06-1614-pr Rubin v. Garvin

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 ------------- 6 7 August Term 2007 8 9 Argued: March 26, 2008 Decided: September 29, 2008 10 11 Docket No. 06-1614-pr 12 13 --------------------------------------------------X 14 15 DANIEL RUBIN, 16 17 Petitioner-Appellant, 18 19 - against - 20 21 HENRY GARVIN, Superintendent, Mid-Orange 22 Correctional Facility, 23 24 Respondent-Appellee. 25 26 --------------------------------------------------X 27 28 Before: FEINBERG and HALL, Circuit Judges, and SAND, 29 District Judge.* 30 31 Petitioner-appellant, who was convicted in New York state 32 court of grand larceny and filing of a false instrument, appeals 33 from a decision of the district court insofar as it denied in 34 part his petition for habeas corpus, arguing that a state 35 regulation underlying his conviction is unconstitutionally vague. 36 The judgment of the district court is affirmed. 37 38 ROBERT A. CULP, Garrison, N.Y., for Petitioner- 39 Appellant. 40 41 ALYSON J. GILL, Assistant Attorney General 42 (ANDREW M. CUOMO, Attorney General of the

* The Honorable Leonard B. Sand, United States District Court for the Southern District of New York, sitting by designation. 1 State of New York, BARBARA D. UNDERWOOD, 2 Solicitor General, ROSEANN B. MacKECHNIE, 3 Deputy Solicitor General for Criminal 4 Matters, on the brief), New York, N.Y., for 5 Respondent-Appellee. 6 7 FEINBERG, Circuit Judge:

8 In 1999, Petitioner Daniel Rubin was convicted in New York

9 Supreme Court, Albany County, of one count of second-degree

10 grand larceny and eight counts of first-degree offering a false

11 instrument for filing, based on evidence that he and his home

12 health care agency knowingly overcharged New York State for

13 Medicaid reimbursements. Now, some nine years later, we are

14 faced with Rubin’s appeal from a decision of the United States

15 District Court for the Northern District of New York (Mordue,

16 Chief Judge) insofar as it denied his petition for habeas

17 corpus as to seven of the nine counts of conviction. He argues

18 that his conviction should be overturned because a regulation

19 underlying both the grand larceny and false instrument counts,

20 the so-called “public charge” regulation, N.Y. Comp. Codes R. &

21 Regs. tit. 18, § 505.14(h)(7)(ii)(a)(1), is unconstitutionally

22 vague. Because we disagree, as explained below, the judgment of

23 the district court is affirmed.

24

25 I. BACKGROUND1

1 A more extensive summary of the facts of this case can be found in the report and recommendation of Magistrate Judge Peebles. Rubin v. Garvin, No. 02-CV-0639 (NAM/DEP), 2005 WL

-2- 1 A. Parties and Applicable Regulations

2 Rubin was the founder and president of Allstate Home Care,

3 Inc. (“Allstate”), a provider of home health care services with

4 three offices and about 200 employees in Dutchess County, New

5 York. Medicaid paid for services for the majority of Allstate’s

6 clients.

7 Medicaid, a program that finances health care for the

8 poor, is jointly funded by the state and federal governments

9 but run by the states individually. See Conn. Dep’t of Soc.

10 Servs. v. Leavitt,

, 141 (2d Cir. 2005). New York’s

11 Medicaid program was administered until September 1996 by the

12 New York State Department of Social Services (“DSS”), and

13 thereafter by the New York State Department of Health.2

14 New York State has promulgated detailed regulations that

15 govern Medicaid. One such regulation, concerning payment rates

16 for providers of personal care services that have cost

17 experience (such as Allstate), states:

18 (h) Payment. 19 . . . 20 (7) This paragraph sets forth the 21 methodology by which the department will 22 determine MA [medical assistance] payment rates 23 for personal care services providers that have 24 contracts with social services districts for any

3827593, at *1-7 (N.D.N.Y. Dec. 15, 2005). 2 For simplicity, we refer to the agencies together as “DSS.”

-3- 1 rate year that begins on or after January 1, 2 1994. 3 . . . 4 (ii) Determination of payment rate. 5 (a) Providers with cost experience. 6 (1) Medical assistance payments to personal 7 care services providers for any rate year 8 beginning on or after January l, 1994, are made 9 at the lower of the following rates: 10 (i) the rate the provider charges the 11 general public for personal care services; or 12 (ii) the rate determined by the department 13 in accordance with [a method that accounts for 14 the provider’s costs]. 15 16

(h)(7)(ii)(a)(1).

17 We follow the parties in calling this provision the “public

18 charge” regulation. The public charge regulation appears in a

19 section of the Medicaid regulations that governs DSS

20 departmental procedures.

21 Another provision, which the parties call the

22 “unacceptable practices” regulation, states:

23 (b) Conduct included. An unacceptable practice 24 is conduct which constitutes fraud or abuse and 25 includes . . . . 26 (1) False claims. 27 (i) Submitting, or causing to be submitted, a 28 claim or claims for: 29 . . . 30 (d) amounts substantially in excess of the 31 customary charges or costs to the general public. 32 33

§ 515.2(b)(1)(i)(d).

34 Rubin and Allstate were indicted in March 1998.3 Rubin was

35 charged with one count of second-degree grand larceny (Count

3 The corporate defendant, Allstate, pled guilty before trial.

-4- 1 One) and six counts of first-degree filing of a false

2 instrument (Counts Two through Seven), for submitting claims

3 that he falsely certified were in compliance with federal and

4 state laws and regulations; and two more counts of first-degree

5 filing of a false instrument (Counts Eight and Nine), for

6 submitting false cost reports.4 After Rubin requested a bill of

7 particulars, the state identified two regulations with which it

8 alleged Rubin had falsely certified compliance: the public

9 charge regulation and the unacceptable practices regulation.

10 Rubin was tried before a jury in Supreme Court, Albany

11 County, in March 1999. The case lasted two weeks and featured

12 22 witnesses.

13

14 B. Evidence at Trial

15 As part of its participation in Medicaid, Allstate

16 submitted annual reports to DSS detailing various business

17 costs and other figures. Allstate reported to DSS that its

18 charge to the general public for “Level II” personal care

19 services was $13.50 per hour in 1993 and $15.25 per hour in

4 Rubin does not contest his conviction on Counts Eight (related to a 1996 cost report’s false statement of the rate Allstate charged the public) and Nine (relating to a 1997 cost report’s false designation of expenses for an outside catering company as patient care costs). Two additional false instrument counts were dropped by the prosecution before trial.

-5- 1 1994 and 1995.5 DSS used data provided by Allstate about prior

2 years’ costs to set its Medicaid reimbursement rates for

3 upcoming years: $13.35 per hour for individual Level II clients

4 in 1994, $15.02 in 1995, and $14.79 in 1996. Allstate, like

5 other providers, was told that it could request that its

6 reimbursement rate be adjusted downward if it wanted to charge

7 the public a lower rate. Letters mailed to Rubin in 1994 and

8 1995 that accompanied DSS’s newly calculated reimbursement

9 rates also stated, “Medicaid regulations preclude payment in

10 excess of the charge made to the general public for personal

11 care services.”

12 Several former Allstate employees testified that Rubin was

13 in charge of day-to-day operations and decisionmaking at

14 Allstate. In particular, many of these employees said that

15 Rubin was responsible for determining or approving rates for

16 personal care services, and that he had detailed command of the

17 business’s billing and finances. For instance, both Debbie

18 Dubois, who worked in payroll and accounts receivable, and

19 former accounting manager Susan Malavet testified that Rubin

20 reviewed all Medicaid remittance statements and approved

21 payment of all bills. Rubin’s administrative assistant,

5 “Level II” personal care services include laundry, cleaning, shopping, running errands, and help with bathing, dressing, and using the toilet. Most reimbursements for personal care services in New York are for Level II services.

-6- 1 Elizabeth Fernandes, testified that he could quote Medicaid’s

2 rates off the top of his head.

3 Employees also testified that Rubin knew about the state’s

4 requirement that the Medicaid reimbursement rate be no higher

5 than the rate charged to the general public. Ina Lynch,

6 Allstate’s director of community relations from 1990 to 1992,

7 testified that she learned about the requirement from Rubin

8 personally, and that Rubin mentioned it on several occasions.

9 Malavet testified that she first learned about the requirement

10 at a seminar in 1993; Rubin confirmed Malavet’s understanding

11 but added that there were “exceptions” to the rule, such as for

12 ongoing contracts or for discounted rates for prompt billing.

13 In 1994, when Allstate was notified of its new Medicaid

14 reimbursement rate for the coming year, Malavet told Rubin that

15 the rate for private clients would have to be raised to match

16 the Medicaid rate; Rubin responded only that he would “check

17 into it.”

18 Despite Rubin’s knowledge of the Medicaid rules, the

19 People’s evidence showed that Allstate billed the overwhelming

20 majority of private, self-paying (i.e., non-Medicaid) Level II

21 clients at rates lower than it reported to DSS and lower than

22 its approved Medicaid reimbursement rates. According to

23 employees who worked at Allstate during the mid-1990s, private

24 Level II clients were charged $12 an hour during that time

-7- 1 period and were never quoted any higher rate.6 One employee

2 testified flatly that the rate was never negotiable. A state

3 auditor testified that of 3,500 private payer noncontractual

4 invoices submitted by Allstate between 1994 and 1996, only one

5 invoice was actually billed and paid at a non-holiday hourly

6 rate higher than $12.7 The auditor also calculated that if

7 Allstate’s Medicaid reimbursement rate had been the same as its

8 charge to the general public, DSS would have saved more than

9 $600,000.8

10 Witnesses also testified that Rubin intentionally tried to

11 obscure the discrepancy between the rate charged to the general

12 public and the Medicaid rate. After Malavet’s 1994 conversation

13 with Rubin, Rubin directed employees to create two sets of

14 fliers listing the agency’s rates: one stating a “regular” rate

15 of $15.25 an hour, and another stating a “discounted” rate of

16 $12 an hour. The cost reports sent to DSS contained only the

17 higher rate, while Rubin told Fernandes to distribute to the

6 One witness, Malavet, said she thought the rate was around $13 an hour in 1994, but expressed uncertainty. 7 Work on holidays was billed at one-and-a-half times the ordinary hourly rate. 8 Expressed another way, Allstate’s Medicaid reimbursement rate was 11% higher than its charge to the general public in 1994, 25% higher in 1995, and 23% higher in 1996.

-8- 1 office staff only the flier with the lower rate. He told her to

2 keep the flier with the higher rate in a drawer, “for

3 Medicaid.” A review of Allstate records indicated that no one

4 paid the “regular” rate of $15.25 an hour. In 1997 Rubin

5 instructed Malavet to alter existing billing records to insert

6 the higher rate reported to DSS; she refused, and quit her job

7 shortly afterward.

8 Allstate transmitted claims to DSS for reimbursement on

9 computer disks, accompanied by paper certificates that Rubin

10 signed. Six of these certificates formed the basis of the first

11 six false instrument charges, Counts Two through Seven.

12 Beginning in February 1995, the certificates contained the

13 following boilerplate language: “I have reviewed these claims:

14 I (or the entity) have furnished or caused to be furnished the

15 care, services and supplies itemized and done so in accordance

16 with applicable federal and state laws and regulations.”9 They

17 also stated, “I UNDERSTAND . . . THAT I MAY BE PROSECUTED UNDER

18 APPLICABLE FEDERAL AND STATE LAWS FOR ANY FALSE CLAIMS,

19 STATEMENTS OR DOCUMENTS OR CONCEALMENT OF A MATERIAL FACT.”

9 Because the two certificates corresponding to Counts Two and Three, which dated from 1994, had different boilerplate language that made no reference to “federal and state laws and regulations,” the district court granted Rubin’s petition for habeas corpus with respect to those two counts on grounds of actual innocence. The State has not appealed the district court’s decision on Counts Two and Three, and we express no opinion about it.

-9- 1

2 C. Jury Charge, Conviction, and Post-Trial Proceedings

3 At the close of trial, defense counsel asked that the jury

4 charge include references to both the public charge regulation

5 and the unacceptable practices regulation. The prosecution

6 argued that mention of the unacceptable practices regulation

7 was redundant. Over Rubin’s objection, the trial court did not

8 mention the unacceptable practices regulation in the jury

9 charge.

10 The jury convicted Rubin on all nine counts. The trial

11 judge sentenced Rubin to concurrent prison terms of 3a to 10

12 years on the grand larceny count and 1a to 10 years on the

13 first seven false instrument counts, along with a consecutive

14 prison term of 1a to 4 years on the last false instrument

15 count, Count Nine. The judge ordered Rubin to pay restitution

16 of $620,237.80 plus $50,000 in fines.

17 The Supreme Court, Appellate Division reversed Rubin’s

18 conviction as to Counts One through Seven. People v. Rubin, 706

(App. Div. 2000). In a companion case decided the

20 same day, the Appellate Division held that the public charge

21 regulation was unconstitutionally vague because it did not

22 define the terms “rate” and “general public.” Ulster Home Care

23 Inc. v. Vacco,

(App. Div. 2000).

-10- 1 The Court of Appeals reversed and remanded. It reasoned

2 that the vagueness challenge should have been addressed to the

3 particular facts of Rubin’s case, People v. Rubin,

762, 763 (N.Y. 2001), and that in any event, the terms “rate”

5 and “general public” were not “so vague that [they] could not

6 be understood by a person of ordinary intelligence or could be

7 arbitrarily enforced,” Ulster Home Care, Inc. v. Vacco, 757

(N.Y. 2001). The court found that there was

9 evidence that Rubin “understood the public charge regulation

10 and yet created schemes to conceal his violation of it.” Rubin,

11 757 N.E.2d at 763. It also held that the regulation was used

12 only to prove the manner in which Rubin had committed larceny

13 and fraud. Id. at 764. On remand, the Appellate Division

14 affirmed Rubin’s conviction in full. People v. Rubin, 729

(App. Div. 2001).

16 Rubin filed a timely petition for habeas corpus in the

17 Northern District of New York. Magistrate Judge Peebles

18 recommended that the petition be granted as to Counts Two and

19 Three –- the first two false statement counts –- because the

20 certificates on which those counts were based lacked the

21 boilerplate statement that the signer had furnished services

22 “in accordance with applicable federal and state laws and

23 regulations.” Rubin v. Garvin, No. 02-CV-0639 (NAM/DEP), 2005

, at *15-19 (N.D.N.Y. Dec. 15, 2005). He recommended

-11- 1 that the petition be otherwise denied. The district court

2 accepted the report and recommendation in full. It granted

3 Rubin a certificate of appealability on one issue, vagueness.

4 Rubin was released from prison while his habeas petition

5 was under consideration by the district court, and is currently

6 on parole.

7

8 II. DISCUSSION

9 A. Standards of Review

10 We review a district court’s grant or denial of habeas

11 corpus de novo, and the underlying findings of fact for clear

12 error. Clark v. Perez,

(2d Cir. 2008).

13 Rubin’s federal vagueness claim was adjudicated on the merits

14 by the New York Court of Appeals. See Sellan v. Kuhlman, 261

(2d Cir. 2001) (holding that state court

16 adjudicates claim on the merits when it disposes of claim on

17 the merits and reduces its disposition to judgment, whether or

18 not state court made explicit reference to federal case law).

19 Thus, his petition may be granted only if the Court of Appeals’

20 decision “was contrary to, or involved an unreasonable

21 application of, clearly established Federal law, as determined

22 by the Supreme Court of the United States,” or if the decision

23 “was based on an unreasonable determination of the facts in

-12- 1 light of the evidence presented in the State court proceeding.”

2

(d).

3

4 B. Vagueness

5 The sole issue on which the district court granted Rubin a

6 certificate of appealability (“COA”) is his claim that the

7 public charge regulation, as it was used in his criminal

8 prosecution for grand larceny and filling of false instruments,

9 is void for vagueness.10

10 The doctrine of vagueness provides that a conviction is

11 invalid under the Due Process Clause “if the statute under

12 which it is obtained fails to provide a person of ordinary

13 intelligence fair notice of what is prohibited, or is so

14 standardless that it authorizes or encourages seriously

15 discriminatory enforcement.” United States v. Williams, 128 S.

16 Ct. 1830, 1845 (2008) (citing Hill v. Colorado,

,

17 732 (2000)). The degree of vagueness tolerated in a statute

18 varies with its type: economic regulations are subject to a

10 We decline Rubin’s invitation to expand the COA and examine his claim of insufficiency of the evidence. The district court rejected Rubin’s application for a COA with respect to that claim, as well as his claims of denial of a fair trial and ineffective assistance of counsel. Rubin did not move this Court for a COA on those issues. Although he correctly notes that we may expand the COA, see Love v. McCray,

(2d Cir. 2005) (per curiam), Rubin has not made a substantial showing of the denial of a constitutional right with respect to these other arguments, see

(c)(2).

-13- 1 relaxed vagueness test, laws with criminal penalties to a

2 stricter one, and laws that might infringe constitutional

3 rights to the strictest of all. Vill. of Hoffman Estates v.

4 Flipside, Hoffman Estates, Inc.,

(1982). A

5 scienter requirement may mitigate a law’s vagueness, especially

6 where the defendant alleges inadequate notice.

.

7 However, even a criminal statute need not achieve “meticulous

8 specificity” at the expense of “flexibility and reasonable

9 breadth,” Grayned v. City of Rockford,

, 110 (1972)

10 (internal quotation marks omitted); the test is “‘whether the

11 language conveys sufficiently definite warning as to the

12 proscribed conduct when measured by common understanding and

13 practices,’” Arriaga v. Mukasey,

(2d Cir.

14 2008) (quoting Jordan v. De George,

, 231-32

15 (1951)).

16 Rubin claims that the public charge regulation, as an

17 element of a criminal prosecution, is unconstitutionally vague

18 both as applied to his case and on its face. Because we must

19 “examine the complainant’s conduct before analyzing other

20 hypothetical applications of the law,” Farrell v. Burke, 449

, 485 (2d Cir. 2006) (quoting Hoffman Estates,

at 495), we turn first to his as-applied challenge.

23

24 1. Vagueness as applied

-14- 1 We examine as-applied vagueness claims in two steps: “‘a

2 court must first determine whether the statute gives the person

3 of ordinary intelligence a reasonable opportunity to know what

4 is prohibited and then consider whether the law provides

5 explicit standards for those who apply it.’” Id. at 486

6 (quoting United States v. Nadi,

(2d Cir.

7 1993).

8 The main thrust of Rubin’s vagueness challenge is that the

9 public charge regulation gave him no opportunity to know his

10 conduct was prohibited, because it is addressed exclusively to

11 DSS, not to service providers like Allstate. The public charge

12 regulation states that payments “are made at the lower of” the

13 rate charged to the general public and a DSS-computed rate; it

14 does not state that service providers themselves shall not bill

15 DSS at a rate higher than that charged to the public. Thus,

16 Rubin argues, the regulation is vague “not in the sense that it

17 requires a person to conform his conduct to an imprecise but

18 comprehensible normative standard, but rather in the sense that

19 no standard of conduct is specified at all.” Coates v. City of

20 Cincinnati,

(1971). As a result, he argues

21 that his conviction on the grand larceny and false instrument

22 counts must be overturned.

23 The Court of Appeals –- to whose opinion we must defer

24 unless it was contrary to or involved an unreasonable

-15- 1 application of clearly established federal law -- disagreed. It

2 wrote, “[P]laintiffs were not subject to prosecution because

3 they allegedly violated the public charge regulation. Rather,

4 the intended charges were grand larceny and offering false

5 instruments for filing. The alleged violation of the regulation

6 was only an element of proof of these crimes and violation of

7 the regulation alone, without a knowing attempt to deceive or

8 defraud, could not support criminal liability.” Ulster Home

9 Care, 757 N.E.2d at 767 (N.Y. 2001).11

10 We agree. Rubin is right that he could not have been

11 charged with violating the public charge regulation standing

12 alone. But he was charged instead with grand larceny and

13 offering a false instrument for filing. Second-degree grand

14 larceny has only two elements: there must be “proof that a

11 We note that on this point -– the function of a state regulation in the framework of state criminal statutes -- we owe particular deference to the New York Court of Appeals. “A State’s highest court is unquestionably ‘the ultimate exposito[r] of state law.’” Riley v. Kennedy,

(2008) (alteration in original) (quoting Mullaney v. Wilbur,

(1975)); see also Hamilton v. Beretta U.S.A. Corp.,

(2d Cir. 2001). We are bound by the construction of state statutes propounded by a state’s highest court. See Reeves v. Johnson Controls World Servs., Inc.,

(2d Cir. 1998); Auerbach v. Rettaliata,

(2d Cir. 1985). The Court of Appeals’ holding that the public charge regulation “was only an element of proof of [larceny and filing of a false instrument]”, Ulster Home Care, 757 N.E.2d at 767, is akin to an act of statutory construction, and we would therefore be bound by its conclusion even if we might have interpreted the regulation’s function differently.

-16- 1 person stole property,” and the value of that property must

2 exceed $50,000. In re Virag,

(App. Div.

3 2003) (per curiam) (citation omitted). In turn, “[a] person

4 steals property and commits larceny when, with intent to

5 deprive another of property or to appropriate the same to

6 himself or to a third person, he wrongfully takes, obtains or

7 withholds such property from an owner thereof.” N.Y. Penal Law

8 § 155.05(1). First-degree filing of a false instrument has

9 three elements: “(1) knowledge that the instrument is false,

10 (2) intent to defraud the state or any of its subdivisions, and

11 (3) presentation of the instrument for filing.” Norman v.

12 Hynes,

(App. Div. 2005) (per curiam); see

13

.

14 The public charge regulation is not a criminal statute

15 that required Rubin to adhere to a specific standard of

16 conduct; it was a factor that the jury considered in deciding

17 whether Rubin took state property “wrongfully” (an element of

18 the grand larceny count) and whether he knew that his

19 certification of compliance with state regulations was “false”

20 (an element of the false instrument counts). The public charge

21 regulation helps establish the wrongfulness of Rubin’s conduct

22 even though its wording was not expressly directed to him: as

23 the People proved at trial, Rubin knew that DSS was not

24 supposed to reimburse Allstate at rates higher than those

-17- 1 Allstate charged to the public, and because of that knowledge,

2 intentionally manipulated the agency’s rate sheets and cost

3 reports to deceive DSS about Allstate’s true rates. Similarly,

4 Rubin’s knowledge of the public charge regulation showed that

5 his statement that Allstate’s claims were “in accordance” with

6 state regulations was false, because Rubin knew that his

7 Medicaid reimbursement rate did not accord with DSS’s

8 calculation methods as stated in its regulations.

9 Viewed in this context, Rubin’s vagueness claim fails the

10 test of common sense. It should have been apparent to anyone

11 operating in the field of Medicaid that a service provider was

12 not allowed to overcharge the state and conceal that he was

13 doing so. The Due Process Clause requires only that “the law

14 give sufficient warning that men may conduct themselves so as

15 to avoid that which is forbidden, and thus not lull the

16 potential defendant into a false sense of security, giving him

17 no reason even to suspect that his conduct might be within its

18 scope.” United States v. Herrera,

(2d Cir.

19 1978). Rubin unquestionably knew he was committing a wrongful

20 act when he concealed from DSS his agency’s true rate for

21 services to the public. See United States v. Ingredient Tech.

22 Corp.,

(2d Cir. 1983).

23 This conclusion is not altered by Rubin’s related argument

24 that the public charge regulation was rendered vague by the

-18- 1 existence of the unacceptable practices regulation. Rubin

2 argues that even if the former regulation describes a standard

3 of conduct for service providers, it is contradicted by the

4 latter, which (1) bars service providers only from charging DSS

5 “substantially” in excess of the general public’s rates, and

6 (2) refers to the “customary charges or costs” charged to the

7 public, not the “rate.” N.Y. Comp. Codes R. & Regs. tit. 18,

8 § 515.2(b)(1)(i)(d). The second variation is trivial. The first

9 is not a “conflicting command[],” United States v. Cardiff, 344

, 176 (1952), but a complementary one, which carries

11 different sanctions. A service provider who bills DSS in excess

12 of the rate charged the general public, but not “substantially”

13 so, could not be charged with an outright violation of the

14 public charge regulation, but his violation of that regulation

15 might be an aspect of a willful scheme of larceny or fraud, as

16 we have explained. A provider who bills DSS “substantially” in

17 excess of the customary costs to the general public would be in

18 breach of the unacceptable practices regulation even if he did

19 so straightforwardly and without fraud.

20 As for Rubin’s remaining arguments, we agree fully with

21 the Court of Appeals that “[n]either the term ‘general public’

22 nor ‘rate’ as used in the regulation is so vague that it could

23 not be understood by a person of ordinary intelligence or could

24 be arbitrarily enforced.” Ulster Home Care, 757 N.E.2d at 767.

-19- 1 And even if Rubin is correct that the public charge regulation

2 is subject to “unwritten exceptions” for existing contracts and

3 discounting for prompt payment, such exceptions do not render

4 the regulation vague as applied to him in light of the evidence

5 that all general public customers were charged at the $12

6 hourly rate, regardless of whether they had existing contracts

7 or paid their bills on time.

8 Turning to the second step of an as-applied vagueness

9 challenge, see Nadi,

, we find the public charge

10 regulation is clear enough to prevent its arbitrary or

11 discriminatory enforcement. As we have explained, the

12 regulation contains no criminal penalties itself, but was

13 merely used to demonstrate the manner in which Rubin committed

14 grand larceny and filing of a false instrument -- familiar

15 criminal statutes with clear guidelines for prosecutors.

16 Nothing about the statutory and regulatory scheme here suggests

17 that it “impermissibly delegates basic policy matters to

18 policemen, judges, and juries for resolution on an ad hoc and

19 subjective basis.” Grayned, 408 U.S. at 108-09.

20

21 2. Facial vagueness

22 Rubin also argues that the Court of Appeals erred in

23 reviewing his claim of vagueness as applied to the facts of his

24 particular case rather than facially, thereby “invalidat[ing]

-20- 1 the public charge regulation as a basis for criminal

2 prosecution.” The Supreme Court has provided for facial

3 vagueness review only where the challenged statute (1) lacks

4 standards to the degree that it invites selective or arbitrary

5 enforcement, see City of Chicago v. Morales,

, 60

6 (1999);12 Kolender v. Lawson,

(1983), (2)

7 intrudes on First Amendment or other constitutional rights, see

8 Maynard v. Cartwright,

(1988); Hoffman

9 Estates,

, or (3) specifies no standard of

10 conduct, such that “men of common intelligence must necessarily

11 guess at its meaning,” Coates,

(internal

12 quotation marks omitted). Rubin makes no argument that

13 arbitrary enforcement is a danger here. He does argue that the

14 regulation’s criminal enforcement risks infringing the “liberty

12 Three justices in Morales would also have facially invalidated the law on the more general ground that “vagueness permeate[d] the text” and thus that the law “fail[ed] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits.”

(opinion of Stevens, Souter & Ginsburg, JJ.). That proposition did not command a majority of the Court. Notwithstanding the fact that only a holding of the Court constitutes “clearly established Federal law,” see United States v. Brown,

, 664 n.9 (2d Cir. 2003), we have construed the quoted language as requiring a challenger to demonstrate that the law is “‘impermissibly vague in all of its applications,’” Arriaga,

n.2 (quoting Hoffman Estates,

). Such a showing is impossible for a defendant whose as-applied challenge lacks merit, because he cannot establish that the statute is vague in his own case. Arriaga,

n.2.

-21- 1 interest” of citizens to “participat[e] in government

2 functions,” but he cites no case law (of the Supreme Court or

3 otherwise) establishing the constitutional dimension of so

4 murky a right or suggesting that it may form the basis of a

5 facial vagueness challenge. Cf. Kelly Kare, Ltd. v. O’Rourke,

6

(2d Cir. 1991) (holding that termination of

7 Medicaid service provider did not violate due process because,

8 inter alia, service provider “has not, nor could it, point to

9 anything in the regulations of the Department of Social

10 Services or in the contract that would entitle it to continued

11 and uninterrupted participation in Medicaid”). And his argument

12 that the public charge regulation specifies no standard of

13 conduct is unavailing for the reasons explained above. We

14 therefore find no merit to Rubin’s facial vagueness challenge.

15

16 III. CONCLUSION

17 We conclude that the decision of the New York Court of

18 Appeals determining that the public charge regulation is not

19 unconstitutionally vague was neither contrary to nor involved

20 an unreasonable application of clearly established federal law.

21 Judgment affirmed.

-22-