Mohamed Abuhamra, a Yemeni-American businessman, wants to be released on bail while he awaits sentencing for tobacco smuggling.
But after a law enforcement official made a secret statement in a closed-door meeting at federal court, District Judge Richard J. Arcara refused the request and sealed the decision.
The former delicatessen operator has never been accused of a violent crime, but federal prosecutors say he would be a danger to the community if released on bail.
Abuhamra, a 54-year-old Lackawanna resident, has not been told why the government considers him dangerous.
Neither has his attorney.
"The only word I have for this is 'astounding.' It's like no other case I've had in 37 years as an attorney," Abuhamra's lawyer, David G. Jay, said Friday. "When the government presented its evidence (that) he was a danger to the community, my client and I were ordered to leave the courtroom. When the judge issued his decision on bail, the government got a copy and I didn't."
"I can only suspect that they're somehow trying to tie him to terrorism, but I don't have a clue. The prosecution won't tell me, and the judge sealed his decision."
The chief prosecutor in the case declined to discuss the government's suspicions about Abuhamra.
"In certain instances, a judge can hear evidence without the defense being present and can issue a decision that the defense can't see," said Assistant U.S. Attorney Anthony M. Bruce. "I'm not at liberty to tell you why it's being done in this case."
Bruce did agree with Jay that the situation is unusual. He said he's never had one in more than 24 years as a federal prosecutor.
Abuhamra, has been in jail since March 3, when he was convicted of tobacco smuggling charges. He is scheduled to be sentenced in late July, and he is expected to face a prison term of at least six years. His attorney described him as a nonviolent family man who has nine sons and a daughter.
In early March, Abuhamra and four other men were convicted of taking part in a multimillion-dollar criminal operation involving tax-free cigarettes smuggled from the Seneca Nation's Cattaraugus Reservation to Michigan. Fifteen others have taken guilty pleas in connection with the same operation.
Abuhamra claims he was wrongly convicted, and Jay appeared before Arcara Friday afternoon to argue for a new trial.
On March 11, Arcara heard legal arguments on the bail issue between Jay and federal prosecutor Allison Gioia.
"We were arguing before the judge, and (Gioia) told the judge she had some additional information from a law enforcement official, and she requested that I should be ordered to leave the courtroom," Jay said. "I had to leave the room, and when I was allowed back in, the judge told me he was turning down my request for bail."
In a ruling Arcara issued April 22, the judge said he had been given "clear and convincing evidence" that Abuhamra must be kept in jail because he presents a danger to the community and a flight risk. But the defense was not allowed to hear the evidence.
"It seems to me that we should at least be entitled to know what (Abuhamra) is accused of doing," Jay said.
In a related case that also involves allegations of government secrecy, attorneys for Abuhamra's codefendant, Aref Ahmed, 26, asked Arcara for information on why prosecutors have accused Ahmed of funding the travels of the "Lackawanna Six."
Ahmed was convicted with Abuhamra in the smuggling case. He has been held without bail since the conviction because prosecutors say two of the "Lackawanna Six" have told them Ahmed provided $14,000 to help pay for the Lackawanna men to visit an al-Qaida terrorist training camp in Afghanistan in 2001.
Defense attorneys Paul J. Cambria and Michael Stuermer said Ahmed denies the allegations and does not want them used against him when he is sentenced. They noted that the government has not filed any criminal charges against Ahmed for allegedly funding the trip.
"Can you just be branded with this stuff and never get a chance to challenge it?" Cambria asked the judge. "You need to set up a fair forum so we can challenge this information."