In U.S. v. Al-Arian, No. 06-16008 (Jan. 25, 2008), the Court held that when a plea agreement contains no agreement providing that a defendant is immune from a future grand jury subpoena, the plea agreement does not prevent the government from subpoenaing the defendant to testify before a grand jury.
The Court first addressed whether the appeal had become moot, because the district court judgment which had held Al-Arian in contempt for failure to comply with the subpoena, and pursuant to which he had been sentenced, had since been vacated. The Court noted that any time Al-Arian had served for the contempt would be credited toward the sentence he was serving on the guilty plea if the Court held that the district court erred by holding him in contempt. Hence the case was not moot.
The Court also held that it had subject matter jurisdiction. The Court held that a § 2255 motion can be used to enforce promises made in a plea agreement.
Al-Arian’s plea agreement contained no terms regarding whether he agreed to cooperate with the government in the future, or whether he could be required to do so. Al-Arian noted that the government agreed to omit the standard cooperation provision from the plea agreement, and argued that this removal of language in effect immunized him from having to give any future testimony. The Court rejected this argument. Looking only to the language of the plea agreement itself, which stated that no other promises were made other than those contained therein, the Court held that the plea agreement did not prevent the government from issuing a subpoena.
