not a typical or representative person, who

possessed the drugs and drug paraphernalia involved.”). 

Additionally, Mohammed’s testimony was not beyond the scope of his

expertise, unreliable, or unhelpful to the jury. Therefore,

Mohammed’s testimony was not improperly admitted, and Hayat has not

shown that the government offered insufficient independent

corroborating evidence.

2. Actus reus

Hayat also argues that the charged actus reus was not

proven or corroborated by admissible or probative independent

evidence. (Mot. at 44.) Hayat contends “[t]he only evidence

arguably capable of corroborating Hayat’s attendance at the camp

came from the two opinions of Eric Benn” and that testimony was not

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reliable and was not independent since it was based on Hayat’s

confessions. (Id.)

The government responds that there was sufficient evidence

to legally corroborate Hayat’s confession that he attended a

jihadist camp in Balakot with the requisite intent and attempted to

conceal the same with the requisite intent. (Opp’n at 70.) The

government contends that Hayat’s confession was corroborated by: his

possession of a jihadi supplication; his multiple recorded

conversations with Khan related to his belief in jihad and desire to

attend a jihadi camp; testimony regarding the existence of camps in

Pakistan (including the Balakot area) by Eric Benn and Hassan Abbas;

Hayat’s self-made jihadi scrapbook; and Hayat’s possession of

numerous well-known jihadi publications. (Id. at 64-70.)

The government is correct that sufficient independent

corroborating evidence is in the record on Hayat’s actus reus. 

Therefore, Hayat is not entitled to a new trial on this ground.

C. Sixth Amendment Right to Confront Witnesses and Pursue

Exculpatory Evidence

Hayat argues he is entitled to a new trial because “he was

denied his Sixth Amendment right to pursue exculpatory evidence from

three witnesses – chief prosecution witness Naseem Khan, defense

expert witness Anita Weiss, and proffered defense expert James

Wedick.” (Mot. at 5.) The government disagrees, contending that

Hayat was not denied his sixth amendment right to confront Khan,

Weiss, or Wedick. (Opp’n at 2-4.)

Under the Sixth Amendment, Hayat has a right to confront

the witnesses against him. Pointer v. Tex., 380 U.S. 400, 401

(1965). “The confrontation clause, however, does not guarantee

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unbounded scope in cross-examination.” U.S. v. Lo, 231 F.3d 471,

482 (9th Cir. 2000). A confrontation clause violation will only be

found if an exclusionary ruling “limits relevant testimony,

prejudices the defendant, and denies the jury sufficient information

to appraise the biases and motivations of the witness.” Id.

(internal quotation marks and modifications omitted). “Evidence

erroneously admitted in violation of the Confrontation Clause must

be shown harmless beyond a reasonable doubt, with courts considering

the importance of the evidence, whether the evidence was cumulative,

the presence of corroborating evidence, and the overall strength of

the prosecution’s case.” U.S. v. Bowman, 215 F.3d 951, 961 (9th

Cir. 2000).

The Sixth Amendment also guarantees Hayat the right to

present his own witnesses to establish a defense. Wash. v. Tex.,

388 U.S. 14, 19 (1967). “[T]he Constitution guarantees criminal

defendants a meaningful opportunity to present a complete defense 

. . . . That opportunity would be an empty one if the State were

permitted to exclude competent, reliable evidence bearing on the

credibility of a confession when such evidence is central to the

defendant’s claim of innocence.” Crane v. Ky., 476 U.S. 683, 690

(1986) (internal quotation marks omitted). 

However, the right to present witnesses is also not

absolute. Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir. 2003). 

“While the right to present a defense is fundamental, the state’s

legitimate interest in reliable and efficient trials is also

compelling.” Id. (internal citations, quotation marks, and brackets

omitted). 

In weighing the importance of evidence offered

by a defendant against the state’s interest in

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exclusion, the court should consider the

probative value of the evidence on the central

issue; its reliability; whether it is capable of

evaluation by the trier of fact; whether it is

the sole evidence on the issue or merely

cumulative; and whether it constitutes a major

part of the attempted defense. A court must

also consider the purpose of the [evidentiary]

rule; its importance; how well the rule

implements its purpose; and how well the purpose

applies to the case at hand. The court must

give due weight to the substantial state

interest in preserving orderly trials, in

judicial efficiency, and in excluding unreliable

or prejudicial evidence.

Miller v. Stagner, 757 F.2d 988, 994-95 (9th Cir. 1985) (internal

citation omitted).

1. Right to Cross-Examine Naseem Khan

Hayat contends that he “was erroneously barred from

pursuing several proper lines of cross-examination, all of which

could have generated critical evidence refuting the government’s

contention that he attended a jihadi training camp.” (Mot. at 5.) 

Hayat contends that “[b]ecause Khan gave testimony on direct

examination that concerned the contents of all of his conversations

with Hayat, the defense was entitled to cross-examine Khan

concerning what was said in any and every conversation that the two

had.” (Id. at 50.) Hayat argues the denial of his Sixth Amendment

right to cross-examine Khan was prejudicial and merits the grant of

a new trial. (Id. at 54.) 

The government counters that “contrary to [Hayat]’s

claims, the Court did not impermissibly limit his ability to

cross-examine Naseem Khan.” (Opp’n at 2.) The government further

argues that Hayat “is precluded from raising these issues at this

point because, at the time the Court sustained the government’s

objections, [Hayat] made no effort to demonstrate why the challenged

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evidence was admissible or what the challenged evidence would have

revealed.” (Id.) 

At trial, on direct examination of Khan, the government

asked Khan about his discussions with Hayat regarding Tablighi

Jamaat. (RT 1081-82.) On cross-examination, when defense counsel

questioned Khan about whether Hayat told him that he was at a

Tablighi Jamaat camp, the government objected to the question on

foundation and hearsay grounds. (RT 1792-93.) After a bench

conference, the court sustained the hearsay objection, ruling: “The

hearsay rule allows the government to introduce a statement against

your client, but it does not allow you to use a statement . . . for

the truth of the matter asserted therein in favor of your client. 

That is hearsay.” (RT 1795.) 

Defense counsel then asked Khan whether he believed that a

Tablighi Jamaat camp “has anything to do with terrorism,” and the

government objected on foundation, relevance, and Rule 403 grounds. 

(RT 1795-96.) The court sustained the foundation objection. (RT

1796.) 

Later, defense counsel asked Khan whether, during a

conversation he had with Hayat on October 7, 2003 while Hayat was in

Pakistan, Hayat told him “that he never intended on going to a camp,

and he was lying to [Khan] all along.” (RT 1802.) The government

objected on foundation and hearsay grounds, and moved to strike. 

(RT 1802.) The court sustained the objection and struck the

question. (RT 1802.) 

a. Tablighi Jamaat

Hayat argues he “was entitled on cross-examination to

question Khan as to what [Hayat] had said about Tablighi Jamaat,

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because the prosecution had specifically addressed the question on

Khan’s direct [examination].” (Mot. at 50.) “The government could

not introduce testimony by Khan concerning statements by [Hayat],

and then shield that testimony from the scrutiny of crossexamination by claiming that it alone was legally entitled to gain

admission of statements of [Hayat].” (Id. at 51.) Hayat argues

“[i]t was extremely important that Khan be required to reveal on

cross examination that Hayat’s statements to Khan about his

experience in attending Tablighi Jamaat was entirely religious in

nature and had nothing to do with violence and terrorism.” (Id. at

52.)

Hayat contends that once the government “opened the door”

to the line of questioning, Hayat had a right to introduce evidence

on the same issue to rebut any false impression that might have

resulted from the earlier admission. (Id. at 51 (citing U.S. v.

Whitworth, 856 F.2d 1268, 1285 (9th Cir. 1988); U.S. v. Wales, 977

F.2d 1323 (9th Cir. 1992); U.S. v. Beltran-Rios, 878 F.2d 1208,

1211-13 (9th Cir. 1989)).) 

The government responds that the court’s ruling excluding

Hayat’s cross-examination regarding Tablighi Jamaat is subject to a

plain error test because Hayat failed to make a proffer at trial

concerning what the anticipated testimony would be or what legal

basis there was for its admission, (opp’n at 76, 77) and that

“[w]here a defendant fails to preserve the issue by stating a

proffer and setting forth the grounds for the argument in district

court, the review is for plain error.” (Opp’n at 73 (citing U.S. v.

Reese, 2 F.3d 870, 892 (9th Cir. 1993)).) The government argues

that here, there was no error since “[t]he foundation and hearsay

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objections were wholly appropriate.” (Opp’n at 78, 81.) The

government also notes that even if the court assumes that the cross

examination was properly responsive to the Tablighi Jamaat subject

raised by the government on direct examination, the trial court

still had discretion to limit inquiry on cross-examination, since

“[o]nce the door is opened, a curative admission is allowed only if

necessary ‘to introduce evidence on the same issue to rebut any

false impression that might have resulted from the earlier admission

[of inadmissible evidence],” and “there is no indication that Mr.

Khan’s testimony was false.” (Id. at 79 (quoting Whitworth, 856

F.2d at 1285).) The government additionally argues there was no

plain error since “to the extent that there was any kind of

misconception concerning the arguably misleading statements by

Mr. Khan, there was no harmful impact on [Hayat] in light of the

whole record” and because “Khan’s knowledge of Tablighi Jamaat is

not a matter of any relevance to the issues to be decided.” (Opp’n

at 80, 83.)

Although Hayat argues that the evidence was critically

important and that “[h]ad cross-examination not been restricted, it

would have . . . countered the suggestion . . . that [Hayat’s]

attendance at Tablighi Jamaat had been related to violent jihad,” 

even Hayat acknowledges that his expert, Anita Weiss, later

testified that Tablighi Jamaat had no connection with terrorism. 

(Mot. at 54, 52 (citing RT 4125-26).) Therefore, even assuming it

was error to preclude Hayat from cross-examining Khan regarding

Tablighi Jamaat, the error was harmless. 

b. Refusal to Attend Terrorist Camp

Hayat further argues that he was entitled to ask Khan

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whether Hayat told him “that he never intended to go to a

camp, and that he was lying to [Khan] all along.” (Mot. at 52.)

Hayat contends that question “was the single most important question

that Hayat’s counsel put to Khan on cross.” (Id.) Hayat argues the

government “opened the door” to this line of questioning and there

was no legal basis for sustaining the government’s hearsay objection

since the question was subject to the state of mind hearsay

exception in Federal Rule of Evidence 803(3). (Id. at 53.)

Hayat contends that the information was critically

important because it would have “established that Hayat told Khan

that he had no intention of attending a training camp.” (Id. at

54.) Hayat argues that “had the jury learned that in October, 2003,

Hayat had finally stated to Khan in no uncertain terms that he was

not going to a camp and that his previous suggestions to the

contrary were untrue, it very likely would have concluded that

[Hayat] was a slacker and blowhard who had no desire to train for,

much less commit, acts of jihadi violence.” (Reply at 24.)

The government first notes that the objection that Hayat

challenges with regard to the October 7 conversation, was actually

the second objection that was made at trial. (Opp’n at 84.) When

defense counsel first asked Khan on cross-examination about the

October 7 conversation, the government objected on hearsay grounds. 

(Id. (citing RT 1321).) Defense counsel responded that the

testimony was being offered to show the effect of the statement on

the listener. (Id.) The court then sustained the objection because

the effect on the listener was not relevant. (Id.) 

The government argues that when the second objection was

made to defense counsel’s cross-examination of Khan regarding the

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October 7 conversation, defense counsel “did not ask for a bench

conference, try to make a proffer, or seek to clarify how the

testimony was admissible” and did not “state that the evidence was

being offered for the state of mind of the defendant.” (Opp’n at

85.) Therefore, the government states that “the review is for plain

error.” (Id.) The government contends that “[n]o plain error

transpired” since the record “contains numerous examples of [Hayat]

pursuing the defense that he did not intend to go to a camp” and

“that [Hayat] was just lying to Mr. Khan about attending a camp.” 

(Id. at 85, 87.) 

“A party must make known to the court at the time the

ruling or order is made or sought, . . . the action which he desires

the court to take or his objection to the action of the court and

the grounds therefor. . . . Absent plain error, a conviction will

not be reversed on evidentiary grounds not revealed to the trial

court at the time of the assertedly erroneous ruling.” U.S. v.

Sims, 617 F.2d 1371, 1377 (9th Cir. 1980) (internal quotation marks

omitted). “If the significance of excluded evidence is not obvious,

an offer of proof must be made to preserve the question on appeal.” 

U.S. v. McCowan, 471 F.2d 361, 365 (10th Cir. 1972) (finding that it

was not error to exclude testimony when “there [was] nothing to show

that the inquiry in question was designed to elicit any competent

evidence in support of appellants’ theory [and, to] the contrary, it

appear[ed] likely that hearsay was contemplated,” yet no offer of

proof was made). Because Hayat did not make an offer of proof

regarding the seemingly inadmissible hearsay testimony he sought to

offer, Hayat must show that the ruling precluding him from inquiring

about the October 7 conversation constituted plain error. 

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“Plain error is only found in exceptional circumstances

where the reviewing court finds that reversal ‘is necessary to

preserve the integrity and reputation of the judicial process, or to

prevent a miscarriage of justice.’” Sims, 617 F.2d at 1377.

Since other evidence in the record reveals Hayat’s argument that he

did not intend to go to a training camp and that Hayat was simply

lying to Khan, the ruling was not plainly erroneous. See RT 1282-83

(Hayat’s statements that he would not be able to shoot a gun); 1308

(Hayat’s statement that going to a camp “can’t be done these days”);

1314 (Hayat’s concerns about “the intense heat” at training camps);

1260 (Khan calling Hayat a liar); 1303 (Khan and Hayat’s father

calling Hayat a liar); 1307 (Khan asking Hayat if he “ever told the

truth”); 4298-99 (“Naseem Khan could instigate these conversations

with [Hayat], and [Hayat] would literally talk it up. He would go

into details, and say all kinds of bizarre things. And the beauty

of it for Naseem Khan was that while Naseem knew that [Hayat] was

making it all up and lying and exaggerating, he didn’t have to tell

the FBI that he thought that. . . . He knew that [Hayat] was a

storyteller.”); 4302-03 (“[Hayat] brags. He tells stories. He lies

to Naseem Khan. And I think that Agent Terry Rankhorn, the

undercover agent who met [Hayat] on a number of occasions, when he

testified he put it best, out of his own mouth, when he said that

[Hayat]’s statements were more boasting than substance.”); 4303

(“Naseem Khan himself often didn’t believe [Hayat]”). Therefore,

Hayat is not entitled to a new trial on this ground.

c. CIPA Order of March 1, 2006

The ruling on this issue has been filed under seal.

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2. Exclusion of Portions of Defense Expert Weiss’s

Testimony

Hayat contends that “Professor Weiss, a highly qualified

Pakistani scholar, was prevented from offering proof of the

significance to Pakistanis of the Islamic supplication” that was

found in Hayat’s wallet and “[t]hat testimony would have effectively

rebutted the highly inflammatory but factually baseless claim of

prosecution witness Mohammed, who had no expertise in the culture,

language, or politics of Pakistan, that carrying the prayer proved

[Hayat] possessed the mental state necessary to commit the charged

crimes.” (Mot. at 5.) Hayat argues this “was constitutional error

that cannot be deemed harmless beyond a reasonable doubt.” (Id. at

62.) 

Specifically, Hayat is concerned with two limitations

imposed on Weiss’s testimony: (1) barring Weiss from testifying as

to the sources on whom she relied in forming the opinion that the

verse was a taweez commonly carried by travelers (the testimony was

excluded as a sanction for what the court found to be Hayat’s

willful failure to comply with Rule 16), and (2) sustaining an

objection to a question about whether the paper found in Hayat’s

wallet was a taweez (the court sustained a foundation objection

because Weiss does not speak Arabic and the writing on the paper was

in Arabic). (See Reply at 26.) 

a. Sources

Hayat argues “[i]t was . . . error to bar Weiss on

timeliness grounds from testifying as to the sources on which she

relied in forming her opinion, for the defense disclosures were no

less timely than those provided by the prosecution as to Mohammed’s

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sources.” (Mot. at 56.) Hayat argues that the March 27

disclosures, which included the sources on whom Weiss relied in

forming the opinion that the verse was a taweez commonly carried by

travelers, were in fact timely, and therefore the testimony should

not have been excluded. (Id. at 58-59.)

The government responds that the Court properly excluded

the testimony at issue as a sanction for the defense’s willful

failure to comply with Rule 16. (Opp’n at 90.) The government

argues that “[o]n February 20, 2006, approximately a week after

trial began, [Hayat] notified the Government that he intended to

call James Wedick and Anita Weiss as expert witnesses. Pursuant

to Rule 16, [Hayat] included Dr. Weiss’ qualifications and proposed

testimony.” (Id. at 91.) “On March 14, 2006, during its

case-in-chief, the Government introduced the Arabic supplication

found in [Hayat]’s wallet and called Dr. Mohammed to explain its

significance.” (Id. at 92.) “On March 22 and 23, Government expert

Hassan Abbas testified. His testimony, among other things, related

to jihadi camps in Pakistan, including typical weapons training at

those camps.” (Id.) “On March 27, 2006[, Hayat] provided new

disclosures about the testimony of Dr. Weiss. [T]hese disclosures

were not made until after Dr. Mohammed and Mr. Abbas had testified

[and] after the Government had filed various motions to preclude

[Wedick’s] testimony . . . and the Court had ruled that his initial

disclosures were inadequate.” (Id.) The government argues that

most of the opinions in the March 27 disclosures “were plainly not

disclosed in the earlier February 20 Weiss disclosure.” (Id. at 93,

94.) 

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Upon the government’s motion to exclude the testimony, the

court found that on March 27 Hayat “disclosed new testimony

which was not included in [his] previous disclosure”; that Hayat’s

explanation was “disingenuous because [he had] known about the

information . . . yet [he] waited six weeks into the trial” to make

the disclosures; and Hayat’s “failure to disclose the testimony was

‘willful and motivated by a desire to obtain a tactical advantage’

because [he] waited to make [his] disclosures until after the

testimony of government witnesses Dr. Mohammed and Mr. Abbas and

until after the government challenged the testimony of [Hayat]’s

other proposed expert, James Wedick,” and excluded the testimony. 

(RT 3577, 3578.) 

The Court “has wide discretion in its determination to

admit and exclude evidence, and this is particularly true in the

case of expert testimony.” Hamling, 418 U.S. at 108. In excluding

evidence as a sanction for violating Rule 16, the Court only abuses

its discretion if the “evidence was of decisive value or if the

exclusion was disproportionate to the conduct of counsel.” U.S. v.

Duran, 41 F.3d 540, 545 (9th Cir. 1994) (internal quotation marks

omitted). Exclusion is appropriate when “the omission was willful

and motivated by a desire to obtain a tactical advantage.” Taylor

v. Ill., 484 U.S. 400, 415 (1988). While a criminal defendant has a

Sixth Amendment right to offer the testimony of witnesses, “[t]he

accused does not have an unfettered right to offer testimony that is

incompetent, privileged, or otherwise inadmissible under standard

rules of evidence.” Taylor, 484 U.S. at 410.

Because evidence regarding the sources on whom Weiss

relied in forming the opinion that the verse was a taweez commonly

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carried by travelers was not of decisive value, it was not an error

to exclude the testimony.

b. Supplication as Taweez

At trial, after Weiss testified regarding taweez in

general, defense counsel asked Weiss: “[B]ased on your understanding

of where that piece of paper was found, do you believe that it is a

ta’wiz?” (RT 4187.) The government objected on foundation grounds. 

(Id.) The court sustained the objection: “The objection is

sustained [for] failure to establish the foundation that she speaks

the language that is written on the piece of paper, and that she

understands what is written on the piece of paper. And to the

extent that the piece of paper is folded in a manner that is

consistent with what she has already testified about, the evidence

is already in the record. So therefore it would be cumulative.” 

(RT 4191-92.)

Hayat contends “it was error to preclude Anita Weiss from

testifying about the supplication, as she was far more qualified to

opine as to the significance of the supplication to an Urdu speaking

Pakistani than was Mohammed.” (Mot. at 56.) Hayat argues that

“Weiss was indisputably qualified to answer the crucial question to

which the Court sustained an objection – whether the supplication

was a taweez. That question called for knowledge about Pakistani

cultural and religious practices, as to which Weiss is one of the

country’s leading experts. Whether Weiss spoke Arabic was

irrelevant to the question posed to her, because Pakistanis

generally do not speak Arabic; they speak Urdu, in which Weiss is

fluent.” (Id. at 60.) Hayat further argues that the exclusion of

Weiss’s testimony regarding the supplication was prejudicial since,

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without it, Mohammed’s testimony was essentially left unrebutted. 

(Id.)

The government argues the court’s exclusion of the

testimony was proper since Weiss did not speak or read Arabic and

was therefore “unqualified to form an opinion about the correct

translation of th[e] Arabic supplication much less an opinion as to

how ‘common’ th[e] Arabic supplication was or is in Pakistan.” 

(Opp’n at 103.) The government further argues that the excluded

evidence was not “of decisive value” since Hayat “still had the

ability, pursuant to [the] February 20 disclosure, to seek to

introduce [Weiss’s] other opinions related to the cultural practice

of carrying a taweez and, in fact, actually introduced some evidence

related thereto at trial.” (Id. at 102.) 

It was not error to sustain the foundation objection

because, as the government noted, the piece of paper in Hayat’s

wallet could have been something other than a taweez (such as an

address (RT 4188)), and without knowing Arabic, Weiss could not know

whether the piece of paper constituted a taweez. Furthermore, Weiss

had already testified about the practice of carrying a taweez on the

body somewhere (RT 4178-80), (and could have further testified about

the practice of carrying a taweez) so the jury could have inferred

that the paper in Hayat’s wallet was a taweez. Moreover, in closing

argument, defense counsel called into question Mohammed’s 

qualifications to testify regarding the supplication and reminded

the jury that Weiss had testified about what a taweez is and when a

taweez is typically carried, such that the jury could have inferred

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Portions of Hayat’s counsel’s closing argument are stated 11

below:

Dr. Mohammed admitted on the stand that his views were

controversial amongst Muslim scholars. He admitted on

the stand that he dismissed the accuracy of

translations of that exact prayer that were translated

by published Muslim scholars. He also admitted that he,

himself, has not published regarding that prayer. Dr.

Mohammed has never been to Pakistan and he doesn’t

understand the culture. 

(RT 4322); 

See, the problem with Dr. Mohammed’s testimony about

that prayer is that he has no idea of the cultural

context of carrying such a prayer in Pakistan. He can’t

possibly because he just doesn’t know about Pakistani

culture. Dr. Anita Weiss, however, is an expert on

Pakistani culture. You heard her tell you that carrying

prayers in Arabic is a very common practice in

Pakistan, especially by travelers for safety reasons.

The government either doesn’t understand the cultural

significance of carrying a ta’wiz or it didn’t want you

to know about it. Because had they asked their other

expert, Mr. Abbas, who knows about Pakistani culture,

he would have told them that Dr. Mohammed’s conclusions

were wrong, and that prayers like those are commonly

carried by travelers and not warriors. So Dr.

Mohammed’s testimony itself was problematic. And the

existence of that prayer in [Hayat]’s wallet doesn’t

prove that he went to a terrorist training camp. 

(RT 4323-24.) 

41

that the piece of paper in Hayat’s wallet was a taweez.11

Therefore, Hayat is not entitled to a new trial on this ground.

3. Exclusion of Defense Expert Wedick

Hayat argues “the exclusion of Wedick’s expert testimony

violated [his] constitutional right . . . to challenge the

credibility of his purported admissions of guilt to the FBI,” and

“that error cannot be deemed harmless beyond a reasonable doubt.” 

(Mot. at 5-6, 69.) Hayat states in his expert disclosures, in

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28 According to Hayat’s motion, his expert disclosures also 12

stated that Mr. Wedick would testify “that the FBI Sacramento office

had the capability to videotape Hamid Hayat’s interview right when

42

relevant part, that Wedick was to testify as follows:

Mr. Wedick will testify that the interviewing

agents did not consider but should have

considered Hamid’s vulnerabilities as an

interviewee. Specifically, Mr. Wedick will opine

that the agents should have considered Hamid’s

age, intelligen[ce] quotient, level of 

education, mental handicap, language barrier,

health, marriage and/or family status,

occupation and employment status, religion

and/or belief in God, illiteracy, fatigue,

social isolation, and experience with the

criminal justice system. Mr. Wedick will explain

that all of these factors should be considered

by FBI agents in conducting interviews to insure

the validity of any elicited “confessions.”

Mr. Wedick will testify that the FBI agents

should have frequently reminded Hamid Hayat that 

the interview was noncustodial in nature and 

that he was free to go . . .

Mr. Wedick will testify that Agent Schaff, Agent

Sweeney, Agent Harrison, Agent Aguilar and Agent

Lucero all used leading questions during the

interviews of Hamid Hayat. Specifically, they

suggested the names of locations of terrorist

training camps in Pakistan; the dates when Hamid

Hayat allegedly attended; the time frame that

Hamid allegedly attended; the leadership of the

camps that Hamid allegedly attended; the type of

training camp that Hamid Hayat allegedly

attended; the physical properties of the camp

that Hamid allegedly attended; the names of

other individuals in Lodi that allegedly

attended, and the types of potential targets of

terrorist attacks. Mr. Wedick will testify that

the agents did not ask sufficient open-ended

questions. Mr. Wedick will opine that the

agents’ use of leading questions throughout the

interview contaminated the “confessions” to

render them unreliable. Mr. Wedick bases his

opinion on his training and experience which

dictates that agents should avoid asking too

many leading questions because there is a danger

of eliciting a contaminated confession in doing

so.

(Mot. at 62-63.)12

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it actually started including the ability to use a handheld video 

camera” and “that it was inappropriate to begin videotaping his

interview only after a ‘confession’ had been elicited after hours of

interviewing.” (Mot. at 62.) However, Hayat’s motion for a new

trial focuses on the court’s exclusion of Wedick’s testimony

regarding the unreliability of Hayat’s confession, and does not

address this issue. (Id. at 66-69, Reply at 28-30.)

43

Hayat argues “[t]hat a confession taken under [Hayat’s]

circumstances may well be false or unreliable is knowledge that is

not generally within the experience of jurors” and that “[b]ased on

[Mr. Wedick’s] extensive experience with FBI interrogations, Mr.

Wedick was ideally qualified to testify to the fact that the

techniques used by the interrogating agents exponentially increased,

rather than minimized, the risk of a false confession.” (Id. at

67.) Hayat argues that, although “the defense explored the

techniques used by the interrogators with the agents themselves when

they took the stand[,] Wedick’s testimony would not have been in any

way cumulative, for the agents uniformly defended the propriety of

the methods they used to question [and] Wedick’s testimony [was

going to be] that the relentlessly suggestive nature of the

interrogation, when combined with the promise of benefits and

[Hayat]’s limited education and physical condition, posed a grave

danger of contamination.” (Id. at 67-68.) 

Hayat relies primarily upon Crane and Alcala for his

position. (Id. at 64-65.) Crane involved a sixteen year old

defendant who contended he confessed after having been “detained in

a windowless room for a protracted period of time, surrounded by as

many as six police officers during the interrogation, repeatedly 

. . . denied permission to telephone his mother, and badgered into

making a false confession.” 476 U.S. at 685. Crane was precluded

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from “introduc[ing] testimony about the environment in which the

police secured his confession,” which the Supreme Court held

violated his constitutional right to present a complete defense. 

476 U.S. at 691. In Alcala, the Ninth Circuit found that excluding

a psychologist’s testimony that a chief prosecution witness had been

hypnotized by investigators and that the hypnotic and suggestive

interview techniques impacted the government witness’s ability to

remember the incident and led her to adopt the investigators’

suggestions, violated the defendant’s constitutional rights because

the psychologist’s testimony was the sole basis for impeaching the

witness’s testimony. 334 F.3d at 877-78. 

The government counters that the Court properly excluded

Wedick’s proffered expert testimony under Federal Rule of Criminal

Procedure 16, Federal Rule of Evidence 702, and Federal Rule of

Evidence 403. (Opp’n at 3.) The government argues Wedick’s

proposed testimony regarding whether the interrogators should have

advised Hayat that he was free to leave the interview was properly

excluded because Hayat “had already extensively [presented] the

facts related to th[is] issue[] with numerous FBI agents” and

“‘expert’ evidence on th[is] point[] would have been needlessly

confusing, cumulative and wasteful of time.” (Id. at 116.) The

government further contends that this evidence was inadmissible

because Hayat “failed to provide the Government with a timely and

adequate summary of these opinions, the bases and reasons for the

opinions, and the witness’s qualifications related thereto”; Hayat

“made no showing whatsoever regarding what specialized knowledge, if

any, Mr. Wedick had regarding the area of his proposed opinions,

other than to state, in a conclusory fashion, that Wedick had

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experience and training with interviews”; Hayat “failed to establish

that the proffered opinions were reliable”; and “the record had

already been developed on the question of whether [Hayat] was

advised about his rights and/or freedom to leave the FBI [and the

issue] could readily be (and was) argued by counsel during closing

and understood and evaluated by the jury.” (Id. at 117-19.)

The government also contends that the Court properly

excluded Wedick’s testimony regarding whether the agents failed to

consider Hayat’s background in order to insure the validity of any

elicited confessions and whether the agents’ use of leading

questions contaminated Hayat’s confessions. (Id. at 119.) The

government argues Hayat “failed to establish how the proffered

opinions would assist the trier of fact [since the jury] was fully

capable of listening to the evidence adduced regarding the

circumstances of the confession, and to the arguments of counsel

regarding the reliability of the confessions, and render a

credibility judgment regarding the confession on its own.” (Id. at

119, 120.) The government further contends that Hayat “failed to

provide the Government with a timely and adequate summary of these

opinions, the bases and reasons for the opinions, and the witness’s

qualifications related thereto”; Hayat made “no adequate showing

that Mr. Wedick had appropriate qualifications . . . to opine on the

issue of false confessions [since] the opinion that an individual’s

statement constitutes a ‘false admission’ . . . necessarily involves

an evaluation of the psychological characteristics of the individual

in question”; Hayat “failed to demonstrate that Mr. Wedick’s

proposed testimony would be in any way reliable”; Hayat “failed to

establish how the proffered opinion[s] would be relevant”; and “any

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marginal probative value associated with these proffered opinions

would have been substantially outweighed by the risk of unfair

prejudice, confusion of issues, or undue consumption of time

associated therewith.” (Id. at 119-24.) Finally, the government

argues that Hayat is now trying “to recast many of the opinions

purportedly offered by Mr. Wedick” and that those “summary

statements by defense counsel were not disclosed at the time of

trial as being proposed opinions to be offered by Mr. Wedick, nor

are these statements a fair summation of what was disclosed.” (Id.

at 124, 125.)

Federal Rule of Evidence 702 provides that “scientific,

technical, or other specialized knowledge [is admissible if it] will

assist the trier of fact to understand the evidence or to determine

a fact in issue.” See also U.S. v. Rahm, 993 F.2d 1405, 1413 (9th

Cir. 1993) (expert testimony not admissible on “matters within the

understanding of the average juror”); U.S. v. Morales, 108 F.3d

1031, 1038 (9th Cir. 1997) (expert testimony not admissible unless

“the subject matter at issue is beyond the common knowledge of the

average layman”). “[Rule] 702 imposes a ‘gatekeeping’ obligation on

the trial judge to ‘ensure that any and all [expert] testimony . . .

is not only relevant, but reliable.’” U.S. v. Hankey, 203 F.3d at

1167 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579

(1993) and citing Kumho Tire Co. v. Carmichael, 526 U.S. 137

(1999)). “[J]udges are entitled to broad discretion when

discharging their gatekeeping function.” Hankey, 203 F.3d at 1168

(citing Kumho Tire Co.). 

Further, Federal Rule of Evidence 403 provides that

“[a]lthough relevant, evidence may be excluded if its probative

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Hayat does not contend that the FBI agents were obligated 13

to inform Hayat that he was free to leave the interview; rather,

Hayat contends that Wedick was entitled to testify that they “should

have” done so. (Mot. at 63.) Hayat argues that the FBI agents’

failure to do so contributed to the “circumstances” that made the

confession unreliable; however, Hayat’s disclosures did not state

that Wedick would testify as such. (Id. at 66-67, 63.)

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value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” 

Wedick’s proposed expert testimony that “the FBI special

agents should have reminded [Hayat] that [his] interviews were noncustodial and that [he was] free to go” was excluded because the

matter had “already [been] extensively explored,” and the testimony

“ha[d] only marginal probative value, which [was] outweighed by

[Rule 403 considerations].” (RT 3519, 3521.) This exclusion was

not erroneous. (See RT 771-73, 3719, 4319-20.) 13

Wedick’s proposed expert testimony that the FBI agents

should have considered Hayat’s “vulnerabilities as an interviewee”

in order “to insure the validity of any elicited ‘confessions’” and

that the agents’ use of “leading questions during [Hayat’s]

interviews . . . contaminated the ‘confessions’ to render them

unreliable” was also properly excluded at trial. (See RT 3521-22.) 

This case is different from Crane and Alcala, the cases

upon which Hayat primarily relies, because the circumstances of

Hayat’s interrogation and confessions were readily apparent to the

jury through the testimony of the interviewing FBI agents and the

videotapes, and therefore, Wedick’s testimony was not necessary to

inform the jury about the circumstances surrounding Hayat’s

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The initial interview of Hayat at FBI headquarters by 14

Agent Aguilar and the subsequent interview by Agent Sweeney (in

which Hayat’s first confession was obtained) were not videotaped. 

(RT 699, 529.) The remaining interviews of Hayat were videotaped. 

(Gov’t Exs. 19-22.) 

The jury saw part of the videotapes during the

government’s case-in-chief, and all of the videotapes during Hayat’s

case. Moreover, during deliberations the jury had the videotapes

played again, which suggests that the jury thoroughly analyzed the

interrogation and confessions.

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confessions. See Ritt v. Dingle, 142 F. Supp. 2d 1142, 1145 (D. 14

Minn. 2001) (“Petitioner was allowed to present the jury a videotape

of her interrogation . . . which showed the circumstances of her

confession. Petitioner’s reliance on Crane for the admissibility of

the proffered expert testimony is misplaced as Crane does not

discuss expert testimony in a similar factual context. Given the

more direct evidence of the videotape, the trial court decision to

exclude expert testimony on the interrogation technique was

reasonable.”) (internal citations omitted); State of Minn. v. Ritt,

599 N.W.2d 802, 812 (Minn. 1999), reviewed by Ritt v. Dingle, 142 F.

Supp. 2d 1142 (Defendant’s “interview and formal statement were

videotaped and the jury could observe the surrounding environment

and circumstances”).

Nor was it erroneous to preclude Wedick from explaining to

the jury that failing to consider Hayat’s vulnerabilities and using

leading questions may lead to unreliable confessions. Bixler v.

Minn., 582 N.W.2d 252, 256 (Minn. 1998) (upholding the trial court’s

“ruling that the jury, without [expert testimony], was fully capable

of observing and understanding [the defendant’s] propensity to

please authority figures, and taking those observations and that

understanding into account in evaluating his confession.”). The

government argues that Hayat did not establish Wedick’s

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qualification to testify regarding these issues since “the opinion

that an individual’s statement constitutes a ‘false admission’ . . .

necessarily involves an evaluation of the psychological

characteristics of the individual in question” and Wedick “has no

training or experience in any field that would permit him to opine

on the psychological condition of [Hayat], or to opine that any

particular act or omission by the agents led [Hayat] to admit his

guilt falsely.” (Opp’n at 122-23.) Hayat argues Wedick should have

been permitted to testify, based on his extensive experience with

FBI interrogations, that the use of leading questions and the

failure to consider Hayat’s vulnerabilities (specifically, age,

intelligence quotient, level of education, mental handicap, language

barrier, health, marriage and/or family status, occupation and

employment status, religion and/or belief in God, illiteracy,

fatigue, social isolation, and experience with the criminal justice

system) increased the risk of Hayat’s confession being unreliable. 

(Mot. at 63, 67.) 

Hayat cites to U.S. v. Hall, 93 F.3d 1337 (7th Cir. 1996),

in support of his indication that Wedick should have been permitted

to testify that Hayat’s “‘confession’ to the crime was false.” 

(Mot. at 65.) The Court in Hall held that it was error to exclude

expert psychological and psychiatric testimony that the defendant

had a personality disorder that made him pathologically eager to

please and susceptible to suggestion, calling into question the

reliability of the defendant’s confession. Hayat argues that Hall

“explained that since the fields of psychology and psychiatry deal

with human behavior and mental disorders it may be more difficult at

times to distinguish between testimony which reflects ‘genuine

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expertise’ and ‘something that is nothing more than fancy phrases

for common sense.’” (Id. at 65-66 (quoting Hall, 93 F.3d at 1342).) 

But, Hayat has not shown Wedick is qualified as an expert

in the field of psychology or psychiatry, or otherwise had the

qualification to give expert testimony regarding Hayat’s alleged

susceptibility to suggestion and coercion. Specifically, Hayat has

not shown Wedick’s qualification to testify about Hayat’s

intelligence quotient, alleged mental handicap, or social isolation. 

Nor does the record indicate that Wedick was in a better position

than a juror to opine about Hayat’s age, language barrier, marriage

and/or family status, or any fatigue factor; and Wedick’s testimony

was unnecessary to inform the jury about Hayat’s level of education,

health, occupation and employment status, religion and/or belief in

God, illiteracy, or experience with the criminal justice system. 

See U.S. v. Adams, 271 F.3d 1236, 1244 (10th Cir. 2001) (upholding

the district court’s exclusion of a psychologist’s report with which

the defendant wished to challenge the credibility of his prior

statements to police; finding that nothing in Crane warranted the

categorical admission of evidence; and noting that expert evidence

relating to the credibility of a confession was problematic for a

variety of reasons: it may invade the province of the jury, and,

thus, not “assist” the jury as required by Rule 702; it may exceed

the scope of the witness’s expertise; or be overly prejudicial under

Rule 403, as witnesses may tend to overvalue scientific evidence as

it bears on truthfulness); U.S. v. Charley, 189 F.3d 1251, 1267

(10th Cir. 1999) (“[E]xpert testimony which does nothing but vouch

for the credibility of another witness encroaches upon the jury’s

vital and exclusive function to make credibility determinations, and

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Hayat relies upon Smith v. U.S., 348 U.S. 147 (1954), in 15

arguing that whether a confession taken under Hayat’s circumstances

is false or unreliable is knowledge that is not generally within the

experience of jurors. In Smith, the court said that the reliability

of a confession “may be suspect if it is extracted from one who is

under the pressure of a police investigation-whose words may reflect

the strain and confusion attending his predicament rather than a

clear reflection of his past” and that “this experience with

confessions is not shared by the average juror.” Id. at 153-54. 

However, not only is Smith factually distinguishable, but in Hayat’s

case, the jury was able to view and hear testimony about the

confessions, and defense counsel explained to the jury during

closing argument that Hayat’s confession was unreliable because of

the manner in which it was elicited. 

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therefore does not ‘assist the trier of fact’ as required by Rule

702.”); U.S. v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973)

(“Credibility . . . is for the jury - the jury is the lie detector

in the courtroom.”).

It was also not erroneous to exclude Wedick’s testimony as

to whether the failure to consider a defendant’s vulnerabilities and

the use of leading questions generally could lead to an unreliable

confession. Such an exclusion was proper under Federal Rules of

Evidence 702 and 403 since the testimony would have had little

probative value and would not have assisted the jury as contemplated

by Rule 702. Ritt, 142 F. Supp. 2d at 1145 (finding that 15

testimony regarding the interrogation techniques used in eliciting

the defendant’s confession was unnecessary since the jury was able

to view a videotape of the confession); Scott v. Tex., 165 S.W.3d

27, 55-57 (Tex. App. 2005) (finding that the exclusion of expert

testimony from a social psychologist and criminologist regarding

police interrogation techniques and false confessions was not

erroneous because it was within the trial court’s discretion to

determine that the testimony was unreliable and would not assist a

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Portions of Hayat’s counsel’s closing argument are stated 16

below:

You watched the videotape of Hamid Hayat on that screen. You

watched his interview. And you got that feeling inside of

you that something wasn’t right when those agents

manipulated him into answering leading questions, and

getting him to say what they wanted him to say.

(RT 4286);

First thing Agent Aguilar did [when Hayat arrived at the FBI

office] was show him pictures of his wedding . . . . Agent

Aguilar knew what these pictures were, and yet he showed

them to [Hayat] as an intimidation factor. First he

intimidated [Hayat] into coming to the FBI office, out of

the comfort zone of his own home. Then he immediately showed

him these pictures. 

(RT 4311-12); 

Then the intimidation continues on that day. When Hamid Hayat

is interviewed by Agent Harry Sweeney in an unrecorded

interview, Agent Sweeney asks [Hayat] if he received weapons

training at a camp, and [Hayat] adamantly denies it. Agent

Sweeney asks [Hayat] if he received training to fight against

the United States, and [Hayat] adamantly denies it . . . . At

some point Agent Sweeney tells [Hayat] that the government

has a satellite image of [Hayat] at a camp in Pakistan. While

Agent Sweeney was on the stand, I asked him, I said, was this

the question that was asked before Hamid Hayat said he went

to a camp, and he said yes. And he admitted that this was a

tactic, and he admitted that no such image exists. So [Hayat]

is at the FBI office, outside of the comfort of his own home,

he’s shown pictures of his own wedding celebration and

accused that those pictures reflect some sort of a camp. Then

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trier of fact). The jury was able to hear testimony from the

interviewing FBI agents regarding the circumstances of Hayat’s

confessions and was able to see Hayat’s videotaped confessions, and

any connection that Hayat wanted Wedick to make between the factual

circumstances of Hayat’s confessions and factors that lead to

unreliable confession could have been and was ultimately made by

defense counsel during closing arguments. See U.S. v. 16

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he’s told by Agent Sweeney that there is an image of him at a

camp. After -- at some point we know that [Hayat] said that

he attended a camp when he spoke with Agent Sweeney. And this

is not because there is a recorded interview, this is because

this is what Agent Sweeney told us. So we don’t really know

the details of the types of questioning that was asked during

that interview. What we do know is that the interview lasted

for a few hours, and it’s likely that the intimidation

tactics continued during this unrecorded interview. 

(RT 4313-14);

Agent Schaaf admitted on the stand that he asked many

leading questions of [Hayat]. He also said that open-ended

questions are the preferred practice in conducting

interviews in the FBI. He knew that the quality of his

interview would be jeopardized by asking leading questions,

but he went ahead and did it anyway. How else was he going

to get Hamid Hayat to say what he wanted him to say? 

(RT 4314); 

While he was on the stand, Agent Schaaf admitted that he

first mentioned the word jihad during that interview; that

the idea of traveling to the camp by bus, he made that

mention first; that he first suggested that it took between

three and ten hours to arrive at the camp; that he first

suggested the idea of arriving at the camp in the dark; and

that he first suggested the idea of killing Americans at the

camp. He also first suggested that there was extensive

weapons training, there was explosives and rifles training,

and he first mentioned the names of extremist groups in

Pakistan. The government is going to tell you that these

questions were based on a prior interview that [Hayat] had

with Agent Sweeney. But, remember, we have no recording of

that interview. We don’t know how many leading questions

were asked in that interview. That interview was not

recorded for a reason. It’s likely that the government knew

exactly what it wanted [Hayat] to say, and they intimidated

him by asking him leading questions and using other

intimidation tactics. 

(RT 4314-15); 

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Fuentes-Cariaga, 209 F.3d 1140, 1142, n.3 (9th Cir. 2000) (expert

testimony not admissible if the testimony is “about an issue within

the ken of the jury’s knowledge”); In re Air Crash Disaster at New

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When you watch the video of Hamid Hayat, you saw [Hayat]

was visibly tired. You heard [Hayat] complain of being

tired, sleepy, and having a headache during the

interview. He actually told the agents this. You heard

him say at one point his mind wasn’t working. You heard

him answer questions with, I’ll say, or, I’ll say that,

over 60 times during that interview. 

(RT 4317-18); 

Agent Schaaf, in fact testified that there were portions

of [Hayat]’s interview that he did not believe. So, how

did Agent Schaaf decide what he wanted to believe? Of

course he knew what he wanted [Hayat] to say, and he

chose to believe what he wanted to believe. Because,

remember, he asked him leading questions, and when he

couldn’t lead him to the answer of the question the way

that he wanted it, he chose not to believe it. 

(RT 4318); 

[A]ll of the information that was elicited from [Agent

Schaaf’s] leading questions led to a meaningless

confession. . . . You have Hamid Hayat being intimidated

into saying things that the FBI wanted him to say. He was

never told that he could leave. You didn’t hear an agent

say that to him. In fact, you heard him ask the agents if

he could go home or if he could see his father. The

agents ignored his request. You heard him make these

requests before he was even arrested when he was free to

leave. But the agents ignored his request. As you watch

the video, you saw [Hayat] make every effort to

cooperate. And when he was being arrested, he didn’t even

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Orleans, 795 F.2d 1230, 1233 (5th Cir. 1986) (Expert testimony must

“bring to the jury more than the lawyers can offer in argument,

otherwise the expert testimony does not assist the trier of fact to

understand the evidence or to determine a fact in issue.”); Maine v.

MacDonald, 718 A.2d 195, 198 (Me. 1998) (“[T]he court reasonably

could have concluded that [the expert’s] testimony would do little

more than reinforce a concept already well within the jurors’

grasps, namely, that people sometimes lie to protect those close to

them.”).17

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know what was happening to him. He didn’t realize that by

telling the FBI what they wanted to hear, that he

attended a camp in Pakistan, that he had just gotten

himself into a whole lot of trouble. It’s really quite

sad to watch that video and watch [Hayat] say things that

make no sense. They don’t even make sense to the agents

who are listening to them. And you really see him trying

to cooperate and provide the answers the best that he

can. 

(RT 4318-19); 

The entire interview was meaningless, and it does not

prove that [Hayat] went to a camp. . . . And because

[Hayat]’s statements come from a meaningless confession,

and they are completely unreliable, the government,

ladies and gentlemen, is left with nothing. 

(RT 4320). 

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Moreover, even if the exclusion of Wedick’s testimony was

improper, it was harmless because the jury ultimately heard, through

other testimony and closing arguments, all of the testimony that

Wedick would have offered. Therefore, Hayat is not entitled to a

new trial based on the exclusion of Wedick’s testimony.

D. New Evidence

Hayat contends he is entitled to a new trial under Rule 33

based on “newly discovered” evidence. (Mot. at 7.) Hayat contends

the testimony of Usama and Jaber Ismail, two eyewitnesses who were

in Pakistan with Hayat and who observed his conduct for most or all

of the period between October 2003 and November 2004 when he

allegedly attended a terrorist training camp, justifies a new trial. 

(Id.) 

Hayat argues that “[i]n this case, in which the government

produced no evidence that Hayat attended a training camp apart from

[Hayat]’s often incoherent, contradictory, and even bizarre

statements, the testimony of Usama and Jaber, if credited, would

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result in Hayat’s acquittal.” (Id. at 105.) Hayat contends that

“[t]heir testimony is affirmative proof of innocence, and in no

sense is cumulative or merely impeaching.” (Id.)

Hayat argues that Jaber could not be produced at trial

because he “was in Pakistan on a no-fly list,” and that Usama could

not be called to testify “because his court-appointed lawyer had

invoked his Fifth Amendment right [not] to testify.” (Id. at 101,

102.) Hayat contends that although Usama provided the testimony

that is in his affidavit in an FBI interview that “was memorialized

in a 302 provided to the defense prior to trial[,] Hayat was no more

able to produce Usama at trial than he would have been had his

counsel been unaware of Usama’s existence or the exculpatory

evidence he could provide.” (Id. at 105.) 

The government responds that “the proffered testimony of

Usama Ismail and Jaber Ismail does not constitute ‘newly discovered

evidence’ justifying a new trial [since Hayat] was aware of their

potential testimony prior to trial, [Hayat] failed to diligently

seek to secure such testimony, and, the testimony would not likely

have resulted in an acquittal of [Hayat].” (Opp’n at 4; 181-87.) 

The government argues that Usama ultimately did not testify at trial

because Hayat’s counsel “decided not to serve Usama with a subpoena

because [she] thought [her] efforts would be futile.” (Id. at 182

(quoting Mojaddidi Aff. ¶¶ 5-6).) Further, the government contends

that “[d]efense counsel offers no explanation whatsoever as to

whether the defense made any effort to contact Jaber Ismail to

interview him or attempt to secure his presence or testimony for

trial” and that Jaber did not discover that he was on the no-fly 

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list until after the case was submitted to the jury. (Opp’n at

183.) 

The government also argues that even if the proposed

testimony is considered newly discovered, Hayat cannot show no lack

of diligence since Hayat did not try to secure the Ismails’ presence

at trial, did not explore any alternative means of obtaining their

testimony, and never informed the court that he was having

difficulty securing their testimony. (Id. at 185-86.) 

Additionally, the government contends that given the other evidence

presented in this case, “the proposed testimony does not indicate

that a new trial would likely result in acquittal.” (Id. at 186.) 

To prevail on a Rule 33 motion for a new trial on the 

grounds of newly discovered evidence, “the movant must satisfy a

five-part test: (1) the evidence must be newly discovered; (2) the

failure to discover the evidence sooner must not be the result of a

lack of diligence on [Hayat]’s part; (3) the evidence must be

material to the issues at trial; (4) the evidence must be neither

cumulative nor merely impeaching; and (5) the evidence must indicate

that a new trial would probably result in acquittal.” U.S. v.

Kulczyk, 931 F.2d 542, 548 (9th Cir. 1991). 

“[N]ewly discovered” means, “in fact, newly discovered,

i.e., after trial.” U.S. v. McKinney, 952 F.2d 333, 335 (9th Cir.

1991). “Evidence known or discovered before the trial is over is

not newly discovered.” Id. at 336. “[W]hen a defendant who has

chosen not to testify comes forward to offer testimony exculpating a

codefendant, the evidence is not ‘newly discovered.’” U.S. v.

Lockett, 919 F.2d 585, 591 (9th Cir. 1990); see also U.S. v.

DiBernardo, 880 F.2d 1216, 1224-25 (11th Cir. 1989) (where

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defendants were “well aware” of witness’ proposed testimony prior to

trial, “the testimony cannot be deemed ‘newly discovered evidence’

within the meaning of Rule 33"); U.S. v. Jacobs, 475 F.2d 270, 286

n.33 (2d Cir.) (“[A] court must exercise great caution in

considering evidence to be ‘newly discovered’ when it existed all

along and was unavailable only because a co-defendant, since

convicted, had availed himself of his privilege not to testify”). 

Since the testimony of the Ismails was known to Hayat prior to

trial, it cannot be deemed “newly discovered.” Therefore, Hayat is

not entitled to a new trial based on the Ismails’ testimony. 

E. Cumulative Effect of All Alleged Errors

Hayat argues that “[i]f, after considering all of Hayat’s

claims both singly and in combination, the Court believes that ‘a

serious miscarriage of justice may have occurred, it may set aside

the verdict, and submit the issues for determination by another

jury.’” (Reply at 3 (quoting Kellington, 217 F.3d at 1097).) 

Additionally, the cumulative effect of errors made at trial may

deprive a defendant of a fair trial and require a new trial. U.S.

v. Tory, 52 F.3d 207, 211 (9th Cir. 1995). 

Hayat’s motion for a new trial is also denied under this

standard. 

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IV. Conclusion

For the foregoing reasons, Hayat’s motion for a new

trial is denied. The sentencing hearing is scheduled to commence 

at 1:00 p.m. on August 10, 2007.

Dated: May 17, 2007

 

GARLAND E. BURRELL, JR.

United States District Judge

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