CalDocument 329-1 Filed 04/27/06 Page 1 of 7 LAW OFFICE OF WAZHMA MOJADDIDI WAZHMA MOJADDIDI (SBN 226804) 7112 Agora Way El Dorado, CA 95762 Telephone: (916) 939-7357 Facsimile: (916) 939?2721 Attorney for Defendant HAMID HAYAT UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA THE UNITED STATES OF AMERICA Case No. CR. 8?05?0240 GEB Plaintiff, AFFIDAVIT OF ARCELIA LOPEZ IN SUPPORT OF MOTION vs. FOR NEW TRIAL HAMID HAYAT and Defendant. I, ARCELIA LOPEZ, declare as follows, 1) I served as a Juror in the case of United States vs. Hamid Hayat between February 15, 2006 and April 25, 2006. 2) The trial began on February 16, 2006. Before the trial began, Judge Burrell instructed the jury not to discuss the case with anyone, including our fellow jurors. He also instructed us not to read any news stories or watch news reports regarding the trial. Each day throughout the trial, the Judge continued to remind us of this duty. 3) On or about February 21, 2006, on the second day of trial, I observed a fellow juror, named Joseph Cote, make a gesture during a break inside the jury room. Mr. Cote, in the presence of myself and one other juror gestured as if he was tying a rope around his neck and then pulling the rope in an upward motion. He then said ?Hang Him.? As the US. v. Hamid Hayat and Umer Hayat CR. 8-05-0240 GEB 7% Document 329-1 Filed 04/27/06 Page 2 of 7 trial proceeded I believed Mr. Cote was referring to Hamid Hayat when he made the gestured suggesting that Hamid Hayat should be hanged. Mr. Cote continued to make this gesture many times throughout the trial inside the jury room while communicating with fellow jurors. I witnessed the action on a number of occasions myself. From my observations of Mr. Cote making the above gesture, in my opinion it became obvious that he was being openly unfair about his position in discussions with fellow jurors. I never engaged in such conversations with Mr. Cote or any other juror, but 1 was aware that these conversations and gestures were being made during these meetings. 4) I was offended by Mr. Cote?s behavior while the remaining jurors didn?t appear to be bothered by it. I wanted to remain fair and impartial so I distanced myself. 1 took lunch breaks by myself and avoided in engaging in any discussions about the trial before deliberations because of the gestures being made by Mr. Cote. 5) The trial ended on April 12, 2006 and the deliberations began late that afternoon. Mr. Cote was the foreperson. As a jury, we went through the evidence and deliberated about Mr. Hayat?s guilt or innocence for almost nine full days. 6) During deliberations 1? tr. Cote made racial slurs. As an example, on one occasion during deliberations he said in front of the entire group that they all look alike. If you put them in the same costume then they all look alike. As a result of the statement Teresa Berkeley-Simmons, an African American female juror, expressed that she thought the statement was insulting and inappropriate. Mr. Cote insisted that the statement was not inappropriate, commenting that she was too sensitive. At this point another juror, Jason Spann, said that the remarks were inappropriate commenting that what came out of Mr. Cote?s mouth was pretty bad. He suggested that an apology by Mr. Cote would be appropriate. Mr. Cote replied that his comments were not fig 2 . U.S. v. Hamid Havat and Umer Havat CR. 8-05-0240 GEB A pun'ase Document 329-1 Filed 04/27/06 Page 3 of 7 inappropriate or insulting and he refused to make an apology. He said that Ms. Berkeley-Simmons was being too sensitive. Ms. Berkeley-Simmons did not agree with Mr. Cote?s statement. Consequently in a loud tone of voice, Mr. Cote turned to Ms. Berkeley-Simmons and commented that he was going to bring the matter to the judge. Mr. Spann stepped in to calm the situation and upon his intercession Mr. Cote agreed to make an apology to Ms. Berkeley-Simmons in front of everyone. Later in the afternoon, he apologized to me in the jury lounge. The apology was awkward in that he got right up to my face less than a foot away and made his apology which was very uncomfortable. During the beginning of the trial I observed a copy of the Sacramento Bee newspaper in the jury room. I expressed that I thought the newspaper should not be in the deliberation room. A fellow juror said that a copy of the Bee was on the fourth ?oor and if the Court really didn?t want the jurors to read it that a copy would not be left there for them to see. On a second occasion when I observed the newspaper in the jury room, I expressed the same concern that the newspaper should not be in the deliberation room. Because an article related to the trial could be in the newspaper and accidentally exposed, I did not feel that the newspaper should be in the room. A juror responded as long as the paper was kept folded it should not be a reason for concern. I explained that it would be a concern if someone opened the newspaper and an article about the trial accidentally fell out. I repeated that it is a concern because it exposes us to the problem about having seen an article concerning the trial in the paper. The newspaper remained and nothing was done. The third day 1 again expressed concern that the newspaper should not be in the jury room. The juror grabbed the newspaper and put it in her purse. 8) Early in the trial in the jury room the topic came up about the juror who was dismissed. 3 US. v. Hamid Havat and Umer Havat CR. 8-05-0240 GEB pase Document 329-1 Filed 04/27/06 Page 4 of 7 Several jurors began to ask what had happened to the dismissed juror and as a result one juror made mention about the ?fteen minute interview. The jurors were interested about the ?fteen minute interview with some wanting to know where it might be located or found. Juror Starr Scacia suggested the Chronicle or the Bee. On another day during deliberations Mr. Cote shared with jury members that he overheard something concerning a media report relating to the trial. The information he shared was clearly not something that was provided during testimony. Ms. Berkeley?Simmons stated that type of conversation should not occur in the jury room. 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. Mr. Spann supported Ms. Berkeley?Simmons? comment that these types of conversations should not occur and Mr. Cote should not be sharing them with other members of the jury. 9) On Friday, April 21, 2006 during deliberations, I was the only person who felt that Hamid Hayat was not guilty based on the evidence. Mr. Cote, as the foreman, told the jury that we had to reach a verdict and he refused to accept my position. He personally attacked me repeatedly as someone who couldn?t process the information and who just couldn?t see that he was guilty because he thought I didn?t have the mental capacity to $331 towards guilt and that is Were h?r th ?ii/.2 2/3 understand. Mr. Cote ar ued that he wan me to process the evidence with a slant gig; was flawed. I am an intelligent and educated woman and I had no problem understanding the evidence or the deliberation process. He made these statements because he was frustrated that I didn?t agree with a guilty verdict. Many of the other jurors were also frustrated that I didn?t agree with them and their behavior pressured me into changing my vote. Though I told Mr. Spann that I was not changing my vote just to please them, the truth is that I did change my ?f 4 US. v. Hamid Havat and Umer Havat CR. 8-05-0240 GEB Document 329-1 Filed 04/27/06 Pa?dgfbi??f SM ?me 34%- W?nm?t??e?m Nani, . 10) On Saturday, April 22, 2006, was seen at the Kaiser Medical Clinic and the attending nurse advised me to consider going to the emergency room for treatment because I was suffering from extreme migraine headaches because of the pressures 1 was feeling during jury deliberations to change my vote. 11) On Monday, April 24, 2006, when the deliberations began, Mr. Cote greeted everyone as he did each day. He then immediately pointed to a fellow juror, Ms. Rebecca Harris and she began to speak. He had obviously communicated with Ms. Harris prior to the deliberations about speaking that morning. Ms. Harris pulled out a type written note that was about 3?4 pages long. She began to read a statement. She explained that she spent the entire weekend drafting the statement. In the statement she complained that she was extremely stressed as a juror in the case and that her health was being affected. She explained that she had been drinking and overeating. The statement then began to state that all of the stress was my fault because I refused to change my vote. The statement complained about how she couldn?t understand why I wouldn?t change my vote to guilty so it could all be done with. Ms. Harris also began to tell the story of how her own mother-in-law has Hepatitis and that such a condition doesn?t cause someone to be as medically injured or sick as Hamid claims his mother was who also had Hepatitis C. She thought that because of the example of her mother-in~law, that 1 and the rest of the jury should not be convinced by Hamid?s statement that he was caring for his mother in Pakistan. She repeatedly personally attacked me and said she couldn?t believe that I would take the position of not guilty. While she read the statement, it was my feeling that some of the other jurors knew about the statement before she began to 7/ 5 US. v. Hamid Havat and Umer Hayat CR. 8-05?0240 GEB Case Document 329-1 Filed 04/27/06 Page 6 of 7? 12) While Ms. Harris was reading this statement that was drafted outside of the deliberation US. v. Hamid Havat and Umer Havat CR. 8?05?0240 GEB read it. The message of the statement was clearly to put pressure on me to change my vote. She said that she herself couldn?t take it anymore and that ifI didn?t change my vote, she would consider getting off the jury herself due to the stress. room, we received a note from Judge Burrell. When I saw the note, I was shocked. Apparently, Mr. Cote had sent a note to the Judge late Friday, the 21$, wherein he stated, ?we are at impass with a juror who does not seem to understand the deliberation process.? This was the ?rst I had heard of the note. He was clearly referring to me in the note. I told Mr. Cote that he had no right to send such a note about me on behalf of the jury without my knowledge. 1 am not sure how many of the other jurors knew that he had sent such a note. Mr. Cote responded, ?I?m the foreman. I?m in charge. 1 can do what I want.? The Judge instructed us to continue deliberating. I explained to the other jurors that it was okay that I disagreed and that we did not have to have a unanimous verdict. But they did not all agree. They continued to pressure me to change my vote. At this point I was under so much stress and pressure, that I agreed to change my vote. 1 very clearly told. the jury that I still believed that Hamid Hayat was not guilty and that I did not believe him to be guilty. It was clear that I felt pressured into changing my vote. I never once throughout the deliberation process and the reading of the verdict believed Hamid Hayat to be guilty. I cried several times during deliberations. My health and physical well-being were being affected by the pressure from the other jurors to change my vote. Even after changing my vote, my fellow jurors, specifically Rebecca Harris, thought that I was going to set them up and embarrass them when the verdict is read and change my vote at that time. Ms. Harris took some time discussing this and how she thought I should not even consider doing (I, 6 Document 329-1 Filed 04/27/06 Page 7 of 7 such a thing. I told her that I would not go into the courtroom and create such a scene and change my vote. 13) On Tuesday, April 24, 2005, the verdict was sent to the court. I was emotional during the reading of the verdict and when the jury was polled I responded to the Court that I agreed with the verdict. In fact, I did not. I never believed that Hamid Hayat was guilty. My fellow jurors knew it and as a result of changing my vote a unanimous verdict was reached. I deeply regret my decision. l4)I was contacted by James J. Wedick and shared the information set forth in this af?davit with him. In no way was I pressured or coerced by Mr. Wedick or any member of the defense team to make any of the above statements. declare under penalty of perjury that these statements are true and correct to the best of my knowledge. I am willing to make these statements under oath at the Court?s direction. I declare under penalty of perjury that the foregoing facts are true and correct. Executed in Sacramento, California. Dated: 7/5 3? ?yr/5i f? 554.62%? at Kari?if?? LOPEZ W) US. v. Hamid Hayat and Umer Hayat CR. 3-05-0240 GEB