     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, 428 F.3d 138, 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   N.Y. Comp. Codes R. & Regs. tit. 18, § 505.14(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   Id. § 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

19   N.Y.S.2d 225 (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, 706 N.Y.S.2d 739, 742-43 (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, 757 N.E.2d

 4   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

 8   N.E.2d 764, 767 (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

15   N.Y.S.2d 561 (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

24   WL 3827593, 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, 510 F.3d 382, 389 (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

15   F.3d 303, 312 (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   28 U.S.C. § 2254(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, 530 U.S. 703,

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, 413 F.3d 192, 194-95 (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 28 U.S.C. § 2253(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., 455 U.S. 489, 498-99 (1982). A

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

 6   where the defendant alleges inadequate notice. Id. at 499.

 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, 408 U.S. 104, 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, 521 F.3d 219, 224 (2d Cir.

14   2008) (quoting Jordan v. De George, 341 U.S. 223, 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

21   F.3d 470, 485 (2d Cir. 2006) (quoting Hoffman Estates, 455 U.S.

22   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, 996 F.2d 548, 550 (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, 402 U.S. 611, 614 (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, 128 S. Ct. 1970,
      1975 (2008) (alteration in original) (quoting Mullaney v.
      Wilbur, 421 U.S. 684, 691 (1975)); see also Hamilton v. Beretta
      U.S.A. Corp., 264 F.3d 21, 29 (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., 140 F.3d 144, 155-56 (2d Cir. 1998); Auerbach v.
      Rettaliata, 765 F.2d 350, 352 (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, 761 N.Y.S.2d 619, 620 (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, 799 N.Y.S.2d 222, 227 (App. Div. 2005) (per curiam); see

13   N.Y. Penal Law § 175.35.

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, 584 F.2d 1137, 1149 (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., 698 F.2d 88, 96 (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

10   U.S. 174, 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, 996 F.2d at 552, 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, 527 U.S. 41, 60

 6   (1999);12 Kolender v. Lawson, 461 U.S. 352, 358 (1983), (2)

 7   intrudes on First Amendment or other constitutional rights, see

 8   Maynard v. Cartwright, 486 U.S. 356, 361 (1988); Hoffman

 9   Estates, 455 U.S. at 494-95, or (3) specifies no standard of

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

11   guess at its meaning,” Coates, 402 U.S. at 614 (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.” 527 U.S. at 55-56
      (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, 352 F.3d
      654, 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,
      521 F.3d at 224 n.2 (quoting Hoffman Estates, 455 U.S. at 497).
      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, 521 F.3d at 224 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   930 F.2d 170, 176 (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-
