United States v. Ahmad Nadi & My Brands, Inc., 996 F.2d 548 (2d Cir. 1993). · Go Syfert
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United States v. Ahmad Nadi & My Brands, Inc., 996 F.2d 548 (2d Cir. 1993). Cases Citing This Book View Copy Cite
“agueness challenges that do not involve the first amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity”
115 citation events (83 in the last 25 years) across 16 distinct courts.
Strongest positive: National Shooting Sports Foundation, Inc. v. James (nynd, 2022-05-25) · Strongest negative: United States v. Spy Factory, Inc. (nysd, 1997-01-08)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Statutes interpreted (leading-cases list)
#3 18 U.S.C. § 1031 cited 6× in this case · 291 total citations of statute
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited "but see" United States v. Spy Factory, Inc. (4×) also: Cited as authority (rule), Cited "see, e.g."
S.D.N.Y. · 1997 · signal: but see · confidence high
But see United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993) (plain meaning of statutory language can be confirmed by legislative history); Information Providers’ Coalition for Defense of the First Amendment v. Federal Communications Commission, 928 F.2d 866, 874 (9th Cir.1991) (legislative history made clear that statutory term had judicially recognized meaning that was not unconstitutionally vague); United States v. Gavin, 959 F.2d 788, 791 (9th Cir.1992) (court considered legislative history in determining that statute was not unconstitutionally vague as applied), cert. denied, 506 U.S.…
discussed Cited as authority (verbatim quote) National Shooting Sports Foundation, Inc. v. James
N.D.N.Y. · 2022 · quote attribution · 1 verbatim quote · confidence high
agueness challenges that do not involve the first amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity
discussed Cited as authority (rule) United States v. Kelly
2d Cir. · 2025 · confidence medium
Moreover, when, as here, "the interpretation of a statute does not implicate First Amendment rights, it is assessed for vagueness only 'as applied,' i.e., 'in light of the specific facts of the case at hand and not with regard to the statute's facial validity.'" United States v. Rybicki, 354 F.3d 124, 129 (2d Cir. 2003) (en banc) (quoting United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993)). 48 "Because 'a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others,' we will uphold a statute against an as-…
cited Cited as authority (rule) Casablanca-Torres v. City Of New York
S.D.N.Y. · 2023 · confidence medium
Nadi, 996 F.2d 548, 550 (2d Cir, 1993). 95 FAC 49 63-65. 23 Class B misdemeanor.”*® On these same facts, Judge McMahon dismissed as-applied vagueness claims in In re N.Y.C.
discussed Cited as authority (rule) United States v. Requena
2d Cir. · 2020 · confidence medium
But even where we have addressed the merits of a facial challenge outside the First Amendment context, we have recognized the Supreme Court’s instruction to at least “examine the complainant’s conduct before analyzing other hypothetical applications of the law.” Rybicki, 354 F.3d at 130 (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)). 5 Certain of our decisions’ unequivocal language notwithstanding, see Holcombe, 883 F.3d at 17 ; United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993), we have declined to endorse wholesale the proposi…
cited Cited as authority (rule) United States v. Doe
E.D.N.Y · 2015 · confidence medium
See Farhane, 634 F.3d at 139 ; United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993).
cited Cited as authority (rule) United States v. Ahmed
E.D.N.Y · 2015 · confidence medium
Therefore, this Court “address[es] Defendants’ vagueness challenge on an as applied basis.” United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993).
discussed Cited as authority (rule) Aron v. Becker
N.D.N.Y. · 2014 · confidence medium
To survive a vagueness challenge, a statute must “ ‘provide [ ] explicit standards for those who apply it.’ ” [Farrell v. Burke, 449 F.3d 470, 492 (2d Cir.2006) ] (quoting [United States v. Nadi 996 F.2d 548, 550 (2d Cir.1993) ]); see also [Kolender v. Lawson, 461 U.S. 352, 358 , 103 S.Ct. 1855 , 75 L.Ed.2d 903 (1983) ] (requiring that statutes contain “minimal guidelines to govern law enforcement” (internal quotation marks omitted)).
discussed Cited as authority (rule) Clavin v. County of Orange
S.D.N.Y. · 2014 · confidence medium
Vagueness Challenge Generally, when “the interpretation of a statute does not implicate First Amendment rights, it is assessed for vagueness only ‘as applied,’ i.e., ‘in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.’ ” United States v. Rybicki, 354 F.3d 124, 129 (2d Cir.2003) (quoting United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993)).
discussed Cited as authority (rule) Small v. Rice
2d Cir. · 2013 · confidence medium
As such, we consider only whether New York Penal Law § 265.01(1) provides “people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits.” Thibodeau, 486 F.3d at 65, 67 . “[0]ne whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness.” United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993).
discussed Cited as authority (rule) Barry v. City of New York
E.D.N.Y · 2013 · confidence medium
If a statute or rule does not implicate First Amendment rights, then it may only be assessed for vagueness “as applied.” United States v. Nadi 996 F.2d 548, 550 (2d Cir.), cert. denied, 510 U.S. 933 , 114 S.Ct. 347 , 126 L.Ed.2d 311 (1993).
discussed Cited as authority (rule) Small v. Bud-K Worldwide, Inc.
E.D.N.Y · 2012 · confidence medium
Courts use a two-part test to determine whether a statute is unconstitutionally vague as applied: “a court must first determine whether the statute gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited and then consider whether the law provides explicit standards for those who apply it.” United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993) (internal quotations, citations, and alteration omitted), cert. denied 510 U.S. 933 , 114 S.Ct. 347 , 126 L.Ed.2d 311 (1993); see also Perez v. Hoblock, 368 F.3d 166, 174 (2d Cir.2004) (“The Due Process Clause…
discussed Cited as authority (rule) Kuck v. Danaher
D. Conn. · 2011 · confidence medium
The Second Circuit explained that this standard “effectively eliminates facial challenges outside of the First Amendment context that could not also be brought as an as-applied challenge, since any law that is unconstitutional in every set of circumstances is also necessarily unconstitutional when applied to any plaintiff.” Dickerson, 604 F.3d at 743-44 ; see also United States v. Rybicki, 354 F.3d 124, 129-30 (2d Cir.2003) (discussing decisions that have “held that when ... the interpretation of a statute does not implicate First Amendment rights, it is assessed for vagueness only ‘as…
cited Cited as authority (rule) United States v. Nadirashvili
2d Cir. · 2011 · confidence medium
In an as-applied challenge, “one whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness.” United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993).
discussed Cited as authority (rule) United States v. Bowdoin
D.D.C. · 2011 · confidence medium
When the *149 interpretation of a statute does not implicate First Amendment rights, a vagueness challenge will be assessed only as the statute has been applied, ie., “in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.” United States v. Rybicki, 354 F.3d 124, 129 (2d Cir.2003) (quoting United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993)).
discussed Cited as authority (rule) United States v. Bowdoin
D.D.C. · 2011 · confidence medium
When the interpretation of a statute does not implicate First Amendment rights, a vagueness challenge will be assessed only as the statute has been applied, i.e., “in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.” United States v. Rybicki, 354 F.3d 124, 129 (2d Cir. 2003) (quoting United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993)).
discussed Cited as authority (rule) United States v. Farhane (2×)
2d Cir. · 2011 · confidence medium
Rather, we consider language in context, see Bailey v. United States, 516 U.S. at 145 , 116 S.Ct. 501 ; see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 , 117 S.Ct. 843 , 136 L.Ed.2d 808 (1997), and, where appropriate, with the benefit of canons of statutory construction, see United States v. Dauray, 215 F.3d 257, 262 (2d Cir.2000), and legislative history, see Barenblatt v. United States, 360 U.S. 109, 117 , 79 S.Ct. 1081 , 3 L.Ed.2d 1115 (1959) (relying on "legislative gloss" to reject vagueness challenge to expansive construction of rule underlying conviction for contempt of Congress);…
discussed Cited as authority (rule) United States v. Sabir
2d Cir. · 2011 · confidence medium
Rather, we consider language in context, see Bailey v. United States, 516 U.S. at 145 ; see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997), and, where appropriate, with the benefit of canons of statutory construction, see United States v. Dauray, 215 F.3d 257, 262 (2d Cir. 2000), and legislative history, see Barenblatt v. United States, 360 U.S. 109, 117 (1959) (relying on “legislative gloss” to reject vagueness challenge to expansive construction of rule underlying conviction for contempt of Congress); United States v. Witkovich, 353 U.S. 194, 199 (1957) (observing that restrict…
discussed Cited as authority (rule) United States v. Marcus
2d Cir. · 2010 · confidence medium
Because we conclude that the forced labor statute unambiguously applies to Marcus's conduct, we reject his as-applied vagueness argument. “[0]ne whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness.” United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993).
discussed Cited as authority (rule) Mannix v. Phillips (2×) also: Cited "see"
2d Cir. · 2010 · confidence medium
See Maynard v. Cartwright, 486 U.S. 356, 361 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988); United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993); see also Dickerson, 604 F.3d at 743-45 .
discussed Cited as authority (rule) Dickerson Ex Rel. Davison v. Napolitano (2×)
2d Cir. · 2010 · confidence medium
This standard effectively eliminates facial challenges outside of the First Amendment context that could not also be brought as an as-applied challenge, since any law that *744 is unconstitutional in every set of circumstances is also necessarily unconstitutional when applied to any plaintiff. 11 See Rybicki, 354 F.3d at 129-30 (listing Second Circuit panel opinions that have “held that when ... the interpretation of a statute does not implicate First Amendment rights, it is assessed for vagueness only ‘as applied’ ”); 12 United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993) (“[V]ag…
discussed Cited as authority (rule) Cunney v. Bd. of Trustees of Village of Grand View
S.D.N.Y. · 2009 · confidence medium
Whether Village Code, Chapter IX § E encourages arbitrary enforcement The second prong of an as-applied vagueness challenge asks this Court to analyze “whether the law provides explicit standards for those who apply it.” Farrell, 449 F.3d at 486 (quoting United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993)).
discussed Cited as authority (rule) United States v. Motz
E.D.N.Y · 2009 · confidence medium
The Second Circuit has found that when “the interpretation of a statute does not implicate First Amendment rights, it is assessed for vagueness only ‘as applied,’ i.e., ‘in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.’ ” Id. (quoting United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993)).
discussed Cited as authority (rule) CONGELOSI v. Miller
W.D.N.Y. · 2009 · confidence medium
However, “some ambiguity in a statute’s meaning is constitutionally tolerable.” United States v. Chestaro, 197 F.3d 600, 605 (2d Cir. 1999). “ ‘Effective law enforcement often requires the exercise of some degree ... of prosecutorial judgment but this alone does not render a statute unconstitutional.’ ” Farr v. Greiner, 2007 WL 1094160 , at *28 (quoting United States v. Nadi, 996 F.2d 548, 552 (2d Cir.1993)).
discussed Cited as authority (rule) Huarcaya v. Mukasey
2d Cir. · 2008 · confidence medium
“When the challenge is vagueness ‘as applied,’ there is a two-part test: a court must first determine whether the statute gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited and then consider whether the law provides explicit standards for those who apply it.” United States v. Nadi, 996 F.2d 548, 549 (2d Cir. 1993) (internal quotation marks and alterations omitted); see also Farrell v. Burke, 449 F.3d 470, 486 (2d Cir. 2006).
discussed Cited as authority (rule) Linares Huarcaya v. Mukasey
2d Cir. · 2008 · confidence medium
“When the challenge is vagueness ‘as applied,’ there is a two-part test: a court must first determine whether the statute gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited and then consider whether the law provides explicit standards for those who apply it.” United, States v. Nadi, 996 F.2d 548, 549 (2d Cir. 1993) (internal quotation marks and alterations omitted); see also Farrell v. Burke, 449 F.3d 470, 486 (2d Cir.2006).
discussed Cited as authority (rule) Rubin v. Garvin
2d Cir. · 2008 · confidence medium
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 …
discussed Cited as authority (rule) Rubin v. Garvin
2d Cir. · 2008 · confidence medium
Vagueness as applied We examine as-applied vagueness claims in two steps: “ ‘a court must first determine whether the statute gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited and then consider whether the law provides explicit standards for those who apply it.’” Id. at 486, 102 S.Ct. 1186 (quoting United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993)).
discussed Cited as authority (rule) United States v. Taleb-Jedi
E.D.N.Y · 2008 · confidence medium
As the Second Circuit held in United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993): “When the challenge is vagueness ‘as-applied’, there is a two-part *181 test: a court must first determine whether the statute gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited and then consider whether the law provides explicit standards for those who apply it.” (internal citations and quotation marks omitted).
discussed Cited as authority (rule) GENCO IMPORTING INC. v. City of New York
S.D.N.Y. · 2008 · confidence medium
Hill v. Colorado, 530 U.S. 703, 732 , 120 S.Ct 2480 , 147 L.Ed.2d 597 (2000); Grayned v. City of Rockford, 408 U.S. 104, 108-09 , 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972); Farrell, 449 F.3d at 486 ; United States v. Nadi, 996 F.2d 548, 550 (2d Cir.), cert. denied 510 U.S. 933 , 114 S.Ct. 347 , 126 L.Ed.2d 311 (1993). 70 .
discussed Cited as authority (rule) United States v. Nicolo
W.D.N.Y. · 2007 · confidence medium
The Court of Appeals in Rybicki stated that “when ... the interpretation of a statute does not implicate First Amendment rights, it is assessed for vagueness only ‘as applied,’ i.e., ‘in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.’ ” 354 F.3d at 129 (quoting United States v. Nadi 996 F.2d 548, 550 (2d Cir.), cert. denied, 510 U.S. 933 , 114 S.Ct. 347 , 126 L.Ed.2d 311 (1993)).
discussed Cited as authority (rule) State v. Andrews
S.D. · 2007 · confidence medium
Therefore, “vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.” United States v. Nadi 996 F.2d 548, 550 (2d Cir.1993) (citing Chapman v. United States, 500 U.S. 453, 467 , 111 S.Ct. 1919 , 114 L.Ed.2d 524 (1991)).
examined Cited as authority (rule) Christopher J. Farrell v. Corey Burke and Gregory Freeman, Docket No. 05-0169 Cv (8×) also: Cited "see"
2d Cir. · 2006 · confidence medium
Furthermore, as discussed below, an as-applied vagueness challenge requires courts to determine “whether the statute gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited,” id. at 550 (quotation marks and alteration omitted; emphasis added), not whether the actual plaintiff knew that his or her conduct was prohibited.
discussed Cited as authority (rule) Betancourt v. Bloomberg
2d Cir. · 2006 · confidence medium
The court also noted that “ ‘[because the statute is judged on an as applied basis, one whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness.’ ” Id. (quoting United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993)).
discussed Cited as authority (rule) Betancourt v. Bloomberg
2d Cir. · 2006 · confidence medium
The court also noted that "`[b]ecause the statute is judged on an as applied basis, one whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness.'" Id. (quoting United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993)). 11 The district court found the plain language of § 16-122(b) sufficiently clear to alert Betancourt that his conduct was prohibited.
discussed Cited as authority (rule) Ahern v. City of Syracuse
N.D.N.Y. · 2006 · confidence medium
Nevertheless, to any extent that plaintiff has succeeded in challenging the Regulation as unconstitutionally vague, the court proceeds with a void-for-vagueness analysis of the Regulation. 6 *141 The Supreme Court has made clear that where, as here, a statute does not implicate First Amendment interests, “the statute is judged on an as-applied basis.” Maynard v. Cartwright, 486 U.S. 356, 361 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988) (citing cases); accord United States v. Whittaker, 999 F.2d 38, 42 (2d Cir. 1993); United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993).
examined Cited as authority (rule) Mannix v. Phillips (3×)
S.D.N.Y. · 2005 · confidence medium
The Supreme Court has made clear, however, that where — as here — a statute does not implicate First Amendment interests, “the statute is judged on an as-applied basis.” Maynard v. Cartwright, 486 U.S. 356, 361 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988) (citing cases); accord United States v. Whittaker, 999 F.2d 38, 42 (2d Cir.1993); United States v. Nadi, 996 F.2d 548, 550 (2d Cir.), cert. denied, 510 U.S. 933 , 114 S.Ct. 347 , 126 L.Ed.2d 311 (1993).
discussed Cited as authority (rule) Inturri v. City of Hartford, Conn. (2×)
D. Conn. · 2005 · confidence medium
In other words, when the interpretation of an enactment does not implicate First Amendment rights, it is assessed for vagueness only “as applied ... and not with regard to the statute’s facial validity.” United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993); see also Rybicki, 354 F.3d at 130 (“outside the First Amendment context, vagueness challenges will be considered only as applied”); United States v. Whittaker, 999 F.2d 38, 42 (2d Cir.1993) (“Other than in the First Amendment context, vagueness challenges also must be examined in light of the facts of the case, on an as-applie…
discussed Cited as authority (rule) United States v. Peterson
S.D.N.Y. · 2005 · confidence medium
Where First Amendment rights are not implicated, a statute is “assessed for vagueness only ‘as applied,’ i.e., ‘in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.’ ” United States v. Rybicki, 354 F.3d 124, 129 (2d Cir.2003) (quoting United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993)). 2.
discussed Cited as authority (rule) United States v. Giffen
S.D.N.Y. · 2004 · confidence medium
The Second Circuit has “repeatedly held that when ... interpretation of a statute does not implicate First Amendment rights, it is assessed for vagueness only ‘as applied,’ i.e., ‘in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.” ’ Rybicki, 354 F.3d at 129 (quoting United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993)); accord United States v. Jackson, 968 F.2d 158, 161 (2d Cir.1992); United States v. Coonan, 938 F.2d 1553, 1562 (2d Cir.1991).
discussed Cited as authority (rule) United States v. Rybicki (2×) also: Cited "see, e.g."
2d Cir. · 2003 · confidence medium
Panel opinions of this Court have repeatedly held that when, as in the case before us, the interpretation of a statute does not implicate First Amendment rights, it is assessed for vagueness only “as applied,” i.e., “in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.” United States v. Nadi, 996 F.2d 548, 550 (2d Cir.), cert. denied, 510 U.S. 933 , 114 S.Ct. 347 , 126 L.Ed.2d 311 (1993). “[0]ne whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness.” Id.; accord Rybicki, 287 F.3d at 26…
discussed Cited as authority (rule) United States v. Rybicki (2×) also: Cited "see, e.g."
2d Cir. · 2003 · confidence medium
Panel opinions of this Court have repeatedly held that when, as in the case before us, the interpretation of a statute does not implicate First Amendment rights, it is assessed for vagueness only "as applied," i.e., "in light of the specific facts of the case at hand and not with regard to the statute's facial validity." United States v. Nadi, 996 F.2d 548, 550 (2d Cir.), cert. denied, 510 U.S. 933 , 114 S.Ct. 347 , 126 L.Ed.2d 311 (1993). "[O]ne whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness." Id.; accord Rybicki, 287 F.3d at 263 ("Where ther…
cited Cited as authority (rule) United States v. Mitlof
S.D.N.Y. · 2001 · confidence medium
See United States v. Whittaker, 999 F.2d 38, 42 (2d Cir.1993); United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993).
discussed Cited as authority (rule) Ross v. City of Orlando (2×) also: Cited "see"
M.D. Fla. · 2001 · confidence medium
United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993).
discussed Cited as authority (rule) Rosia Woodis v. Westark Community
8th Cir. · 1998 · confidence medium
Therefore, “vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity.” United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993) (citing Chapman v. United States, 500 U.S. 453, 467 (1991)).
discussed Cited as authority (rule) Rosia Woodis v. Westark Community College
8th Cir. · 1998 · confidence medium
Therefore, “vagueness challenges that do not involve the First Amendment must be exam *439 ined in light of the specific facts of the ease at hand and not with regard to the statute’s facial validity.” United States v. Nadi 996 F.2d 548, 550 (2d Cir.1993) (citing Chapman v. United States, 500 U.S. 453, 467 , 111 S.Ct. 1919 , 114 L.Ed.2d 524 (1991)).
cited Cited as authority (rule) Faulkner v. United Technologies Corp.
Conn. · 1997 · confidence medium
United States v. Nadi, 996 F.2d 548, 551-52 (2d Cir. 1993).
discussed Cited as authority (rule) Einaugler v. Supreme Court of State of New York
2d Cir. · 1997 · confidence medium
A penal statute is void for vagueness unless it "gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited and ... provides explicit standards for those who apply it." United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993) (internal quotation marks, brackets, and citations omitted).
discussed Cited as authority (rule) Einaugler v. Supreme Court of New York
2d Cir. · 1997 · confidence medium
A penal statute is void for vagueness unless it “gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited and ... provides explicit standards for those who apply it.” United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993) (internal quotation marks, brackets, and citations omitted).
discussed Cited as authority (rule) United States v. Nichols
S.D.N.Y. · 1996 · confidence medium
See Kolender v. Lawson, 461 U.S. 352, 357 , 103 S.Ct. 1855, 1858 , 75 L.Ed.2d 903 (1983); United States v. Nadi 996 F.2d 548, 550 (2d Cir.), *318 cert, denied, 510 U.S. 933 , 114 S.Ct. 347 , 126 L.Ed.2d 311 (1993).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Ahmad NADI and My Brands, Inc., Defendants-Appellants
Docket 93-1069 1521.
Court of Appeals for the Second Circuit.
Jun 10, 1993.
996 F.2d 548
Barry E. Schulman and Michael A. O’Con-nor (Schulman & Laifer, Brooklyn, NY), for defendants-appellants., Christopher P. Reynolds and Nelson W. Cunningham (Roger S. Hayes, U.S. Atty. for the S.D. of N.Y., on the brief)> for appellee.
Pratt, Miner, Mishler, Eastern, York.
Cited by 71 opinions  |  Published
MISHLER, District Judge:

BACKGROUND

The Defendants were found guilty on all counts of a superseding information [1] charging them with two counts of unlawfully presenting false claims to the Government in connection with military supply contracts, in violation of 18 U.S.C. § 287 (the False Claims Act), and one count of executing and attempting to execute a scheme to defraud the United States, in connection with a Government procurement contract valued in excess of $1,000,000, in violation of 18 U.S.C. § 1031 (the Major Fraud Act). Defendant Nadi was sentenced to fifteen months in prison and a two-year supervisory release period, fined $10,000, and ordered to perform 100 hours of community service. Defendant My Brands, Inc., was fined $5,000.

In late 1990 and early 1991, the Department of Defense awarded two contracts to supply packaged salt and pepper to American troops in the Persian Gulf: one contract for packaged salt for $426,000 and one con[*549] tract for packaged pepper for $1,074,000. The contracts were awarded to Robbins Sales Co. (“Robbins”), a broker with no production capacity of its own. My Brands, a Bronx based condiment packager, was to perform the contracts as the only subcontractor. [2]

Under the contracts, the Government had the right to terminate performance unilaterally. In the event of termination, My Brands had the corresponding right to claim reimbursement for actual “out of pocket” expenses. Department of Defense auditors were charged with determining the reimbursement amount.

In order to produce the large amounts of salt and pepper the contracts required, My Brands expanded its plant’s capacity. Nadi reached a purchase order agreement with Darrell Gilliam, president of Suffolk Mechanical, Inc., (“SMI”), under which My Brands would purchase five condiment packaging machines from SMI at a cost of $50,000 per machine. During the Government’s inspection to confirm My Brands’ ability to perform the contracts, Nadi gave the Government inspector a copy of the purchase order agreement with SMI to prove that his plant would soon be able to do the job. The agreement reflected a price of $50,000 per machine. Later, Gilliam delivered four machines but received payment from My Brands for only two. The billing statements Gilliam sent in connection with payment reflected a price of $50,000 per machine.

After Operation Desert Storm ended, the Government terminated related supply contracts, including the salt and pepper contracts with My Brands. Pursuant to the contracts’ terms, the Government invited My Brands to file claims for reimbursement of its expenses. In reply, My Brands sent the Government a letter in March 1991 listing its expenses and costs under the contracts. Included in the list was a $575,000 expense for five condiment packaging machines at $115,-000 each.

In May 1991, Nadi asked Gilliam to issue a billing statement reflecting the price of the machines at $115,000 each. In July 1991, My Brands submitted and Nadi signed reimbursement claims on both the pepper contract and the salt contract. Both submissions contained a line entry claiming a $575,-000 expenditure for five condiment packaging machines. In August 1991, Government auditors began a routine audit of Nadi’s claims. The auditors met with Nadi and requested documentation for each expense item in the claims. In support of the $575,000 item, Nadi turned over copies of the statements he had received from Gilliam.

In late November 1991, Government auditors and Nadi held a series of meetings. At a meeting on November 26, 1991, Sansone, the Government auditor, asked Nadi for additional documentation to support the invoices showing the cost of each machine to be $115,000. Nadi then contacted Gilliam and asked Gilliam to make invoices to match the statements reflecting a $115,000 price per machine which Nadi later received. By this time, a criminal investigation had begun, and Gilliam was cooperating with it.

On December 3, 1991, Nadi met with Government auditors and handed over the “false” invoices he had obtained from Gilliam as support for his claims. Soon after, Nadi was arrested, charged, and later convicted of violations of the False Claims Act and the Major Fraud Act. Defendants appeal their convictions on the ground, inter alia, that section 1031 of the Major Fraud Act is void for vagueness. ,

DISCUSSION

Defendants claim that the Major Fraud Act, 18 U.S.C. § 1031, is unconstitutionally vague. 18 U.S.C. § 1031 states in pertinent part:

(a) Whoever knowingly executes, or attempts to execute, any scheme or artifice with the intent—
(1) to defraud the United States; or
(2) to obtain money or property by means of false or fraudulent pretenses, representations, or promises,
in any procurement of property or services as a prime contractor with the United[*550] States or as a subcontractor or supplier on a contract in which there is a prime contract with the United States, if the value of the contract, subcontract, or. any constituent pari thereof, for such property or services is $1,000,000 or more shall ... be fined not more than $1,000,000, or imprisoned not more than 10 years, or both.

18 U.S.C. § 1031 (emphasis added).

Defendants allege that 18 U.S.C. § 1031 is void for vagueness on its face and as applied in this case. Specifically, they contend that because the statute fails to define the phrase “value of the contract,” it fails to specify with sufficient definiteness what conduct is prohibited and thus, permits arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1246-47, 39 L.Ed.2d 605 (1974).

A defendant claiming a statute is fatally vague on its face must show that the statute is vague “in the sense that no standard of conduct is specified at all.” United States v. Schneiderman, 968 F.2d 1564, 1567 (2d Cir.1992) (quoting Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 495 n. 7, 102 S.Ct. 1186, 1191 n. 7, 71 L.Ed.2d 362) (1982), cert. denied — U.S.-, 113 S.Ct. 1283, 122 L.Ed.2d 676 (1993). The defendant bears the burden of showing the statute to be “impermissibly vague in all of its applications.” Schneiderman, 968 F.2d at 1568 (citing Hoffman Estates). Lastly, vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute’s facial validity. See Chapman v. United States, — U.S. -, -, 111 S.Ct. 1919, 1929, 114 L.Ed.2d 524 (1991); United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319, 46 L.Ed.2d 228 (1975).

Because section 1031 clearly prohibits executing a scheme to defraud the United States in any procurement of property where there is a prime contract if the value of the contract, subcontract or any constituent part thereof is $1,000,000 or more, the statute is not vague on its face. In addition, Defendants’ challenge to the facial validity of the statute fails because section 1031 does not implicate First Amendment interests. Therefore, we address Defendants’ vagueness challenge on an as applied basis.

When the challenge is vagueness “as-applied”, there is a two-part test: a court must first determine whether the statute “ ‘give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited’ and then consider whether the law ‘provide[s] explicit standards for those who apply [it].’ ” Schneiderman, 968 F.2d at 1568 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972) (footnote omitted)); see also Gentile v. State Bar of Nev., — U.S. -,-, 111 S.Ct. 2720, 2732, 115 L.Ed.2d 888 (1991); Village of Hoffman Estates, 455 U.S. at 498, 102 S.Ct. at 1193. Because the statute is judged on an as applied basis, one whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness. See Village of Hoffman Estates, 455 U.S. at 495 n. 7, 102 S.Ct. at 1191 n. 7; Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974).

The Defendants claim that the statute fails to define “value of the contract” and, thus, creates a trap for the unwary and permits arbitrary enforcement. However, the common sense interpretation of “the value of the contract” is confirmed by the statute’s legislative history: “[t]he phrase ‘value of the contract’ refers to the value of the contract award, or the amount the government has agreed to pay to the provider of services whether or not this sum represents a profit to the contracting company.” S.Rep. No. 503, 100th Cong., 2d Sess. 12 (1988), reprinted in 1988 U.S.C.C.A.N. 5969, 5975-76. The value of the contract is the contract price: the amount agreed to by the parties that one will pay to the other in exchange for goods or services. This does not end the matter, however. In the context of large Government projects, there are often several contracts, subcontracts, and smaller agreements bound up in a single award. As a result, the question remains: which contract are we to look to in determining the “value of the contract” under the statute? The Government urges that we adopt a rule whereby the “value of[*551] the contract” is the value of the prime contract between the Government and the prime contractor, regardless of the value of any individual subcontract. Thus, a subcontractor would face liability if he or she perpetrated a fraud in connection with a subcontract valued at less than $1,000,000 where the prime contract is valued at $1,000,000 or more. Defendants argue for a rule whereby the “value of the contract” is the value of whichever contract is the subject of the fraud: either the prime contract or an individual subcontract. Thus, a subcontractor would not face liability if he or she perpetrated a fraud in connection with a subcontract valued at less than $1,000,000 even where the prime contract was valued at $1,000,000 or more.

As an initial matter, we note that, on either reading, the Defendants’ conduct falls within the ambit of the statute. It is undisputed that both the prime contract for pepper between the Government and Robbins, and the subcontract between Robbins and My Brands called for payments of $1,000,000 or more. The prime contract called for payment of $1,074,000 and the subcontract for $1,019,000. Thus, the Defendants’ conduct was clearly proscribed by the statute and, therefore, they cannot successfully challenge it for vagueness. See Village of Hoffman Estates, 455 U.S. at 495 n. 7, 102 S.Ct. at 1191 n. 7.

Nonetheless, we find that a reasonable reading of the statute, in light of the legislative history, requires that we adopt the rule, argued for by Defendants, whereby the value of the contract is determined by looking to the specific contract upon which the fraud is based. So, for example, in a case where the value of a subcontract is less than $1,000,000 but the prime contract is for $1,000,000 or more, the subcontractor would escape liability under section 1031. We adopt this rule with reference to the language of the statute.

The phrase “... if the value of the contract, subcontract, or any constituent part thereof ...” tracks the preceding phrase, which reads “... as a prime contractor with the United States or as a subcontractor or supplier on a contract in which there is a prime contract_” 18 U.S.C. § 1031. We interpret this tracking language to mean that where the prime contractor is accused of fraud, we look to the value of the prime contract, but where the subcontractor is accused of fraud we look to the value of the subcontract, and where the supplier is accused of fraud we look to the value of the related constituent part of the contract.

This reading avoids the potential anomaly of small subcontractors whose subcontracts are valued at far less than $1,000,000 being prosecuted under the Act simply because the prime contract is for $1,000,000 or more. The legislative history supports this view. First, we note that in explaining the phrase “value of the contract,” the Senate committee stated: “Furthermore, a subcontractor awarded a subcontract valued at $1,000,000 or more is covered by this section, regardless of the amount of the contract award to the contractor or other subcontractors.” S.Rep. No. 503, supra, at 12, reprinted in 1988 U.S.C.C.A.N. at 5976. Thus, the committee instructs that, in the case of a subcontractor, the value of the subcontract is controlling and not the value of the prime contract or other subcontract. The committee, in making this statement, apparently had in mind situations where an individual subcontract is of greater value than the prime contract. We may infer from this that, where the subcontract is of lesser value than the contract, the value of the subcontract is also controlling.

Moreover, the committee report states that: •

The purpose of ... the Major Fraud Act of 1988, is to provide federal prosecutors with an additional criminal statute targeting major procurement fraud committed against the United States.
Section 2 of the Major Fraud Act of 1988 would establish the criminal offense of major procurement fraud committed against the United States. This new provision would apply to fraud committed in connection with a contract, or subcontract or any part of a contract or subcontract worth at least $1 million.

[*552] Id. at 1-3, reprinted in 1988 U.S.C.C.A.N. at 5969-70. From this we understand that section 1031 is aimed at “major fraud”, that “major” is defined in terms of the value of the contract or subcontract, and that $1,000,-000 is the triggering value. Further, we conclude that Congress did not intend to include, under the heading of “major fraud”, frauds committed in connection subcontracts valued at less than $1,000,000. The opposite view would subject subcontractors to liability under the Major Fraud Act no matter how insignificant the value of their subcontracts. Such a view is at odds with the language of the statute and its legislative history. We conclude, therefore, that under section 1031 the value of the specific contract or subcontract to which the fraud is connected is controlling and not the value of related contracts or subcontracts. As we stated previously, even on this reading, the Defendants’ conduct was clearly proscribed by the statute and therefore, they cannot successfully challenge it for vagueness. See Village of Hoffman Estates, 455 U.S. at 495 n. 7, 102 S.Ct. at 1191 n. 7.

With regard to the second prong set forth in Schneiderman, 968 F.2d at 1568, whether the law “provide[s] explicit standards for those who apply [it],” we find that section 1031 is sufficiently clear to prevent its arbitrary or discriminatory application. The statute sets forth clear requirements to guide prosecutors. It targets schemes to defraud the United States in connection with procurement contracts executed by (1) prime contractors with the United States, or (2) subcontractors or suppliers on contracts in which there is a prime contract with the United States. Moreover, the statute’s application is limited to situations where the value of the prime contract, subcontract, or any constituent part thereof, is $1,000,000 or more. Clearly, “[effective law enforcement often ‘requires the exercise of some degree of ... [prosecutorial] judgment’ but this alone does not render a statute unconstitutional.” Schneiderman, 968 F.2d at 1568 (quoting Grayned, 408 U.S. at 114, 92 S.Ct. at 2302). Section 1031 is sufficiently clear and narrow in scope to eliminate potentially vague and arbitrary enforcement.

We conclude, therefore, that section 1031 is not unconstitutionally vague on its face or as applied to these Defendants.

We have considered the Defendants’ other arguments and find them to be without merit.

CONCLUSION

The judgment of conviction is affirmed.

1

. Defendants waived their right to indictment by grand jury.

2

. The pepper contract listed the contractor as "My Brands, Inc., c/o Robbins Sales Co.”