**Updated Feb. 20:
U.S. District Judge Leonie Brinkema denied a prosecution motion to reconsider requiring the government to provide affidavits concerning the 2006 plea agreement with Sami Al-Arian. Brinkema has said she needs to see what prosecutors thought the plea deal promised Al-Arian to see how that matches defense claims.
Al-Arian has been indicted for criminal contempt after repeatedly refusing to testify before a Virginia grand jury investigating terror financing. Defense attorneys say their interpretation of the plea agreement meant such compelled testimony was off the table. They base this on the removal of a cooperation clause from earlier plea drafts.
Prosecutors say there's a big difference between voluntary cooperation and compelled testimony.
Brinkema called the contempt case "one of a kind" and predicted "no ugly precedent" would be set by requiring prosecution affidavits.
The prosecution argument is detailed below. In response, defense attorneys argue Al-Arian would not have accepted the plea agreement if he knew he could still be called to testify.
What happens next is not clear. Brinkema gave the prosecution "one more week to evaluate its position."
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A federal prosecutor is challenging a judge's order to provide internal, behind-the-scenes communication by the Department of Justice and U.S. Attorney's offices regarding a 2006 guilty plea by Sami Al-Arian. U.S. District Judge Leonie Brinkema ruled Feb. 5 that prosecutors need to disclose information about their strategy during negotiations with Al-Arian's attorneys. Al-Arian pleaded guilty to providing goods and services to the Palestinian Islamic Jihad.
Brinkema said she needs to review the material before deciding whether Al-Arian can fight criminal contempt charges by saying he merely followed the advice of counsel. Al-Arian has repeatedly defied subpoenas to testify before a northern Virginia grand jury investigating terror financing by a group with which he previously worked. He insists terms in his guilty plea absolve him of ever providing any information to the government, be it voluntary or compelled.
His trial is scheduled for March 9. The information the judge seeks is already in the record, Assistant U.S. Attorney Gordon Kromberg argued in a motion filed Feb. 11. In addition, the material Brinkema wants is privileged.
Kromberg cites statements by Tampa prosecutor Terry Zitek during a November 2006 hearing about the plea agreement. A cooperation clause had been removed from an earlier draft, Zitek said, but a grand jury subpoena "is an entirely different animal." The plea agreement is silent on the subject. Before accepting the plea, a federal magistrate judge asked Al-Arian and his attorneys whether any other promises had been made. "And everybody said 'no,' because there aren't any," Zitek told U.S. District Judge James Moody. "There was no cooperation - - no cooperation provision in there, that's right; but beyond that, there was no deal, and the parties said so at the guilty-plea hearing."
That position has been upheld by two district court judges and appellate courts in the 4th and 11th circuits.
During the Feb. 5 hearing, Brinkema said she still wanted assurance there were no misunderstandings. "There is, in my view, a sufficient cloud as to what was the clear understanding of the parties," Brinkema said. She also wondered whether experienced attorneys might not see a difference between voluntary cooperation and grand jury testimony compelled by a subpoena.
As prosecutors argued in the hearing, the distinction is not a confusing one. Kromberg's motion cites Zitek's statement from the 2006 hearing, in which he told Moody that his office had "never entered into a plea agreement that I know of in the Middle District of Florida where we had immunized somebody from compulsory process somewhere else."
Zitek's statements in court should settle the issue, Kromberg argued:
"Put another way, these statements from EAUSA Zitek concisely and unequivocally fill the 'gap' that this Court perceived in the record when it stated that it lacked 'any statement from any of the government lawyers involved in negotiating [the] agreement as to what their understanding was.'"
Nothing in the record contradicts Zitek's statement, the motion noted, and defense attorneys repeatedly have challenged the subpoenas. Judge Moody agreed in his November 9, 2006 order:
"The Court has never heard of the Government agreeing that someone would forever be protected from grand jury subpoena. It is incredible that such a novel provision would not be placed in the written agreement in clear and specific terms."
The 11th Circuit pounded the same point:
"The exclusion of a standard plea agreement provision requiring a defendant to cooperate with the government, whether voluntarily or under subpoena, does not establish that the government immunized Al-Arian from future grand jury subpoenas. This contention is especially dubious where, as here, the plea agreement contains an integration clause stating that there are no other promises, agreements, or representations except those set forth in the agreement, and Al-Arian denied at his plea hearing that he pled guilty in reliance on any promises or inducements except for those found in the agreement." (Emphasis added)
To show that Al-Arian's attorneys also understood the distinction, Kromberg referenced a case from 15 years earlier in which the issue came up with defense attorney William Moffitt. Moffitt helped negotiate Al-Arian's plea. In the earlier case, Kromberg wrote, Moffitt represented a woman who voluntarily testified before a Virginia grand jury. Moffitt wanted her testimony kept out of a prosecution against her in Michigan. The two attorneys discussed the case and realized that if the woman had been compelled to testify, her statements would be inadmissible in her new trial.
"There simply is nothing in the record to indicate that any misunderstanding of the plea agreement by the defendant was based on any misrepresentation of the government," the motion said.
In arguing for the discovery, defense attorneys say the prosecution records may contain "potentially exculpatory evidence." However, defense attorneys should have their own copies any draft plea agreements and any communication between attorneys for the two sides. In all the court challenges, they have not offered any evidence to contradict what Zitek said in open court. Requiring prosecutors to disclose internal correspondence is not appropriate, Kromberg wrote:
"Multiple privileges cover the internal deliberations of the Executive Branch, just as they do for the Judicial Branch's internal deliberations ... Admittedly, these privileges sometimes have exceptions, but nothing in the record of this case hints at a reason for overriding any of the four privileges."
While Kromberg argues the government should not produce the information Brinkema ordered, he also notes that the focus on the plea agreement obscures Al-Arian's true motivation for defying the subpoenas. Al-Arian explained that clearly in previous hearings:
"This Court should be aware that the defendant has never asserted that, but for the protections that he believed he obtained in his plea agreement, he would have complied with Judge Lee's orders to testify. To the contrary, Al-Arian has plainly asserted that he would not testify before the grand jury under any circumstances. For example, he argued to Judge Lee on May 21, 2007, that testifying in the grand jury would "undermine" his ability to "work as a leader" in his community....On June 18, 2007, he argued to Judge Lee that what the Eleventh Circuit and the United States Supreme Court might do with his case did not even matter to his decision to refuse to testify.
In sum, Al-Arian repeatedly asserted that his refusal to testify was not ultimately based on the protections he thought he had in his plea agreement, but on the grounds that testifying against others would go against his most deeply held beliefs. Accordingly, had he never entered a plea agreement in Florida, his position would be the same: refusing to obey orders to testify. Were the Florida plea agreement vacated, his position would be the same: refusing to obey orders to testify. As a result, the negotiations over the Florida plea agreement simply do not affect the issues properly before this Court."
This significant revelation goes to the heart of the contempt case against Al-Arian, who was slammed as a "master manipulator" by Moody at his sentencing. Al-Arian views his steadfast refusal to testify not so much as a legal/technical issue linked to his plea agreement, but as a self-imposed duty to protect his personal and community standing. As his prior conviction clearly reflects, that standing is linked to providing support to a terrorist organization. The evidence strongly suggests Al-Arian refused to testify because he wants to prevent the Government from learning about terror support as it relates to other people and organizations.
A hearing on the matter is scheduled for Friday.