Rubin v. Garvin, No. 06-1614 (2d Cir. 2008)

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06-1614-pr Rubin v. Garvin 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ------------August Term 2007 Argued: March 26, 2008 Decided: September 29, 2008 Docket No. 06-1614-pr --------------------------------------------------X DANIEL RUBIN, Petitioner-Appellant, - against HENRY GARVIN, Superintendent, Mid-Orange Correctional Facility, Respondent-Appellee. --------------------------------------------------X Before: FEINBERG and HALL, Circuit Judges, and SAND, District Judge.* Petitioner-appellant, who was convicted in New York state court of grand larceny and filing of a false instrument, appeals from a decision of the district court insofar as it denied in part his petition for habeas corpus, arguing that a state regulation underlying his conviction is unconstitutionally vague. The judgment of the district court is affirmed. ROBERT A. CULP, Garrison, N.Y., for PetitionerAppellant. ALYSON J. GILL, Assistant Attorney General (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 2 3 4 5 6 7 8 9 State of New York, BARBARA D. UNDERWOOD, Solicitor General, ROSEANN B. MacKECHNIE, Deputy Solicitor General for Criminal Matters, on the brief), New York, N.Y., for Respondent-Appellee. FEINBERG, Circuit Judge: In 1999, Petitioner Daniel Rubin was convicted in New York 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 I. BACKGROUND1 25 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. 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 Parties and Applicable Regulations 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 19 20 21 22 23 24 (h) Payment. . . . (7) This paragraph sets forth the methodology by which the department will determine MA [medical assistance] payment rates for personal care services providers that have 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 2 3 4 5 6 7 8 9 10 11 12 13 14 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 22 23 24 25 26 27 28 29 30 31 32 33 34 35 rate year that begins on or after January 1, 1994. . . . (ii) Determination of payment rate. (a) Providers with cost experience. (1) Medical assistance payments to personal care services providers for any rate year beginning on or after January l, 1994, are made at the lower of the following rates: (i) the rate the provider charges the general public for personal care services; or (ii) the rate determined by the department in accordance with [a method that accounts for the provider s costs]. Another provision, which the parties call the unacceptable practices regulation, states: (b) Conduct included. An unacceptable practice is conduct which constitutes fraud or abuse and includes . . . . (1) False claims. (i) Submitting, or causing to be submitted, a claim or claims for: . . . (d) amounts substantially in excess of the customary charges or costs to the general public. Id. § 515.2(b)(1)(i)(d). Rubin and Allstate were indicted in March 1998.3 Rubin was 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. 15 N.Y.S.2d 561 (App. Div. 2001). 16 People v. Rubin, 729 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 9 10 II. DISCUSSION A. Standards of Review 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 9 The main thrust of Rubin s vagueness challenge is that the 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 24 The Court of Appeals - to whose opinion we must defer 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. 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, In re Virag, 761 N.Y.S.2d 619, 620 (App. Div. 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 24 This conclusion is not altered by Rubin s related argument 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-

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