United States v. Abdur-Rahman
Decided: February 15, 2013
WINTER, HALL, Circuit Judges, and HELLERSTEIN, Senior District Judge.*fn1
On March 30, 2009, Yusuf Abdur Rahman was arrested on charges of Medicaid fraud.
The criminal complaint charged Rahman with impersonating Medicaid beneficiaries by borrowing Medicaid identification cards from program beneficiaries and using those cards to obtain HIV and AIDS medications, oxycodone, and hydromorphone from pharmacies in Queens and the Bronx. After a jury trial, Rahman was found guilty of executing and attempting to execute a scheme to defraud Medicaid in violation of 18 U.S.C. §§ 1347 and 2; committing access device fraud by using New York State Benefit Identification Cards issued to others to obtain Medicaid benefits fraudulently in violation of 18 U.S.C. §§ 1029(a)(5) and 2; acquiring and obtaining controlled substances by misrepresentation, fraud, forgery, deception and subterfuge in violation of 21 U.S.C. § 843(a)(3); aggravated identity theft in relation to health care fraud in violation of 18 U.S.C. §§ 1028A and 2. Rahman was sentenced to a term of 101 months' imprisonment. This appeal, which challenges his conviction on a number of grounds, followed. Most of Rahman's arguments on appeal have been disposed of in a separate summary order filed simultaneously with this opinion. We write only to address a claim raised in Rahman's pro se brief concerning whether health care fraud is an enumerated felony violation cognizable under 18 U.S.C. § 1028A―a matter of first impression in this circuit.
In his pro se brief, Rahman argues that the district court erroneously instructed the jury that health care fraud is one of 18 U.S.C. § 1028A's enumerated felony violations. Section 1028A, titled "Aggravated Identity Theft" provides that "[w]hoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years." Subsection (c)(5), further provides that "[f]or purposes of this section, the term 'felony violation enumerated in subsection
(c)' means any offense that is a violation of . . . any provision contained in chapter 63 (relating to mail, bank, and wire fraud)."
During pre-trial proceedings in the district court, Rahman argued--as he does here--that the language within the parentheses in subsection (c)(5) limits the phrase "any provision contained in chapter 63" to only those portions of Chapter 63 relating specifically to mail, bank, and wire fraud. Thus, his argument goes, section 1028A(c)(5) by its own terms does not include health care fraud notwithstanding that it is one of the types of fraud defined in Chapter 63. See ROA, Transcript of Charge Conf., Jan. 11, 2010 at pp. 616-20. In Rahman's view, health care fraud cannot constitute a predicate offense for aggravated identity theft.
The district court rejected Rahman's argument that the parenthetical language limited the applicable provisions of Chapter 63 to those relating only to mail, bank, and wire fraud. Instead, it construed that language as a "shorthand signal." Id. at 618. Having reached ...