When a federal magistrate specifically asked Sami Al-Arian whether any extra promises were made to him in exchange for his 2006 guilty plea to assisting a terrorist group, Al-Arian offered a simple response: "I don't recall anything else."
He made no mention of any deal with prosecutors exempting him from giving future grand jury testimony, a transcript shows.
What's more, the former University of South Florida professor even offered to cooperate with the government after receiving a subpoena compelling his testimony in a terrorism financing probe in Virginia, federal prosecutors said in a recent court filing.
The revelation of Al-Arian's May 2006 offer to assist the government's Virginia investigation undermines his argument to U.S. District Judge Leonie Brinkema in Alexandria, Va., that he had an unwritten understanding with prosecutors barring grand jury testimony.
The government has repeatedly said prosecutors reached no such deal with Al-Arian, a former operative of the Palestinian Islamic Jihad terrorist group.
Nonetheless, in a hearing Monday, Brinkema expressed skepticism about the government's position, saying the "integrity of the Department of Justice" plea agreement process was at stake. She granted Al-Arian 10 days to file a motion to dismiss a pending criminal contempt indictment.
Al-Arian was indicted last June for refusing to testify about the International Institute of Islamic Thought, a Virginia think tank at the center of a long-running terrorism financing investigation, despite being granted immunity from prosecution.
"A plea bargain is in essence a contract," Brinkema said on Monday. "There are huge social and political issues involved in a plea bargain."
The plea agreement was reached after a federal jury in Tampa acquitted Al-Arian in 2005 on eight counts of providing support to PIJ. The jury failed to reach unanimous verdicts on other counts. In exchange for his guilty plea on one count of conspiring to provide goods or services to the Palestinian Islamic Jihad, the government agreed to help expedite Al-Arian's deportation to the Middle East upon his release from prison. Al-Arian is a legal U.S. resident, but not a citizen.
In an April 14, 2006 hearing to confirm Al-Arian's acceptance of the plea bargain, federal Magistrate Judge Thomas B. McCoun III extensively questioned Al-Arian and his attorney about their understanding of the plea agreement. (See pages 30-32 here).
"Beyond the written plea agreement, have you been promised anything from anybody that is an inducement to you to appear in court today and plead guilty?" McCoun asked.
Al-Arian attorney Linda Moreno asked to confer with Al-Arian. After huddling with her client, she answered, "[O]n behalf of any other inducement that Dr. Al-Arian considered in return for accepting this plea, we just want to bring it to the Court's attention and highlight the deportation issue."
Moreno said the government had worked in "good faith" to expedite Al-Arian's deportation, as he wanted. "So, I just want to make it clear to the Court that inducement in this particular agreement was the expedited deportation and the assistance of the United States government in helping facilitate that as soon as possible." [Emphasis added]
Moreno said nothing about a purported deal allowing Al-Arian to refuse to give grand jury testimony.
The magistrate then went over in detail several "concessions" he said the government had made. Those concessions included a deal to bar Al-Arian from prosecution for any crimes known at the time in the Eastern District of Virginia, where the terrorism financing investigation was ongoing. The agreement was silent on the issue of Al-Arian providing grand jury testimony in Virginia.
The government also agreed that Al-Arian would serve a minimum of 46 months and a maximum of 57 months in prison in exchange for pleading guilty to one count of assisting PIJ, McCoun noted.
The magistrate then asked several more times whether Al-Arian had any other motive or understanding that influenced his decision to plead guilty.
"Beyond the discussions and the efforts that are apparently ongoing with regards to deportation, have there been any other promises made to you that are an inducement in your mind to entering a guilty plea?" McCoun asked. "If so, we need to put them on the record.
Al-Arian answered: "I don't recall anything else."
McCoun asked if he'd been coerced in any way to accept the plea agreement. Al-Arian said he had not.
McCoun added: "Do you think anybody has attempted to trick you?"
"No," Al-Arian said.
But in September 2006, Al-Arian suddenly changed his story. Faced with a grand jury subpoena to appear in Virginia, he now claimed his plea agreement barred such testimony.
"Although this understanding was not memorialized in the written plea agreement," it was a "key inducement to his acceptance of the plea agreement," Al-Arian attorney John A. Keats wrote in an Oct.19, 2006 brief. Defense attorneys William Moffitt and Linda Moreno have filed affidavits with Brinkema indicating they feel they were misled in plea negotiations with the government. But neither attorney has identified anyone who pledged the plea agreement would bar compelled testimony before a grand jury.
Assistant U.S. Attorney Gordon Kromberg in Alexandria gave a different version of events in a court filing last week.
"When defense attorneys first learned in May 2006 of the order compelling Al-Arian's testimony in Virginia, they reacted to the news not by claiming a breach of the plea agreement, but by inquiring of the prosecutors in Florida whether Al–Arian could be removed from the country more quickly in return for providing information in Virginia," the government filing said.
It continued: "The first time any of Al-Arian's lawyers suggested to any of the prosecutors that the compulsion order in Virginia violated the plea agreement was over four months later."
In the filing, Kromberg wrote that the criminal chief of the U.S. Attorney's office in Alexandria conducted a review of the matter, contacting prosecutors in the Middle District of Florida and the Counter-Terrorism Section of the Department of Justice in Washington.
The review found no evidence of an agreement to bar Al-Arian's compelled testimony in Virginia, the filing said. Kromberg added that Florida prosecutors originally opposed a subpoena to Al-Arian and "expected" he would not be able to testify because he would have been deported.
But then Al-Arian's original trial judge in Florida unexpectedly sentenced him to the maximum 57 months prison for his guilty plea, rather than time already served. U.S. District Judge James S. Moody blasted Al-Arian as a "master manipulator" who deceived people about his activities. Moody's longer-than-expected sentence prevented Al-Arian's swift deportation.
While he remained in prison, the Justice Department in Washington granted the Virginia prosecutor's request to grant Al-Arian immunity in exchange for his testimony, the government filing said.
Other courts have repeatedly upheld the government's position that Al-Arian can be compelled to testify. Federal judges in both Alexandria and Tampa have ruled that Al-Arian's plea agreement did not bar his grand jury testimony in Virginia, as did rulings by panels of judges in the 11th Circuit and 4th Circuit Courts of Appeals.
In October, the U.S. Supreme Court declined to hear Al-Arian's appeal.
Brinkema, however, appeared unswayed. She said there is "enough smoke" surrounding the plea agreement to consider Al-Arian's anticipated motion to dismiss the criminal contempt charges.