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ARCARA TOLD TO RECONSIDER DENIAL OF BAIL IN SMUGGLING
APPEALS COURT CITES GOVERNMENT SECRECY

A higher court wants U.S. District Judge Richard J. Arcara to reconsider his decision, based on secret government evidence, to jail a Muslim businessman from Lackawanna.

The 2nd Circuit Appeals Court has directed Arcara to review a request to release Mohammed Abuhamra, 54, who is awaiting sentencing for tobacco smuggling, on bail.

The appeals court noted that in ordering last April that Abuhamra remain in jail, Arcara had based the ruling on information so sensitive that even Abuhamra's defense attorney was barred from hearing it.

Abuhamra, former vice president of the Yemenite-American Merchants Association in Lackawanna, was one of five men convicted in March of taking hpart in a multimillion-dollar contraband cigarette case.

The jailing of Abuhamra had caused concern among local Yemeni-Americans, many of whom feel the federal government has wrongly focused on them since the terrorist attacks of Sept. 11, 2001, and the "Lackawanna Six" case.

"My client has been held without bail since March. He and I still haven't been told why," David G. Jay, Abuhamra's attorney, said in response to this week's decision. "I'm gratified by the 2nd Circuit decision. I hope it helps to set a standard that decisions like this shouldn't be based on secret proceedings."

The appeals judges said they have concerns about the use of secret government evidence, presented without a defense attorney in the courtroom, in a bail decision.

"We conclude that such submissions should generally not be entertained because they compromise a defendant's due process right to a fair hearing . . . as well as the public's interest in open criminal proceedings," the appeals panel wrote.

The appeals court returned the case to Arcara, rather than overturning the decision. Arcara is expected to meet with Jay and Anthony M. Bruce, the federal prosecutor in the case, sometime next week.

"This is the best news my family has had in the past year," said Ahmed Abuhamra, Abuhamra's eldest son. "My father has nine children and eight grandchildren. They say he is a danger to the community and a danger to national security, but they've never told us why. We've been kept in the dark."

At a bail hearing in April, government lawyers asked Arcara not to release Abuhamra, and, at a prosecutor's request, Arcara took the highly unusual step of ordering Jay out of the courtroom while the government presented its evidence.

"I had to leave the courtroom, and when I came back, the judge told me he was turning down our request for bail," Jay recalled. "I've never seen anything like it in 37 years as an attorney."

Bruce had little reaction to the decision, except to say that the case and the security concerns surrounding it are "very extraordinary . . . a highly unusual situation."

Ahmed Abuhamra was elated by the ruling.

"This is very difficult for my whole family. My father is more than a father. He's the best and closest friend to all his children," said Ahmed Abuhamra, who runs a Buffalo delicatessen. "My father has only seen his own mother twice in the past eight months, and she's very ill. She just had surgery for cancer."

The appeals court noted that Mohammed Abuhamra, a native of Yemen, has been a resident of the United States since 1975 and a U.S. citizen since 1981. After he was arrested in the contraband tobacco case in October 1999, he was allowed to remain free on $20,000 bail for more than four years. Government prosecutors did not ask Arcara to jail Abuhamra until he was convicted in the tobacco case last March 3.

Abuhamra and four other defendants were found guilty of running a lucrative tobacco-smuggling and money-laundering operation with the assistance of a Seneca Nation businesswoman who had access to tax-free cigarettes. Jay said Abuhamra plans to appeal the conviction.

Abuhamra is being held in the Niagara County Jail in Lockport. His sentencing has been put off indefinitely while authorities await the outcome of a constitutional challenge to the federal sentencing guidelines.

e-mail: dherbeck@buffnews.com

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