United States v. 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
2 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 that any error in preventing a witness from
answering on cross-examination questions about whether the
defendant ever told the witness that the defendant attended a
camp run by a non-Jihadist religious organization could not
have been prejudicial, as the information was already in the
record.

Construing Fed. R. Crim. P. 51 and 52(b) and Fed. R.
Evid. 103, the panel explained that when a party gives an
invalid reason for admitting a statement at trial, the district
court is not required to come up on its own with alternative
grounds on which the statement could be admitted, unless
failing to do so would constitute plain error. The panel
therefore reviewed for plain error whether the district court’s
exclusion of the defendant’s out-of-court statement that he

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V . HAYAT 3

never intended to go to a camp was error for reasons raised
for the first time on appeal. The panel held that the district
court did not plainly err by failing to admit the excluded
statement as a declaration of current state of mind under Fed.
R. Evid. 803(3), or under the rule of completeness, Fed. R.
Evid. 106.

The panel held that the district court did not err in
precluding discovery of information about the witness, a
confidential informant, under the Classified Information
Procedures Act, or in limiting the defendant’s cross-
examination of the witness concerning the information.

The panel held that the district court did not err in
admitting under Fed. R. Evid. 702 an Islamic studies expert’s
testimony about the meaning and implications of an Arabic
note found in the defendant’s wallet upon his return from
Pakistan. The panel held that given precedents limiting Fed.
R. Evid. 704(b) essentially to a semantic preclusion, any error
under Rule 704(b) in the admission of the same testimony
was not plain, where the expert testified about the kind of
person who would carry such a note but never commented
directly on the defendant’s mental state.

The panel held that the district court did not abuse its
discretion in excluding, for lack of qualification, a defense
expert’s testimony as to whether the particular note found in
the defendant’s wallet was a ta’wiz, which the expert defined
as an Arabic verse or prayer used by Pakistanis as a talisman,
for luck or protection, when traveling.

The panel held that the district court did not abuse its
discretion in excluding – as of “marginal probative value,”
confusing, and cumulative – the testimony of a defense expert
4 UNITED STATES V . HAYAT

former FBI agent that, among other things, interviewing
agents used leading questions during interviews of the
defendant.

The panel dismissed for lack of jurisdiction the
defendant’s appeal from the district court’s order dismissing
without prejudice the defendant’s motion to vacate his
convictions under 28 U.S.C. § 2255.

Dissenting, Judge Tashima would reverse the conviction
and remand for a new trial because the judicial branch’s
constitutional duty to do justice in criminal prosecutions was
not fulfilled in this case in which the government asked a jury
to deprive a man of his liberty largely based on dire, but
vague, predictions that the defendant might commit
unspecified crimes in the future.

COUNSEL

Dennis P. Riordan and Donald M. Horgan, San Francisco,
California, for Defendant-Appellant.

S. Robert Tice-Raskin and Laura L. Ferris, Assistant U.S.
Attorneys, Sacramento, California; and Sharon Lever, Deputy
Chief, Counterterrorism Section, U.S. Department of Justice,
Washington, D.C., for Plaintiff-Appellee.
 UNITED STATES V . HAYAT 5

OPINION

BERZON, Circuit Judge:

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 the defense. Additionally, Hayat asks
us to review the district court’s dismissal without prejudice of
his motion to vacate his convictions under 28 U.S.C. § 2255.

We affirm the judgment of the district court. We dismiss
for lack of jurisdiction the appeal of the dismissal of the
§ 2255 motion. The district court correctly dismissed the
motion without prejudice to the filing of a § 2255 petition
when this appeal is final.
6 UNITED STATES V . HAYAT

I.

Hamid Hayat is a U.S. citizen of Pakistani descent. He
lived in the United States until he was seven and then,
between the ages of seven and eighteen, with his grandparents
in Pakistan. Hayat returned to the United States in 2000 to
live with his parents in Lodi, California. Three years later, in
April 2003, he traveled to Pakistan with his family. He spent
just over two years in Pakistan on this second stay, returning
to the United States in late May 2005. Days after his return,
Hayat was arrested by FBI agents and charged with providing
material support to terrorists and making false statements to
government officials. The events giving rise to Hayat’s arrest
are as follows:

In October 2001, FBI agents in Oregon interviewed
Naseem Khan, a 28-year-old Pakistani immigrant, in
connection with a money laundering investigation. Khan
informed the agents that he had regularly observed Ayman al
Zawahiri, Osama bin Laden’s second-in-command and one of
the FBI’s 22 most-wanted terrorists, at a mosque in Lodi,
California, in 1999. Khan later told the agents that he had
also seen two other individuals on the FBI’s 22 most-wanted
list in Lodi during the same period.1

The FBI then hired Khan as a confidential informant and
asked him to return to Lodi to gather additional information
on a suspected terrorist cell. Khan agreed. He began his work

1
At Hayat’s trial, government witnesses conceded that it was highly
unlikely that the individuals identified by Khan had been in Lodi in the
late 1990s.
 UNITED STATES V . HAYAT 7

as an informant in Lodi in December 2001.2 Approximately
eight months later, in August 2002, Khan met Hayat, who
was nineteen years old at the time and living in his parents’
garage. As explained in greater detail below, recorded
conversations between Khan and Hayat indicated that Hayat’s
father was linked to a terrorist organization in Pakistan and
that Hayat’s uncle and grandfather were recruiters for
“jihad.”3

Between August 2002 and October 2003 Khan and Hayat
spoke regularly. Khan recorded seven of these conversations,
took notes on others, and reported to the FBI soon after every
conversation with Hayat, summarizing for the agents those
conversations that were not recorded. The recorded
conversations were introduced at trial, as was testimony by
Khan regarding unrecorded conversations. Because Khan
and Hayat frequently spoke to each other in Pashto and Urdu,
the jurors were provided with English translations of the
pertinent parts of the recorded conversations.

In the recorded conversations, Hayat made several anti-
American and anti-Semitic remarks. At one point, for

2
The FBI paid Khan between $3,000 and $4,500 per month plus
expenses.

3
Hayat’s father, Umer Hayat, was indicted on two counts of making
false statements to the FBI— namely denying that he had firsthand
knowledge of terrorist training camps in Pakistan and denying that he
knew that Hamid had attended a camp— in violation of 18 U.S.C. § 1001.
After a jury failed to reach a verdict on those counts, Umer Hayat pled
guilty to making a single false statement to the FBI and U.S. Customs and
Border Protection— falsely denying that he was carrying more than
$10,000 while on a flight from the United States to Pakistan. Umer Hayat
was sentenced to time served, approximately 11 months.
8 UNITED STATES V . HAYAT

example, he expressed pleasure over the murder of Wall
Street Journal reporter Daniel Pearl because his death meant
that “[n]ow they can’t send one Jewish person to Pakistan.”
In addition, Hayat at times spoke approvingly of Islamic
fundamentalist groups such as Jaish-e-Mohammed and
indicated his respect for their leaders. He also professed to
know and to admire Pakistanis who had engaged in “jihad.”
Some of these people Hayat knew because they had studied
in a madrassah, or religious school, in Pakistan run by his
grandfather, which Hayat had also attended. Hayat told Khan
that his grandfather was a prominent cleric and that after
9/11, Pakistani President Musharraf had sent him and others
to Afghanistan to persuade the Taliban to hand over Osama
bin Laden. Hayat also described to Khan a terrorist training
camp in Pakistan — he said he had seen a video of it — and,
on a few occasions, expressed interest in attending such a
camp.

Five of the recorded conversations took place while Hayat
and Khan were both in Lodi. At one point, when the two
were discussing travel to Pakistan and a possible meeting
with Hayat’s uncle, Hayat said “I have one objective now. If
I went to Pakistan, now, see, straight away, I’ll stay at home
for one or two weeks, then I’m going for training, friend.”
(Underlined portion spoken in English).

Hayat traveled with his family to Pakistan in April 2003.
Two of the recorded conversations took place when he was
there. Like the earlier conversations, they covered a wide
range of topics. On one occasion, Khan scolded Hayat for
being lazy and not going to a training camp. In response,
Hayat protested that the camp was closed during hot weather
and that had the camp been open, he “would have been
there.” On another occasion, Khan relayed to Hayat a
 UNITED STATES V . HAYAT 9

conversation in which Hayat’s father explained that “[Hayat
wi]ll enter the Madrassah, and, God Willing, he [will] go for
training!” Hayat responded to Khan: “Um-hmm. . . . No
problem, absolutely.” (Underlined portion spoken in
English).

In another of the recorded conversations, Hayat explained
to Khan how to send money to Sipah-e-Sahaba (“SSP”), a
Pakistani organization that Pakistan declared a terrorist
organization in 2002. During a conversation with Khan,
Hayat expressed admiration for members of SSP who die as
“martyrs.” Hayat boasted that he gave more money to SSP
than any other member of his Pakistani madrassah, and stated
that he gave money to SSP because his money was more
likely to be used to acquire “weapons, books and everything”
than if he gave to other groups, which wasted money.
(Underlined portion spoken in English). Hayat also reported
that when someone told him that he could go to jail for giving
SSP money, he replied, “Fuck you. Who cares, man, who
goes to jail, man? . . . . Fuck, look what’s America doing
. . . .” (Underlined portion spoken in English).

Hayat made several statements to Khan indicating
Hayat’s knowledge of his family’s involvement in terrorist
activities. For example, Hayat explained that his father in
Lodi had sent money to SSP. Hayat also told Khan that his
grandfather, who was the leader of the madrassah Hayat
attended in Pakistan, had called a special meeting in 1999
where he recommended that his students leave the madrassah
to go participate in jihad. In addition, Hayat explained that if
someone were interested in attending a training camp, that
person could contact Hayat’s maternal uncle, who would
either accompany that person “to the Jehad people’s office,”
10 UNITED STATES V . HAYAT

or make a phone call to that office on the interested person’s
behalf.

Hayat’s direct interactions with American law
enforcement began when he attempted to reenter the United
States in May 2005. On May 30, 2005, Hayat’s return flight
to San Francisco was diverted to Japan because Hayat’s name
appeared on the federal government’s “No Fly” list.4 Hayat
was interviewed in Japan by FBI agent Lawrence Futa. Futa
questioned Hayat about his two-year stay in Pakistan,
including whether Hayat had joined a terrorist organization or
attended a terrorist training camp. Hayat denied joining a
terrorist group or attending a training camp while in Pakistan.
Futa concluded that Hayat “posed [no] immediate threat” and
could be permitted to return to the United States. Hayat left
Japan and flew to San Francisco that same evening.

Four days later, on June 3, 2005, FBI agents Tenoch
Aguilar and Sean Wells interviewed Hayat at his parents’
home in Lodi. After again explaining the reason for his
family’s trip to Pakistan—because of his mother’s
health—and his activities while in Pakistan, Hayat again
denied having attended a terrorist training camp and stated
that “he would never be involved with anything related to
terrorism, and didn’t know why anybody would say
otherwise.” After eliciting this response, Aguilar and Wells
asked Hayat to come to the FBI office in Sacramento for
further questioning.

Hayat arrived at the FBI office in Sacramento around
11 a.m. the following morning and was interviewed in four

4
Hayat’s name appeared on the “No Fly” list as a result of the
information provided by Khan.
 UNITED STATES V . HAYAT 11

waves. Hayat at first denied having attended a terrorist
training camp, but during the second session admitted that he
had attended a camp for a few days during an earlier stay in
Pakistan in 2000, where he “observed and heard weapons
training,” and also in 2003, when he himself received “pistol
training” at a camp in “Balakot.”

The third and fourth sessions, which were videotaped,
took place during the afternoon and evening of June 4, 2005,
and the early morning hours of June 5. During the third
interview, Hayat confirmed that he had attended a camp to
train for jihad and said he was trained to use a pistol and rifle
and taught how to kill American troops.

Before the final session, Hayat was given Miranda
warnings (for the second time that day) and signed an Advice
of Rights form (also for the second time). Hayat reported that
at the training camp, he was told to expect to receive orders
in the United States. When someone wanted to transmit
orders to him, the person would first contact Adil Khan (a
prominent Islamic figure in the Lodi, California area); Khan
would contact Shabbir Ahmed (the Imam at Hayat’s Lodi
mosque); and Shabbir would contact Hayat. Also, by the end
of the interview Hayat had suggested that his grandfather was
involved in jihadist activities, indicating that his grandfather
may have held a leadership position in the terrorist camp
Hayat attended.

The FBI arrested Hayat at the end of this set of
interviews.

On January 26, 2006, the government filed a second
superseding indictment against Hayat, charging him with one
count of violating 18 U.S.C. § 2339A (providing material
12 UNITED STATES V . HAYAT

support to terrorists) and three counts of violating 18 U.S.C.
§ 1001 (making false statements to the FBI). Section 2339A
reads, in relevant part,

Whoever provides material support or
resources or conceals or disguises the nature,
location, source, or ownership of material
support or resources, knowing or intending
that they are to be used in preparation for, or
in carrying out, a violation of [various
provisions prescribing penalties for terrorist
acts] . . . shall be . . . imprisoned not more
than 15 years . . . .

18 U.S.C. § 2339A(a). The statute defines “material support
or resources” as “any property, tangible or intangible, or
service, including currency or monetary instruments or
financial securities, financial services, lodging, training,
expert advice or assistance, safehouses, false documentation
or identification, communications equipment, facilities,
weapons, lethal substances, explosives, personnel (1 or more
individuals who may be or include oneself), and
transportation, except medicine or religious materials.” Id.
§ 2339A(b)(1). The prosecution’s case was that Hayat had
provided his personal services to a terrorist organization by
attending the training camps in Pakistan and returning with
the intent to carry out acts of terrorism when directed to do
so. The three counts of making false statements to the FBI
were related to Hayat’s initial statements to various FBI
agents in California, in which he denied attending a terrorist
training camp while in Pakistan.

Hayat’s trial began on February 14, 2006. In addition to
the seven recorded conversations between Hayat and Khan,
 UNITED STATES V . HAYAT 13

the government presented Khan’s testimony about those
conversations and Hayat’s confessions to the FBI. The jury
viewed the videotaped confessions, and several agents,
including Futa, Aguilar, and Sweeney, testified about their
interviews with Hayat. The government also introduced a
“scrapbook” that agents had seized from Hayat’s parents’
garage, where Hayat was living. The scrapbook bore Hayat’s
name on the cover and contained clippings from Pakistani
newspapers. Several of the articles in the scrapbook
discussed Islamic fundamentalist groups, including the
Taliban, and their leaders, including Osama bin Laden. Khan
testified that Hayat had shown him the scrapbook while
expressing support for the fundamentalist groups described in
the articles.

The government’s evidence also included a note written
in Arabic that government agents had found in Hayat’s wallet
after his return from Pakistan. Khaleel Mohammed, an expert
in Islamic studies who testified as an expert witness for the
government, testified that the note was an Islamic
supplication. He provided the following translation of the
Arabic phrase: “Oh Allah we place you at their throats and
we seek refuge in you from their evils.” Mohammed opined
that the supplication was both uncommon and “not peaceful,”
and that the type of person who would carry such a
supplication was “[a] person who perceives him or herself as
being engaged in war for God against an enemy.”

Finally, the government presented testimony from two
additional experts, Hassan Abbas and Eric Benn. Abbas, an
expert on extremist groups, testified to the location and nature
of typical terrorist training camps in Pakistan. Benn, a
satellite imagery expert who had analyzed satellite images to
determine the likelihood that there was a militant training
14 UNITED STATES V . HAYAT

camp near Balakot between 2003 and 2005, characterized the
likelihood as “a good strong possible.” He further testified
that when an analysis of the satellite imagery was combined
with the description Hayat had provided in his confession
about his travel to the camp, his assessment of the likelihood
that a military training camp existed outside Balakot
increased to “probable.”

Hayat did not testify. He presented an expert, Anita
Weiss, who testified that it is common for Pakistanis to carry
a talismanic prayer, known as a ta’wiz, for protection while
traveling. The district court did not permit Ms. Weiss to
express her opinion on whether the note found in Hayat’s
wallet was a ta’wiz because Weiss does not speak or read
Arabic.

Hayat also presented testimony from eleven other
witnesses—mostly FBI agents—and from Naseem Khan,
who had also testified for the prosecution. One aspect of
Hayat’s defense was that Khan was an unreliable informant
who had given the FBI implausible information—namely a
report that three Al Qaeda members on the FBI’s most
wanted list had visited a mosque in Lodi—the accuracy of
which the FBI was unable to confirm, and which was belied
by testimony from a regular attendee of the Lodi mosque who
never saw the men. Hayat’s counsel also elicited testimony
from Gary Schaaf, one of the agents who interviewed Hayat,
that Schaaf and other agents used leading questions and that
Hayat seemed tired during the interview. In addition, agent
Terry Rankhorn testified that he had posed undercover as a
convert to Islam and met with Hayat four times in 2002;
Hayat never mentioned training camps to Rankhorn.
 UNITED STATES V . HAYAT 15

Jury deliberations began on April 12, 2005. On April 25,
2005, after nine days of deliberation, the jury returned a
verdict of guilty on all four counts charged in the indictment.
Hayat filed a motion for a new trial based on juror
misconduct and, later, a second motion for a new trial that
specified thirteen additional grounds for granting a new trial.

After conducting an evidentiary hearing related to the
juror misconduct charge, the district court denied Hayat’s
motions for a new trial. Hayat was sentenced to 288
months—24 years—in federal prison. That sentence included
the maximum, 15-year penalty for violation of 18 U.S.C.
§ 2339A. After sentencing, Hayat filed a motion to vacate his
convictions under 28 U.S.C. § 2255. The district court
dismissed the motion without prejudice.

Hayat timely appealed his convictions but did not file a
notice of appeal from the district court’s later dismissal of his
§ 2255 motion.

II.

As noted, Hayat raises three challenges to his conviction.
First, he maintains that he was denied a fair trial because the
jury’s foreperson, Joseph Cote, 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, Naseem Khan. Finally, he
contends that the district court erred in admitting expert
testimony offered by the government and excluding expert
testimony offered by the defense.
16 UNITED STATES V . HAYAT

A.

Hayat argues that he is entitled to a new trial because the
jury foreperson, Joseph Cote, harbored actual bias against
Hayat. Hayat offers four facts as evidence of Cote’s bias: (1)
alleged racial and religious remarks made by Cote during
deliberations; (2) post-trial statements attributed to Cote in an
Atlantic Monthly article; (3) Cote’s improper contact with
alternate juror W. during deliberations; and (4) comments
made by Cote during deliberations in which he indicated that
he had overheard media reports about the trial.

We review the denial of a motion for a new trial based on
assertions of juror bias for abuse of discretion. United States
v. Smith, 424 F.3d 992, 1011 (9th Cir. 2005).5 We review for
clear error the district court’s factual findings, United States
v. Lopez-Martinez, 543 F.3d 509, 517 (9th Cir. 2008),
including the determination of whether a juror is actually
biased, see Estrada v. Scribner, 512 F.3d 1227, 1240 (9th Cir.
2008). “The presence of a biased juror cannot be harmless;
the error requires a new trial without a showing of actual
prejudice.” Dyer v. Calderon, 151 F.3d 970, 973 n.2 (9th Cir.
1998) (en banc).

“The Sixth Amendment guarantees criminal defendants
a verdict by impartial, indifferent jurors. The bias of even a
single juror would violate [Hayat’s] right to a fair trial.”

5
W e note that Hayat does not argue on appeal that Cote’s acts of
misconduct prejudiced his trial. Instead, he argues that Cote’s misconduct
is evidence of his actual bias against Hayat, because it illustrates the
lengths to which he was willing to go to secure a conviction. W e therefore
apply the standard of review applicable to claims of juror bias, not the
standard applicable to denials of motions for a new trial based on juror
misconduct.
 UNITED STATES V . HAYAT 17

Estrada, 512 F.3d at 1239 (internal quotation marks and
alterations omitted). “Actual bias is, in essence, bias in
fact—the existence of a state of mind that leads to an
inference that the person will not act with entire impartiality.”
Id. at 1240 (internal quotation marks omitted). If Hayat can
show that Cote “‘failed to answer honestly a material
question on voir dire, and then further show that a correct
response would have provided a valid basis for a challenge
for cause,’ then [Hayat] is entitled to a new trial.” Id.
(quoting United States v. Henley, 238 F.3d 1111, 1121 (9th
Cir. 2001)). “The central inquiry in determining whether a
juror should be removed for cause is whether that juror holds
a particular belief or opinion that will ‘prevent or
substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath.’” United
States v. Padilla-Mendoza, 157 F.3d 730, 733 (9th Cir. 1998)
(quoting Wainwright v. Witt, 469 U.S. 412, 433 (1985)).

As evidence of Cote’s bias, Hayat alleges, first, that Cote
made “several inappropriate racial and religious comments
during deliberations.” Hayat presented evidence from Jurors
L. and B., as well as from Juror H. via an affidavit by Hayat’s
private investigator, that Cote made a “racial” comment
during deliberations. B. declared that “[d]uring the
deliberation process, . . . Cote[] made the statement they all
looked the same when wearing a costume or when put in a
costume. I believe Mr. Cote made this statement in
connection with a discussion of witness Naseem Khan’s
claim that he had seen Ayman al-Zawahiri in Lodi.”
Similarly, L. stated that “[d]uring deliberations Mr. Cote
made racial slurs. As an example, on one occasion . . . he said
in front of the entire group that they all look alike . . . . [i]f
you put them in the same costume.” H. reported to Hayat’s
investigator essentially the same comment by Cote, “that
18 UNITED STATES V . HAYAT

when they dress alike they all look the same.” B. also stated
more generally that “[t]hroughout the deliberation process,
Mr. Cote made other inappropriate racial comments,” but,
aside from the “look alike” remark, did not say what any of
them were.

Generally, the Federal Rules of Evidence forbid courts
from inquiring into what went on during jury deliberations.
See Fed. R. Evid. 606(b).6 We have not decided, as some
courts have, whether Rule 606(b) prevents us from
considering evidence that a juror’s racial bias was expressed
during deliberations. See Henley, 238 F.3d at 1120–21;

6
In 2006, Federal Rule of Evidence 606(b) provided:

Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter or
statement occurring during the course of the jury’s
deliberations or to the effect of anything upon that or
any other juror’s mind or emotions as influencing the
juror to assent to or dissent from the verdict or
indictment or concerning the juror’s mental processes
in connection therewith. But a juror may testify about
(1) whether extraneous prejudicial information was
improperly brought to the jury’s attention, (2) whether
any outside influence was improperly brought to bear
upon any juror, or (3) whether there was a mistake in
entering the verdict onto the verdict form. A juror’s
affidavit or evidence of any statement by the juror may
not be received on a matter about which the juror would
be precluded from testifying.

(Each of the Federal Rules of Evidence cited in this opinion was amended
in 2011 “for purely stylistic reasons; the changes do not reflect an intent
to change any result in any ruling on evidence admissibility.” See United
States v. Solorio, 669 F.3d 943, 950 n.8 (2012) (internal quotation marks
omitted). Throughout the opinion, we cite the rules in effect at the time
of Hayat’s trial.)
 UNITED STATES V . HAYAT 19

compare, e.g., United States v. Villar, 586 F.3d 76, 84, 87 (1st
Cir. 2009) (holding that Rule 606(b) “precludes any inquiry
into the validity of the verdict based on juror testimony
regarding racial or ethnic comments made during the course
of deliberations,” but that “the rule against juror impeachment
cannot be applied so inflexibly as to bar juror testimony in
those rare and grave cases where claims of racial or ethnic
bias during jury deliberations implicate a defendant’s right to
due process and an impartial jury” (internal quotation marks
omitted)), with United States v. Benally, 546 F.3d 1230,
1236–39 (10th Cir. 2008) (holding that Rule 606(b) contains
no exception for racially biased statements made during jury
deliberations and expressing skepticism about whether
constitutional concerns can ever override the rule). Where,
however, “a juror has been asked direct questions about racial
bias during voir dire, and has sworn that racial bias would
play no part in his deliberations, evidence of that juror’s
alleged racial bias is indisputably admissible for the purpose
of determining whether the juror’s responses were truthful.”
Henley, 238 F.3d at 1121 (citing Hard v. Burlington N. R.R.,
812 F.2d 482, 485 (9th Cir. 1987)).

During voir dire, Cote was asked whether he had, or had
ever had, “any experiences, feelings or impressions about
Muslims, Pakistanis, Pakistani-Americans or Islamic beliefs
that would make it difficult for [him] to be a fair and
impartial juror.” He responded that he had “no impressions,
pre-conditions or feelings about being impartial in this case.”
We may consider Cote’s statement that “they all look alike”
when “in a costume” for the purpose of determining whether
this response was truthful.

We cannot say that the district court clearly erred in
concluding that Cote’s statement did not indicate an actual
20 UNITED STATES V . HAYAT

racial, ethnic, or religious bias. Cote did not specifically refer
to race, religion, or ethnicity in making the statement, but to
“they” who wear certain clothing common among Pakistanis
and other Muslims. The district court reasoned that the
context in which Cote’s statement was made provided a
nonbiased explanation for his comment: Cote was attempting
to explain how Naseem Khan, the government’s key witness,
could have mistakenly but in good faith informed FBI agents
that he had observed al-Zawahiri, an Egyptian, in Lodi,
California.

Cote’s statement could be interpreted as reflecting a
tendency to group people together on the basis of their shared
cultural or physical characteristics, while ignoring or failing
to perceive the differences that define them as individuals.
Statements evincing an inability or unwillingness to
differentiate between members of a group are in some
contexts quite problematic. See Tobias v. Smith, 468 F. Supp.
1287, 1289–91 (W.D.N.Y. 1979) (granting an evidentiary
hearing where the jury foreperson allegedly said during
deliberations that it did not matter that witnesses were unable
to identify a photograph of the defendant because “[y]ou
can’t tell one black from another” and “[t]hey all look alike”).
Nonetheless, Cote’s statement was not specific as to the
group referred to; ascribed no negative behavioral
characteristics to Egyptians, Pakistanis, or Muslims; and
conveyed no overt prejudice against those groups, focusing
instead, whether accurately or not, on the nature of clothing
sometimes worn by members of those groups, as obscuring
individual identity. Compare Henley, 238 F.3d at 1113–14
(remanding for additional findings where one juror reportedly
told two others that “[a]ll the niggers should hang” or
“[n]iggers are guilty”). We conclude that the district court
did not clearly err in finding that the “look alike” statement
 UNITED STATES V . HAYAT 21

was insufficient to show that Cote lied during voir dire about
his lack of racial, ethnic, or religious bias. As to L.’s and B.’s
assertions that Cote made “other inappropriate racial
comments,” these statements are simply too vague to support
a finding that Cote was impermissibly biased. See Fields v.
Woodford, 315 F.3d 1062, 1062–63 (9th Cir. 2002).

Second, Hayat asserts that other evidence of Cote’s lack
of impartiality and his ethnic and religious bias comes from
statements he made in a post-verdict interview published in
the Atlantic Monthly magazine. Cote stated in the interview:

[There are] so-called new rules of
engagement, and I don’t want to see the
government lose its case . . . . Can we, on the
basis of what we know, put this kid on the
street? On the basis of what we know of how
people of his background have acted in the
past? The answer is no.

Amy Waldman, Prophetic Justice, The Atlantic Monthly,
Oct. 2006, at 82, 93, available at http://www.theatlantic.com/
magazine/archive/2006/10/prophetic-justice/5234/. The
article also contained the following description of Cote’s
views of the government’s approach to the case:

This preventive approach, Cote said, means
that “just as there are people in prison who
never committed the crime, this may also
happen. Not this particular case, I’m saying,
but future cases.” He argued that it was
“absolutely” better to run the risk of
convicting an innocent man than to let a guilty
one go. “Too many lives are changed” by
22 UNITED STATES V . HAYAT

terrorism, he said. “So shall one man pay to
save fifty? It’s not a debatable question.”

Id. Hayat maintains that these statements demonstrate that
Cote “harbored a general bias against Muslims and
Pakistanis” and that Cote was willing “to engage in
impermissible preventative conviction.”

The district court conducted an evidentiary hearing at
which it questioned Cote about these comments. To avoid
Rule 606(b) issues, the court did not ask Cote whether he
made the statements.7 Rather, the court said, “Assume for the
sake of responding to the question I will ask you that you
made these statements. Did you have those thoughts at any
time prior to the commencement of jury deliberations?” Cote
responded, “Definitely not.” Finding that “Cote’s testimony
[at the evidentiary hearing] was credible,” the district court
concluded:

Even assuming Cote made all of the
statements in the Atlantic Monthly article,
when read as a whole, the article reveals that
the jurors, and Cote himself, thoroughly and
thoughtfully deliberated regarding Hayat’s
guilt or innocence. The statements in the
article do not reveal that Cote had a racial or

7
It is not clear to us why the district court thought Rule 606(b) could
apply to bar the introduction of statements made after deliberations were
over. W hether those statements could then be used to make inferences
about the deliberation process is, of course, a different question.
 UNITED STATES V . HAYAT 23

religious bias against Hayat, that he was
dishonest during voir dire, or that he was an
unfair or impartial [sic] juror.

(Footnote omitted.)

As an initial matter, the district court did not clearly err in
concluding that Cote’s comment about “people of [Hayat’s]
background” is not sufficient standing alone to prove that
Cote was actually biased against Muslims or Pakistanis.
Although Cote might have been referring to young Muslims
or Pakistani males in general when he used the phrase
“people of [Hayat’s] background,” given that he made the
statement after hearing all of the government’s evidence
against Hayat, he could well instead have meant people who
have expressed anti-American views and attended terrorist
training camps. The district court did not clearly err in its
assessment of the statement.

Cote is also quoted in the Atlantic Monthly article as
stating that, due to the “new rules of engagement,” it was
“absolutely better to run the risk of convicting an innocent
man than to let a guilty one go” free. These statements can be
read to suggest that Cote applied something less than a
“reasonable doubt” standard in deciding Hayat’s case. But
Cote also specified that he was not referencing “this
particular case” in his remarks, and the remarks did not focus
in any way on Muslims or Pakistanis in general. So the
“rules of engagement” remarks were at best tangentially
relevant to whether Cote dishonestly answered the bias
questions during voir dire or was biased against Hayat during
trial and deliberation.
24 UNITED STATES V . HAYAT

Moreover, in context, the remarks can be read as a
comment not on the burden of proof but on the material
support statute and the government’s “preventative approach”
legal theory under that statute, which permits the conviction
of potential terrorists who may never in fact have committed
any terrorist act if not arrested and convicted. In fact, the
Atlantic Monthly article overall is devoted to discussing
preventative criminal prosecutions of this kind, providing
contextual support to an inference that Cote was commenting
on such prosecutions, not on the burden of proof.8

We are mindful of the strong deference we owe the
district court’s credibility findings. See McClure v.
Thompson, 323 F.3d 1233, 1241 (9th Cir. 2003). Particularly
given that deference, as well as the consideration that the
issue was Cote’s impartiality as a juror at the time of the trial
and not his post-trial attitudes, the non-biased explanations
for Cote’s statements, in context, are plausible. We therefore
cannot say that the district court clearly erred in crediting
Cote’s denial of bias against Hayat during the trial and
deliberation.

Finally, Hayat points to two instances of juror misconduct
as evidence of Cote’s bias. In his motion for a new trial,
Hayat argued that Cote committed acts of misconduct that
prejudiced the outcome of the trial. The district court held
that even if there was misconduct, it was not prejudicial to

8
The district court credited Cote’s assertions at the evidentiary hearing
that he did not have the thoughts he expressed to the Atlantic Monthly
“before the commencement of . . . jury deliberations.”
 UNITED STATES V . HAYAT 25

Hayat.9 Hayat does not challenge that determination on
appeal. Instead, he argues that Cote’s misconduct, in
combination with the statements discussed above, evidences
his actual bias against Hayat.10

First, Hayat maintains that Cote engaged in intentional
misconduct during deliberations when, in violation of the
court’s express instructions, he contacted alternate juror W.,
who had been dismissed from the jury when the jury retired.
Hayat’s private investigator submitted an affidavit declaring
that W. described the incident as follows:

Joe Cote called me . . . on April [20,] 2006
and left a voicemail message asking me to call
him. I returned the call a few minutes later.
When Joe answered, I asked him if the trial
was over. He said no, he just wanted to ask
me about a remark I had made predicting that
the jury would have a difficult time during
deliberations. . . . [H]e said I had indicated,
with a nod of my head, someone sitting to my
left (at the table in the jury room). I said,
“Oh, [L.].” Joe said [L.] was no problem; she
was a very deep thinker. He said he thought
I had been referring to [B.], and that she had
been causing a lot of trouble. I expressed
surprise, and Joe said he, too, was surprised

9
Unlike the presence of juror bias, juror misconduct can be harmless
error that does not require a new trial. See Sassounian v. Roe, 230 F.3d
1097, 1108 (9th Cir. 2000).

10
Hayat also made this alternative argument in his motion for a new
trial.
26 UNITED STATES V . HAYAT

by her actions. He asked if I had heard
anything specific that prompted the remark
about [L.]. I said no, it was just my
perception. I told Joe the alternate jurors had
been instructed not to speak to the jurors until
the trial was over. At that point, we
concluded the conversation.11

Hayat maintains that Cote’s willingness to disregard the
court’s orders and seek advice from W. about “problem”
jurors is evidence of his bias. He points to United States v.
Vartanian, 476 F.3d 1095 (9th Cir. 2007), in which we held
that the district court did not abuse its discretion in dismissing
a juror who had committed misconduct. In Vartanian, the
juror in question had spoken to members of the defendant’s
family, defense counsel, and the defendant himself during the
course of the trial; when questioned about these contacts by
the district court, she denied and minimized them. Id. at
1098–99. The district court dismissed the juror because it
was “unwilling to trust [her] to be a fair and impartial juror.”
Id. at 1097. We affirmed the defendant’s conviction, holding
that it was within the district court’s discretion to dismiss the
juror “because of her misconduct.” Id. at 1099. We did not
express any opinion as to whether the juror’s behavior
established that she was biased.

Even if we had concluded that the Vartanian juror’s
misconduct was evidence of bias, Cote’s phone call to
alternate juror W. differs in a critical regard. In Vartanian,

11
Although the district court conducted an evidentiary hearing at which
it questioned Cote about Hayat’s various allegations of misconduct, the
court assumed that Hayat’s representation of the conversation between
Cote and W . was accurate. W e proceed on that basis.
 UNITED STATES V . HAYAT 27

the juror’s misconduct was first reported to the district court
on the second day of deliberations, but the misconduct was
apparently ongoing throughout the trial. Here, in contrast,
Cote did not contact W. until after deliberations had begun.
Although Cote obviously committed misconduct in
contacting W. to learn about “problem” jurors, his calling W.
does not show that he prejudged the case. At most, it
suggests that Cote was determined to convict Hayat after
viewing all the evidence and the parties’ closing arguments.
Nor did Cote make any comments to W. suggestive of racial,
ethnic, or religious bias. In short, although we assuredly do
not condone Cote’s conduct, once again we cannot say that
the district court clearly erred in finding that it did not
evidence actual bias.

Finally, Hayat contends that Cote’s comments, during
deliberations, about media coverage of the trial also
demonstrate his bias against Hayat. Hayat offered evidence,
again from Jurors L. and B., that Cote had made references to
media reports. B. stated,

At one point during deliberations, Mr. Cote
began to discuss something he had learned
from media reports about Mr. Hayat’s
attorney, Wazhma Mojaddidi. Other jurors
and I told Mr. Cote that he should not be
reading or listening to media reports of the
trial, and that he should not be discussing such
reports with fellow jurors.

L. provided a similar report, adding that “Mr. Cote explained
that his wife had the TV on in the room next door and he
happened to hear about the story by accident.”
28 UNITED STATES V . HAYAT

Assuming, as the district court did, that the evidence
provided by Jurors L. and B. is accurate, Cote committed
misconduct by sharing with the other jurors something he had
overheard in a media report. Once again, however, this
misconduct occurred during deliberations and does not show
that Cote prejudged the case. Moreover, the information he
communicated concerned Hayat’s lawyer, not Hayat, and was
accidentally rather than deliberately obtained. Both of these
circumstances undermine any inference of bias against Hayat
arising from Cote’s disregard of instructions given to jurors
regarding contact with media reports of the trial.

Hayat maintains nonetheless that Cote’s misconduct as a
juror, in combination with his “racial” statements during
deliberations and his Atlantic Monthly interview,
demonstrates that he harbored an impermissible bias against
Hayat. He argues that the district court engaged in a “divide-
and-conquer” analysis and failed to aggregate the evidence of
bias. But the district court expressly recognized that “[t]he
determination as to whether a juror is biased must be founded
on an examination of all relevant evidence of bias and
misconduct in the aggregate rather than in isolation” (citing
Green v. White, 232 F.3d 671, 678 (9th Cir. 2000)). Even
considering all the evidence together, the district court
concluded that “Hayat has not shown that Cote was not a fair
and impartial juror.”

That finding was not clearly erroneous. Although the
evidence Hayat points to, taken together, may demonstrate
that Cote was confident in his decision to convict, it does not
establish that Cote was determined to convict before the close
of evidence, or that Cote was actually biased against Hayat on
account of his race, ethnicity, or religion. The district court
 UNITED STATES V . HAYAT 29

did not clearly err in determining that Cote was not motivated
by an impermissible racial, ethnic, or religious bias.

B.

As discussed above, seven recorded conversations
between Hayat and Khan were introduced into evidence. On
direct examination, the government questioned Khan about
these and other conversations, both recorded and
unrecorded.12 During cross-examination, the district court
prevented Hayat on three occasions from questioning Khan
about out-of-court statements Hayat had made to Khan.
Specifically, Hayat sought to elicit from Khan testimony
about whether Hayat ever told him that he attended a camp
run by Tablighi Jamaat, a non-Jihadist religious organization,
and about whether Hayat had made a statement to Khan in
October 2003 that “he never intended to go to a camp.”

First was the following exchange:

Q. BY MS. MOJADDIDI [Hayat’s counsel]:
Do you now recall calling Hamid Hayat’s
house on October 7, 2003 while he was in
Pakistan?

A. [KHAN]: Yes.

Q. And then do you recall Hamid telling
you—

12
Although not all the conversations were recorded, the government
produced contemporaneous records of the unrecorded conversations in the
form of Khan’s own notes, agents’ notes from his FBI debriefings, or
both.
30 UNITED STATES V . HAYAT

MS. FERRIS [Prosecution]: Objection.
Hearsay.

....

MS. MOJADDIDI: Your Honor, it’s not
being offered for the truth, it’s being offered
to show the effect the statement had on the
listener, on Mr. Khan.

....

It’s relevant because, as the witness is
testifying, he made repeated phone calls, and
made repeated inquiries to the defendant, and
this is a statement that was made to him by
the defendant in response to his inquiries.

THE COURT: Sustained.

Q. BY MS. MOJADDIDI: During that
conversation, did you ask Hamid Hayat if he
was at a camp during that conversation?

A. Don’t remember.

Q. Do you have any reason to believe—did
you have any reason to believe at the
conclusion of that conversation that Hamid
Hayat had attended a terrorist training camp?

MS. FERRIS: Objection. Foundation. And
she’s angling towards the hearsay issue again.
 UNITED STATES V . HAYAT 31

....

MS. MOJADDIDI: It’s—to the hearsay,
again, it’s not being offered for the truth, it’s
being offered to what his impression was. It’s
an operative fact of why the—the steps that he
made, the phone call that he made that day,
and the phone calls before this, the phone
calls after this.

It just shows what he was doing in his role
as an informant with the defendant. . . .

THE COURT: Sustained.

Q. BY MS. MOJADDIDI: Did you also call
Hamid Hayat on October 8, 2003?

A. Yes, I did.

Q. You didn’t get a hold of Hamid on that
date, did you?

A. Don’t remember.

Q. Did Hamid ever tell you he attended
Tablighi Jamaat camp?

MS. FERRIS: Objection. That’s the
hearsay—may we approach?

THE COURT: Yes.

(Bench conference.)
32 UNITED STATES V . HAYAT

MS. FERRIS: Laura Ferris for the
government, Your Honor.

The recent objections and the attempts of
counsel related to bringing in Hamid’s
statements that he attended a Tablighi Jamaat,
which is a group of people that travel around
from mosque to mosque, and they do, I’m
paraphrasing, essentially missionary work
within the Islamic faith, and to the extent that
Hamid made those statements to [Khan], they
are being offered for the truth of the matter
asserted. And she has tried numerous ways to
get at that issue when there is, in fact, no
exception to the hearsay rule under these
circumstances.

I can offer, if you will, the conversation
she’s referring to in summary format, if it’s
helpful to the Court, but there is simply no
hearsay exception to it.

MS. MOJADDIDI: Your Honor, this witness
has testified that he relied on a number of
statements that Hamid Hayat made in his role
as an informant and the information that he
gave to the FBI. This is a—this statement is
a statement that Hamid made to him, and it
affected the rest of the investigation against
Hamid. And for that reason it’s not being
offered for the truth of the matter, it’s being
offered to show how he—why he proceeded
to conduct the rest of his duties as an
informant in this investigation even beyond
 UNITED STATES V . HAYAT 33

this date. He continually relied on the
defendant’s statements in each move that he
made. So it goes to his—it goes to explain his
conduct as an informant.

....

THE COURT: Sustained.

The second instance occurred over a week later, again in
Khan’s testimony on cross-examination:

Q. BY MS. MOJADDIDI: You testified on
direct that one time you talked to Hamid over
the telephone while he was in Pakistan, and he
told you that he was actually at a Tablighi
Jamaat camp. Do you recall that on direct?

MS. FERRIS: Objection. Foundation. And
may we approach, Your Honor?

THE COURT: Okay.

(Bench conference.)

MS. FERRIS: Laura Ferris for the
government, Your Honor. If you’ll recall,
during an earlier part of cross-examination,
Ms. Mojaddidi attempted to get into a hearsay
statement concerning Hamid and Tablighi
Jamaat, and this Court sustained that objection
and found it was inappropriate hearsay
information. She is now again eliciting this
information in the form of a question, and
34 UNITED STATES V . HAYAT

going over a topic which the Court has
previously ruled was not appropriate.

So the Court—the government asks the
question be stricken and she be admonished
from going into that area again.

....

MS. MOJADDIDI: . . . At the time when the
Court—when the government made the
objection and the Court made its ruling, I did
not recall that that specific question, that
specific topic, was covered word for word by
counsel for the government on direct
examination. And all I am doing is going
back to that. I am not eliciting anything new.

....

THE COURT: The hearsay rule allows the
government to introduce a statement against
your client, but it does not allow you to use a
statement that—for the truth of the matter
asserted therein in favor of your client. That
is hearsay.

....

THE COURT: Sustained.

Shortly after this exchange, the district court sustained a
third hearsay objection:
 UNITED STATES V . HAYAT 35

Q. BY MS. MOJADDIDI: I asked you
earlier about a conversation that took place on
October 7, 2003, when you called Hamid
while he was at Pakistan. That was the last
time that you contacted him between that date
and then May 31st of 2005, correct?

A. [KHAN]: It was in October. I don’t
remember the exact date.

Q. During that October 7th conversation,
Hamid told you that he never intended on
going to a camp, and he was lying to you all
along, didn’t he?

MS. FERRIS: Objection. Foundation.
Hearsay. Move to strike.

THE COURT: Sustained. It’s stricken.

Hayat argues that the district court erred in two ways with
respect to these rulings: (1) by preventing Khan from
answering on cross-examination questions about whether
Hayat ever told him that he attended a camp run by Tablighi
Jamaat, a non-Jihadist religious organization; and (2) by
preventing Khan from answering on cross-examination the
question whether Hayat told him in October 2003 that he
never intended to go to a camp.

The first objection is easily dispatched. Regardless of
whether the district court ought to have permitted Khan
during cross-examination to answer questions regarding
Hayat’s statements about Tablighi Jamaat, the information
Hayat’s counsel sought to elicit was already in the record. On
36 UNITED STATES V . HAYAT

direct examination, Khan testified that Hayat had told him
that he had attended a Tablighi Jamaat camp:

Q. BY MS. FERRIS: Do you recall what
Hamid Hayat said about Tablighi Jamaat?

A. [KHAN]: One time when I talked to him
over the phone when he was in Pakistan, he
actually was—went to Tablighi Jamaat.

Q. And did he indicate to you how long he
was there?

A. I’m sorry, I can’t recall right now.

In responding to the prosecutor’s objection during cross-
examination, Hayat’s counsel specifically stated that she was
“not eliciting anything new.” Therefore, any error in failing
to admit the testimony again on cross-examination could not
have been prejudicial, as the information was already in the
record.

Whether the district court ought to have admitted Hayat’s
statement that “he never intended on going to a camp” is a
closer question. On appeal, Hayat argues that the statement
should have been admitted to prove his then-existing intent,
see Fed. R. Evid. 803(3), and also under the so-called rule of
completeness, see Fed. R. Evid. 106.

1.

Although “[w]e generally review a district court’s
evidentiary rulings for abuse of discretion,” United States v.
Boulware, 384 F.3d 794, 800–01 (9th Cir. 2004), the
 UNITED STATES V . HAYAT 37

government urges us to apply a plain error standard here. We
should review the district court’s rulings for plain error, the
government argues, because Hayat’s proffered grounds on
appeal for admitting the statement were not raised at trial.
We agree.

Federal Rule of Criminal Procedure 51(b) provides that
“[a] party may preserve a claim of error by informing the
court—when the court ruling or order is made or sought—of
the action the party wishes the court to take, or the party’s
objection to the court’s action and the grounds for that
objection.” Fed. R. Crim. P. 51(b) (emphasis added).
Additionally, Rule 51(b) states that “[a] ruling or order that
admits or excludes evidence is governed by Federal Rule of
Evidence 103.” Id.13 Federal Rule of Criminal Procedure
52(b) provides that even if a claim of error was not preserved,
an appellate court may consider a “plain error” affecting
“substantial rights.” Fed. R. Crim. P. 52(b).

Hayat maintains that under Federal Rule of Evidence 103,
the only requirement for preserving an objection to a ruling
excluding evidence is that “the substance of the evidence was
made known to the court by offer or was apparent from the
context within which questions were asked.” Fed. R. Evid.
103(a)(2) (2006). Applying this understanding, Hayat
contends that in this case defense counsel adequately

13
T he language of Rule 51 was amended “as part of the general
restyling of the Criminal Rules” in 2002. Fed. R. Crim. P. 51, advisory
comm. notes (2002). The changes were “intended to be stylistic only.”
Id. The cross-reference to Federal Rule of Evidence 103 was added
“because of concerns about the Supersession Clause, 28 U.S.C. § 2072(b),
of the Rules Enabling Act, and the possibility that an argument might have
been made that Congressional approval of [the amended Rule 51] would
supersede that Rule of Evidence.” Id.
38 UNITED STATES V . HAYAT

preserved the error by making clear the content of the
excluded statements, although counsel did not apprise the
court of the grounds on which he now argues that the
statements should have been admitted.

Rule 103 states that an offer of proof is a prerequisite to
challenging excluded evidence, but it does not state that it is
the only prerequisite. Moreover, like Federal Rule of
Criminal Procedure 52(b), Rule 103 provides that where
“errors . . . were not brought to the attention of the court”
plain error review standards apply. Fed. R. Evid. 103(d)
(2006).14

The Supreme Court has held in the civil context that
challenges to evidentiary rulings are governed by both Rule
of Evidence 103 and Federal Rule of Civil Procedure 46, the
civil rule directly corresponding to Federal Rule of Criminal
Procedure 51, which likewise requires a party objecting to a
ruling to state the grounds for his objection. See Beech
Aircraft Corp. v. Rainey, 488 U.S. 153, 174, 175 n.22 (1988)
(“We have no quarrel with the proposition that counsel must
articulate the grounds on which evidence should be
admitted.”). There is no reason why the standard should be
any different in the criminal context. See Fed. R. Crim. P. 51,
advisory comm. notes (1944) (“This rule is practically
identical with rule 46 of the Federal Rules of Civil Procedure
. . . . It relates to a matter of trial practice which should be the
same in civil and criminal cases in the interest of avoiding
confusion.”). The addition of a cross-reference to Federal
Rule of Evidence 103 in the criminal rule but not the civil
rule cannot matter, as that amendment was made in the course

14
The plain error standard is now codified at Federal Rule of Evidence
103(e).
 UNITED STATES V . HAYAT 39

of an overall stylistic revision of the criminal rules and was
added only to ensure that Rule 103 remained applicable as
before. See Fed. R. Crim. P. 51, advisory comm. notes
(2002).

Indeed, we have generally reviewed such evidentiary
rulings “challenged on appeal on grounds not raised in the
district court” for plain error. United States v. Reese, 2 F.3d
870, 892 (9th Cir. 1993). In United States v. Chang, for
example, we noted that the defendant “never informed the
district court that he was offering the testimony in question as
a party-opponent admission (or for any other nonhearsay
purpose or under any exception to the hearsay rule, for that
matter).” 207 F.3d 1169, 1176 (9th Cir. 2000). Quoting an
earlier case that held that “‘[i]f a party fails to state the
specific grounds upon which evidence is admissible, the issue
is not preserved for review, and the court of appeals will
reverse only for plain error,’” id. (quoting Arizona v. Elmer,
21 F.3d 331, 334 (9th Cir. 1994)), Chang held that the
exclusion of the testimony at issue could “be reviewed only
for plain error,” because although its content was apparent,
the justification for its admission was not. Id.

We have indicated that the same principle continues to
apply since the amendment to Rule 51, see United States v.
Bonds, 608 F.3d 495, 502 (9th Cir. 2010), and we apply it
here. Hayat put forward a reason for admitting the statement
at trial—to explain why Khan acted the way he did—entirely
different from the grounds he now advances on appeal.
When a party gives an invalid reason for admitting a
statement at trial, the district court is not required to come up
on its own with alternative grounds on which the statement
could be admitted, unless failing to do so would constitute
plain error. We therefore review the district court’s
40 UNITED STATES V . HAYAT

exclusionary rulings for plain error. See Reese, 2 F.3d at 892.
In so doing, we do not decline to consider the challenged
rulings altogether; we simply review them under a somewhat
more deferential standard.15

“Under a plain error standard, relief is not warranted
unless there is: (1) an error; (2) that was plain; and (3) that
affected the defendant’s substantial rights.” United States v.
Tran, 568 F.3d 1156, 1163 (9th Cir. 2009) (citing Jones v.
United States, 527 U.S. 373, 389 (1999)). “Even if these
conditions are met, reversal is discretionary and will be
granted only if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.
(internal quotation marks omitted). We reach here only the
first two prongs of the plain error test, and so do not decide
whether Hayat’s substantial rights were affected.

2.

Hayat maintains on appeal that the statement that he
“never intended on going to a camp” was admissible under
Federal Rule of Evidence 803(3), as a declaration of his then-
existing state of mind. We cannot say that refusing to admit
the excluded statement as a declaration of current state of
mind was plain error.

In 2006, Rule 803(3) provided that “[a] statement of the
declarant’s then existing state of mind . . . (such as

15
Nor, of course, do we preclude a demonstration on collateral review
that counsel rendered ineffective assistance in enunciating the basis for
admission as she did. Hayat’s attorney may well have been deficient by
failing to offer a plausible justification for admission of the “never
intended” statement.
 UNITED STATES V . HAYAT 41

intent . . . )” is “not excluded by the hearsay rule.” Fed. R.
Evid. 803(3) (2006). The state-of-mind exception does not
include “a statement of memory or belief to prove the fact
remembered or believed.” Id.

On its face, the statement “I never intended on going to a
camp” is backward-looking, expressing Hayat’s memory of
his earlier states of mind, and so is not admissible under Rule
803(3). Hayat argues, however, that in the context of Khan’s
repeated and emphatic urging that Hayat go for training, the
statement also communicated Hayat’s present intent not to
attend a training camp. Hayat offers an example to illustrate
this point: If someone asked you when you were going to the
movies today and you responded, “I never intended to go to
the movies today,” your response, despite the use of past
tense, could be understood as communicating your present
intent not to go to the movies.

Hayat’s interpretation of the statement he sought to elicit,
however, is far from obvious, as it is inconsistent with
ordinary grammar. The statement could quite reasonably be
understood as purely retrospective. To illustrate, in the
example, one could follow the sentence, “I never intended to
go to the movies,” with the statement, “But I will go,” or one
could harbor that changed intent but not communicate it
without being duplicitous.

Moreover, even under the state-of-mind exception, the
statement could only have been admitted with a limiting
instruction: it was not admissible for the purpose of proving
Hayat’s earlier states of mind, including whether he had lied
earlier when he said that he did intend to go. Hayat never
asked for a limiting instruction, making it all the more likely
that the statement would be understood by the district court
42 UNITED STATES V . HAYAT

in its retrospective sense. Given the retrospective language
used in the statement Hayat sought to admit and the failure to
clarify, by offering a limiting instruction, that only the
present-tense meaning was intended, we cannot say that the
district court plainly erred in failing to admit it under the
state-of-mind exception. See Smith, 424 F.3d at 1002 (“[A]n
error is not plain unless it is ‘clear’ or ‘obvious.’” (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)); United
States v. Turman, 122 F.3d 1167, 1170 (9th Cir. 1997) (“Plain
error . . . is error that is so clear-cut, so obvious, a competent
district judge should be able to avoid it without benefit of
objection.”).

Hayat also contends that the excluded statement was
admissible under the rule of completeness. See Fed. R. Evid.
106 (2006) (“When a writing or recorded statement or part
thereof is introduced by a party, an adverse party may require
the introduction at that time of any other part or any other
writing or recorded statement which ought in fairness to be
considered contemporaneously with it.”). As Hayat
acknowledges, however, our cases have applied the rule of
completeness “only to written and recorded statements.”
United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000).
Moreover, Rule 106 “does not compel admission of otherwise
inadmissible hearsay evidence.” United States v. Collicott,
92 F.3d 973, 983 (9th Cir. 1996) (internal quotation marks
omitted). Thus, the district court did not err in failing to
admit the excluded statement under the rule of completeness.

Judge Tashima maintains in dissent that the excluded
statement was also admissible for the purpose of
impeachment under Federal Rule of Evidence 607. See
Dissent at 65–66. But even if this evidence could have been
admissible under Rule 607, Hayat did not raise this limited
 UNITED STATES V . HAYAT 43

basis for admissibility at trial or on appeal. We therefore
need not address the contention.

In any event, the exclusion was not plain error. The
dissent suggests that the district court should have known that
the statement was admissible for impeachment purposes even
if Hayat’s counsel did not request admission for that limited
purpose, for the following reason: Khan testified that when
he called Hayat a liar, he was merely teasing or joking—he
did not actually think Hayat was lying, at least about
significant points such as whether Hayat attended a training
camp. Such testimony was elicited on direct examination on
February 28, 2006 and on cross-examination on March 2,
2006. According to the dissent, the “never intended”
statement impeached this aspect of Khan’s testimony, by
demonstrating that Khan had been told, by Hayat, that Hayat
had in fact been lying as to whether he intended to go to a
training camp.

First of all, it was not until more than a week after Khan’s
testimony about whether he believed Hayat to be a liar, on
March 10, 2006, that Hayat’s counsel sought to introduce
Hayat’s statement that he “never intended” to go to a training
camp. Thus, for the district court to recognize that the
statement might be admissible for impeachment purposes, the
judge would not only have had to know that hearsay evidence
is admissible for impeachment purposes—which of course he
would have—but he would also have had to remember
Khan’s testimony, given over a week previously. He would
then have had to recognize that the statement Hayat sought to
introduce could be understood as in tension with that
testimony, even though it concerned a different conversation
than the “liar” conversation, about a somewhat different
matter, and even though the question whether Khan had
44 UNITED STATES V . HAYAT

reason to believe that Hayat was a braggart or a liar is quite
peripheral to whether Khan was truthful as to the objective
facts he reported, as well as to whether Hayat was a braggart
or a liar.

Moreover, Hayat’s counsel not only failed to indicate an
impeachment purpose for the introduction of the evidence,
she indicated otherwise—that she sought admission of the
evidence either to explain the effect of the statement on
Khan’s investigation of Hayat or for the truth of the matter
asserted. She did not indicate that Khan had testified to
anything that contradicted the evidence she sought to
introduce. The district court therefore had no occasion—on
any legal ground, enunciated or not—to consider whether the
contested statement could be introduced only to impeach
Khan with regard to whether he actually thought Hayat was
a liar, a much more limited—and peripherally
relevant—purpose than the use Hayat’s counsel sought to
make of the statement.

Under these circumstances, the failure of Hayat’s attorney
to explain the connection between the proffered statement and
Khan’s prior testimony may be relevant to a later claim for
ineffective assistance of counsel.16 But the district court’s
failure to recognize such a basis on its own was not plain
error.

16
W e cannot determine from the current record why defense counsel did
not attempt to justify the admission of Hayat’s statements on the bases
now asserted. In order to determine whether such failure constituted
ineffective assistance of counsel, further factual development not possible
on direct appeal is necessary.
 UNITED STATES V . HAYAT 45

Aside from his arguments for admissibility under various
evidentiary rules, Hayat also suggests on appeal that the
district court’s hearsay ruling was a limitation on his cross-
examination of Khan that violated his rights under the
Confrontation Clause. This argument too fails.

First, the district court’s hearsay rulings overall did not
deny Hayat his right to confront Khan “in the traditional
sense.” United States v. Lopez-Alvarez, 970 F.2d 583, 587
(9th Cir. 1992). Hayat had the opportunity to engage in
extensive cross-examination. The jury was aware that Khan
was a paid FBI informant and that the FBI was his sole
employer for several years. In addition, Khan admitted that
he had previously been convicted of a crime involving the
passing of fraudulent checks. “Generally, once
cross-examination reveals sufficient information with which
to appraise a witness’s possible bias and motives,
confrontation demands are satisfied.”17 Id. (quoting United
States v. Bonanno, 852 F.2d 434, 439 (9th Cir. 1988)). The
excluded testimony in no way went to the heart of why Khan
was testifying or whether he was lying, and the permitted
cross-examination of Khan “was adequate to develop the
issue of bias properly to the jury.” Davis v. Alaska, 415 U.S.
308, 318 (1974); see also Delaware v. Van Arsdall, 475 U.S.
673, 679 (1986) (“[T]rial judges retain wide latitude insofar
as the Confrontation Clause is concerned to impose
reasonable limits on . . . cross-examination based on concerns
about, among other things . . . interrogation that is repetitive
or only marginally relevant.”).

17
W e note that this conclusion is not tantamount to a determination that
the exclusion of the evidence could not have affected the outcome of the
trial. Rather, our holding here is based only on the limited nature of the
Confrontation Clause guarantee.
46 UNITED STATES V . HAYAT

Second, “the excluded testimony [primarily] served the
purpose of furthering the theory of the defense and not of
impeaching the prosecution’s witness.” United States v.
Lopez-Alvarez, 970 F.2d 583, 587 (9th Cir. 1992). Hayat
does not argue on appeal that the excluded testimony
indicated that Khan had misreported any of Hayat’s earlier
statements regarding his intent to go to a terrorist training
camp or was otherwise unreliable in his account of his
relationship with Hayat. Instead, Hayat maintains that in her
cross-examination of Khan, and later in her closing argument,
defense counsel sought to demonstrate that Hayat was a
braggart and a storyteller who never sincerely intended to
train for jihad and never did, and that the statement that Hayat
“never intended on going to a camp” fit neatly into this
theory. As noted, however, under the hearsay rules, the
October 7, 2003 statement could only be introduced for its
truth, if at all, with respect to Hayat’s intention on that day.
Hayat’s constitutional argument, at bottom, seeks to explain
why the statement should have been admitted for both
Hayat’s then-present intent, as well as his previous intent, and
so is better framed as “directed at demonstrating a denial of
[the] . . . guarantee of ‘a meaningful opportunity to present a
complete defense.’” Id. at 587–88 (quoting California v.
Trombetta, 467 U.S. 479, 485 (1984)).18

18
As we noted in Lopez-Alvarez, there is in the case law “confusion
regarding whether a defendant’s right to a meaningful opportunity to
present a complete defense is derived from the right of confrontation or
the right to due process.” Lopez-Alvarez, 970 F.2d at 588 n.4. The lack
of clarity we perceived then remains. See Holmes v. South Carolina,
547 U.S. 319, 324 (2006) (“‘W hether rooted directly in the Due Process
Clause of the Fourteenth Amendment or in the Compulsory Process or
Confrontation Clauses of the Sixth Amendment, the Constitution
guarantees criminal defendants a meaningful opportunity to present a
complete defense.’” (quoting Crane v. Kentucky, 476 U.S. 683, 690
 UNITED STATES V . HAYAT 47

As we recognized in Lopez-Alvarez and again in Chia v.
Cambra, 360 F.3d 997, 1003, 1006 (9th Cir. 2004), “[e]ven
when evidence is excluded on the basis of a valid application
of the hearsay rules, such exclusion may violate due process
if the evidence is sufficiently reliable and crucial to the
defense.” Lopez-Alvarez, 970 F.2d at 588 (citing Chambers
v. Mississippi, 410 U.S. 284, 302 (1973)).

Here, however, the excluded evidence—Hayat’s
statement that he “never intended on going to a camp”—is
not sufficiently reliable to meet the Chambers standard. In
Chambers, the state court prevented the defendant in a
murder prosecution from presenting three witnesses who
would testify that another man had confessed to each of them
separately that he was the murderer. 410 U.S. at 292–93. In
holding that the exclusion of the evidence violated the
defendant’s due process rights, the Supreme Court
emphasized the reliability of the excluded statements: the
confessions were made spontaneously to close acquaintances
shortly after the murder occurred, each confession was
corroborated by some other evidence in the case, and “each
confession . . . was in a very real sense self-incriminatory and
unquestionably against interest.” Id. at 300–01. Following
Chambers, our cases holding hearsay evidence
unconstitutionally excluded because essential to the
presentation of a defense have insisted that such evidence
bear “persuasive assurances of trustworthiness,” Chia,

(1986))). As in Lopez-Alvarez, in light of this confusion, we consider
Hayat’s Sixth Amendment right of confrontation argument adequate to
invoke on appeal the right to present a complete defense. Lopez-Alvarez,
970 F.2d at 588 n.4. In doing so, we once again refer to the right to
present a complete defense as a “due process right” for simplicity’s sake
and “do not decide the source of the right.” Id.
48 UNITED STATES V . HAYAT

360 F.3d at 1006 (internal quotation marks omitted);
typically, the cases involve inculpatory statements by third
parties, see Lunbery v. Hornbeak, 605 F.3d 754, 761 (9th Cir.
2010); Chia, 360 F.3d at 1004.

Here, the contested statement lacked the requisite
“persuasive assurances of trustworthiness.” To begin with,
the statement was exculpatory as to the speaker, Hayat, not
inculpatory. Nor has Hayat pointed to evidence corroborating
the excluded statement.

The only suggestion as to why the statement might be
reliable came from the government at trial: The prosecutor
argued in closing that

Hamid Hayat considered Naseem Khan to be
his, quote, best friend. . . . Hamid Hayat
thought he could trust Naseem Khan. . . . He
let his guard down. He spoke openly. He
spoke freely. And when you hear the words
that Hamid Hayat said during his
conversations with Naseem Khan, you get a
chance to see the real Hamid Hayat.

But the statement Hayat attempted to introduce was made on
October 7, 2003, apparently the last time Hayat spoke with
Khan before returning to the United States in May 2005. The
record contains very little information about why the
communications between Khan and Hayat lapsed for more
than a year and a half right after the contested conversation.
Hayat asserts that one can infer—there was no evidence to
this effect—that he broke off communication with Khan
because he was tired of Khan’s insistence that he go to a
training camp. It is an equally plausible inference,
 UNITED STATES V . HAYAT 49

however—again, the trial evidence is silent as to this
point—that Hayat had grown suspicious of Khan, because of
that very insistence or for some other reason, and so cut off
the relationship. In that case, Hayat could have lied when he
said he never intended to go to a camp, hoping to throw Khan
off his trail just before he stopped speaking with him entirely.

In short, Hayat’s statement was not sufficiently reliable to
satisfy the standard developed in the Chambers line of cases,
and the district court did not commit constitutional error by
excluding it. Because we hold that the district court did not
plainly err in its hearsay rulings, we do not reach the question
whether the exclusion of evidence affected the outcome of the
trial.

3.

As part of his argument that the district court erred in
limiting the cross-examination of Khan, Hayat contends the
district court improperly restricted discovery of classified
information about Khan under the Classified Information
Procedures Act (“CIPA”), 18 U.S.C. app. 3. The government
must disclose classified information only if it is “‘relevant
and helpful to the defense of an accused.’” United States v.
Klimavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998)
(quoting United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir.
1989)). We have reviewed the classified material that the
district court reviewed when it granted the government’s
motion for a protective order under CIPA, and conclude that
the information it contains would not have been helpful to the
defense. The district court did not err in precluding discovery
of the information or in limiting Hayat’s cross-examination
of Khan concerning it.
50 UNITED STATES V . HAYAT

C.

Finally, Hayat argues that the district court erred when it
(1) permitted the government’s expert, Khaleel Mohammed,
to testify about the meaning and implications of the Arabic
note found in Hayat’s wallet; (2) did not allow Hayat’s
expert, Anita Weiss, to testify that the note was a ta’wiz; and
(3) excluded the testimony of defense expert James Wedick,
a former FBI agent. We review for abuse of discretion a
district court’s decision to admit or exclude expert testimony.
See United States v. Seschillie, 310 F.3d 1208, 1211 (9th Cir.
2002).

1.

Prosecution witness Khaleel Mohammed, an expert in
Islamic studies, provided a translation of an Arabic note
found in Hayat’s wallet upon Hayat’s return from Pakistan.
He testified that the note was a supplication reading: “Oh
Allah we place you at their throats and we seek refuge in you
from their evils.”19 Mohammed further opined that the “kind
of person” who would carry that supplication would be one
“who perceives him or herself as being engaged in war for
God against an enemy.” He testified that the fact that the
supplication was being carried in a wallet meant that “[t]he
person was completely ready” to commit “an act of warfare
against a perceived enemy.”

19
Mohammed noted that the Arabic letters were accompanied by
diacritical marks, typically used to aid non-native speakers of Arabic in
pronunciation of Arabic words. He surmised that the writing was likely
intended to be “read ritually” or “memorized” rather than simply carried
as a charm, as is a ta’wiz.
 UNITED STATES V . HAYAT 51

As Hayat did not object to the admission of Mohammed’s
testimony at trial, we review the admission of the testimony
for plain error. See Reese, 2 F.3d at 892. Hayat challenges
the admission of Mohammed’s testimony on two grounds.
First, he contends that Mohammed’s testimony was
inadmissible under Federal Rule of Evidence 702 because it
exceeded the scope of Mohammed’s expertise and was not
reliable. In 2006, Rule 702 provided:

If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is
based upon sufficient facts or data, (2) the
testimony is the product of reliable principles
and methods, and (3) the witness has applied
the principles and methods reliably to the
facts of the case.

Mohammed’s analysis of the meaning of the supplication
was well within the scope of his expertise. Mohammed is a
professor of Islamic studies at San Diego State University and
has earned several advanced degrees in the field. He is fluent
in both modern and classical Arabic and has served as an
imam at a mosque in the United States. Mohammed testified
that he had interpreted between 50 and 500 supplications and
that he had interpreted Islamic texts “from a faith-based
perspective, as well as from an academic perspective.”

Mohammed also used reliable methods. To interpret the
supplication, he relied on (1) his own extensive knowledge of
52 UNITED STATES V . HAYAT

Arabic and Islamic law, (2) a thorough review of relevant
Islamic source materials, and (3) the opinions of other
academics and religious scholars. At trial, Mohammed
testified in detail about his methods.

We reject Hayat’s arguments that because Mohammed
was not an expert on Pakistani culture and did not speak Urdu
(the national language of Pakistan), he was unqualified to
offer his opinions about the note found in Hayat’s wallet.
Mohammed did not testify about Pakistani culture or anything
written in Urdu. He testified about the meaning of an Islamic
supplication written in Arabic, a topic squarely within his
expertise. The district court did not err in admitting
Mohammed’s testimony under Rule 702.

Second, Hayat contends that Mohammed’s testimony ran
afoul of Rule 704(b). In 2006, that Rule provided: “No
expert witness testifying with respect to the mental state or
condition of a defendant in a criminal case may state an
opinion or inference as to whether the defendant did or did
not have the mental state or condition constituting an element
of the crime charged or of a defense thereto.” Mohammed
testified that the “kind of person” who would carry the note
found in Hayat’s wallet was “[a] person who is engaged in
jihad”; that such a note would be used “[b]y people who
perceive themselves in a state of war”; and that a person who
carried such a note “was in the act of being a warrior.” We
might well agree with the dissent, see Dissent at 75, that these
and similar statements made by Mohammed could be held to
violate Rule 704(b) were we considering the scope of that
rule ab initio.

But we are not. Our caselaw has interpreted that rule
much more narrowly than its text might indicate. Under our
 UNITED STATES V . HAYAT 53

precedent, Rule 704(b) “does not bar testimony supporting an
inference or conclusion that a defendant does or does not
have the requisite mental state, ‘so long as the expert does not
draw the ultimate inference or conclusion for the jury and the
ultimate inference or conclusion does not necessarily follow
from the testimony.’” United States v. Younger, 398 F.3d
1179, 1189 (9th Cir. 2005) (quoting United States v. Morales,
108 F.3d 1031, 1038 (9th Cir. 1997)). In Younger, for
example, the jury was required to decide whether the
defendant possessed cocaine base with the intent to distribute
it. An expert witness for the prosecution testified that “[t]he
person, individual, whoever possessed this, possessed it for
the purposes of selling.” Id. (emphasis removed). We upheld
the admission of the testimony because “the expert never
directly commented on defendant’s mental state, and the jury
could have accepted his testimony and still infer that
defendant was atypical.” Id. at 1190.

Similarly, in United States v. Gonzales, we held that
expert testimony that a “person [who] was carrying those
items [was carrying them] for the purpose of distributing the
drugs” did not violate Rule 704(b) because “[e]ven if the jury
believed the expert’s testimony, the jury could have
concluded that [the defendant] was not a typical or
representative person, who possessed the drugs and drug
paraphernalia involved.” 307 F.3d 906, 911 (9th Cir. 2002);
see also United States v. Anchrum, 590 F.3d 795, 804–05 (9th
Cir. 2009) (affirming, in a case where the defendant was
charged with the possession of firearms in furtherance of drug
trafficking, the district court’s admission of expert testimony
that “if you’re driving around with a loaded weapon and you
have narcotics in your car, . . . [y]ou’re either going to use
[the weapon]” to get away from law enforcement, as
protection against getting “rip[ped] . . . off” in a drug deal
54 UNITED STATES V . HAYAT

gone bad, or to protect money earned through drug deals);
United States v. Gomez-Norena, 908 F.2d 497, 501–02 (9th
Cir. 1990) (holding that it was not plain error for the district
court to admit an expert’s testimony that it was his “opinion”
that “approximately $200,000 worth of cocaine” was
“possess[ed] with intent to distribute” and not for “personal
use”).

Here, Mohammed testified about the kind of person who
would carry a note such as the one found in Hayat’s wallet,
but he never commented directly on Hayat’s mental state.
Mohammed’s testimony about the typical “person” carrying
the supplication is indistinguishable in its degree of precision
from the expert testimony found admissible in Younger and
Gonzales. Therefore, if the district court erred at all in
admitting the testimony, such error certainly was not plain,
given our precedents limiting Rule 704(b) essentially to a
semantic preclusion. Thus, while we might like to agree with
Judge Tashima that the expert evidence in this case crossed
the Rule 704(b) line, we are prevented from doing so by this
court’s caselaw.

2.

Defense expert Anita Weiss testified about the Pakistani
practice of carrying a ta’wiz, which she defined as an Arabic
verse or prayer used by Pakistanis as a talisman, for luck or
protection, often when traveling. The defense’s theory was
that the note found in Hayat’s wallet was a benign ta’wiz that
Hayat had been carrying to protect himself while traveling,
and that it had no jihadist import.

On direct examination, Hayat’s counsel asked Weiss
whether she believed that the particular writing found in
 UNITED STATES V . HAYAT 55

Hayat’s wallet was a ta’wiz. The government objected, citing
a lack of foundation or basis under Rule 702. The district
court sustained the objection on the ground that Weiss was
unqualified to evaluate the content of the writing because she
did not know Arabic.

The district court did not abuse its discretion in excluding
Weiss’s testimony as to whether the note found in Hayat’s
wallet was a ta’wiz. First, it is undisputed that Weiss does not
speak Arabic. Nor did she testify that all ta’wiz charms look
alike or can be distinguished from other Arabic writings
based on their physical appearance alone. On the contrary,
she explained that such charms may take different forms and
are worn or used in a variety of ways: “usually it’s either
something that can be tied around your neck, or it can be
something . . . tied around your arm. Or else it could be
something where it’s phrases either from the Koran, or the
Hadith, or a prayer that is mixed with water, and some people
put some sugar in it, you mix it up and drink it, or you can
even eat a ta’wiz.” It was therefore reasonable for the court
to conclude that she was not qualified to identify the
particular note found in Hayat’s wallet.

Second, contrary to Hayat’s contention, Weiss was
permitted to testify “about the cultural practice and meaning
of carrying Arabic scriptures.” She testified at length about
ta’wiz charms, their cultural significance, their “extremely
common” use by travelers, and the fact that they are written
in Arabic and not Urdu. The district court only prohibited her
from specifically identifying the note found in Hayat’s wallet
as a ta’wiz. It was not an abuse of discretion to exclude that
portion of Weiss’s testimony.
56 UNITED STATES V . HAYAT

3.

Hayat also attempted to present James Wedick, a former
FBI agent, as an expert witness. In his Rule 16 disclosure
statement, Hayat stated that Wedick would testify, among
other things, that “the FBI Sacramento office had the
capability to videotape Hamid Hayat’s interview right when
it actually started”; that “the interviewing agents did not
consider but should have considered [Hayat’s] vulnerabilities
as an interviewee”; and that the agents “all used leading
questions during the interviews of Hamid Hayat.” The
district court excluded Wedick’s testimony in its entirety,
finding that much of the testimony was of “marginal
probative value” and that its value was outweighed by the risk
of confusing the jury, wasting time, and presenting needless
cumulative evidence. The court also concluded that
Wedick’s testimony “would not assist the trier of fact.”

The district court did not abuse its discretion in so ruling.
The jurors viewed the videotapes of some sessions of Hayat’s
FBI interview. It would have added nothing for Wedick to
testify that the Sacramento FBI office had the capability to
videotape Hayat’s interview in toto—that was obvious, as
they did videotape the last two sessions—or that the agents
“all used leading questions”—the jurors could see that for
themselves. Moreover, Hayat’s counsel thoroughly explored
the conduct of the agents who participated in Hayat’s
interview, including the improper use of leading questions,
during her cross-examination of those agents. Finally, as to
Wedick’s proposed testimony that the agents failed to
consider Hayat’s “vulnerabilities,” the jurors again could see
for themselves whether Hayat appeared tired, isolated, or
naive during the videotaped interview sessions. Nor was it
clear that Wedick had particular expertise in the field of false
 UNITED STATES V . HAYAT 57

confessions. The district court did not abuse its discretion in
excluding Wedick’s testimony.

III.

After sentencing, Hayat filed a motion to vacate his
convictions under 28 U.S.C. § 2255. He argued that his trial
counsel, who had never before tried a federal criminal case,
had a conflict of interest because she relied heavily for legal
and strategic advice on the more experienced lawyer
representing Hayat’s father, Umer, in their joint trial. Hayat
also argued that his trial counsel was constitutionally
ineffective because, among other things, she did not take
advantage of procedures that would have allowed her to
depose potentially exculpatory witnesses in Pakistan who
were unavailable for trial, and she failed to preserve
objections to several of the district court’s evidentiary rulings.
The district court dismissed Hayat’s § 2255 motion without
prejudice because his criminal appeal was pending before this
court. Hayat now asks us to review the district court’s
dismissal order.

Hayat did not timely file a notice of appeal of the district
court’s dismissal order, which postdated by several weeks
Hayat’s notice of appeal in his criminal case. See Fed. R.
App. P. 4(a); see also Rule 11, Rules Governing Section 2255
Proceedings for the United States District Courts. We
therefore lack jurisdiction to review the district court’s
dismissal of Hayat’s § 2255 motion, see United States v.
Sadler, 480 F.3d 932, 937 (9th Cir. 2007) (“Rule 4(a) . . . is
both mandatory and jurisdictional.”). This holding is, of
course, without prejudice to our authority to review the
district court’s determinations on any later, properly filed
initial § 2255 motion encompassing the claims Hayat sought
58 UNITED STATES V . HAYAT

to raise in the motion dismissed without prejudice, and
expresses no view as to the merits of any of those
contentions.

CONCLUSION

We affirm Hayat’s convictions. We also grant the
government’s motion to dismiss the appeal of the order
dismissing without prejudice Hayat’s motion to vacate his
convictions under 28 U.S.C. § 2255. We deny the
government’s motion to strike portions of the opening brief
that cite to materials outside the record as moot.

AFFIRMED.

TASHIMA, Circuit Judge, 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.

1
A.P. Herbert, Rex v. Haddock: Is it a Free Country?, in T H E
U N CO M M O N L AW 24, 28 (1935) (“It is not for me to say what offence the
appellant has committed, but I am satisfied that he committed some
offence, for which he has been most properly punished.”).
 UNITED STATES V . HAYAT 59

§ 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, therefore, is not before
this court. Nevertheless, “the primary constitutional duty of
the Judicial branch [is] to do justice in criminal
prosecutions.” United States v. Nixon, 418 U.S. 683, 707
(1974); Bull v. City & Cnty. of S.F., 595 F.3d 964, 1004 (9th
Cir. 2010) (en banc) (Thomas, J., dissenting) (“Our
constitutional oath requires us to do justice–not
injustice–without respect to persons.”). Scrupulous
fulfilment of this duty is all the more critical when the
government asks a jury to deprive a man of his liberty largely
based on dire, but vague, predictions that he might commit
unspecified crimes in the future. Because this duty was not
fulfilled in Hayat’s trial, I would reverse the conviction and
remand for a new trial. I therefore respectfully dissent.

I

The government’s theory is that Hamid Hayat, the
American-born, erstwhile agricultural worker son of an
immigrant ice-cream truck driver in rural Lodi, California,
attended a terrorist training camp in Pakistan and returned to
the United States with a “jihadi heart” and a “jihadi mind,”
60 UNITED STATES V . HAYAT

intending to commit terrorist acts of some unknown sort at
some unknown time in the future. The evidence against
Hayat is as follows:

His maternal grandfather runs a religious school in
Pakistan. Hayat expressed repugnant views about the murder
of American journalist Daniel Pearl. He kept a scrapbook of
news articles about Pakistani politics and Islamic
fundamentalism, including anti-American commentary. In
conversations with a government informant, he expressed
interest in going to, and then made excuses for not attending,
a terrorist training camp. After hours of questioning,
beginning around 11:00 a.m., and lasting into the early
morning hours of the following day, he finally agreed with
FBI interrogators, who repeatedly insisted, despite his
continuing denials, that Hayat had in fact attended such a
training camp. Finally, Hayat carried in his wallet a written
prayer, a saying of the prophet Mohammed, that a
government expert opined would be carried only by a
“jihadist,” a person intent on waging war in the name of God.
For this, Hayat is now serving a twenty-four-year sentence in
federal prison.

Notwithstanding that the testimony of the FBI informant
was the most damning evidence against Hayat, Hayat was not
permitted fully to cross-examine the informant about his
conversations with Hayat. In addition, the district court
allowed the government’s expert witness to testify that the
“kind of person” who would carry the Islamic prayer found
in Hayat’s wallet had “jihadi intent.” Because the district
court plainly erred in preventing Hayat from introducing
exculpatory evidence and in allowing inflammatory expert
testimony that usurped the jury’s role as finder of fact, I
would reverse and remand to the district court for a new trial.
 UNITED STATES V . HAYAT 61

II

At trial, the government introduced seven recorded
conversations between Hayat and its star witness, FBI paid
informant Naseem Khan.2 The government also questioned
Khan about his unrecorded conversations with Hayat, of
which, apparently, there were many. Hayat’s statements to
Khan, combined with Hayat’s meandering and almost
nonsensical confession to the FBI, constitute the bulk of the
evidence of Hayat’s attending a terrorist training camp.
Hayat’s counsel attempted to cross-examine Khan about
certain statements he claimed that Hayat made in unrecorded
conversations. The most important of these is the following:

Q. During that October 7th conversation,
Hamid told you that he never intended on
going to a camp, and he was lying to you all
along, didn’t he?

AUSA FERRIS: Objection. Foundation.
Hearsay. Move to strike.

THE COURT: Sustained. It’s stricken.

Responding earlier in the cross-examination to the
government’s objections to a similar line of questioning,
Hayat’s counsel argued that the excluded testimony was
admissible as nonhearsay to show its effect on Khan, the

2
Khan was paid more than $200,000 by the FBI. At one point, Khan
informed the FBI that he had regularly observed Osama bin Laden’s
second-in-command, Ayman al Zawahiri, at a mosque in Lodi, an
assertion the government now concedes is false.
62 UNITED STATES V . HAYAT

listener. The district court rejected this basis for admission.3
Consequently, the prosecution was allowed to introduce
inculpatory out-of-court statements Hayat made to Khan, but
the defense was prevented from eliciting testimony regarding
Hayat’s exculpatory out-of-court statements made in the same
conversation.

The majority concludes there was no plain error in
refusing to admit the excluded statement “I never intended on
going to a camp.” Maj. Op. at 42. I disagree. In Puckett v.
United States, 129 S. Ct. 1423 (2009), the Supreme Court
explained that in order to reverse for plain error, a court must
find the following: (1) there was an “error or defect–some
sort of deviation from a legal rule”; (2) the error was plain,
i.e. “clear or obvious, rather than subject to reasonable
dispute”; (3) the error “affected the appellant’s substantial
rights, which in the ordinary case means he must demonstrate
that it affected the outcome of the district court proceedings”;
and (4) “the error seriously affects the fairness, integrity or
public reputation of judicial proceedings,” such that the court
may exercise its discretion to remedy the error. Id. at 1429
(citing United States v. Olano, 507 U.S. 725 (1993))
(quotation marks, internal citations, and alterations omitted).
Applying this plain error standard, I would reverse.

A. Deviation from a Legal Rule

It is clear that the first element of the plain error analysis
is satisfied – there was error, i.e., deviation from a legal rule
– because Khan’s testimony was excluded despite being

3
Hayat’s counsel did not offer a basis for admission after this objection
was overruled, perhaps because of the district court’s ruling on the earlier
objections.
 UNITED STATES V . HAYAT 63

admissible on two, independent bases.4 First, the testimony
was admissible for the limited purpose of showing Hayat’s
then-existing intent not to go to a terrorist training camp
which, under the Hillmon doctrine, was admissible to prove
that Hayat did not, in fact, go to such a camp. United States
v. Wash. Water Power Co., 793 F.2d 1079, 1082 n.4 (9th Cir.
1986) (discussing Mut. Life Ins. Co. v. Hillmon, 145 U.S. 285
(1892), and Fed. R. Evid. 803(3)). Second, the testimony that
Hayat said he never intended to go to a camp, and was lying
to Khan all along, was admissible for the nonhearsay purpose
of impeachment, because it contradicted Khan’s testimony
that he had no reason not to believe the things Hayat told him.
Fed. R. Evid. 607. Accordingly, the exclusion of this
testimony as hearsay was error.

1. Then-Existing Intent

Rule 803(3) provides that “[a] statement of the declarant’s
then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental
feeling, pain, and bodily health)” is “not excluded by the
hearsay rule.” Fed. R. Evid. 803(3). The state of mind
exception, of course, does not include “a statement of
memory or belief to prove the fact remembered or believed.”
Id. Accordingly, the statement, “I never intended to go to a
camp,” could not be admitted for the purpose of proving
Hayat’s earlier state of mind, including whether he lied to
Khan. But it is clear that, in the context of and as a response
to Khan’s emphatic badgering of Hayat, the statement also
communicated Hayat’s present intent not to attend a training
camp. The conversation at issue took place in early October

4
The testimony was also arguably admissible under the rule of
completeness. See Fed. R. Evid. 106.
64 UNITED STATES V . HAYAT

2003 while Hayat was in Pakistan.5 Khan testified that the
previous July, Khan called Hayat and swore at him for
“wasting time” taking care of his sick mother, instead of
“going to a camp”; he challenged Hayat to “[b]e a man” and
“do something.” In late August 2003, Khan called Hayat
again, telling Hayat that he had complained to Hayat’s father
in California that Hayat was “just sitting there [in Pakistan],
wasting his time.” Khan said Hayat’s father told him Hayat
would go for training after Ramadan.6 Khan congratulated
Hayat and told him that he was “very happy” Hayat would be
going to a camp. In this context, Hayat’s statement in early
October that he never intended to go to a camp indicated his
then-existing intent not to do so.

Hayat offers a useful example to illustrate this point: If
someone asked you when you were going to the movies today
and you responded, “I never intended to go to the movies
today,” your response would obviously communicate your
present intent not to go to the movies. Moreover, under the
Hillmon doctrine, the statement is admissible as tending to
prove that you did not in fact go to the movies that day. See
Wash. Water Power Co., 793 F.2d at 1082 n.4; Fed. R. Evid.
803(3) advisory committee note. Likewise, Hayat’s
statement was admissible under Rule 803(3) to prove his
then-existing intent not to go to a training camp, and also to
prove that he did not in fact later attend such a camp. The
district court thus erred in preventing Khan from answering

5
Khan testified that it was the last time they spoke to each other before
Hayat returned to the United States in May 2005.

6
In 2003, Ramadan fell between late October and early November.
 UNITED STATES V . HAYAT 65

the question whether Hayat said he never intended to go to a
camp.7

2. Impeachment

Hayat’s statement that he never intended to go to a camp
and was lying to Khan all along was also admissible for the
nonhearsay purpose of impeaching Khan because, regardless
of the statement’s truth, it contradicted Khan’s testimony that
he had no reason not to believe the stories Hayat told him.
Fed. R. Evid. 607. The government asked Khan on direct
examination whether he ever called Hayat a “liar.” When
Khan replied “yes,” government counsel then asked, “When
you called him a liar, did you always think he was actually
lying?” Khan attempted to downplay the epithet, responding,
“No. Sometimes it was just like when you are talking in
English, and . . . someone is telling you a story, you tell them,
Are you kidding? Like that.”

In cross-examining Khan, Hayat’s counsel tried to show
that Hayat was a big talker or braggart who repeatedly lied
and exaggerated about matters related to fundamentalism and
terrorism. Khan insisted that he had no reason not to believe
the various outlandish things (some demonstrably false)
Hayat said – for example, that Hayat had spent time in

7
The majority notes, somewhat puzzlingly, that Hayat failed to ask for
a limiting instruction, which would have been necessary if the excluded
testimony was admitted to show then-existing intent. M aj. Op. at 41–42.
This is neither here nor there. It is undisputed that Hayat failed to advance
an appropriate basis for admission of the excluded testimony – that is why
it is being reviewed for plain error and not abuse of discretion. It is
unclear why the majority thinks Hayat’s counsel should (or even could)
have sought a limiting instruction related to a ground for admission that
she ignorantly or inadvertently failed to advance.
66 UNITED STATES V . HAYAT

Pakistani jail for selling counterfeit money, but had been
released through his grandfather’s influence; that Hayat’s
uncle was the leader of the JUI party in Pakistan; that the
Taliban sent messages through a Pakistani newspaper; and
that the leader of the opposition in the National Assembly of
Pakistan was tied to training camps. When Hayat’s counsel
pointed out that Khan had called Hayat a liar, Khan said he
was “joking” and that Hayat only lied about the “small stuff,”
for example, whether one could buy a cell-phone charger at
a 99-Cent Store.

Hayat’s statement that he never intended to go to a camp
and was lying all along was thus relevant and admissible to
impeach Khan. See United States v. Arteaga, 117 F.3d 388,
397 n.18 (9th Cir. 1997) (“If a witness says ‘X’ on the stand,
his out of court statement ‘not-X’ impeaches him, whether X
is true or not.”). Regardless of whether the statement was
true, it indicated that Khan did have a reason not to believe
Hayat’s boasts about his connections to fundamentalist
leaders and terrorist training camps, which was certainly not
“small stuff.” Whether Hayat had been lying all along or
lying when he made the excluded statement, his inconsistency
on a critical point gave Khan a reason not to believe him
when he spoke of his involvement with and reverence for
individuals seeking to conduct jihad against non-Muslims.

Because the excluded testimony was admissible on two,
independent bases, the first element of the plain error
analysis, the existence of error, is met.

B. “Plain” Error

The second element requires the court to find that the
error was plain under existing law, rather than subject to
 UNITED STATES V . HAYAT 67

reasonable dispute. Plain error is error “that an experienced
district judge can[ ] be expected to detect . . . on his own,”
even “without benefit of objection.” United States v. Turman,
122 F.3d 1167, 1170 (9th Cir. 1997). Thus, the error is plain
if the district court, even without the benefit of hearing an
applicable basis for admission from Hayat’s counsel, should
have admitted the testimony.

The first basis for admission argued on appeal, Hayat’s
then-existing state of mind, is a long-standing exception to
the hearsay rule of which the district court was undoubtedly
aware. Fed. R. Evid. 803(3); see, e.g., United States v.
Armijo, 5 F.3d 1229, 1232 (9th Cir. 1993) (finding plain error
where trial court admitted witness’ prior inconsistent
statement without a limiting instruction that the statement
could be used to impeach the witness’ credibility, but not as
evidence of the defendant’s guilt); United States v. Sauza-
Martinez, 217 F.3d 754, 760 (9th Cir. 2000) (reversing for
plain error where the district court failed sua sponte to
provide a limiting instruction that certain evidence was
admissible only as to co-defendant). Here, the jury was asked
to determine whether Hayat had attended a training camp.
Aside from a government witness’ testimony that there
“possibly” or “probably” was a training camp in a region
mentioned by Hayat in his bumbling confession, the main
evidence of whether Hayat actually went to such a camp were
his statements to Khan regarding his intent to go to such a
camp. If Hayat’s statements to Khan on this issue were, as
Hayat argues, equivocal, changing, and contradictory, the
probative value of any one out-of-court statement of intent,
out of context from the others, is dubious. Fed. R. Evid. 401.
Accordingly, the excluded testimony’s probative value in
establishing Hayat’s intent – or lack of intent – should have
been plain to the district court.
68 UNITED STATES V . HAYAT

Furthermore, it is difficult to believe that even without a
proper objection, the district court failed to recognize the
patent unfairness in allowing Khan to provide testimony that
bolstered Hayat’s inculpatory out-of-court statements (such
as Khan’s testimony that he had no reason to disbelieve Hayat
and, despite calling Hayat a liar, he never believed Hayat
actually lied to him), while preventing the defense from
eliciting testimony that would have undercut the strength of
these out-of-court statements, undermined Khan’s credibility,
and supported the defense theory that Hayat was a storyteller
and a braggart, who – despite making outlandish claims to
Khan – had no involvement with extremist Islam or terrorism.
See United States v. Benveniste, 564 F.2d 335, 342 (9th Cir.
1977) (holding that “the rejection of the exculpatory hearsay
[testimony of a government witness] was in error, particularly
in view that accusatory hearsay was admitted”). As the
Second Circuit has noted, “[w]hen a trial judge observes
occurrences that potentially call into question the fairness of
the proceedings or the thoroughness of a defense, it is
incumbent on the judge to inquire.” United States v.
Awadallah, 436 F.3d 125, 136 (2d Cir. 2006).
Notwithstanding that the district court here did not have the
benefit of hearing this basis for admission from Hayat’s
counsel, the error in not admitting the excluded statements for
impeachment purposes is clear on the record.

C. Substantial Rights

The third element in the plain error analysis is the error’s
effect on substantial rights. The appellant must show that
there is “a reasonable probability that the error affected the
 UNITED STATES V . HAYAT 69

outcome of trial.” United States v. Marcus, 130 S. Ct. 2159,
2164 (2010) (citing Olano, 507 U.S. at 734–35).8

“[W]here, as here, the Government’s case may stand or
fall on the jury’s belief or disbelief of one witness, his
credibility is subject to close scrutiny.” Gordon v. United
States, 344 U.S. 414 (1953). The principle “that appellate
courts give the trial judge wide latitude in control of cross-
examination . . . cannot be expanded to justify a curtailment
which keeps from the jury relevant and important facts
bearing on the trustworthiness of crucial testimony.” Id. at
423. In Gordon, the defendants were convicted of theft
largely based on the testimony of a co-defendant, Marshall.
Id. at 415. As Marshall was the prosecution’s key witness,
defense counsel attempted to introduce evidence to impeach
him. Id. Specifically, the defense sought to introduce: (1)
contradictory statements made by the witness to the
government; and (2) a transcript showing that the a judge may
have influenced his testimony by stating, “I am not holding
out any promises to you, but I think you would be well
advised to tell the probation authorities the whole story even
though it might involve others.” Id. at 416–17. Up to that
point, Marshall had not mentioned any “others” in four
separate interviews; soon after the hearing, he did. Id. at 422.
The trial court refused to admit this evidence on cross-
examination. Id. at 417. Concluding that “we cannot say that
these errors were unlikely to have influenced the jury’s
verdict,” the Court found that they prejudiced substantial
rights and reversed. Id.

8
Because the majority concludes (wrongly, in my view) that there was
no plain error, it does not address this factor.
70 UNITED STATES V . HAYAT

In this case, as in Gordon, the prosecution centered on the
testimony of a star witness, whose credibility therefore was
“subject to close scrutiny.” By excluding the testimony, the
district court deprived the defense of an important and
potentially effective means of impeaching Khan. The
excluded evidence went to the heart of Khan’s testimony.
First, the exclusion prevented the defense from impeaching
Khan’s re-direct testimony that he had “no reason not to
believe” Hayat intended to go to a training camp. This would
have revealed that Khan – contrary to his emphatic testimony
– indeed did have reason to doubt Hayat’s intent to go to a
camp because Hayat said as much to Khan. Second, the
excluded evidence would have supported the defense theory
that Khan and the government were selectively introducing
inculpatory statements of intent while omitting exculpatory
statements of intent. Had the jury been permitted to hear the
excluded testimony, it “might reasonably have questioned
[Khan’s] reliability or credibility,” Holley v. Yarborough,
568 F.3d 1091, 1099 (9th Cir. 2009) (internal quotation marks
omitted), and might have discounted Khan’s colorful
characterizations of Hayat as a would-be jihadist based on
Khan’s own perceptions of Hayat’s state of mind. This
justifies the conclusion that there is a reasonable probability
that the exclusion of this evidence affected the outcome of the
trial.

The exclusion was a critical blow to the defense because
the evidence was not – and could not have been – introduced
by any other means. The excluded testimony was the sole
means of impeaching the substance of Khan’s testimony (as
opposed to generally impeaching Khan’s credibility by
showing he was a paid informant of the FBI). Without this
testimony, the defense was unable to counter Khan’s
insistence that Hayat expressed the intent to attend a terrorist
 UNITED STATES V . HAYAT 71

training camp. Accordingly, I would find that the error in
excluding this testimony affected Hayat’s substantial rights.

D. Serious Effect on the Fairness of the Proceedings

The fourth element, whether the error seriously affects the
fairness, integrity or public reputation of judicial proceedings,
“is meant to be applied on a case-specific and fact-intensive
basis.” Puckett, 129 S. Ct. at 1433. Generally, courts have
relied on the presence of “overwhelming and uncontroverted
evidence” of guilt as a basis for finding that a plain error did
not seriously affect the fairness, integrity or public reputation
of judicial proceedings. E.g., United States v. Cotton,
535 U.S. 625, 634 (2007); see Sauza-Martinez, 217 F.3d at
760–61 (finding that plain error affected the defendant’s
substantial rights where the evidence against him “was by no
means overwhelming”). Here, there is no such overwhelming
evidence of guilt.

Given that the government introduced extensive
inculpatory out-of-court statements and emphasized their
reliability, the district court’s exclusion of a crucial
exculpatory statement made under identical conditions and
contemporaneously with the inculpatory statement was
grossly unfair. See Benveniste, 564 F.2d at 342. Hayat had
a strong interest in ensuring that the jury knew the full story
of his relationship with Khan, so that the jury could evaluate
the reliability and completeness of Khan’s testimony and
properly judge Hayat’s intent. The selective admission of
Khan’s conversations with Hayat unfairly presented a one-
sided view of the evidence of Hayat’s intent. This seriously
calls into question the fairness and integrity of the
proceedings.
72 UNITED STATES V . HAYAT

Furthermore, there is no doubt that the “public reputation”
of judicial proceedings has been seriously affected by the
errors in Hayat’s trial. The trial has been the subject of
numerous critical news reports, magazine articles, and
television programs questioning not only the government’s
investigation and prosecution, but also the soundness of the
judicial branch’s handling of the case. See, e.g., Frontline:
The Enemy Within (PBS television broadcasts 2006)
(criticizing the investigation, prosecution and trial of Hamid
Hayat); Mark Arax, “The Agent Who Might Have Saved
Hamid Hayat,” L.A. Times Magazine 16 (May 28, 2006)
(criticizing the government’s investigation and the trial of
Hamid Hayat); Amy Waldman, “Prophetic Justice,” The
Atlantic Monthly 82 (Oct. 2006) (explaining possible jury
bias); Chesney, supra, 80 S. Cal. L. Rev. at 491. The fourth
requirement of the plain error analysis, therefore, is satisfied.

All four elements of the plain error doctrine having been
satisfied, I would exercise our discretion and reverse and
remand for a new trial.

III

The government’s expert witness, Khaleel Mohammed,
teaches Islamic studies and is an erstwhile imam. He has
experience in translating and interpreting prayers from a
“faith based perspective, as well as from an academic
perspective.” Mohammed testified on direct examination that
he translated from Arabic a written supplication found in
Hayat’s wallet. He translated it as: “Oh Allah we place you
 UNITED STATES V . HAYAT 73

at their throats and we seek refuge in you from their evils.”9
He then testified that the supplication was “not peaceful”
because he looked up the supplication in several
commentaries, and “just about every commentary [the expert]
checked puts it [the supplication] in a case where someone
who is in jihad makes this supplication, someone who is at
war with a perceived enemy . . . .” The following exchange
then occurred between the prosecutor and the government’s
expert:

Q. Based on your research and experience,
what is the context, then, of this
supplication?

A. The context of the supplication is for
when one is engaged in war, a holy war,
fighting for God, against an enemy that is
perceived to be evil.

Q. In your opinion, would a particular kind of
person carry this supplication?

A. Yes. A particular kind of person would
carry this supplication.

Q. What kind of person?

9
This supplication also bears a striking similarity to the well-known Old
Testament story in which David, after being rescued from Saul and his
enemies, recites to God: “Thou hast also given me the necks of mine
enemies, that I might destroy them that hate me.” 2 Samuel 22:41.
74 UNITED STATES V . HAYAT

A. A person who perceives him or herself as
being engaged in war for God against an
enemy.10

Mohammed further testified that a person carrying this
supplication would be “[a] person engaged in jihad.” He
insisted that “there is no other way that it could be used.” He
elaborated that it would be fair to say that this person would
be a “jihadist” or “part of the mujahedeen.” Among other
sweeping conclusions, Mohammed explained that carrying
this particular supplication means a person: “has to be
involved in jihad”; must “perceive[ ] himself to be carrying
out one of the obligations of jihad, that he was involved in
what he deemed to be jihad’; and “was completely ready.
The person was in the act of being a warrior.”11

Notwithstanding Mohammed’s blanket conclusions
regarding Hayat’s readiness to “engage in war,” Hayat’s
counsel failed to object. As a consequence, the court may
review only for plain error. Even under this more stringent
standard of review, however, I would conclude that the
district court plainly erred in allowing Mohammed to testify
broadly about Hayat’s supposed “jihadi intent,” which
usurped the jury’s role as ultimate finder of fact.

10
Mohammed later elaborated that the “enemy” referred to in the
supplication could only be “an enemy of God.”

11
Inexplicably, irrelevantly, and prejudicially, the government
questioned Mohammed about “warriors in Africa” who might carry
amulets as protection. Mohammed then testified about “warriors in
Eritrea, warriors in Southern Sahara,” and the Egyptian Muslim
Brotherhood.
 UNITED STATES V . HAYAT 75

The majority concludes that this testimony is not an
improper opinion on Hayat’s mental state constituting an
element of the crime charged. Maj. Op. at 54. I strongly
disagree. Fed. R. Evid. 704(b) provides that “[n]o expert
witness testifying with respect to the mental state or condition
of a defendant in a criminal case may state an opinion or
inference as to whether the defendant did or did not have the
mental state or condition constituting an element of the crime
charged or of a defense thereto.” These are “ultimate issues”
to be decided by “the trier of fact alone.” Id. From the
record, it is clear that Mohammed stated an opinion as to
Hayat’s mental state. The linguistic nicety of referring to “a
person who would carry this supplication in his wallet” rather
than “Hayat” cannot save Mohammed’s testimony.
Moreover, Mohammed flatly and categorically testified that
a person carrying this supplication “has to be involved in
Jihad.” It is plain on the record that “a person” could have
been no one but Hayat.12 The violation of rule 704(b) is plain
and obvious. See Puckett, 129 S. Ct. at 1429.

The majority nonetheless relies on United States v.
Younger, 398 F.3d 1179 (9th Cir. 2005), abrogated on other
grounds as stated in United States v. Vongxay, 594 F.3d
1111, 1116 (9th Cir. 2010), a case about expert testimony
relating to the drug trade, and similar cases, to conclude that
Mohammed’s testimony was not improper. Maj. Op. at
52–53. The majority’s conclusion, however, stretches the
Younger line of cases beyond the breaking point and beyond
the limits of its logic. In Younger, a police lieutenant testified

12
Mohammed opined on the kind of “person” who would carry this
supplication only after testifying that the particular supplication at issue
was “rare.” This left little room for the jury to conclude that Hayat was
“atypical.”
76 UNITED STATES V . HAYAT

“as an expert in the methodology of possession, use,
manufacture, and distribution of illicit narcotic substances.”
Id. at 1188. The lieutenant testified that “[t]he person” who
possessed the quantity of drugs at issue in the case possessed
it for the purpose of selling it. Id. at 1189. In evaluating the
propriety of this expert testimony, the court explained that
Rule 704(b)

does not bar testimony supporting an
inference or conclusion that a defendant does
or does not have the requisite mental state, “so
long as the expert does not draw the ultimate
inference or conclusion for the jury and the
ultimate inference or conclusion does not
necessarily follow from the testimony.”

398 F.3d at 1189 (quoting United States v. Morales, 108 F.3d
1031, 1038 (9th Cir. 1997)). Deciding to admit the testimony
at issue, the court noted that “[a]lthough the prosecutor’s
questions brought the testimony close to Rule 704(b)’s line of
prohibition . . . the jury could have accepted his testimony
and still infer that defendant was atypical.” Id. But here,
Mohammed’s flat out, categorical statement crossed the
Younger line because it left no room for the jury to infer
anything other than that Hayat “has to be involved in jihad.”

Younger relied on several earlier cases regarding expert
testimony about the “methodology” of the narcotics trade. In
United States v. Gonzales, for example, a federal agent
testified that “an individual” possessing the amount of drugs
at issue in the case possessed them for sale and not personal
use. 307 F.3d 906, 911 (9th Cir. 2002). The agent testified
that combined with possession of a handgun and scales, his
opinion that the quantity of drugs at issue indicated an intent
 UNITED STATES V . HAYAT 77

to distribute “extremely firm.” Id. The court concluded that
this testimony did not run afoul of Rule 704(b) because even
if the jury credited the agent’s testimony, it “could have
concluded that Gonzales was not a typical or representative
person, who possessed the drugs and drug paraphernalia
involved.” Id. Together, Younger and its forebears establish
a general rule that

[g]overnment experts may “testify as to the
general practices of criminals to establish the
defendants’ modus operandi” which “helps
the jury to understand complex criminal
activities, and alerts it to the possibility that
combinations of seemingly innocuous events
may indicate criminal behavior.” United
States v. Valencia Amezcua, 278 F.3d 901,
908–09 (9th Cir. 2002) (quoting United States
v. Johnson, 735 F.2d 1200, 1202 (9th Cir.
1984)). We have allowed modus operandi
testimony that “drug traffickers often employ
counter-surveillance driving techniques,
register cars in others’ names, make narcotics
and cash deliveries in public parking lots, and
frequently use pagers and public telephones.”
Id. at 909 n.4.

United States v. Freeman, 498 F.3d 893, 906 (9th Cir. 2007);
see also United States v. Anchrum, 590 F.3d 795, 804 (9th
Cir. 2009) (finding government agent’s testimony about why
a hypothetical drug dealer would possess a firearm to be
permissible expert testimony on the modus operandi of drug
dealers).
78 UNITED STATES V . HAYAT

The majority likens Mohammed’s testimony about the
state of mind of a person who would carry a written prayer in
his wallet to that of law enforcement officers who testify
about the modus operandi of “a person” who carries a large
quantity of drugs, a firearm, and scales. Maj. Op. at 53–54.
The factual scenarios are dissonant. In the Younger line of
cases, the government experts at issue are law enforcement
officers experienced in investigating the drug trade and
related crimes. These officers testified about the signature
accouterments of the drug trade and the modus operandi of
drug dealers. Here, Mohammed, although professing some
knowledge that jihadists may carry supplications, did not
testify as an expert on the modus operandi of Islamic
terrorists. Notwithstanding his lack of expertise in that field,
he opined on what was in the heart and mind of a person who
would carry a written prayer in his wallet.

As the Fifth Circuit recently noted,

there is a fine but critical line between expert
testimony concerning methods of operation
unique to the drug business, and testimony
comparing defendant’s conduct to the generic
profile of a drug courier. The former may be
permissible to help a jury understand the
significance and implications of other
evidence presented at trial. The latter may
impermissibly suggest that an innocent
civilian had knowledge of drug activity. . .
The inquiry does not turn on magic words,
and the purpose of the inquiry must be to
determine whether expert testimony is the
“functional equivalent” of an opinion that the
defendant knew he was carrying drugs.
 UNITED STATES V . HAYAT 79

United States v. Gonzalez-Rodriguez, 621 F.3d 354, 364 (5th
Cir. 2010) (citations omitted). Mohammed’s opinion
testimony stepped over this “fine but critical line.” Rather
than testifying about the modus operandi of would-be
terrorists,13 Mohammed repeatedly stated that “a person” who
would carry the supplication at issue was ready to engage in
war, perceived himself as “a warrior,” and was certainly a
“jihadist” or part of the mujahadeen. In short, Mohammed’s
testimony is the “functional equivalent” of an opinion that
Hayat had the requisite intent to provide material support for
terrorism – because he could not be anything other than a
“jihadist.” Once an expert labels someone a “jihadist,” what
is left for the jury to determine? The jury could not but reach
the conclusion that a “jihadist” is guilty of “providing
material support for terrorism.” There was no wiggle room
for the jury to determine that Hayat was “atypical” and thus
reach another conclusion. Younger, 398 F.3d at 1189.

Furthermore, and perhaps more importantly, carrying a
prayer in one’s wallet is fundamentally unlike carrying the
signature tools of the drug trade. It is one thing to say that
possessing drugs and scales indicates intent to sell drugs; it is
quite another to say that carrying a religious invocation in
one’s wallet demonstrates intent imminently to engage in acts
of war. One is a conclusion drawn from the physical
presence of tools, and employment of methods, commonly
used in the drug trade. The other is a written prayer, whose
meaning to any particular faithful likely is obscure. This is
particularly so in this case because Hayat did not speak or
read Arabic, the language in which the prayer was written.

13
The record does not indicate that Mohammed’s expertise as an Islamic
scholar and in Arabic made him an expert on the modus operandi of
Islamic terrorists, let alone on Pakistani terrorists.
80 UNITED STATES V . HAYAT

An analogy may be helpful. Suppose a Christian is
arrested on suspicion of providing material support for
terrorism. In the suspect’s wallet is found the following
excerpt: “Onward, Christian soldiers, marching as to war/
With the cross of Jesus going on before/ At the sign of
triumph Satan’s host doth flee/ On then, Christian soldiers, on
to victory!” An academic, an expert on the Bible and its
translation, is called to testify at the suspect’s trial. Asked
what kind of person would carry this hymn, the academic
testifies, “A person who believes him or herself as being
engaged in a war for [Jesus] against an enemy.”

Such testimony would be laughable. We easily
comprehend, without the aid of expert testimony, that
“‘Onward, Christian Soldiers’ does not mean that the zealous
churchman is literally militant.” Berg v. State, 233 P. 497,
503 (Okla. Crim. App. 1925). Someone carrying it might be
a non-violent volunteer for the Salvation Army, or a
Methodist, or a supporter of the phrase “under God” in the
Pledge of Allegiance. See Newdow v. Rio Linda Union Sch.
Dist., 597 F.3d 1007, 1056–57 (Reinhardt, J., dissenting)
(describing the celebratory playing of “Onward, Christian
Soldiers” after Congress amended the Pledge of Allegiance
to add the phrase “under God”). Alternatively, the person
could be a member of the Ku Klux Klan. See Virginia v.
Black, 538 U.S. 343, 356 (2004) (describing the singing of
“Onward, Christian Soldiers” at cross burnings). It is
inconceivable that a court would allow an “expert” to opine
definitively and categorically on the “kind of person” who
would carry “Onward, Christian Soldiers” in his wallet
because the conceivable variations in understanding and
 UNITED STATES V . HAYAT 81

motivation are too great.14 Yet this is exactly what the
government expert in this case was permitted to do with
respect to the prayer found in Hayat’s wallet.

In the hypothetical, it is clear that the expert’s testimony
is both over-the-top and invades the province of the jury.
There is an absence of clarity in this case simply because the
testimony was given in relation to Islam, a religion whose
tenets are unfamiliar to the vast majority of Americans.15 The
jurors in Hayat’s trial, therefore, were particularly susceptible
to deferring to Mohammed’s “expert” testimony not only as
to the translation and meaning of the supplication, but also as
to the ultimate question of whether the supplication proved

14
One can imagine what would happen if the hypothetical suspect were
apprehended in another country, one without our familiarity with
Christianity. “In an Oriental missionary field, ‘Onward, Christian
Soldiers’ is said to be regarded as an alien, seditious war song, the use of
which the missionaries had to abandon.” Colyer v. Skeffington, 265 F. 17,
59 (D. Mass. 1920) (granting writs of habeas corpus to petitioners
detained pending deportation because the Commissioner of Immigration
failed to establish that petitioners’ membership in the Communist Party
meant they advocated the violent overthrow of the United States
government), reversed sub nom. Skeffington v. Katzeff, 277 F. 129 (1st
Cir. 1922).

15
A Pew Research Center poll found that in 2005 (at the time of Hayat’s
trial), 66 percent of Americans knew “not very much” or “nothing at all”
about the Muslim religion. Public Remains Conflicted Over Islam,
http://pewforum.org/Muslim/Public-Remains-Conflicted-Over-Islam.aspx
(Aug 24, 2010). Given this, it is probable that most Americans – and
many of the jurors in this case – are unaware of diversity of belief and
culture among Muslims. “Like other religions, Islam also has
different–and sometimes contending–theologies, law schools, and Sufi
(mystic) orders.” John L. Esposito & Dalia M ogahed, Who Speaks for
Islam?: What a Billion Muslims Really Think 3 (2007).
82 UNITED STATES V . HAYAT

that Hayat was a “jihadist” (i.e., a terrorist) – the kind of
person who would carry such a prayer.

Accordingly, it was patently improper to allow
Mohammed to testify beyond the translation of the
supplication from Arabic into English and the meaning of the
supplication, if he knew. His testimony went beyond
translation and interpretation – Mohammed testified
specifically about the “kind of person” who would carry the
supplication. He testified about such a “person’s” intent.
This is crucial here. The government’s theory was that Hayat
went to a terrorist training camp and returned to the United
States intent in engaging in some undefined future act of
terrorism. Hayat’s intent to support terrorism is an “ultimate
inference or conclusion” that the jury should have decided for
itself. See United States v. Morales, 108 F.3d 1031, 1037
(9th Cir. 1997) (“A prohibited ‘opinion or inference’ under
Rule 704(b) is testimony from which it necessarily follows, if
the testimony is credited, that the defendant did or did not
possess the requisite mens rea.” (emphasis added)).

Given the translation alone, or even the translation plus
Mohammed’s testimony that the supplication was cited in
scholarly commentaries in the context of warfare, the jury had
enough information to conclude for itself whether the
presence of the supplication in Hayat’s wallet supported an
inference that he had the requisite intent to provide material
support for terrorism. That is all the jury should have heard.
The additional testimony about the “kind of person” who
would carry such a supplication and such a person’s intent
was not only inflammatory, it invaded the province of the
jury. The jury’s authority, plainly, was ceded to the expert.
 UNITED STATES V . HAYAT 83

IV

Because the district court plainly erred in preventing
Hayat from introducing exculpatory evidence and in allowing
inflammatory expert testimony that usurped the jury’s role as
finder of fact, I would reverse Hayat’s conviction and remand
to the district court for a new trial. I therefore respectfully
dissent.16

16
Because I would reverse the conviction for each of the two errors
discussed in this opinion, I do not reach Hayat’s third major contention –
that Juror Joseph Cote was biased – which the majority also rejects. See
Maj. Op. at 16–29.