This should have been a fascinating case. It has support of terrorism, juror bias, FBI informants, and the government's strategy of using preemptive prosecution to catch terrorists before they terrorize. Do we punish people for possibly, maybe, thinking somewhat about someday terrorizing? Or, as with most crimes, do we wait for a conspiracy, attempt, or actual completion? It's constitutional rights versus national security, something we can all be intrigued by.
The dissent addressed this issue passionately, for 25 pages. The majority talked about grammar. Yay!
This is an 83-page opinion, so we'll give the super-abridged majority today, and return with the dissent later this week.
Hamid Hayat lived in Pakistan for much of his childhood. After a brief return to Lodi, California, he returned to Pakistan. While there, he may have provided support to a known terrorist organization and attended a training camp.
The government's case relied heavily on a confidential informant. The CI was caught money laundering and told the FBI that he saw Osama Bin Laden's second-in-command chillin' at the mosque in Lodi, along with a few others on the Most Wanted List. He was hired to surveil-and-snitch. It was the many conversations between this CI and the teenaged Hayat that led to his convictions.
The jury foreman was instructed not to talk to alternate jurors once they had been dismissed from the case. He also stated that all of "those people" look alike in costume. At another point, he "accidentally" heard a new report about the case and tried to share it with fellow jurors.
He also told Atlantic Monthly, post-trial, that it is "better to run the risk of convicting an innocent man than to let a guilty one go ... shall one man pay to save fifty? It's not a debatable question."
Though juror bias typically calls for an instant "do-over" for the trial, the Ninth Circuit felt that the comments about costumes were not inherently negative, and merely indicated that the traditional dress of Pakistani men can make it hard to distinguish between them.
As for the rest of that stuff, while it may have been naughty, it didn't amount to bias, even when combined with the costume remarks.
Crossing the Snitch
Remember that training camp? What if it was a non-jihadist Islamic missionary camp, which from its description, sounds akin to Bible study and Mormon missionaries?
Hayat's attorney tried, on multiple occasions, to get this information in during cross-examination. It was kept out as hearsay.
The Ninth's take? Even if it was admissible, the CI already mentioned the camp in passing during direct examination.
The other questionable ruling kept out Hayat's statement that "he never intended on going to a camp." His side argued for a state-of-mind exception. The court pointed out the grammatical incongruity of "I never intended to" versus "I don't intend to" (the former is open-ended and doesn't reflect strongly on present intent).
Short version? Despite the jerk juror, Hayat's conviction was upheld. Wednesday, we'll look at the dissent and public policy arguments.
- United States v. Hayat (Ninth Circuit Court of Appeals)
- Circuit Creates Electronics Exception to Border Search Exception (FindLaw's Ninth Circuit Blog)
- Ninth Circuit: District Court Can Hear No Fly List Challenge (FindLaw's Ninth Circuit Blog)