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* No hearing or opposition to the motion was deemed

necessary in light of Defendants arguments. 

1 Defendants waited until the eve of trial to discuss

information published months ago. I will not discuss this

information with specificity because republication of it at this

time risks prolonging the impending jury selection process. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, ) 2:05-cr-0240-GEB

 ) 

 Plaintiff, )

) ORDER*

 v. )

)

UMER HAYAT, and )

HAMID HAYAT, )

 ) 

 Defendants. )

 ) 

On January 13, 2006, Defendants filed a motion “to dismiss

this case,” in which they argue “[t]heir right to a fair trial has

been jeopardized due to the outrageous conduct of the government

. . . in its attempts to taint the prospective jury pool.” (Defs.’

Mot. to Dismiss (“Defs.’ Mot.”) at 1.) Specifically, Defendants

argue the government “intentionally caused irreparable prejudice

against Defendants” by revealing “highly prejudicial information”

and evidence “inadmissable [at] trial” in June 2005 and to a lesser

extent, in September 2005.1 (Id. at 2, 6.) Defendants also contend

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2 “The prejudicial effect of pervasive publicity is tested

under the presumed prejudice or the actual prejudice standards.” 

Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir. 1989); Ainsworth v.

Calderon, 138 F.3d 787, 795 (9th Cir. 1998); Randolph v. People of

the State of Cal., 380 F.3d 1133, 1142 (9th Cir. 2004). The

determination whether actual prejudice prevents a juror from being

empaneled is made “upon the voir dire examination.” United States

v. McDonald, 576 F.2d 1350, 1354 (9th Cir. 1978). During the voir

dire examination, “a court must determine if the jurors demonstrated

actual partiality or hostility that could not be laid aside.” 

Randolph, 380 F.3d at 1142; Ainsworth, 138 F.3d at 795. 

2

they have been prejudiced by the “widespread international media

coverage” of this case, most of which “has been negative toward the

Defendants.” (Id. at 9.) Defendants argue “[t]he government’s

conduct coupled with the widespread national media attention . . .

confirms that the Defendants could not have a fair trial with an

impartial jury anywhere in the United States.” (Id. at 2.)

To justify dismissal, Defendants must show they were

prejudiced by outrageous governmental misconduct. See U.S. v.

Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991) (stating “a

district court may dismiss an indictment on the ground of outrageous

government conduct” under its “supervisory powers” or if the conduct

“amounts to a due process violation”); Bank of Nova Scotia v. United

States, 487 U.S. 250, 263 (1988) (stating a “district court [has] no

authority to dismiss [an] indictment on the basis of prosecutorial

misconduct absent a finding that [the defendants] were prejudiced by

the misconduct”). Defendants contend governmental misconduct has

caused potential jurors to be exposed to widespread prejudicial

publicity such that potential jurors should be presumed biased

against them.2 (Defs.’ Mot. at 5.) 

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3

“Prejudice is presumed only in extreme instances when the

record demonstrates that the community where the trial [is to be]

held [is] saturated with prejudicial and inflammatory media

publicity about the [alleged] crime.” Daniels v. Woodford, 428 F.3d

1181, 1211 (9th Cir. 2005) (citation omitted); Ainsworth, 138 F.3d

at 795 (“Prejudice is rarely presumed because saturation defines

conditions found only in extreme situations.”). The community at

issue is comprised of the twenty-three counties that constitute the

Northern Division of this District. “Three factors should be

considered in determining [whether this community should be]

presumed prejudice[d]: (1) whether there was a barrage of

inflammatory publicity immediately prior to trial, amounting to a

huge . . . wave of public passion; (2) whether the news accounts

were primarily factual because such accounts tend to be less

inflammatory than editorials or cartoons; and (3) whether the media

accounts contained inflammatory or prejudicial material not

admissible at trial.” Daniels, 428 F.3d at 1211. 

First, there has not been a “barrage of inflammatory

publicity immediately prior to trial,” because the publicity about

which Defendants complain occurred approximately four to seven

months ago. Compare Harris, 885 F.2d at 1362 (jurors not presumed

prejudiced because “the number of news reports regarding the . . .

case had dissipated considerably by the time of jury selection four

months later), with Daniels, 428 F.3d at 1211 (jurors presumed

prejudiced because the case “generated extensive and nearly

continuous publicity immediately after [the crime occurred] and

again before . . . trial”). Therefore, the time between the

publicity and trial “helps mitigate any bias the media coverage

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might have created.” Randolph, 380 F.3d at 1142; Patton v. Yount,

467 U.S. 1025, 1034 (1984) (“That time soothes and erases is a

perfectly natural phenomenon, familiar to all.”). 

Second, the publicity about which Defendants complain is

primarily factual information; furthermore, none of the publicity

demonstrates the creation of an atmosphere that undermines

Defendants’ right to a fair trial. Compare Harris, 885 F.2d at 1362

(jurors not presumed prejudiced because “[t]he vast majority of

media accounts [were] largely factual in nature”), and Ainsworth,

138 F.3d at 795 (jurors not presumed prejudiced because media

accounts were factual in nature and the defendant had failed to

identify editorials or other opinion pieces speculating about his

guilt), with Daniels, 428 F.3d at 1211 (jurors presumed prejudiced

because “[t]he press accounts did not merely relate factual details,

but included editorials and letters to the editor calling for [the

defendant’s] execution”).

Third, at this stage in the proceedings it is unknown

whether any of the publicized information will be inadmissable at

trial. Furthermore, even if some of the information is

inadmissible, Defendants have not demonstrated that disclosure of

the information “would make it impossible to seat an impartial

jury.” See Randolph, 380 F.3d at 1142 (jurors not presumed

prejudiced even though “some media coverage contained prejudicial

information that would not have been admissible at trial”);

Ainsworth, 138 F.3d at 795 (jurors not presumed prejudiced because

“[t]o the extent any of the information printed was prejudicial

. . . it was printed several months before trial”); Harris, 885 F.2d

at 1362 (jurors not presumed prejudiced even though prejudicial and

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inadmissible information had been published at the time the crime

occurred since the information had dissipated by the time of trial). 

In conclusion, Defendants have failed to show that the

potential jurors should be presumed prejudiced to serve as impartial

jurors. Therefore, Defendants’ motion to dismiss is denied. 

IT IS SO ORDERED. 

Dated: January 18, 2006

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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