Al-Arian: I Was Double-Crossed

A Florida college professor who has pleaded guilty to aiding Palestinian Islamic Jihad, Sami Al-Arian, contends in a new appeals court filing that federal prosecutors double-crossed him by calling him in front of a grand jury in Virginia after he agreed to a plea bargain.

If the Kuwaiti-born Al-Arian prevails before the 11th Circuit, he could be released from prison and deported as soon as April. If the government's position is upheld, the former University of South Florida computer-engineering professor's stay in American jails could be extended by 18 months or more.

In April 2006, Al-Arian pleaded guilty to one count of conspiracy to provide assistance to a designated terrorist group. His guilty plea followed a lengthy trial in Tampa in 2005 that ended with his acquittal on eight counts and jurors deadlocked on nine others.

The prosecution and defense proposed a 46-month prison term for Al-Arian, which amounted to little more than the time he served before, during, and after his trial. However, Judge James Moody Jr. gave Al-Arian 57 months, the maximum under federal guidelines.

Soon after that unexpectedly lengthy sentence was handed down, a federal prosecutor in Virginia, Gordon Kromberg, began proceedings to summon Al-Arian before a grand jury investigating a Herndon, Va.-based think tank, the International Institute of Islamic Thought. Al-Arian moved to quash his subpoena, arguing that the plea deal with prosecutors in Florida relieved him from having to testify. Al-Arian appealed after Judge Moody rejected that argument, noting that the plea deal filed in court did not address the issue.

"Even though the noncooperation agreement never made its way into the written plea agreement, the parties appear to agree that it nevertheless induced Dr. Al-Arian to plead guilty," the professor's lawyers for the appeal, Jack Fernandez and Lee Fugate of Zuckerman Spaeder LLP, wrote in a brief made public last week. They noted that Al-Arian and his trial lawyers stated under oath that there was a verbal agreement during plea talks that he not be required to cooperate with the government. In addition, a prosecutor said in court that the plea deal was expanded to include those pursuing the investigation in Virginia.

"Insofar as there exists any ambiguity or imprecision with respect to the terms of the government's modification of the plea agreement, that language must be construed against the government and in favor of Dr. Al-Arian," Messrs. Fernandez and Fugate wrote.

Prosecutors have not replied yet in the appeals court but told a lower court last year that the plea deal is unambiguous. "‘Cooperation' and ‘compelled testimony' are different legal animals," they wrote.

The contempt dispute also has exposed some disagreement among prosecutors. When the plea was entered last spring, the U.S. attorney in Tampa, Paul Perez, portrayed it as a victory and a vindication. However, the defense contends that the Virginia prosecutor, Mr. Kromberg, referred to the plea deal as a "bonanza" for the former professor.

Al-Arian's attorneys also have accused Mr. Kromberg of displaying a "personal animosity towards Muslims." After a defense lawyer asked to delay Al-Arian's testimony until after Ramadan, Mr. Kromberg allegedly responded, "If they can kill each other during Ramadan, they can appear before the grand jury; all they can't do is eat before sunset. I believe Mr. Al-Arian's request is part of the attempted Islamicization of the American justice system. I am not going to put off Dr. Al-Arian's grand jury appearance just to assist in what is becoming the Islamicization of America."

Mr. Kromberg said via e-mail last night that grand jury secrecy rules prevent him from commenting on the case.

The appeal raises several thorny legal issues, such as whether the Atlanta-based 11th Circuit even has jurisdiction to hear the dispute given that the refusal to testify took place in Virginia. The defense is asking the 11th Circuit to decide the case based in part on a 1992 case in which the Richmond-based 4th Circuit held that prosecutors could not force a defendant to testify after making an out-of-court promise not to require his cooperation.

Records of the contempt proceedings against Al-Arian are under seal, along with some materials filed by both prosecution and defense in the appeals court.