SACRAMENTO — Federal prosecutors announced Friday that they will retry a Lodi man whose first trial on charges that he lied to FBI agents during a terrorism investigation ended in a mistrial last month after half the jury voted for acquittal on one of the counts.
U.S. District Judge Garland E. Burrell Jr. set June 5 as the new trial date for Pakistani American Umer Hayat, 48, on two counts that he made false statements about his son's training at a terrorist camp in Pakistan in 2003-04 and about his own knowledge of such camps.
"In the post-9/11 environment in which we live," said U.S. Atty. McGregor Scott, "lying to the FBI in the course of a terrorism investigation is serious misconduct. False information may result in agents losing valuable time to foil a deadly plot, or perhaps bringing the wrong person or persons under suspicion."
After deliberating for more than a week, jurors in the first trial reported April 25 that they were hopelessly deadlocked. According to prosecutors, the jurors split 7 to 5 in favor of conviction on one count and 6 to 6 on the other.
In a long videotaped FBI interrogation that was the government's main evidence in the case, Umer Hayat, an ice-cream truck driver in Lodi, admitted knowledge of his son's participation in training and volunteered that he had seen several camps himself during a visit to Pakistan.
But the gray-haired father of four also agreed to wear a recording device to help the FBI investigate two Lodi religious leaders who were the main targets of the terrorism inquiry that began in late 2001. The two Pakistani imams were never charged and were allowed to leave the country after being cited for immigration violations.
Defense attorney Johnny L. Griffin called the government decision to retry his client unwise and predicted that it will hinder FBI attempts to get cooperation in Muslim communities like that in Lodi, the Central Valley farming city that is home to about 2,500 Pakistani Americans.
"Continuing to pursue Umer Hayat on the charge of lying will have a chilling effect on people in the community coming forward and talking to the FBI," Griffin said. "Umer Hayat did not have to go to the FBI. He voluntarily went to the FBI to talk with them and then found he was being accused of being a terrorist. When they couldn't prove that, they accused him of being a liar."
On the same day that Umer Hayat's case ended in mistrial, another jury convicted his son Hamid Hayat, 23, on one charge that he provided material support for terrorists and on three charges of lying to the FBI.
Defense attorney Wazhma Mojaddidi challenged that conviction after one juror charged that other jurors bullied her into joining the unanimous guilty verdict.
Juror Arcelia Lopez, a Sacramento school nurse, accused the jury foreman Joe Cote of Folsom of making racial slurs about the Pakistani American defendant. In an interview, Cote stated that the jurors were fair and painstakingly careful in reaching their verdict.
In an affidavit obtained by the defense, Lopez said that four days before unanimous conviction, she "was the only person who felt that Hamid Hayat was not guilty based on the evidence."
On the same day, Cote sent a note to Burrell stating, "There is impasse with a juror who does not seem to fully comprehend the deliberation process. I'm available to discuss this with you and counsel at any time."
Burrell ordered the note sealed and instructed the jury to continue deliberations.
Mojaddidi's push for a new trial based on juror misconduct was aided this week when Burrell revealed that an alternate juror said she had been contacted by Cote on April 20 and asked a question about Lopez.
The alternate juror, Marta Watanabe of Granite Bay, left the message on the voice mail of a courtroom deputy. Watanabe sat with the regular jurors through all nine weeks of testimony but was released when deliberations began. Jurors are instructed not to discuss the case with anyone outside the deliberations room, including alternate jurors.
New trials granted on the basis of juror misconduct are rare, even in cases in which one or more jurors claims undue pressure. Scott vowed to vigorously fight the move for a new trial. No date has yet been set to hear the motion for a new trial.
Hamid Hayat faces 39 years in prison for his crimes, 15 years for the material support count and eight years for each of the false statement counts.
From the beginning of the case, however, Mojaddidi has argued that the three false statement charges are essentially identical denials that Hamid Hayat attended a terrorist training camp and returned to the United States intent on committing violent jihad.
On Friday, Mojaddidi urged Burrell to dismiss two of the lying counts on legal grounds of multiplicity. "This is really a case of the government piling on convictions of Hamid Hayat that should be dismissed," she said.
Federal prosecutors Robert Tice-Raskin and Laura L. Ferris said Hayat lied three times: about going to the camp, about what he did at the camp and about what he intended to do when he returned. Each lie, they contended, required a separate set of proofs.
In agreeing to hear the multiplicity argument, however, Burrell said he found the line between the three charges blurred, suggesting that he is weighing whether to drop one or more. Dropping two counts would reduce Hayat's potential sentence by 16 years. Anticipating this possibility, Ferris argued that at most only one of the counts should be dropped.
After hearing arguments from both sides, Burrell took the issue under advisement and said he would rule on it later.
Hamid Hayat's sentencing date is July 14.