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United States v. El Sayed Hassan Rashwan, 328 F.3d 160, 4th Cir. (2003)
United States v. El Sayed Hassan Rashwan, 328 F.3d 160, 4th Cir. (2003)
3d 160
I.
2
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.
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
immunity, Walker testified that she knew that she and Rashwan were entering
into the marriage with no intent to consummate it and with the sole purpose of
facilitating Rashwan's obtaining a green card.
were married.
7
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 information 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.
10
11
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, Rashwan admitted that he never lived at the
address listed on his application. 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
In early March 2002, the DMV contacted the FBI concerning Rashwan's
identification fraud, which in turn led to an FBI investigation 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).
13
On September 18, 2002, a jury found Rashwan guilty of the above counts. At
sentencing, the district court applied a two level enhancement 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.
14
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
commission." Iannelli v. United States, 420 U.S. 770, 774 n. 5, 95 S.Ct. 1284,
43 L.Ed.2d 616 (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.
15
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 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
irrelevant 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 immigration 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.
16
17
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 marriage 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. Rashwan'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 government that they were attempting to defraud. This marriage
fraud scheme is thus dissimilar to classic Wharton's Rule crimes and the Rule
cannot bar a conspiracy conviction.
III.
18
Rashwan next argues that the government improperly prosecuted him for
identification fraud under 18 U.S.C. 1028(a)(1) which punishes any
individual who "knowingly and without lawful authority produces an
identification document or a false identification document." Rashwan contends
that he merely obtained a false identification 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
20
21
And as United States v. Perry, 643 F.2d 38, 45 (2d Cir.1981), indicates, the
precise language used in the indictment, by the prosecution, or in the jury
instructions is unimportant. So long as all of the elements 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.
22
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. Sentencing 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 control not only over Walker, but also over other parties to the
conspiracy. The district court thus did not err in finding that he had a leadership
role in these criminal activities.
23
24
Rashwan clearly recruited several individuals to help with his scheme. It was
Rashwan who approached Hajez about finding a 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.
25
26
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 leadership role.
V.
27
Rashwan's challenges to his conviction and sentence are without merit. For the
foregoing reasons, the judgment of the district court is
28
AFFIRMED.
Notes:
1
The obstruction of justice charge was dismissed with prejudice by the district
court
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 provision 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.