William B. Moffit Declaration on Plea DealIN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Case No. 1:08cr131
SAMI AMIN AL-ARIAN
DECLARATION OF WILLIAM B. MOFFITT, ESQ.
I, William B. Moffitt, pursuant to 28 U.S.C. § 1746, declare as follows:
1. I am an attorney, duly licensed to practice in the state of Virginia, and I was lead
counsel for Dr. Sami Al-Arian in criminal proceedings against him in Florida in 2005.
2. I was informed that this Court has ordered discovery into the negotiations that led
to Dr. Al-Arian’s plea agreement and specifically the assurance by the government that he would
not have to testify or cooperate in respect with future investigations.
3. First, and foremost, I want to be clear about the fact that the issue of cooperation
was the most significant issue throughout these negotiations.
4. Before the trial, the subject of a plea agreement was broached with the
government and, at that meeting, the government stated that it would expect Dr. Al-Arian to
testify and cooperate in future investigations before his deportation. I stated at that pre-trial
meeting (and every time subsequently when the issue of cooperation was raised) that Dr. Al-
Arian would not agree to anything that involved his cooperation and that he would only agree to
a plea agreement that established that he would have nothing to do with the Justice Department
in any investigation or case.
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5. Soon after the Dr. Al-Arian’s acquittals, I, along with Linda Moreno, Esq.,
another one of Dr. Al-Arian’s attorneys, engaged in plea negotiations with the Department of
Justice’s Counter-terrorism Division in Washington, D.C. and the United States Attorney for the
Middle District of Florida.
6. I also want to stress that the later post-trial negotiations were primarily with
representatives from Main Justice’s Criminal Division in Washington. During these discussions,
the subject of the Eastern District of Virginia was raised. Specifically, the IIIT investigation and
the use of the grand jury subpoenas by Gordon Kromberg were discussed. This was my main
reason for insisting that the agreement not include a cooperation provision.
7. Special Assistant United States Attorney Cheri Krigsman, who worked in the
counter-terrorism branch of the Department of Justice, initiated negotiations on behalf of the
government. Assistant United States Attorneys Terry Zitek and Walter Furr were also involved
in the negotiations. At various times, United States Attorney Paul Perez and Assistant Attorney
General for the Criminal Division, Alice Fisher, were also involved with the negotiations.
8. After receipt of the government’s initial offer, I drafted our plea agreement offer
to the government. The Government’s initial offer contained a commitment for cooperation that
was understood to include testimony and assistance to the government in any future investigation
or case. I struck any language from the agreement that insisted on Dr. Al-Arian’s cooperation.
9. I, along with Ms. Moreno, met with government negotiators on numerous
occasions and on each occasion that I was present, it was made clear that there would be no
agreement if cooperation was being required of Dr. Al-Arian.
10. Indeed, the amount of time that Dr. Al-Arian would likely have to serve was
lengthened due to his refusal to agree to the standard cooperation provision.
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11. This position on non-cooperation included Dr. Al-Arian’s refusal to provide any
information, whether sought by compulsion or not, on other individuals being investigated by the
United States government or by foreign governments including testimony to a grand jury
pursuant to a compulsion order.
12. As a practicing criminal defense attorney for decades, there is (and was) no
question as to the meaning of cooperation. When the government seeks an agreement on
cooperation, it obviously means potential testimony in future cases. It was understood by all
attorneys in these meetings that we were talking about any and all cooperation, including
testimony. Indeed, I expressly raised the IIIT investigation and Mr. Kromberg as one of the
reasons that we would not budge on this threshold issue in meeting that I had in Washington.
13. Dr. Al-Arian was aware that there were several other investigations taking place
in the United States of Muslim organizations. He understood, that because his name recognition,
he might be otherwise called as a witness in come of those investigations. We were all aware
that the search warrant and other material associated with the IIIT investigation expressly
mentioned Dr. Al-Arian. It was the IIIT investigation that framed much of our discussions.
14. Dr. Al-Arian made clear that he would never agree to a plea agreement that
contained any cooperation agreement.
15. After the acquittals in Florida, Dr. Al-Arian was primarily motivated to plea to
spare his family further pain and expense. The Florida trial had exhausted his resources.
16. Dr. Al-Arian only agreed to the plea if he would have nothing to do with the
Justice Department after the plea and would be allowed to serve the time and be deported.
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17. The government understood this to be Dr. Al-Arian’s stance and explicitly
discussed terms related to Dr. Al-Arian’s position on non-cooperation. The government agreed
to this threshold demand and expressly agreed to waive any cooperation provision.
18. We conveyed the government’s assurance to Dr. Al-Arian that he would not be
expected to testify or cooperate in any investigation. We showed him that the cooperation
provisions that are contained in the standard agreement, including the original draft of the Al-
Arian agreement, had been removed with the consent of the government.
19. The purpose of the plea agreement was to terminate all business between the
United States and Dr. Al-Arian. The plea bargain was designed to be the end of Dr. Al-Arian’s
involvement with the U.S. government. There were to be no grand jury subpoenas, no proffer
agreements, no further briefings or discussions. The only thing left was for Dr. Al-Arian to be
20. Once plea negotiations commenced, we made clear to the government that we
wanted to bind all prosecuting authorities in the U.S. federal government to the plea agreement.
We believed this was possible because the Justice Department was not only active in the
negotiations but was leading the negotiations on behalf of the government.
21. In my many years as a criminal defense attorney, I have never witnessed this type
of bait-and-switch of a client. Before this case, it was understood that lawyers of good-faith
would fulfill their clear agreements. I was, therefore, shocked by the subpoena issued by the
Eastern District of Virginia and the Counter-Terrorism section of the U.S. Department of Justice,
which was actively involved in these negotiations.
22. In conclusion, the Justice Department, including the Counter-Terrorism section,
knew that Dr. Al-Arian signed this agreement on its express understanding that he would not be
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expected to testify in any existing or future cases and he only signed the agreement on the basis
of that understanding.
In conformity with 28 U.S.C. § 1746, I, William B. Moffitt, Esq., declare under penalty
of perjury that the foregoing is true and correct. Executed on February 19, 2009.
William B. Moffitt
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