Judge orders that two Pakistanis get visas to testify for man convicted on terrorism charges

SACRAMENTO — A federal judge has ordered that two men from Pakistan be given visas to testify as alibi witnesses in an ineffective counsel case brought by a Lodi man convicted of providing material support to terrorists.

Hamid Hayat was charged with being part of an alleged terrorist sleeper cell and sentenced to 24 years in prison in 2006. The government’s case was based partly on the testimony of a paid FBI informant and a confession by Hayat that defense attorneys argue occurred under duress. U.S. v. Hayat, 2013 DJDAR 3192.

The order by U.S. Magistrate Judge Deborah L. Barnes, published earlier this week, “requests the government take all reasonable measures” to allow the two men to testify at evidentiary hearings scheduled between Oct. 23 and Nov. 9.

The witnesses are Muhammad Anas and a man who goes by the name Rifaqat. Their testimony can be used to back up claims “that counsel failed to investigate and procure Pakistani alibi witnesses,” Barnes wrote in her order.

The two men have given statements that contradict government claims that Hayat was at a terrorist training camp for almost two years between 2003 and 2005. Anas said Hayat spent much of that period in Rawalpindi, Pakistan, the defense contends. Rifaqat is expected to testify that he saw Hayat repeatedly in another Pakistani town when he wasn’t in Rawalpindi.

The order is the latest in a string of recent victories by Hayat’s attorneys.

If Barnes rules that Hayat received ineffective counsel, she will recommend to U.S. District Court Garland E. Burrell Jr. that he order a new trial.

Federal prosecutors have fought repeatedly to keep witnesses and evidence out of the trial, said one of Hayat’s attorneys, Dennis P. Riordan, an appellate specialist with Riordan & Horgan in San Francisco.

“What’s becoming obvious from their attempts to prevent a hearing in any form from occurring ... is that the government is doing everything possible to prevent the truth coming out about what happened at [the] Hamid Hayat trials,” Riordan said.

A spokesperson with the U.S. attorney’s office for the Eastern District declined to comment on the matter because litigation is pending.

In 2005, Hayat, then 22, was questioned and then arrested by the FBI after returning from Pakistan. At trial, government attorneys cited statements Hayat had made sympathetic to Islamic terrorists and praising the murder of journalist Daniel Pearl. The main witness against Hayat was an informant who had been paid more than $200,000 by the FBI, the defense has argued.

Hayat’s conviction was upheld by the 9th U.S. Circuit Court of Appeals in 2013. In her majority opinion, Judge Marsha S. Berzon rejected numerous issues raised on appeal, some on technical grounds. Berzon also said the case was not prejudiced by an allegedly anti-Muslim juror.

Senior Judge A. Wallace Tashima dissented, claiming the government engaged in “anticipatory prosecution” based on vague and “inflammatory” evidence.

Stanford Law School professors Shirin Sinnar and Robert Weisberg criticized Hayat’s conviction in a 2014 op-ed published in the San Jose Mercury News.

“A new habeas petition makes a compelling case that Hayat was convicted because an overzealous prosecution sought a conviction at all costs, and an inexperienced defense lawyer failed to marshal the evidence to acquit him,” they wrote.

Reached this week, both Sinnar and Weisberg called Barnes’ most recent order a “significant” win for Hayat’s attorneys.

“The judge’s decision to grant an evidentiary hearing on the habeas claim was itself a milestone,” Sinnar said.

Hayat’s defense attorney, Wazhma A. Mojaddidi of Mojaddidi Law APC in Sacramento, had been a lawyer for just over two years at the time of the trial. According to briefs filed by Hayat’s team, her inexperience was a crucial factor in the conviction.

By contrast, Hayat’s current legal team is led by renowned appellate litigators. Riordan & Horgan is known for its work in numerous high-profile cases. Rirodan has won cases that overturned murder convictions of former Black Panther John Spain and “Billionaire Boys Club” defendant Arben Dosti.

In August, Barnes signed an order allowing Martha Boersch to join Hayat’s legal team. The partner with Boersch Shapiro LLP in Oakland is a former federal prosecutor who has worked several cases with Riordan & Horgan.