U.S. v. Al-Arian

• Decision Date: 25 January 2008
• Docket Number: No. 06-16008.,06-16008.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sami Amin AL-ARIAN, a.k.a. Amin, a.k.a. Abu Abdullah, a.k.a. The Secretary, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

514 F.3d 1184

UNITED STATES of America, Plaintiff-Appellee, v. Sami Amin AL-ARIAN, a.k.a. Amin, a.k.a. Abu Abdullah, a.k.a. The Secretary, Defendant-Appellant.

No. 06-16008.

United States Court of Appeals, Eleventh Circuit.

January 25, 2008.

Jack E. Fernandez, Jr., Lee Fugate, Zuckerman Spaeder, L.L.P., Tampa, FL, for Al-Arian.

Karin B. Hoppmann, Linda Julin McNamara, Asst. U.S. Atty., Tampa, FL, for U.S.

Appeal from the United States District Court for the Middle District of Florida.

Before BIRCH and BARKETT, Circuit Judges, and KORMAN,^* District Judge.

PER CURIAM:

In this appeal, we decide whether a district court has jurisdiction to consider a defendant's post-conviction motion seeking specific enforcement of a plea agreement, which does not request recision of the plea. We also decide whether a plea agreement that contains no provisions exempting a defendant from cooperating with the government or providing future testimony can be interpreted to prohibit the government from issuing a grand jury subpoena to the defendant. Sami Amin Al-Arian appeals the district court's denial of his motion to enforce plea agreement, in which he argued that, in exchange for his guilty plea, the government agreed never to seek his testimony on any other matters, whether offered voluntarily or compelled by a subpoena. After the district court found that it had jurisdiction over the motion, it found that the plea agreement is clear, unambiguous, and contains no agreement that Al-Arian is immune from a future grand jury subpoena. Therefore, the district court determined that the plea agreement does not prevent the government from subpoenaing Al-Arian to testify before a grand jury. For the following reasons, we AFIRM.

I. BACKGROUND

Al-Arian was indicted in the Middle District of Florida, on multiple counts of activity related to international terrorism, including conspiracy to commit racketeering, conspiracy to murder, maim, or injure per sons at places outside the United States, conspiracy to provide material support to a designated foreign terrorist organization (the Palestinian Islamic Jihad), conspiracy to make and receive contributions of funds, goods, or services to or for the benefit of specially designated terrorists, providing material support to a terrorist organization, money laundering, and obstruction of justice. In May 2005, after his jury trial resulted in acquittals on some counts and a hung jury on others, Al-Arian pled guilty to one count of conspiracy "to make or receive contributions of funds, goods or services to or for the benefit of the Palestinian Islamic Jihad ... in violation of 18 U.S.C. § 371." R17-1563 at 1. He was sentenced to 57 months of imprisonment.

Al-Arian entered his guilty plea in the Middle District of Florida pursuant to a written plea agreement. The plea agreement provides that the "agreement is limited to the Office of the United States Attorney for the Middle District of Florida and the Counterterrorism Section of the Department of Justice and cannot bind other federal, state, or local prosecuting authorities." R17-1563 at 8. The plea agreement also contains an integration clause, establishing that the "plea agreement constitutes the entire agreement between the government and the defendant .. and no other promises, agreements, or representations exist or have been made to the defendant or defendant's attorney with regard to such guilty plea." Id. at 14. The plea agreement contains no terms regarding whether Al-Arian agreed to cooperate with the government in the future, or whether he could be required to do so. At Al-Arian's plea hearing, the government informed the district court that prosecutors in the United States Attorney's Office for the Eastern District of Virginia had agreed that the plea agreement would bind that office, but only to the extent that Al-Arian would not be charged by that office with crimes known to it "at the time of the agreement related to the conduct giving rise to the agreement." R124 at 18-19. During the plea colloquy, the district court asked Al-Arian whether he had been promised anything else by anyone to induce his guilty plea, and Al-Arian replied that he had not.

In May 2006, the United States District Court for the Eastern District of Virginia issued to Al-Arian a grand jury subpoena ad testificandum. The subpoena was served on Al-Arian in early October 2006, and he filed a motion to quash the subpoena in the Virginia district court. Al-Arian argued that his plea agreement in the Florida district court prevented the government from forcing him to testify before the grand jury in Virginia. The government responded that the Florida district court, not the Virginia district court, was the proper court to adjudicate Al-Arian's motion and suggested that the Virginia district court should direct Al-Arian to file his motion in the Florida district court. SR1 at 6-8. The Virginia district court agreed and granted Al-Arian leave to file a motion to enforce the plea agreement in the Florida district court on or before 26 October 2006. SR1 at 10,20-22.

Al-Arian timely filed his motion in the Florida district court and argued that he and the government agreed that he would not be required to cooperate with the government in any manner. That agreement is not documented in the plea agreement, but Al-Arian asserted that the government purposefully omitted the standard cooperation provisions from the plea agreement because the government acquiesced to his refusal to cooperate. According to Al-Arian, the absence of a cooperation provision in the plea agreement demonstrated that the government agreed not to seek further testimony from him. Al-Arian contended that, in light of this agreement, his constitutional due process rights would be violated if he were compelled to testify before the grand jury in Virginia. Al-Arian requested that the Florida district court enforce the plea agreement and order specific performance of the non-cooperation aspect of that agreement, which would bar the government from compelling his testimony. The government responded that the Florida, district court lacked jurisdiction to consider the motion and that the plea agreement did not immunize Al-Arian from the grand jury subpoena.

The Florida district court conducted a hearing on Al-Arian's motion. The district court found that it had jurisdiction over the motion because Al-Arian sought "protection from the United States government" and that it did not matter in which judicial district the dispute over the grand jury subpoena took place. R127 at 29-30. In a subsequent written order, the court held that Al-Arian's plea agreement was not ambiguous and did not prevent the government from issuing a subpoena compelling him to testify. Further, the court found that "cooperation" is not equivalent to compelled testimony, so that even if the plea agreement provided that Al-Arian would not have to cooperate, that would not necessarily mean that he could not be compelled to testify pursuant to a subpoena. R17-1666 at 1-2.

Al-Arian appealed the Florida district court's order to this court. Subsequently, the Virginia district court found that Al-Arian had no legal basis on which to refuse to comply with the subpoena, granted the government's motion to hold Al-Arian in civil contempt, denied Al-Arian's motion to stay the contempt proceedings during the pendency of this appeal, and ordered Al-Arian's criminal sentence to be tolled until he testified before the grand jury. Al-Arian appealed his contempt citation to the United States Court of Appeals for the Fourth Circuit, which affirmed the Virginia district court's order. In May 2007, Al-Arian filed an unopposed motion for expedited consideration and resolution of his appeal with this court. We held oral argument in this case on 11 September 2007.¹ On 14 December 2007, the Virginia district court vacated its contempt order.

II. DISCUSSION

A. Jurisdiction

1. Mootness

Article III of the Constitution limits the jurisdiction of the federal courts to the consideration of "Cases" and "Controversies." U.S. CONST. art. III, 2. A case on appeal becomes moot, and ceases to be a case or controversy, "when it no longer presents a live controversy with respect to which the court can give meaningful relief." Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir.2001) (per curiarn) (internal quotation and citation omitted). Thus, mootness is jurisdictional, and the court must resolve any question of mootness before it assumes jurisdiction. Id. (quotations and citations omitted). The fundamental question with respect to mootness is whether events have "occurred subsequent to the filing of ... an appeal [that] deprive the court of the ability to give the ... appellant meaningful relief." Id. (citation omitted). "Whether a case is moot is a question of law that we review de novo." Sheely MRI Radiology Network, P.A., 505 F.3d 1173, 1182 (11th Cir. 2007).

We conclude that this case is not moot because we have the ability to afford meaningful relief to Al-Arian, even though the Virginia district court already vacated its contempt order. The Virginia district court's contempt order provided that Al-Arian's sentence imposed pursuant to his guilty plea would be tolled until he purges that contempt by testifying before the grand jury. If we were to find that Al-Arian's plea agreement immunizes him from the grand jury subpoena, and the Virginia district court erred by holding him in contempt, the time Al-Arian served pursuant to the civil contempt order would be credited towards the sentence he is serving pursuant to his guilty plea. Hence, this appeal is not moot. In re Grand Jury Proceedings (Knight), 588 F.2d 429 (5th Cir.1979) (per curiam) (concluding that appeal from a civil contempt conviction is not mooted by a subsequent order vacating that conviction because contempt conviction tolled criminal sentence); In re Grand Jury Witness (Altro), 180 F.2d...