PER CURIAM:
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
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 that determination, the district court proceeded to instruct the jury:
On appeal, Rahman argues that the district court's instruction is erroneous and misleading because health care fraud is not an enumerated felony recognized in section 1028A(c). We disagree, and for the reasons that follow, hold that the district court correctly interpreted the statute and correctly instructed the jury.
We review preserved challenges to jury instructions de novo. United States v. Yakobowicz, 427 F.3d 144, 150 (2d Cir.2005). A district court's jury charge constitutes reversible error only where it "misleads the jury as to the correct legal standard or does not adequately inform the jury on the law." Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.1994). We also review de novo a district court's resolution of a question of statutory interpretation. United States v. Aleynikov, 676 F.3d 71, 76 (2d Cir.2012).
We begin, as we must, with the "language employed by Congress and the assumption that ordinary meaning of that language accurately expresses the legislative purpose." Aleynikov, 676 F.3d at 76 (quoting United States v. Albertini, 472 U.S. 675, 680, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)). Here, the plain language of section 1028A indicates that Congress's use of parentheticals and the phrase "relating to" in subsection 1028A(c) serves only an explanatory or descriptive purpose and does not expressly limit the definition of felony violation to only those offenses identified in the parenthetical.
The plain language of section 1028A 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 for 2 years." 18 U.S.C. § 1028A(a)(1). Subsection (c) of 1028A has eleven subparts — each specifying offenses contained either in a specific section or in a chapter of Title 18 of the United States Code that would satisfy section 1028A(a)'s enumerated offense requirement. In each of the eleven subparts, Congress inserted an explanatory parenthetical beginning with the phrase "relating to" following the section or Chapter number. In some cases, the explanatory phrase "relating to" is followed by the title of the section or chapter specified by the subpart. For example, subsection (c)(7) specifies, as an enumerated felony violation, "any provision contained in chapter 75 (relating to passports and visas)." The title of Chapter 75 is "Passports and Visas". In other instances, the language that follows "relating to" is merely a descriptive shorthand signal corresponding to the subject of the identified title or chapter. For example, subsection (c)(2) identifies as a predicate felony violation section 911 "(relating to false personation of citizenship"). Section 911, however, is titled "Citizen of the United States," while the conduct it prohibits is the false personation of a United States citizen. Given the variations in the way Congress has used the phrase "relating to" in subsection 1028A(c), it is clear that the language and structure of that section, read as a whole, supports the conclusion that the parentheticals within it are intended to describe the nature of each chapter or section enumerated. They are not intended to limit the predicate felonies to which they pertain. See United States v. Estrada-Sanchez, 558 F.Supp.2d 129, 131 (D.Me.2008).
Turning specifically to subsection (c)(5), Rahman would have us construe the phrase "relating to" as an exclusive limitation on the extensive and various types of fraud identified in Chapter 63 that can serve as predicate felonies, encompassing only a limited subset of such frauds and explicitly excluding health care fraud and securities fraud. See 18 U.S.C. § § 1347, 1348. Such a reading is unsupported by the statute's plain text given the variety of ways parenthetical language is employed in section 1028A, as discussed above. Rahman's argument in this regard also fails to overcome other principles of statutory construction. First, reading the parenthetical phrase "relating to mail, bank, and wire fraud" in subsection (c)(5) as a limitation on the cognizable frauds enumerated in Chapter 63 does not comport with the Supreme Court's interpretation and treatment of Congress's use of the term "relating to" as one signaling an expansive
In short, we agree with the district court and hold that the parenthetical language "relating to mail, bank, and wire fraud" in 18 U.S.C. § 1028(c)(5) is merely a shorthand signal to the reader concerning the general nature of offenses contained in Chapter 63. It is not intended to limit the predicate felonies enumerated in Chapter 63, cognizable in 18 U.S.C. § 1028(A), only to those three identified in the parenthetical. Rather, it encompasses the other frauds criminalized in Chapter 63. Any other reading would ignore the plain language and structure of the statute, fail to comport with the Supreme Court's guidance on the meaning of "relating to," and render Congress's use of the phrase "any provision contained in Chapter 63" inoperative. Accordingly, we also hold that the instruction given to the jury on the charge of aggravated identity theft was neither misleading nor inadequate. The judgment of the district court is AFFIRMED.
For the reasons stated above and in the accompanying summary order, the judgment of conviction is AFFIRMED.