In Al-Arian Case, Fla. Judge Said To Overstep Authority

A Tampa, Fla.-based federal judge exceeded his authority when he issued a key ruling in a grand jury contempt dispute involving a former professor at the center of a long-running terrorism case, Sami Al-Arian, prosecutors contend.

In a brief made public this week by the 11th Circuit Court of Appeals, lawyers from the U.S. attorney's office in Tampa argued that Judge James Moody Jr. had no jurisdiction to decide last year whether the terms of Al-Arian's agreement to plead guilty to one count of aiding Palestinian Islamic Jihad relieved him of his duty to testify before a grand jury investigating Muslim charities in Northern Virginia.

"A district court that has accepted a defendant's guilty plea pursuant to a plea agreement and has entered a final judgment of conviction based upon that guilty plea retains no jurisdiction to entertain a freestanding motion to enforce the agreement against a grand jury subpoena in another district," prosecutors wrote. Judge Moody sided with the government, but prosecutors now saw that ruling was an "advisory opinion" not permitted under the Constitution.

When prosecutors first raised the issue, Al-Arian's legal team conceded that the Florida judge might lack jurisdiction over a dispute involving a grand jury in Virginia. However, the defense attorneys said they had little choice in how to proceed because the judge in Virginia, Gerald Lee, ordered them to take the matter to Judge Moody, who oversaw a trial of Al-Arian that ended in a partial acquittal and a hung jury in 2005.

Defense lawyers have told the Atlanta-based 11th Circuit that rejecting the appeal on jurisdictional grounds will leave Al-Arian in a Catch-22 situation, without any means to seek relief.

Last month, a three-judge panel of the 4th Circuit Court of Appeals in Richmond, Va., upheld a contempt finding against Al-Arian. In their ruling, the appeals judges referred to Judge Moody's decision and adopted its reasoning.

An attorney for Al-Arian, C. Peter Erlinder of William Mitchell College of Law, said the 4th Circuit's ruling and the contempt finding by Judge Lee would be undermined if the government is successful in arguing that Judge Moody had no proper role in the dispute.