Opinion
No. 2:05-cr-0240-GEB.
June 19, 2006
ORDER
Prior to trial, Defendant Hamid Hayat moved to dismiss Counts Two and Three of the Second Superceding Indictment, contending these counts were multiplicitous of Count Four. (Def.'s Am. Mot. to Dismiss, Jan. 30, 2006.) Ruling on the motion was deferred until after a trial record was developed. (Order, Feb. 2, 2006.) At trial, after the close of the government's case-in-chief, Defendant moved for a judgment of acquittal on Counts Two and Three under Rule 29 of the Federal Rules of Criminal Procedure, again arguing these counts were multiplicitous of Count Four. Decision on the motion was reserved under Rule 29(b) and the counts were submitted to the jury. Now that the jury has returned a guilty verdict on all counts and a complete record has been developed, this decision issues on the pending multiplicity motions.
As indicated in United States v. Hubbell, a court should usually defer ruling on a pre-trial multiplicity motion and instead "sort out [the motion] post-trial [because]. . . . [t]he factual issues as to what statements were made and what acts . . . were committed, as well as whether the later acts or statements further impaired the operations of government, need development at trial and attempting to decide such issues pre-trial would be premature." 177 F.3d 11, 14 (D.C. Cir. 1999) (citing United States v. Salas-Camacho, 859 F.2d 788, 791 (9th Cir. 1988)).
Decision on the motion was reserved because the record did not indicate Defendant would be prejudiced by the reservation, and the trial court is permitted "to balance the defendant's interest in an immediate resolution of the motion against the interest of the government in proceeding to a verdict thereby preserving its right to appeal in the event a verdict of guilty is returned but is then set aside by the granting of a judgment of acquittal." Fed.R.Crim.Pro. 29 advisory committee's note.
BACKGROUND
At issue are Counts Two, Three, and Four of the Second Superceding Indictment that charge Defendant with knowingly making a false statement to the Federal Bureau of Investigation ("FBI") in violation of 18 U.S.C. § 1001(a). Count Two charges Defendant falsely stated on June 3, 2005, "that he never attended a jihadist camp"; Count Three charges Defendant falsely stated on June 4, 2005, "that he never received weapons or other types of jihadist training"; and Count Four charges Defendant falsely stated on June 4, 2005, "that he never received training to fight against the United States."
18 U.S.C. § 1001 provides: "[W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully . . . makes any materially false, fictitious, or fraudulent statement or representation . . . shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism . . . imprisoned not more than 8 years, or both."
At trial, FBI Special Agent Pedro Aguilar testified he interviewed Defendant on June 3, 2005, at Defendant's home in Lodi, California. During the interview, Special Agent Aguilar asked Defendant if he ever attended a terrorist training camp in Pakistan, if he ever attended a terrorist training camp anywhere, if he ever attended a jihadist camp, and if he ever attended a jihadist madrassa. Defendant responded no to each of these questions.
FBI Special Agent Harry Sweeney testified at trial that he interviewed Defendant on June 4, 2005, at a FBI office in Sacramento, California. During the interview, Special Agent Sweeney asked Defendant if he ever received weapons training at a jihadist camp and if he ever received training at a jihadist camp to fight against the United States. Defendant responded no to each question.
Following the jury's guilty verdict, an Order scheduled "argument and proceeding" on the multiplicity motions, specifically, on the question whether the false statements charged in Counts Three and Four caused "further impairment" to government operations. United States v. Hayat, 2006 WL 1222665, at *2 (E.D. Cal. May 4, 2006) (stating that false statement counts are not multiplicitous if "the later false statement further impaired the operations of the government"). The government subsequently filed a supplemental opposition to the motions and a declaration by Special Agent Sweeney. (Gov't Supp. Opp'n, May 4, 2006.)
At the post-trial proceeding, Defendant argued the declaration should not be considered. The government countered that both the declaration and Special Agent Sweeney's proffered post-trial testimony should be considered. The government was allowed to present Special Agent Sweeney's post-trial testimony because decision could be made at a later time whether the evidence could be considered. The government then presented additional testimony from Special Agent Sweeney in support of its contention that the later false statements further impaired the operations of the government.
Special Agent Sweeney testified he has received specialized training and certification to conduct polygraph examinations, and his primary duty in conducting these examinations is to assess the veracity of an individual of interest. He explained that polygraph examinations are conducted in three distinct stages: pre-test, test, and post-test. During the pre-test stage, he interviews an individual to determine his or her knowledge on a certain topic. During the testing stage, he monitors the individual's physiological responses to determine whether those responses indicate deception. If the test results indicate deception, Special Agent Sweeney attempts to obtain admissions from the individual during the post-test stage.
Special Agent Sweeney further testified his interview of Defendant on June 4, 2005, occurred during the administration of a polygraph examination. He stated that about half an hour into the pre-test stage, Defendant denied receiving weapons or other jihadist training, and about fifteen minutes later, he denied receiving training to fight against the United States. Special Agent Sweeney said Defendant made similar denials during the test stage and during these denials he determined Defendant's physiological responses were indicative of deception on each of these questions.
In addition, Special Agent Sweeney testified that one of the FBI's functions includes investigation of terrorist threats. He stated that when the FBI learns of a terrorist threat, its immediate goals are to assess the scope of the threat, identify the individuals involved, and if possible, stop the threat before it reaches fruition. Special Agent Sweeney testified that the FBI attempts to discern the nature of the terrorist threat, including whether it is a domestic threat that jeopardizes the safety of United States residents. Special Agent Sweeney also emphasized the importance of acting quickly once a terrorist threat materializes in order to avert potential harm.
After Special Agent Sweeney was excused, defense counsel requested a short recess in order to decide whether to call a rebuttal witness. The request was granted, and when the proceeding reconvened, defense counsel decided against calling a rebuttal witness and stated the defense was ready to proceed with argument.
DISCUSSION
I. Scope of Record
At the post-trial proceeding, Defendant argued the declaration and post-trial testimony of Special Agent Sweeney should not be considered because both contained evidence not in the record at the time ruling was reserved on his Rule 29 motion for judgment of acquittal. The government countered that the declaration and post-trial testimony should be considered because Defendant also had a pending pretrial motion to dismiss that was not similarly limited to the evidence in the record at the time ruling was reserved on the Rule 29 motion. In addition, the government argued the evidence should be considered because it was relevant to the determination of whether further impairment existed and that such evidence was not adduced at trial because the government was concerned about potential prejudice to Defendant.
The procedural history in this case guides the determination whether the record includes the declaration and post-trial testimony. Defendant filed a motion to dismiss on multiplicity grounds prior to trial, but ruling on the motion was deferred. (Order, Feb. 2, 2006.) In addition, Defendant filed a motion in limine to prevent evidence of the administration and results of his polygraph examination from being presented to the jury at trial. (Def's Mot. In Limine at 2-5.) The government responded in its trial brief that it "[did] not intend to offer into evidence the fact that a polygraph examination was administered to Defendant Hamid Hayat on June 4, 2005, or the results thereof, during the direct examination of Special Agent Sweeney. . . . Given this, it may become necessary to introduce separate evidence related to the duties and functions of the polygrapher and the question of whether [D]efendant's June 4 statements caused additional impairment to the FBI function's [sic] outside the presence of the jury before the Court can ultimately make a ruling on the factual and legal issues pertaining to [D]efendant's claim of multiplicity." (Gov't Trial Brief at 54-55.) No polygraph evidence was presented at trial; at the close of the government's case-in-chief, Defendant moved under Rule 29 for a judgment of acquittal on multiplicity grounds.
Post trial evidence is admissible on Defendant's pending motion to dismiss since the motion is intertwined with the government's argument that the later false statements further impaired the FBI's operations. See generally, Hubbell, 177 F.3d at 14 (stating "multiplicity claims are better sorted out post-trial [because]. . . . [t]he factual issues as to . . . whether the later acts or statements further impaired the operations of government, need development at trial" (citing Salas-Camacho, 859 F.2d at 791)); United States v. Marcello, 537 F. Supp. 1364, 1368-69 (E.D. La. 1982) (providing a defendant with the opportunity to present post-trial evidence on a pretrial motion to dismiss on which ruling was deferred until after trial). Further, although a Rule 29 motion for a judgment of acquittal does not ordinarily allow for consideration of post-trial evidence, the unique procedural history of this case reveals Defendant was on notice that the government intended to present evidence on his multiplicity challenge outside the presence of the jury. Therefore, the post-trial evidence will be considered in connection with both the motion to dismiss and the Rule 29 motion for judgment of acquittal.
II. Multiplicity Challenge
Defendant argues Counts Two, Three, and Four are multiplicitous because the counts do not involve separate and distinct false statements, but rather repeated iterations of his assertion that he never attended a jihadist camp. The government contends the three counts involve separate "non-identical" false statements because each count requires proof of a fact which the other does not. The government further argues that even if the three counts are considered identical, Defendant is not entitled to a judgment of acquittal because the later false statements "further impaired" an FBI investigation.
"Multiplicity is the charging of a single offense in more than one count." United States v. Segal, 833 F.2d 144, 146 (9th Cir. 1987) (internal citation and quotation omitted). "The test for determining if multiple counts charge separate and distinct offenses is whether one count requires proof of a fact which the other does not. . . . [W]here identical false statements . . . are made in response to identical questions, the declarant may be convicted only once . . . [unless] the later false statements further impaired the operations of the government. . . ." United States v. Rosen, 365 F. Supp. 2d 1126, 1136-37 (C.D. Cal. 2005) (internal citations and quotations omitted); see also United States v. Stewart, 420 F.3d 1007, 1012-13 (9th Cir. 2005). Thus, identical false statements can serve as the basis for multiple convictions if each later false statement caused "further impairment to the operations of the government" under the circumstances in which it was made. Salas-Camacho, 859 F.2d at 791.
The circumstances surrounding the false statements inSalas-Camacho are analogous to the circumstances involved with the false statement charged in Count Two compared to the subsequent false statements charged in Counts Three and Four. InSalas-Camacho, the defendant was convicted on two false statement counts, one for falsely denying to a customs inspector that he had goods to declare, and the second for making the same false denial to a different customs inspector. 859 F.2d at 790. The Ninth Circuit affirmed the conviction on each false statement count because the second denial "further impair[ed] the operations of the government, that is, the orderly, efficient, and accurate processing of customs duties of the United States."Id. at 791. The Ninth Circuit explained that the "additional impairment [was] evidenced by the fact that the [defendant] made the second false statement . . . to a separate official (the secondary inspector) with different duties." Id. The Ninth Circuit found that the secondary inspector had different duties because he "conduct[ed] a more searching examination, including . . . a computer search. . . ." Id.
In the instant case, Count Two charged Defendant with making a false statement to Special Agent Aguilar on June 3, 2005, while Counts Three and Four charged Defendant with making false statements to Special Agent Sweeney on June 4, 2005. Special Agent Aguilar's testimony reveals he interviewed Defendant in order to learn information about his activities while living overseas, particularly in Pakistan, while Special Agent Sweeney's testimony reveals he interviewed Defendant during a polygraph examination to assess Defendant's veracity as to whether he was involved in jihad, and if so, the extent of that involvement. Unlike a standard interview, the polygraph examination enabled Special Agent Sweeney to detect indications of deception when Defendant denied receiving jihadist weapons training and denied receiving training to fight against the United States. Therefore, like the agents in Salas-Camacho, Special Agents Aguilar and Sweeney performed different duties because Special Agent Sweeney conducted a "more searching examination" that assessed Defendant's veracity and investigated whether Defendant had received specific types of training and the target of such training. See id. Accordingly, Count Two is not multiplicitous of Counts Three and Four because the later false statements to Special Agent Sweeney "constituted an additional impairment of [his investigative] functions." Id.
However, the rationale of Salas-Camancho is inapplicable to the inquiry whether the false statement charged in Count Four caused further impairment after the statement charged in Count Three because both statements were made to Special Agent Sweeney during the course of the polygraph examination. See id. But the Ninth Circuit's decision in Stewart provides some guidance as to when false statements to the same FBI agent can further impair governmental functions. The defendant in Stewart offered an informant weapons and monetary compensation if he arranged for the murder of a federal judge. 420 F.3d at 1011. The informant secretly recorded a conversation with the defendant in which the defendant described the details of the plan and the federal judge who was the target of the attack. Id. The informant "immediately delivered the recording" to the FBI. Id. The same FBI agent interviewed the defendant on two separate occasions about the plan and asked "whether he said anything that could even be misinterpreted as a threat to a judge"; the defendant denied saying anything during both interviews. Id. The defendant was subsequently convicted on two false statement charges, one for each of his false statements to the FBI agent.Id. at 1012.
The Ninth Circuit reversed the second conviction, holding that the later false statement did not further impair the operations of the government. Id. The Ninth Circuit found no additional impairment existed because "after the first interview, the government `had every man on alert' in an attempt to thwart any attempt to harm [the federal judge]," and "at the time of . . . [the] second [interview], the FBI already had the information leading to [certain specified] areas of investigation." Id. The Ninth Circuit's analysis suggests that the later false statement would have caused further impairment if the FBI had not known the information necessary to identify the target of the attack and mitigate the risk of harm.
Applying the guidance of Stewart to the false statements charged in Counts Three and Four reveals that the later false statement "constituted an additional impairment of [Special Agent Sweeney's] governmental functions." Salas-Camacho, 859 F.2d at 791. Special Agent Sweeney testified that during the polygraph examination he saw indications of deception when Defendant denied receiving jihadist weapons training. Special Agent Sweeney testified that once the FBI learns of a potential terrorist threat, it immediately attempts to discern the scope of the threat, identify the individuals involved, and if possible, stop the threat before it reaches fruition. The FBI also attempts to learn the target of the threat since a domestic threat jeopardizes the safety of United States residents. Thus, when Special Agent Sweeney saw indications of deception as Defendant gave his first false denial, further inquiry by Special Agent Sweeney constituted a further investigation of the nature, scope and target of a potential terrorist threat, which was an inquiry related to the FBI's investigative and protective functions. When Defendant gave his later false denial as charged in Count Four, he impaired the ability of the FBI to specifically identify a potential terrorist threat and to assess whether protective measures could mitigate the risk of harm posed by that domestic threat. Consequently, Count Three is not multiplicitous of Count Four because Defendant's deception as to the target of his training impaired the ability of the FBI to effectively perform its investigative and protective functions.
CONCLUSION
For the stated reasons, Defendant's convictions on Counts Two, Three, and Four are not multiplicitous. Therefore, Defendant's motion to dismiss and motion for judgment of acquittal are denied.
IT IS SO ORDERED.