Hayat

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 07-10457 Plaintiff-Appellee, D.C. No. v. CR-05-00240-

GEB

HAMID HAYAT ,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, District Judge, Presiding

Argued and Submitted June 10, 2009—San Francisco, California

Filed March 13, 2013

Before: Mary M. Schroeder, A. Wallace Tashima, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon; Dissent by Judge Tashima UNITED STATES V . HAYAT

SUMMARY*

Criminal Law

The panel affirmed convictions for providing material support to terrorists, in violation of 18 U.S.C. § 2339A, by attending a terrorist training camp in Pakistan and returning to this country to await orders to carry out a terrorist attack, and of making false statements to government officials, in violation of 18 U.S.C. § 1001.

The panel held that the district court did not clearly err in determining that the jury’s foreperson was not motivated by an impermissible racial, ethnic, or religious bias.

The panel held…

Opinion by Judge BERZON; Dissent by Judge TASHIMA.

*880 OPINION

Hamid Hayat, born in California in September 1983 and raised largely in Pakistan, was convicted of providing material support to terrorists, in violation of 18 U.S.C. § 2339A, and of making false statements to government officials, in violation of 18 U.S.C. § 1001 . The terrorism statute criminalizes providing “material support or resources” to terrorists. The prosecution’s case was that Hayat violated the statute by providing his services to terrorists when he attended a terrorist training camp in Pakistan and returned to this country to await orders to carry out a terrorist attack. The jury found him guilty of that conduct. No party has questioned the applicability of the statute to such conduct.

Hayat appeals on three bases: First, he maintains that he was denied a fair trial because the jury’s foreperson was biased against him. Second, he asserts that the district court imposed an unconstitutional limitation on his cross-examination of the government’s key witness. Third, he contends that the district court erred in admitting expert testimony offered by the government and excluding expert testimony offered by…

dissenting:

To paraphrase a famous line, in this case, the government has concluded that it is not for it to say what offense Hamid Hayat has committed, but it is satisfied that he committed some offense, for which he should be punished. 1 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.” E.g., Robert M. Chesney, Beyond Conspiracy? Anticipatory Prosecution and the Challenge of Unaffiliated Terrorism, 80 S. Cal.L.Rev. 425, 491 (2007) (describing the 18 U.S.C. § 2339A charge against Hayat “as a sweeping form of individual inchoate crime liability”). In an anticipatory prosecution, the government “proceed[s] on an inchoate crime theory based on the harmful conduct that the government anticipates the person might commit.” Id. at 447. The goal is to catch and punish suspects for crimes, such as the material support statute at issue here, to prevent as yet unplanned acts of terrorism the government asserts the suspect would have tried to commit had he not been prevented.

Hayat does not directly challenge this strategy of anticipatory prosecution; its propriety,…