In Lodi Terror Case, Intent Was the Clincher
The government had no direct evidence. The confession was vague and even contradictory. And the statements about attacking American targets came only after heavy prompting from FBI interrogators.
But what the three federal prosecutors could -- and did -- show convincingly was that 23-year-old Hamid Hayat of Lodi, Calif., espoused strong anti-American sentiments, supported militant Muslim political parties in Pakistan and had a romantic attachment to the idea of jihad.
In his closing comments to the jury, Assistant U.S. Atty. Robert Tice-Raskin summed it up: “Hamid Hayat had a jihadi heart and a jihadi mind.”
That was the clincher for the jury, which last week found him guilty of one count of providing material support to terrorists and three counts of lying to federal agents. He now faces up to 39 years in prison.
The proof of Hayat’s views were a teenage scrapbook, a slip of paper inscribed with a warrior’s prayer in Arabic, books about jihadi martyrs, and Hayat’s own boastful comments secretly recorded by a man he thought was his best friend but who turned out to be a paid FBI informant.
After they established Hayat’s mind-set, the prosecutors were able to overcome key obstacles: the flawed confession and nagging credibility issues with the informant. The informant’s unsubstantiated claim that he had seen Osama bin Laden’s top deputy in Lodi was used repeatedly to undermine him during the nine-week trial.
In interviews, several jurors said Hayat’s confession and evidence of what jury foreman Joe Cote, a 64-year-old retired salesman from Folsom, Calif., called “un-Americanism” convinced them that he posed a danger.
Cote said the Arabic prayer Hayat carried in his wallet, translated by a government expert as “Oh Allah, we place you at their throats, and we seek refuge in you from their evil,” was especially influential with jurors.
“It carried a lot of weight,” Cote said. “A supplication is only carried in the country of the enemy. He would never carry it in Pakistan. Even though he’s an American citizen, his love and his home are in Pakistan.”
Juror Starr Scaccia, 53, of the Sacramento suburb of Roseville, said she was swayed by the scrapbook that Hayat kept with articles about Pakistani extremist parties that supported the Taliban and Bin Laden.
“It showed where his alliances were. It showed where his heart was,” Scaccia said, echoing the “jihadi heart” refrain.
Not all of the jurors were as convinced. Arcelia Lopez, a 44-year-old school nurse, held out until the end for acquittal on providing material support.
In an affidavit filed late Thursday, Lopez said she was bullied into going along with other jurors, particularly by Cote, who she claimed had a hangman’s mentality. “I deeply regret my decision,” Lopez said.
A juror’s change of mind, sometimes described as “buyer’s remorse,” is not usually enough to overturn a conviction. But defense attorney Wazhma Mojaddidi said that Lopez faced undue pressure and that Hayat deserves a new trial.
During the trial, no evidence was introduced suggesting that Hayat was poised to commit a terrorist act. The facts seemed to point in the opposite direction.
His father, mother, younger brother and a sister were all back in the United States after a two-year sojourn in Pakistan. Hayat had recently married and talked hopefully about bringing his new bride to Lodi, the Central Valley town where he had found a job in a cherry-packing plant.
Asked during his interrogation how he would receive orders to attack, Hayat, a junior high school dropout whose understanding of English is limited, answered hesitatingly: “Maybe, uh, send a letter or anything like that, maybe.”
But McGregor Scott, U.S. attorney for the Eastern District of California, said in an interview Friday that the case against Hayat was short on the standard elements of proof because the crime had not yet happened.
“In the post-9/11 context,” Scott said, “law enforcement has been given a mission by the president and the attorney general to prevent deadly acts before they occur. That is the new paradigm for law enforcement.”
To some, that paradigm is evocative of the plot in the Steven Spielberg-Tom Cruise movie “Minority Report,” based on the Philip K. Dick short story, in which thought police are deployed to arrest potential criminals before they commit crimes.
But Scott cautioned against the analogy. “We are not prosecuting Hamid Hayat for what he said or what he thought,” Scott said. “We prosecuted him for the overt physical act of attending a training camp and returning to commit jihad. The difference is that you have a crime, but you don’t have a deadly crime.”
The significance of the notebook and the prayer Hayat carried in his wallet, Scott said, was “to show his mind-set, his beliefs and therein, his intent.”
The jury bought Scott’s theory. “He very easily would have done harm to somebody if he had continued down that path,” Scaccia said.
The arrests of Hayat; his father, Lodi ice-cream truck driver Umer Hayat; and Lodi’s two Pakistani imams last June were the first fruit of a terrorism deterrence program that began several years ago after a U.S.-led invasion destroyed Al Qaeda training camps in Afghanistan.
Law enforcement and intelligence officials in Washington said terrorist training then shifted to three banned militant Pakistani political groups: Hakat-ul-Mujahedin, Jaish-e-Mohammed and Lashkar-e-Taiba. The three had close ties to the Taliban in Afghanistan and, with tacit approval of the Pakistani government, conducted terrorist activities against India in disputed Kashmir.
The government knew that among those attending madrasas -- religious schools -- affiliated with the banned groups were Pakistani Americans such as Hayat, whose parents sent them to their homeland for religious education. After Sept. 11, 2001, the U.S. government launched a program to identify and investigate these Americans.
Hamid Hayat, who was born in Stockton but spent half his life in Pakistan, was the first to be arrested. Earlier this month, a Pakistani American and a Bangladeshi were arrested in Atlanta and charged with the same crime: providing material support for terrorism by attending a training camp in Pakistan.
One of the banned groups featured in the Hayat case -- Jaish-e-Mohammed -- was headed by firebrand author Masood Azhar, whose popular books “Virtues of Jihad” and “Windows from the Prison” were found among Hayat’s possessions.
A government expert testified that a Jaish-e-Mohammed training camp was located near Balakot, a city about five hours north of Islamabad, Pakistan’s capital. The camp operated at the time Hayat said he trained in the area for three to six months in 2003 and 2004.
To prove that Hayat provided material support for terrorists, the government had to show that he attended a terrorist training camp, received weapons or physical training that could be used for terrorism, and returned with the intent to commit violence against his fellow citizens.
The government did its most thorough job on the first of the three tests.
During his long interrogation at the FBI office in Sacramento, Hayat, fatigued and wrapped in a blanket, gave six different locations for the training camp he attended. Besides Balakot, they included two sites in Afghanistan; one in Kashmir; one near his family home in Behboodi, Pakistan; and another near Islamabad.
In a separate interrogation, his father, Umer Hayat, named a camp in Rawalpindi, home of the Pakistani military command, as the one his son attended. Umer Hayat said the driver of his father-in-law, a politician who runs a large madrasa in Rawalpindi, chauffeured him to that camp.
In some of the most bizarre testimony of the trial, the father said the training, including firearms practice, took place in an enormous, deep basement where trainees masked like “Ninja turtles” practiced pole-vaults and executions with scimitars.
But because the father and son had separate juries, none of this was heard by Hamid Hayat’s jurors. As a result, the government was able to try the two men using different locations for the alleged terrorist camp. Umer Hayat’s case, in which he was charged with lying to federal agents, ended in a mistrial.
In its original affidavit, the government listed the camp attended by Hamid Hayat as the one near Rawalpindi. But the camp about which Hamid Hayat gave the most information during his interrogation was the one near Balakot. It is also the one that best fit the government’s theory.
It all came together for the prosecution during the testimony of Pentagon satellite image expert Eric Benn. In a skillful presentation, prosecutor David Deitch led Benn through questioning that included maps, satellite photographs and -- on a screen that dropped down in the half-darkened courtroom -- outtakes from the FBI videotape in which Hayat recalled how he got to the Balakot camp.
To the jurors, Deitch had presented a convincing case that Hayat had actually been to a facility of some kind near Balakot. Benn testified that based on satellite images and Hayat’s description, he was 60% to 70% sure it was a “militant training” camp. This seriously undercut Hayat’s main defense that he had never attended a training camp and that the comments he made during interrogation were lies intended to tell the agents what they wanted to hear.
In the hours of secretly recorded conversations with informant Naseem Khan, who was paid $230,000 to spy on Lodi Muslims, Hayat always sounded reluctant and wary when training was brought up. Khan called him a coward. Even his father described him as extremely lazy.
As for what type exactly the Balakot camp was, what Hayat did there and what he was supposed to do in the way of jihad after his return, the government case was not nearly as strong.
But the defense, locked into the position that Hayat didn’t go at all, did not attack the government case where it appeared most vulnerable.
To describe the camp, the government introduced a former Pakistani police chief, Hassan Abbas, who said he had heard of a camp near Balakot that was affiliated with Jaish-e-Mohammed and Azhar, the jihadi author whose books were found in Hayat’s garage apartment.
A defense expert on Pakistan, University of Oregon professor Anita Weiss, testified that there were many religious camps in Pakistan that had nothing to do with terrorism but were more like Baptist summer camps in the United States.
Jurors believed Abbas.
The government did not probe much into the training Hayat received for his mission.
Hayat, who appears painfully frail, said he fired a pistol three times but that he found it very heavy and never learned to reload it. He also said he fired a big shotgun once, but the recoil was so powerful that instructors told him not to do it again.
“And, you know, I was thanking God for that. I don’t want to do that again,” he said.
Hayat said he spent most of his time washing vegetables. He mentioned onions.
As for his mission, Hayat was vague about what he would be asked to do. He said he wasn’t sure who would give him the orders, but it might be one of two Lodi imams.
Asked about targets, Hayat appeared clueless:
“You mean like buildings?”
“Yeah, buildings,” the FBI agent said.
“Where?” Hayat asked.
“Sacramento or San Francisco?” the agent asked.
“I’ll say Los Angeles and San Francisco,” Hayat responded.
“Financial, commercial?” the agent asked.
“I’ll say finance and things like that,” Hayat said.
“Hospitals?” the agent suggested.
“Maybe, I’m sure. Stores,” Hayat said.
“What kind of stores?” the agent asked.
It was this exchange that the government cited when it announced the arrests of the Hayats last June.
“Hamid advised that he specifically requested to come to the United States to carry out his jihadi mission,” the affidavit said. “Potential targets for attack would include hospitals and large food stores.”
The affidavit was later withdrawn.
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Lodi terror case chronology
Oct. 17, 2001: FBI contacts Pakistani immigrant Naseem Khan, a convenience store clerk in Bend, Ore. Khan says he saw Al Qaeda’s No. 2, Ayman Zawahiri, at the Lodi mosque in 1998 and 1999.
Oct. 26, 2001: Khan tells FBI agents that two terrorists wanted in connection with two U.S. embassy bombings frequented the Lodi mosque in 1999.
Nov. 16, 2001: Code-named “Wildcat,” Khan is hired by the FBI to infiltrate Lodi’s Muslim community. Over three years he is paid $230,000.
August 2002: Posing as a computer expert, Khan meets Hamid Hayat.
March 6, 2003: Khan secretly tapes the first of four conversations with Hayat in Lodi.
April 19, 2003: Hayat family departs for Pakistan; Hamid Hayat stays for two years.
June 17, 2003: Khan talks by telephone with Hayat, who is at his family home in Behboodi, Pakistan, and secretly tapes the first of three phone conversations.
November 2003: Hayat allegedly attends a terrorist training camp in Balakot in Pakistan’s Northwest Frontier Province.
May 30, 2005: Hayat, his mother and sister return from Pakistan. The plane is diverted to Tokyo because Hayat is on the “no fly” list. Hayat is interviewed by an FBI agent and denies attending a terrorist training camp.
June 4-5, 2005: Hamid and his father, Umer, are interrogated by FBI agents. Hamid Hayat confesses to attending a camp. Shown the videotape of his son’s confession, Umer Hayat says he knew his son attended.
June 5, 2005: Umer Hayat agrees to secretly record conversations with two Lodi imams, Mohammed Adil Khan and Shabbir Ahmed.
June 6, 2005: The imams, the FBI’s main targets, are interrogated and taken into custody for alleged visa violations. Both eventually return to Pakistan without facing criminal charges.
June 16, 2005: A federal grand jury indicts Hamid and Umer Hayat on charges of making false statements to federal investigators. The Sacramento FBI chief says Al Qaeda is active in Lodi, “including individuals who have received terrorist training abroad with the specific intent to initiate a terrorist attack in the United States.”
Aug. 10, 2005: During an immigration hearing for Ahmed, an FBI agent testifies that a proposed Muslim school in Lodi was intended as a way to find students who would “maybe eventually be ready to commit acts of violence in the U.S.”
Sept. 22, 2005: Hamid Hayat is indicted on a charge of providing material support for terrorism by allegedly attending a training camp.
Feb. 2, 2006: In an annual threat assessment, U.S. intelligence director John D. Negroponte cites the Lodi case as a “home-grown jihadist cell.”
Feb. 16, 2006: Assistant U.S. Atty. Laura Ferris tells the jury in her opening argument that Hamid Hayat is “awaiting orders” to commit terrorism. Defense attorney Wazhma Mojaddidi says Hayat’s confession “was nothing more than the words the FBI wanted to hear.”
March 28, 2006: Prosecutors rest their case with satellite images of a compound that closely resembles a camp described by Hamid Hayat.
April 12, 2006: In closing arguments, Assistant U.S. Atty. Robert Tice-Raskin says Hamid Hayat had “a jihadi heart and a jihadi mind.” Defense attorney Mojaddidi retorts that “reading about jihad doesn’t make you a jihadi; just as reading a murder mystery doesn’t make you a murderer.”
April 25, 2006: A jury convicts Hamid Hayat on all counts. A separate jury deadlocks on Umer Hayat’s case, and the judge declares a mistrial.