[Pnews] Convicted of intending to commit a future 'terrorist crime' - New Bid To Overturn “Preemptive” Conviction

Prisoner News ppnews at freedomarchives.org
Wed May 14 13:20:35 EDT 2014

  Calif. Terror Suspect Launches New Bid To Overturn “Preemptive” Conviction

A man convicted of intending to commit a future terrorist crime has 
filed court papers arguing his trial lawyer.

*By Matthew Heller 
<http://www.mintpressnews.com/author/matthew-heller/>* | May 14, 2014 

LOS ANGELES — It’s been nearly seven years since Hamid Hayat, the 
American-born son of a Pakistani ice cream truck driver, was sentenced 
to 24 years in prison by a Sacramento, Calif., judge for intending to 
wage violent jihad.

Hayat, who allegedly attended a jihadi training camp in Pakistan, had 
been indicted under a law that makes it a federal crime to knowingly 
provide material support or resources in preparation for or in carrying 
out specified crimes of terrorism.

The statute — Title 18, U.S. Code, Section 2339A — has become a key 
legal weapon in the U.S. government’s anti-terrorism arsenal. It allows 
law enforcement to prosecute people on the theory that even though they 
have not actually committed a terrorist act, they had the mental intent 
to do so.

“Hamid Hayat had a jihadi heart and a jihadi mind,” a prosecutor told 
the jury that in April 2006 convicted him of violating Section 2339A.

The 9th U.S. Circuit Court of Appeals affirmed the jury’s verdict in 
March 2013, but one member of the three-judge appeals court panel, legal 
scholars and at least two national magazines have expressed doubts about 
the case and the “anticipatory” or “preemptive” prosecution law under 
which Hayat was charged.

“This case is a stark demonstration of the unsettling and untoward 
consequences of the government’s use of anticipatory prosecution as a 
weapon in the ‘war on terrorism,’” Judge A. Wallace Tashima wrote in his 
dissenting opinion in the case of U.S. v. Hayat 

He faulted the trial judge for “preventing Hayat from introducing 
exculpatory evidence” and “allowing inflammatory expert testimony that 
usurped the jury’s role as finder of fact.”

The key evidence against Hayat included a note written in Arabic that 
government agents found in his wallet. Khaleel Mohammed, a professor of 
religion at San Diego State University who testified for the 
prosecution, said it was an Islamic supplication that means, “Oh Allah, 
we place you at their throats and we seek refuge in you from their evils.”

Echoing Tashima’s concerns, Professor Robert M. Chesney of the 
University of Texas School of Law said in a law review article 
that the case “epitomizes the anticipatory prosecution strategy and the 
tension it generates between the benefits of [crime] prevention and the 
costs of potential false positives.”

The Section 2339A charge against Hayat “functioned as a sweeping form of 
individual inchoate crime liability,” he concluded.

Hayat, 31, is currently housed at a federal prison in Phoenix and, with 
his appeal having been denied, his prospects for exoneration appear 
slim. But Dennis Riordan, one of the top appellate lawyers in 
California, continues to work on his behalf.

“We’ve determined that he’s completely innocent of the charges,” Riordan 
told MintPress News in an interview.

In a new bid to overturn Hayat’s conviction, Riordan argues that Hayat’s 
trial lawyer, Wazhma A. Mojaddidi, made numerous errors that deprived 
Hayat of his constitutional right to effective representation. At the 
time she defended him, she had practiced law for less than two years 
and, according to Riordan, had no criminal law experience.

“An attorney who is 18 months out of law school couldn’t possibly 
litigate this case competently,” Riordan said.

    *Preemption strategy*

Section 2339A is one of two “material support” laws that Congress passed 
in the wake of the February 1993 attack on the World Trade Center.

While Section 2339B targets those who aid designated terror groups, 
2339A authorizes prosecutions of “unaffiliated” suspects. Both laws 
define “material support” broadly to mean financial services, training, 
expert advice, false identification, communications equipment, 
facilities, weapons, lethal substances, explosives, personnel and 

“These provisions can be used to impose punishment for conduct remote 
from the commission of criminal harms, often conduct involving minimal 
and outwardly non-criminal acts,” Professor Norman Abrams of the UCLA 
School of Law noted in a law review article 

The laws became particularly important after the 9/11 terror attacks, as 
the Department of Justice and the FBI adopted a strategy to preempt acts 
of terror before they occurred rather than simply investigate them after 
the fact.

“Prevention is the goal of all goals when it comes to terrorism because 
we simply cannot and will not wait for these particular crimes to occur 
before taking action,” then-Attorney General Alberto Gonzales said in 2006.

Those prosecuted under Section 2339A include attorney Lynne Stewart, who 
was convicted in 2005 of relaying messages to followers of an Egyptian 
cleric accused of plotting terror attacks, and Hafiz Khan, a south 
Florida imam convicted last year of funneling more than $50,000 to the 
Pakistani Taliban.

Hamid Hayat was working as a cherry packer in Lodi, Calif., when he and 
his father, Umer Hayat, were arrested in June 2005. He had recently 
returned from a two-year stay in Pakistan where, according to the U.S. 
government, he attended a terrorist training camp near Balakot.

The indictment alleged that the younger Hayat violated section 2339A by 
providing himself as “personnel” to further a future crime of terrorism. 
He admitted guilt during a lengthy interrogation by the FBI, but his 
lawyers say the confession was coerced.

The key trial witness against Hamid Hayat was Naseem Khan, an FBI 
informant who had taped more than 40 hours of conversations they had 
before Hayat went to Pakistan. At one point, Hayat expressed approval of 
the execution of journalist Daniel Pearl, saying, “That was a good job 
they did.”

Professor Mohammed, an expert in Islamic studies, also took the stand. 
Asked what kind of person would carry the supplication found in Hayat’s 
wallet, he replied, “A person who perceives him or herself as being 
engaged in war for God against an enemy.”

The jury deliberated for more than nine days before convicting the 
younger Hayat. The case against his father ended in a mistrial. The jury 
foreman, Joseph Cote, told Atlantic Monthly magazine that the 
supplication was “quite critical” evidence against Hamid Hayat and 
dismissed the testimony of a defense expert who said Pakistanis quite 
commonly carry such a writing, or “tawiz,” to ward off evil.

Hayat “returned to the U.S. ready and willing to wage violent jihad when 
directed to do so regardless of the havoc such acts could wreak,” U.S. 
District Judge Garland E. Burrell said at his sentencing in September 2007.

    *“Disastrous” mistake*

The Atlantic Monthly raised questions about “material support” terror 
prosecutions in an October 2006 article 
titled “Prophetic Justice,” and Rolling Stone followed suit in February 
2008 with “The Fear Factory 

“For law enforcement, fear and the politics of fear have entwined to 
create a radical new paradigm,” Rolling Stone’sGuy Lawson wrote.

Responding to that article in a news release 
a top FBI official cited Hamid Hayat’s case as one in which “defendants 
were found guilty, in spite of having some dedicated and talented 
defense lawyers articulate the same claims Mr. Lawson has swallowed.”

But in a petition for post-conviction relief that was filed last month, 
Dennis Riordan says Hayat was represented at trial by an attorney who 
“knew nothing about defending a client in a complex federal criminal 
proceeding. The lawyer who could overcome that handicap to provide 
adequate representation in this most difficult of federal prosecutions 
has not been born.”

Wazhma Mojaddidi speaks Urdu and Pashto, skills that, Riordan says, 
could have made her a valuable junior member of a defense team. But she 
could not defend Hayat by herself, according to the petition, and made 
the “disastrous” mistake of ceding “key decision-making power over 
strategic and tactical matters” to Johnny Griffin, the far more 
experienced lawyer representing Hayat’s father.

Riordan argues that Griffin wanted Umer Hayat’s case to go to trial as 
soon as possible and that Mojaddidi, hamstrung by her co-counsel’s 
strategy, failed to call alibi witnesses who would have testified that 
Hamid Hayat was never at a camp near Balakot or anywhere else in Pakistan.

“She was aware …. [that] Hamid had spent the entirety of those two years 
residing in his home village of Behboodi or staying at his relatives’ 
homes during his mother’s trips to Rawalpindi for medical care,” the 
petition states.

According to Riordan, Mojaddidi should also have been able to 
“eviscerate” Professor Mohammed’s testimony, if not prevent the witness 
from even taking the stand in the first place.

Expert witnesses, he told MintPress, are barred under the rules of 
evidence from testifying about a defendant’s state of mind and several 
Islamic scholars contacted by /Atlantic Monthly/ reporter Amy Waldman 
told her the “critical” supplication was a “common prayer” that asks for 
God’s protection from people who may do harm to the believer.

Mohammed’s testimony “should have been excluded or substantially 
limited, and any competent trial counsel would have objected,” says the 
petition, which asks Judge Burrell to either vacate Hayat’s conviction 
and the related sentence or conduct an evidentiary hearing.

Judge Tashima of the 9th Circuit was sympathetic to Hayat’s arguments, 
noting, among other things, that Mojaddidi failed to object to 
Mohammed’s “blanket conclusions regarding Hayat’s readiness to ‘engage 
in war.’”

Riordan sees another tough legal battle ahead. Hayat’s case, he told 
MintPress, was the Sacramento FBI’s “chance to get into the big time” 
and a reversal of his conviction would be a “big setback” for the 
government’s preemptive prosecution strategy.

“It may get ugly,” he added.

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