3PR.21.2004M 8:01f .659. .3/11.

70

May 22, 1990, purporting that Noaair had known Salameh

since 1983; an affidavit by Ayyad, dated December 24,
1990, authenticating Salameh's signature on a document;
and a book entitled The Ideological and Legitimate Per-
spectives for the Islamic Group, indicating that its writing
had been "supervised by the Honorable Dr. Omar Abdel
Rahman." Tr. 9004-29, 9075-76; GX W90, W90A-1 through
W90A-7, W90C-1, W90C-2, W90-D, W90-3, W90-4. Also
recovered from the same briefcase was a passport size
black-and-white photograph of Nosair. Tr. 9013-14; GX
W90B.W90B-X.
19. El-Gabrowny, Carrying Fraudulent
Passports For Nosair, Assaults Agents
Who Come To Search His Residence After
Salameh's Arrest
After hearing news of Salameh's arrest on the morning
of March 4, Salem called El-Gabrowny to ask what was
going on. El-Gabrowny said he would find out and get
back to Salem. Tr. 5004-05, 5354-55; GX 601-4T.* Early
that afternoon, El-Gabrowny was walking outside his
building as a team of agents, clad in raid jackets and
armed with a search warrant for his apartment,
approached the building. El-Gabrowny hesitated momen-
tarily, then hustled back toward the building in the direc-
tion of the agents. Two agents detained him and
attempted to frisk him, explaining that they were there to
execute a search warrant and that he should relax. El-
Gabrowny became increasingly belligerent, ultimately
struck both agents, and was thus placed under arrest. Tr.

* El«Gabrowny and his brother Mohammed, who

both kept periodically in telephone contact with Salem
after Salem left the investigation during the summer of
1992, had come to visit Salem in the hospital a few days
earlier. Salem'a wife had been present, so the conversation
was in English and there was no allusion to the WTC
bombing. Tr. 4994-95, 5001-02, 6441-42.
 .2004 8:01ftM-
>wn Salameh
December 24,
on a document;
Legitimate Per-
ing that its writing
ie Dr. Omar Abdel
10, W90A-1 through
790-3, W90-4. Also
as a passport size
c. Tr. 9013-14; GX
lulent
f» Ag«nts
icUnco Aftor
rest on the morning
ay to ask what was
Id find out and get
GX 601-4T.* Early
raiting outside his
in raid jackets and
or his apartment,
iy hesitated momen-
railding in the direc-
detained bin and
it they were there to
he should relax. El-
Iligeient, ultimately
ced under arrest. Tr.
sr Mohammed, who
contact with Salem
iring the summer of
i hospital a few days
t, eo the conversation
illusion to the WTC
42.
NO.659 P.4/11
71
8791-8834,* On his person, the agents found an envelope
containing a stack of documents that included: Nosair's
American passport; an Egyptian air force document
bearing Nosair's photograph; five passports issued by the
government of Nicaragua in July 1991, depicting Nosair,
his wife and their three children with false names as-
signed to each; five fraudulent Nicaraguan birth certifi-
cates exhibiting the same false names in which the
passports had been issued; and Nicaraguan driver's li-
censes issued to Nosair and his wife in the same false
names. The photograph on the Nicaraguan passport for
Nosair matched the one recovered from Salameh's brief-
case. Tr. 8807-11, 11809; GX 135A - 135H, 136A - 136H,
137A & B, 138**
* The agents were not seriously injured in the fracas,
although one was treated at a hospital emergency room
for lower back pain, and later consulted a chiropractor
and an orthopedic surgeon. His injuries did not require
surgery or absence from work, nor did they ultimately
curtail his physical activities. Tr. 8812-13.
** Because an earthquake in Nicaragua destroyed
many official documents, including birth records, it is not
uncommon for Nicaraguans to obtain new birth certifi-
cates by submitting reposiciones to a judge who then or-
ders new certificates to be issued. In the case of the birth
certificates El-Gabrowny was holding for Nosair, signa-
tures had been forged on the judge's orders and the re-
posiciones, Tr. 11796-97. Birth certificates were issued for
Victor Noel Jafry (Nosair), Ninfra Safry Calderon (Mrs.
Nosair), and their children (who were called Jaime Marcos
Jafry, Jorge Marcos Jafry and Maria Marco Jafry) al-
though there was no record of any such persons ever
having lived or travelled in Nicaragua. Tr. 11797-98; GX
136A - 136E. The passports had been issued by the pass-
port office in Nicaragua on July 9, 1991 (and, in the case
of Mrs. Jafry/Nosair, on July 10, 1991), on the strength of
the fraudulent birth certificates submitted by a corrupt
 72

Inside El-Gabrowny's apartment, agents seized pass-

port size photographs of Nosair (with a negative); polaroid
photographs of Nosair, Shinawy and El-Gabrowny to-
gether inside a prison; two stun guns; a 9 mm. pistol (for
which El-Gabrowny had a permit) and matching ammuni-
tion; still frames (one appearing to depict a man strongly
resembling Salameh) frozen from the videotape of Meir
Kahane'e lecture on November 5, 1990; post-mortem coro-
ner's photographs depicting Kahane's wounds; newslet-
ters from the Afghan mujahideen; several booklets and
periodicals, including Secrecy In The Islamic Work, Al-
Jihad; The Missing Ordinance; and Realizing The Unifi-
cation By Jihad Against The Tyrants Is A Godly Duty; two
stun guns purchased May 23, 1992; audio tapes of No-
sair's speech about returning to the jihad (see supra, at
32-33); and El-Gabrowny's answering machine tape con-
taining, among others, a message from Salameh asking

paralegal in Managua who had access to the necessary

forms and had been bribed. Tr. 11799-11800, 11807-08.
This person would have needed photographs and bio-
graphical data to complete the necessary forms. Tr.
111812. In this case, each application was accompanied by
four passport size photographs. Tr. 11812-13. As is the
common practice, applications for the passports had been
submitted by a travel agent in Managua, and there was
no requirement that the petitioner appear personally. Tr.
11799-11804. The driver's licenses for Victor Noel Jafry
(Nosair) and Ninfra Safry Calderon (Mrs. Nosair), were
forgeries - with false addresses and identification num-
bers that had actually been assigned to certain Nicara-
guan nationals. Tr. 11798; GX 135G & H. The Victor
Jafry/Nosair license was due to expire in May 1996. GX
135G. In the unlikely event he had served only the mini-
mum eeven-and-one-third-year sentence (as opposed to
the twenty-year maximum.) on his New York State convic-
tions, Noaair would not have been released until 1997 or
1998. See supra at 39.
 8=0;
ts seized pass-
legative); Polaroid
El-Gabrowny to-
; a 9 mm. pistol (for
i matching am muni-
jpict a man strongly
e videotape of Meir
0; post-mortem coro-
i's wounds; newslet-
jeveral booklets and
e. Islamic Work, Al-
Realizing The Unifi-
Is A Godly Duty, two
; audio tapes of No-
jihad (see supra, at
ig machine tape con-
rom Salameh asking
:esa to the necessary
799-11800, 11807-08.
holographs and bio-
tecessary forms. Tr.
1 was accompanied by
11812-13. As is the
ie passports had been
lagua, and there was
ippear personally. Tr.
for Victor Noel Jafry
i (Mrs. Noaair), were
,d identification num-
ed to certain Nicara-
5G & R. The Victor
>ire in May 1996. GX
served only the mini-
tence (as opposed to
few York State convic-
releaaed until 1997 or
. ... .NO.659, _ v P.6/ll_
•> '"""'
73
El-Gabrowny to call him; and the "important" message
from Ayyad shortly after the WTC bombing (see supra, at
65-66). Tr. 8930-36, 9801.06; GX 131, 131A, 131B1-B5,
132A-C, 133, 133A-D, 141, 145A-G, 150-155, 162, 163,
163R2, 164, 164T.
After the newa of El-Gabrowny's arrest broke on televi-
sion, Salem called Shinawy at the Abu Bakr Mosque, who
confirmed that El-Gabrowny had been arrested, When
Salem began to respond, Shinawy cut him off, saying, be-
fore curtly hanging up, '1 am not going to talk about any
of this. ... We are not going to talk about things like this
now." Tr. 5005, 5355; GX 601-16T. Salem also called Sat-
tar, who said he had told Mohammed El-Gabrowny to
keep Salem - whom Sattar believed was a "target" of in-
vestigators •- at a distance for the moment, since "[o]ur
contacts have been exposed and you see what is happen-
ing. ... So we are trying to keep our contact, what? Lim-
ited. I mean for the time being." Tr. 5006-07, 5355-56; GX
601-19 at 2.* Later, El-Gabrowny's brother, Mohammed,
told Salem that El-Gabrowny had been caught with pass-
ports he had been holding for Sayyid Nosair against Mo-
hammed's repeated advice. Tr. 5007-08, 5013-14, 5356;
GX 604-1 at 5-6,
On March 5, Nosair was moved from general population
to the higher security special housing unit ("SHU") at At-
tica Prison. Tr. 9204-08, 9215-16. Nosair told a corrections
officer, "If the devil leaders of New York State think
placing me in SHU will end the war, they are wrong. The
war will not end until I am released. This is only the be-
ginning." Tr. 9209. Reiterating, Nosair also told the officer
* Sattar also noted that when Salem's name came up
in conversation at the mosque, Sattar had said to leave
Salem alone because he had withdrawn from the group
after subpoenas had been issued in September 1992. Tr,
5007; GX 601-19T at 3.
 ..2004 8:02AM
dally decide to retain
jt make any claim that
eturn of the superseding
,<j made no other motions
tt, had represented, while
(y advising him (over the
retain counsel rather than
sistance of the legal advisor
j]ven if I choose another at-
delay of the trial" (9/13/94
994, Abdel Rahman finally
' appeared in the case only
i District Court on Novem-
g motions had long passed
with jury selection on No-
bdel Rahman's prior repre-
aeked for a delay in the
Judge Mukasey agreed to
•nee phase of the trial until
long-scheduled jury selec-
of hundreds of veniremen
oned for selection of an
onth trial), would go for-
ienly took ill, resulting in
,-tion (which lasted three
compelled counsel to con-
had effectively obtained
>ught. (11/17/94 Tr. 4-5).
bdel Rahman filed time-
a, a delay in the trial on
accurately described as
numerous times Q" and
ie non-cognizable ground
i geopolitical strategy to
alleged then, as now, in
United States v, Abdel
(S.D.N.Y. Jan, 9, 1995),
gestions to the contrary,
NO.659 P.7/11
301
the claims had absolutely nothing to do with the fact that
the indictment had been superseded.*
POINT III
El-Gobrowny Was Prop.rly Prosecuted Under 18 U.S.C.
§ 1S46 For Possessing Fraudulent Nicaraguan Passports.
El-Qabrowny challenges his convictions on Counts 24
through 28 for possessing five fraudulent Nicaraguan
passports (depicting the five members of the Nosair fam-
ily). He argues that the possession of a fraudulent pass-
port issued by a foreign government is not a cognizable
violation of 18 U.S.C. § 1546, the statute under which El-
Gabrowny was charged. (See El-Gabrowny Br. 9-20),
While this Court does not appear ever to have ruled on
such a claim, the Fifth Circuit rejected it in United States
v. Osiemi, 980 F,2d 344 (5th Cir, 1993). As set forth below,
this Court should adopt Osiemi's reasoning and reject El-
Gabrowny's
In pertinent part, § 1546 states:
Whoever knowingly forges, counterfeits, alters
or falsely makes any immigrant or nonimmi-
grant visa, permit, border crossing card, alien
* Counsel attempt to portray the superseding in-
dictment (filed fourteen weeks before openings) as a mo-
mentous modification of the charges, which presumably
would excuse the tardiness of Abdel Rahman's motions.
(See Abdel Rahman Br. 23-24, 78, 82). In fact, the motions
could have been made a full year earlier, and were time-
barred because Abdel Rahman chose to engage in games-
manship regarding his representation at trial. See Abdel
Rahman, 1995 WL 6264 at *2 (the District Court alluding
to "Abdel Rahman's willful adventure in self-
representation, attended by numerous warnings that be
would live with the consequences if he should change his
mind, as he ultimately did").
 NO.659. P.8/11

302

registration receipt card, or other document pre-

scribed by statute or regulation for entry into or
as evidence of authorized stay or employment in
the United States, or utters, uses, attempts to
use, possesses, obtains, accepts, or receives any
such visa, permit, border crossing card, alien
registration receipt card, or other document pre-
scribed by statute or regulation for entry into or
as evidence of authorized stay or employment in
the United States, knowing it to be forged, coun-
terfeited, altered, or falsely made, or to have
been procured by means of any false claim or
statement, or to have been otherwise procured
by fraud or unlawfully obtained [shall be guilty
of a crime.]
18 U.S.C. § 1546 (Emphasis added). Plainly, the statute
does not mention passports at all, let alone passports is-
sued by foreign governments. .Yet, as the highlighted por-
tions demonstrate, the statute is intended to reach
documents lawfully used to enter (as well as stay and
work in) the United States. The highlighted portions,
moreover, are the result of a 1986 amendment clearly en-
acted to expand the reach of the statute.*

* As the Fifth Circuit noted in Osiemi:

Before the 1986 amendment, the statute pro-
scribed possession of any visa, permit, or other
document "required" for entry into the United
States. [] By deleting the word "required" and by
adding the words, "prescribed by statute or
regulation," Congress expanded the proscription
of the statute from being limited to required en-
try documents to any documents prescribed ei-
ther by statute or by regulation for entry into the
United States.
980 F.2d at 346 (footnote omitted).
 L.2004 8:02fiM
r document pre-
, for entry into or
/ or employment in
4 uses, attempts to
epts, or receives any
crossing card, alien
• other document pre-
tion for entry into or
ay or employment in
it to be forged, coun-
y made, or to have
f any false claim or
t otherwise procured
lined [shall be guilty
ded). Plainly, the statute
11, let alone passports is-
it, as the highlighted por-
9 is intended to reach
ter (as well as stay and
he highlighted portions,
16 amendment clearly en-
rtatute.*
in Osiemi;
it, the statute pro-
,sa, permit, or other
try into the United
rd "required" and by
Ibed by statute or
ded the proscription
lited to required en-
nents prescribed ei-
on for entry into the
NO.659 P.9/11
303
In Osiemi, defendant claimed, just as El-Gabrowny
does, that the statute does not reach the possession of a
foreign counterfeit passport, Construing the statue in ac-
cordance with its plain language, the Court observed that
such a claim required determining whether "a foreign
passport is a document 'prescribed by statute or regula-
tion' for entry into the United States [.]" Id. at 346. It then
turned to 8 U,S.C. § 1181, which addresses "Admiseion of
Immigrants into the United States," and lists the
"documents required" of an immigrant to include, in most
cases, "a valid unexpired passport" if required under
regulations promulgated by the Attorney General. Id. The
Court further found that there is such a regulation, 8
C.F.R. § 211.1, which, with exceptions not here pertinent,
requires an immigrant to present a valid passport. Id.,
citing Pascual v. Carroll, 976 F.2d 726 (4th Cir. 1992)
(table), Thus, the Court concluded, "a foreign passport is
clearly, and typically, one document 'prescribed by statute
or regulation for entry' intq the United States. The pos-
session of a counterfeit or altered foreign passport, there-
fore, is an offense under the plain language of § 1546(a)."
Id.
El-Gabrowny seeks to avoid this outcome by arguing
that the statute is ambiguous, and that such ambiguity,
under the rule of lenity, must be resolved in his favor. (See
El-Gabrowny Br. 11, 18-19). The rule of lenity, however,
has no application where there is no ambiguity. Reno v.
Koray, 115 S. Ct. 2021, 2029 (1995) ("The rule of lenity
applies only if, after seizing everything from which aid
can be derived, we can make no more than a guess as to
what Congress intended") (quoting Smith v. United
States, 508 U.S. 223, 239 (1993), and Ladner v. United
States, 358 U.S. 169, 178 (1958)) (internal quotation
marks and brackets omitted). Here, as the Fifth Circuit
found, 980 F.2d at 346-48, foreign passports fit comforta-
bly within the plain meaning of Kdocument[s] prescribed
by statute or regulation for entry into . .. the United
States," To contend, as El-Qabrowny essentially does, that
the use of "other document" creates ambiguity proves too
.1.2004 NO.659 P.10/11-

304

much, since it would render the statute applicable only to

the documents specifically listed. This would not only
frustrate the intent of the statute -- which plainly sought
to reach any entry document - but would reduce the
"other document" language to surplusage. Cf. United
States v. Wells, 117 S. Ct. 921, 929 n.14 (1997) (reading
statutory terms as surplusage is to be avoided, particu-
larly when the words describe an element of a criminal
offense); Bailey v. United States, 116 S, Ct. 501, 506
(1995) (same); United States v. Ratzlaf, 510 U.S. 135, 140
(1994) (same). Indeed, addressing this same contention in
Osiemi, the Fifth Circuit stated:
Strictly construed, taken literally, and given its
plain and ordinary meaning, the language of
§ 1546(a), as amended, criminalizes the knowing
possession of any counterfeited or altered docu-
ment prescribed by statute or regulation for en-
try into the United States. Foreign passports are
documents specifically prescribed by statute and
regulations for use in obtaining entry into the
United States.
980 F.2d at 348.*

* El-Gabrowny's argument regarding the "other

document" language in the second subsection of § 1546
(El-Gabrowny Br. 17-18), actually damages bis cause.
That subsection specifically deals with the counterfeit
printing of U.S.-issued immigration documents, and its
"other document" clause reads: "other document required
for entry into the United States" (emphasis added). While
El-Gabrowny avoids noting this, that is the same lan-
guage the first subsection used to include before it was
expanded by amendment in 1986 to state "other document
prescribed by statute or regulation for entry into the
United States." That only the first subsection was so
broadened confirms the intent of Congress to reach a
 .1.2004 8:02flM
applicable only to
would not only
yfcici Plainly sought
bu* would reduce the
- -
. (1997)Cf (reading
United
* to be avoided, particu-
an element of a criminal
*. lie s. ct. soj/soe
fe«tf 510 U.S. 135, 140
g tnis same contention in
, and given its
»& the language of
tnalizes the knowing
ted or altered docu-
w regulation for en-
oreign passports are
ribed by statute and
entry into the
regarding the "other
id subsection of § 1546
fy damages his cause,
s with the counterfeit
on documents, and its
fcer document required
jnphasis added). While
that is the same Ian.
include before it was
state "other document
w for entry into the
•at subsection was so
Congress to reach a
NO.659 P.11/11
305
For the reasons discussed in Osiemi, El-Gabrowny's re-
liance on United States v. Vargas, 380 F. Supp. 1162
(E.D.N.Y. 1974), and United States v. Fox, 766 F. Supp.
569, 572 (N.D. Tex. 1991), is unavailing. (El-Gabrowny Br.
12-17). Vargas was decided before Congress expanded
§ 1546 in 1986, and essentially held that a foreign pass-
port was not a document required for entry into the
United States, reasoning that the statute applied only to
documents issued by the United States. Adopting the
holding of Vargas would, as the Fifth Circuit reasoned,
ignore both the statute's later expansion and plain
meaning. Osiemi, 980 F.2d at 347 n.4. As the Fifth Circuit
further observed, the district court's conclusion in Fox
that § 1546 does not apply to foreign passports may well
be dictum since it was not necessary to decide the case
(which involved a bogus passport not from an actual for-
eign sovereign but the fictitious "Elohim's Kingdom of Is-
rael"); nevertheless, in reaching to decide the issue, the
district court "failed to observe that the word 'required'
had been deleted by the 1986 amendment and that the
document now need only be one that is 'prescribed7 by
statute or regulation." Osiemi, 980 F,2d at 347-48.
The application of § 1546 to El-Gabrowny's conduct was
proper, and his convictions should be affirmed.
broader array of entry documents in the first subsection of
the statute.