Defense attorneys for two Lodi men charged with lying about their terrorist ties lost their bid for a speedy trial when a Sacramento federal judge Friday ruled that the Aug. 23 trial date posed an unreasonable deadline for prosecutors to gather and process all the information the defense had requested.
Defense attorneys Johnny Griffin III and Wazhma Mojaddidi had pressed for a trial for Umer Hayat and his son, Hamid Hayat, within 70 days of indictment, as set out in the federal Speedy Trial Act.
The defense, however, also had asked the prosecutors to comb the files of approximately 40 government agencies, including intelligence agencies, for any information on their clients.
"Defendants do not pointedly address these broad discovery requests and all their ramifications," said U.S. District Judge Garland E. Burrell Jr. "It's unreasonable to expect the government to obtain the material in such a short time.
"The ends of justice are best served by excluding time from the speedy trial clock," he said. "Allowing the prosecutors time to do their job outweighs the interests of the public and the defendants."
Burrell vacated the trial date and set an Oct. 7 hearing, at which classified information turned up in the search will be discussed - specifically how it should be handled. Only the judge and the prosecutors will be allowed at that hearing, which is scheduled for 11 a.m.
Later that day, the judge will hold an open hearing, at which time the defense attorneys will learn where prosecutors are in their search for information and how much more time may be needed, given the laborious process of combing through classified documents.
Defense attorneys strenuously objected to Friday's actions.
Griffin argued that the government shouldn't indict and incarcerate people if the prosecutors are not ready to go to trial. The prosecutors could have anticipated a broad discovery request in such a case, he said, and could have had the information at hand before asking the grand jury for an indictment.
Griffin urged Burrell to dismiss the case "and let the government come back when it's ready for trial, so my client won't have to sit in jail waiting."
Hamid Hayat, 22, told FBI agents in June he had spent six months in a terrorist training camp in Pakistan in 2003-04, according to court documents.
He and his father, Umer Hayat, a 47-year-old Lodi ice cream vendor, told the FBI of a half-dozen other young Lodi men who received jihadi training in Pakistan, the documents said.
Umer Hayat also said he toured several such camps and observed training in weaponry and urban warfare.
The Hayats are being held without bail in the Sacramento County jail on charges they lied to the FBI when they earlier denied any connection to terrorist training.
Their attorneys say the later statements about the camps were made under duress.
Griffin told Burrell that prosecutors R. Steven Lapham and S. Robert Tice-Raskin told a magistrate judge in mid-June that the prosecutors had turned over to the defense everything they had.
Within the last two weeks, Griffin said, he has received from the prosecutors dozens of tapes with "hours and hours" of surreptitiously recorded conversations of the Hayats and others, some dating back to August 2002.
Because some of the tapes date back to less than a year after the Sept. 11, 2001 terrorist attacks, Griffin speculated that the eavesdropping is part of a government intelligence-gathering venture.
Defense attorney Mojaddidi, who speaks the language captured on the tapes, said they have been so heavily edited that the passages have no context, making it almost impossible to understand what is being discussed.
After listening to the tapes, prosecutors decided the law required that only parts of them be turned over to the defense, Tice-Raskin told the judge.
"We couldn't just turn them over. We had to listen to them," he said.
Lapham said the tapes are not part of the investigation that led to the Hayats' indictment.
"There has been an investigation that came up with evidence relating to the defendants in this case," he said. "But the tapes generally are not relevant to this case. As we find things, we will turn them over."
Griffin also told the judge that on July 20, the government sent him a letter notifying the defense attorneys that Muhammed Adil Khan - the Pakistani imam portrayed in government documents as the brains behind alleged terrorist planning in Lodi - "has provided a statement that could be considered helpful to the defense."
The government doesn't intend to call Khan as a witness, the letter added, according to Griffin. The letter also said the government doesn't see the statement as mitigating the charges against the Hayats, but a summary of the statement was passed on to Griffin for whatever interest he might have.
Griffin responded to the letter with a request for a copy of the tape recording of the statement, but the government refused to give it to him.
Meanwhile, Adil Khan is preparing to leave the United States voluntarily rather than fight problems he is having with immigration authorities.
"How can I ask the court to keep him here as a material witness if I'm not allowed to make an assessment of the recorded statement?" Griffin asked Burrell.
Griffin, accusing the prosecutors of misconduct, said he believes the letter was a ploy by the government to get him to file a motion to compel production of the tape, which would automatically stop the speedy trial clock.
"They created this monster," he said. "They indicted our clients knowing they couldn't meet their obligations under the Speedy Trial Act but hoping a speedy trial would be waived."
It is waived in nearly all federal prosecutions unless there is a guilty plea in the early stages of the case.
Lapham said he and Tice-Raskin are faced with "a monumental task" in the Hayat case.
"Despite already spending a significant amount of time reviewing documents from those agencies that have provided material, counsel estimates that approximately 80 percent of the material is still to be reviewed," Lapham wrote in a motion filed Thursday night to vacate the trial date.
Some agencies have asked for more time to review their files, he wrote in the motion.
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