                          PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 02-5004
EL SAYED HASSAN RASHWAN,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
                 Henry E. Hudson, District Judge.
                           (CR-02-134)

                      Argued: April 4, 2003

                      Decided: May 8, 2003

  Before WIDENER, WILKINSON, and MOTZ, Circuit Judges.



Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Widener and Judge Motz joined.


                            COUNSEL

ARGUED: Robert James Wagner, Assistant Federal Public
Defender, Richmond, Virginia, for Appellant. S. David Schiller,
Assistant United States Attorney, Richmond, Virginia, for Appellee.
ON BRIEF: Frank W. Dunham, Federal Public Defender, Richmond,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
David T. Maguire, Assistant United States Attorney, Richmond, Vir-
ginia, for Appellee.
2                    UNITED STATES v. RASHWAN
                             OPINION

WILKINSON, Circuit Judge:

   El Sayed Hassan Rashwan was convicted of marriage fraud, con-
spiracy to commit marriage fraud, identification fraud, and making
false statements to the Immigration and Naturalization Service (INS).
Rashwan, along with several other individuals, engaged in a scheme
to procure citizenship and other benefits through the production of
false documents and the undertaking of a sham marriage. Rashwan
was properly prosecuted and convicted on all counts. The judgment
of the district court is thus affirmed.

                                 I.

   Rashwan, an Egyptian national, entered the United States in July
1999 on a six month visitor’s visa. At the end of the six months,
Rashwan failed to leave the country. He continued to reside in the
United States illegally, and in the ensuing years undertook a number
of schemes in an attempt to gain permanent residence status.

   In September 2000, Rashwan traveled from his residence in New
Jersey to Virginia to obtain a driver’s license. Rashwan had been
unable to obtain a driver’s license in New Jersey because he had nei-
ther a social security card nor a green card. When Rashwan learned
he would be unable to procure a New Jersey license, he contacted a
man who brought individuals to Virginia to get licenses. The two men
drove to a Richmond area office of the Department of Motor Vehicles
(DMV). There, Rashwan applied for a Virginia identification card and
learner’s permit.

   In order to receive a license in Virginia, Rashwan was required to
complete a DL51 residency certification form, which requires the
applicant to provide a sworn statement of his name and the place and
length of his Virginia residence. Rashwan provided a false Richmond
address. The DMV then issued a Virginia identification card with
Rashwan’s picture on it and, the following day, a Virginia learner’s
permit. On October 18, 2000, Rashwan returned to the same Virginia
DMV office and applied for a Virginia’s driver’s license. He again
falsely stated and swore to a Richmond residence address.
                      UNITED STATES v. RASHWAN                       3
   After receiving his license, Rashwan informed his acquaintance
Nadir Hajez that he would like to get married so that he could obtain
his green card. Rashwan asked Hajez to seek out women who might
be interested in marrying him in exchange for free rent. In October
2000, Hajez introduced Rashwan to Melanie Walker. Walker was
about to be evicted and was having trouble keeping a job. Rashwan
offered Walker an apartment for her sole use and $2,500 to assist her
in getting a car. In exchange, Rashwan asked Walker to marry him
so he could secure permanent residency status. Under grant of immu-
nity, Walker testified that she knew that she and Rashwan were enter-
ing into the marriage with no intent to consummate it and with the
sole purpose of facilitating Rashwan’s obtaining a green card.

   On December 6, 2000, Walker and Rashwan were married in a
double wedding ceremony with another couple, Omar Obeidat and
Peggy Campbell. Obeidat was also a foreign national seeking to
obtain permanent residency in the United States. There were no fam-
ily members in attendance at the wedding. Rashwan arranged for pho-
tographs to be taken during the wedding, and later admitted that the
sole purpose of these pictures was to impress the INS. The bride and
groom did not consummate the marriage and did not live together
after they were married.

   In late December 2000, Walker moved out of the free apartment
Rashwan had been providing and asked for a divorce so that she could
marry Omar Obeidat. In response, Rashwan threatened Walker that if
she did not finish the INS application process with him, he would
report Walker and Obeidat to the authorities and they would go to jail.
Walker agreed to continue with the sham marriage.

   On April 30, 2001, Rashwan hired an immigration attorney to help
him prepare an application for permanent residency. Based on infor-
mation provided by Rashwan and Walker, the attorney prepared for
the INS an I-485 form, Application to Register Permanent Resident
or Adjust Status, and a biographical information form. At no point in
time did Rashwan inform the INS or his attorney that he and Walker
were not co-habitating.

   Rashwan met with Walker several times to exchange personal
information in preparation for their INS interview. In order to make
4                     UNITED STATES v. RASHWAN
their marriage appear authentic, he obtained credit cards and an elec-
tric bill for his residence in Walker’s name. He gave these credit cards
to Walker only on the day of the interview so that she could produce
them if necessary, and he took them back from her immediately after
the interview. Rashwan also hung pictures of himself and Walker in
the apartment he shared with Barbara Hancock to make it appear that
Walker lived with him.

   In February 2002, Rashwan and Walker were interviewed by an
INS district adjudications officer to validate that a bona fide marriage
existed between the two. The examiner specifically asked whether
Rashwan and Walker were residing together, to which both falsely
responded yes. After the interview, Rashwan provided Walker with
more money and a plane ticket to visit her mother. He also asked her
to maintain the marriage until Rashwan went back to the INS for a
second interview. On February 14, 2002, the INS approved Rash-
wan’s application and granted him a conditional residency permit.

   Later that month, the Virginia DMV discovered that the false
address used by Rashwan in his license application had also been
used by at least 55 other applicants. During the ensuing investigation,
DMV agents interviewed Rashwan in his home. At this time, Rash-
wan admitted that he never lived at the address listed on his applica-
tion. The agent then confiscated Rashwan’s driver’s license.
Rashwan’s girlfriend Barbara Hancock called the DMV several times
over the next few weeks pretending to be his wife and demanding to
know when Rashwan’s license would be returned to him.

   In early March 2002, the DMV contacted the FBI concerning
Rashwan’s identification fraud, which in turn led to an FBI investiga-
tion of Rashwan. On June 5, 2002, a grand jury returned an eight-
count superceding indictment charging Rashwan and Hancock with
conspiracy to defraud the United States in violation of 18 U.S.C.
§ 371 and obstruction of justice.1 The indictment also alleged that
Rashwan committed identification document fraud in violation of 18
U.S.C. § 1028(a), marriage fraud in violation of 8 U.S.C. § 1325(c),
and immigration fraud in violation of 18 U.S.C. § 1546(a).
    1
   The obstruction of justice charge was dismissed with prejudice by the
district court.
                      UNITED STATES v. RASHWAN                          5
   On September 18, 2002, a jury found Rashwan guilty of the above
counts. At sentencing, the district court applied a two level enhance-
ment for organizing and leading the criminal activity, giving Rashwan
a total offense level of ten. Rashwan was sentenced to twelve months
incarceration on each count, to run concurrently, and three years
supervised release. Rashwan now appeals his conviction and sentence
on several grounds.

                                   II.

   Rashwan first contends that it was improper for the government to
prosecute him for both conspiracy to commit marriage fraud under 18
U.S.C. § 371 and the substantive offense of marriage fraud under 8
U.S.C. § 1325(c) because such prosecution violates the judicially
devised doctrine called Wharton’s Rule.2 Under Wharton’s Rule,
"[a]n agreement by two persons to commit a particular crime cannot
be prosecuted as a conspiracy when the crime is of such a nature as
to necessarily require the participation of two persons for its commis-
sion." Iannelli v. United States, 420 U.S. 770, 774 n.5 (1975) (quoting
1 R. Anderson, Wharton’s Criminal Law and Procedure § 89 p. 191
(1957)). Rashwan argues that his conviction for both of these offenses
violated Wharton’s Rule because marriage fraud necessarily requires
the participation of two persons for its commission.

   Wharton’s Rule, however, does not apply where, as here, a crime
is capable of being committed by one person. See United States v.
Spitler, 800 F.2d 1267, 1276-77 n.5 (4th Cir. 1986). The language of
8 U.S.C. § 1325(c) makes plain that it is intended to punish "[a]ny
  2
    Rashwan also argues that some of the conspiracy charges arising from
this conduct should have been dismissed because the government could
not properly proceed simultaneously on both the general defraud provi-
sion of 18 U.S.C. § 371 and the specific offense provision of § 371 in the
same conspiracy count. However, this Court has specifically held that the
"two prongs of § 371 are not mutually exclusive." United States v. Arch
Trading Co., 987 F.2d 1087, 1091 (4th Cir. 1993). "[G]iven conduct may
be proscribed by both of the section’s clauses. In such a situation, the
fact that a particular course of conduct is chargeable under one clause
does not render it immune from prosecution under the other." Id. at 1092.
Therefore, Rashwan’s claim is without merit.
6                     UNITED STATES v. RASHWAN
individual who knowingly enters into a marriage for the purpose of
evading any provision of the immigration laws." 8 U.S.C. § 1325(c)
(West Ann. 2003) (emphasis added). Thus, it is the fraud committed
by Rashwan as an individual that violates the statute and it is irrele-
vant whether Walker entered into the marriage with a similar intent
to defraud the INS or whether she entered the marriage with entirely
innocent motives. Although in this case Walker was part of the
scheme to defraud the INS, Rashwan could just as easily have wed
an individual who had no knowledge of his plan to evade the immi-
gration laws. Therefore, it is clear that Wharton’s Rule does not apply
in this situation and that Rashwan may be charged separately for the
substantive crime of marriage fraud as well as with conspiracy to
defraud under 18 U.S.C. § 371.

   Moreover, courts have specifically exempted from Wharton’s Rule
conspiracies that involve more people than are required for commis-
sion of the substantive offense. Spitler, 800 F.2d at 1277 n.5. This
"third party exception" recognizes that the presence of a third party
in a conspiracy enhances the dangers presented by the crime. And
Wharton’s Rule is aimed at crimes where the "parties to the agree-
ment are the only persons who participate in [the] commission of the
substantive offense, and the immediate consequences of the crime rest
on the parties themselves rather than on society at large." Iannelli,
420 U.S. at 782-3.

   In this case, multiple parties were involved in the scheme. Rashwan
conspired with Walker, Hancock, and Hajez to defraud the United
States government and obtain immigration benefits to which he was
not entitled. Hajez conspired with Rashwan to procure a sham mar-
riage by seeking out a woman who would be willing to wed Rashwan
for monetary payment. Walker agreed to enter into a marriage with
Rashwan to fool the INS and, together with Rashwan, made false
statements to the INS. Hancock pretended to be Rashwan’s wife on
several occasions in furtherance of the conspiracy and also threatened
Walker when Walker did not want to continue with the scheme. Rash-
wan’s friends pressured Walker to go to the INS with him when
Walker wished to abandon the plan. And the consequences of these
actions fell not on the actors themselves, but instead on the govern-
ment that they were attempting to defraud. This marriage fraud
                      UNITED STATES v. RASHWAN                         7
scheme is thus dissimilar to classic Wharton’s Rule crimes and the
Rule cannot bar a conspiracy conviction.

                                  III.

   Rashwan next argues that the government improperly prosecuted
him for identification fraud under 18 U.S.C. § 1028(a)(1) which pun-
ishes any individual who "knowingly and without lawful authority
produces an identification document or a false identification docu-
ment." Rashwan contends that he merely obtained a false identifica-
tion card, learner’s permit, and driver’s license, but that he did not
produce them within the meaning of the statute. Rashwan, however,
cannot insulate himself from punishment by manipulating innocent
third parties to perform acts on his behalf that would be illegal if he
performed them himself.

   Whether or not Rashwan physically produced the false documents
himself is irrelevant to his conviction. Title 18 U.S.C. § 2(b) makes
clear that "[w]hoever willfully causes an act to be done which if
directly performed by him or another would be an offense against the
United States, is punishable as a principal." 18 U.S.C. § 2(b). Rash-
wan aided and abetted the production of false identification docu-
ments by providing false information to the DMV with the specific
intent that the agency would then produce a false identification docu-
ment for him. Because Rashwan specifically intended for the DMV
to issue a fraudulent identification card and license, it does not matter
whether the clerk who actually produced the license also had any
intent to commit the crime. See United States v. Ruffin, 613 F.2d 408,
412 (2d Cir. 1979) (conviction proper even when defendant acts
through innocent agents who do not themselves intend to break the
law).

   It is clear, moreover, that conviction on an aiding and abetting the-
ory is proper, even if the government did not specifically charge
Rashwan under 18 U.S.C. § 2. "[A] defendant can be convicted as an
aider and abettor even though he was indicted as a principal for com-
mission of the underlying offense and not as an aider and abettor."
United States v. Scroger, 98 F.3d 1256, 1262 (10th Cir. 1996) (cita-
tion omitted). Aiding and abetting "is not an independent crime under
18 U.S.C. § 2." Id. Section 2 merely obviates the need for awkward
8                     UNITED STATES v. RASHWAN
phrasing and strained readings of statutes by making clear that in all
crimes an accessory will be punished as a principal. Thus, aiding and
abetting "is implicit in all indictments." United States v. Dodd, 43
F.3d 759, 762 n.5 (1st Cir. 1995).

   And as United States v. Perry, 643 F.2d 38, 45 (2d Cir. 1981), indi-
cates, the precise language used in the indictment, by the prosecution,
or in the jury instructions is unimportant. So long as all of the ele-
ments necessary to find Rashwan guilty of the crime, whether as a
principal or as aider or abetter, were put before the jury, conviction
will be proper. Rashwan’s conviction for producing false documents
under § 1028(a) is clearly supported by the evidence before the jury
and will therefore be upheld.

                                 IV.

   Lastly, Rashwan argues that the district court erred in enhancing
his offense level two points under USSG § 3B1.1(c) because there is
no proof that he exercised any control over Walker. The U.S. Sen-
tencing Guideline Manual § 3B1.1(c) states that "[i]f the defendant
was an organizer, leader, manager, or supervisor in any criminal
activity," his offense level should be increased by two levels. There
is ample evidence in the record indicating that Rashwan exerted con-
trol not only over Walker, but also over other parties to the conspir-
acy. The district court thus did not err in finding that he had a
leadership role in these criminal activities.

   In determining whether a sentencing enhancement is appropriate
under USSG § 3B1.1, a district court should consider whether the
defendant exercised decision making authority for the venture,
whether he recruited others to participate in the crime, whether he
took part in planning or organizing the offense, and the degree of con-
trol and authority that he exercised over others. See USSG § 3B1.1,
app. 4 (2002). Leadership over only one other participant is sufficient
as long as there is some control exercised. United States v. Harriott,
976 F.2d 198, 200 (4th Cir. 1992). In this case, Rashwan exercised
direction and control over the entire scheme and was responsible for
persuading Walker and others to take part in his crimes.

  Rashwan clearly recruited several individuals to help with his
scheme. It was Rashwan who approached Hajez about finding a
                      UNITED STATES v. RASHWAN                       9
woman to marry. Rashwan also convinced Barbara Hancock to take
part in the scheme by hanging pictures around Hancock’s apartment
to make it appear as if Walker and Rashwan lived there together. And
although Rashwan claims that he and Walker were "equally culpable"
for the marriage fraud, it is apparent from the record that Rashwan
had all of the decision making power in the relationship.

   Indeed, Rashwan exercised extensive control over Walker through-
out the conspiracy. It was Rashwan who initially proposed the idea
of paying Walker to marry him so that he could obtain his green card.
Rashwan organized the wedding ceremony and hired a photographer
to document the marriage. Rashwan was involved in planning every
detail of the wedding, down to buying clothes for the bride to wear
for the ceremony. When Walker wanted to back out of the scheme
shortly after the wedding, Rashwan threatened to turn her in to the
police if she did not continue to cooperate. He also cajoled her into
remaining in the marriage by promising her more money and a plane
ticket to visit her mother.

   Additionally, Rashwan guided the entire green card application
process. He arranged meetings with Walker to exchange information
and Rashwan applied for joint credit cards and joint accounts in his
and Walker’s names. Rashwan drove Walker to Richmond where
both individuals lied to the INS. In fact, even Rashwan’s own counsel
admitted that Rashwan "was the one who knew what to do or had the
information of how to go through the immigration process," that he
was "sort of guiding" and "suggesting to the other[s] as to what to
do." Rashwan was clearly the leader and organizer of this scheme to
defraud the federal government, and the district court did not err in
imposing a two point sentencing enhancement on him for this leader-
ship role.

                                  V.

  Rashwan’s challenges to his conviction and sentence are without
merit. For the foregoing reasons, the judgment of the district court is

                                                         AFFIRMED.
