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ATION: 2003 FED App . 0408P (6th C ir.) File Name: 03a04 08p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA , Plaintiff-Appellee,

v.

J AMES L. B LASZ AK , Defenda nt-Appel

lant. X - - - -
> , - - N No. 02-3678

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 01-00432—Patricia A. Gaughan, District Judge.

Argued: September 12, 2003
Decided and Filed: November 18, 2003

Befor e: KENNE

DY, GUY, and DAUG

HTREY, Cir

cuit Judges.

_________________ COUNSEL

ARGUED: Jerome A. Milano, MIL ANO & CO ., Rocky River , Ohio, for Appellant. Linda H. B arr, UNI TE D STATES ATTORNEY, Youngstown, Ohio, for App elle e. O N BRIE F: Jerome A. Milano, Stacey M. B. G anor , MIL ANO & CO., Rocky

River, Ohio, for

Appellan t. David 2 United States v. Blaszak No. 02-3678

A. Si erle ja, UNITED STATES ATTORNEY, Clevela nd, Ohio, for Appellee.

_________________

OPINION

_________________ MARTH A C RAIG DAUGHTREY, Circuit Judge. The defenda nt, James Blaszak, entered a conditi onal plea

of guilt y to a singl e coun t chargi ng him with selli ng testimo ny in a pending civil case, in violat ion of 18 U.S.C. § 201(c)(3), based onhis agr

eement to testify on behalf of the pla

intiff in
anantitrust action in exchange for $500,000. Blaszak reserved the right to appealthe constitutionality of § 201(c)(3)
as applied to him, after he failed to convince the district court that the statut e impinged upon his First Amendment rights on the grounds that it is vague and overbroad and that i tdenied him due process under the Fifth Am endme nt by failing to give reasonable notice of the prohibited conduct. The cruxof his argume

nt on appe al is that he should not have been charged under § 201(c)(3) in the absence of evidence that the testimony he propo sed to provide was, in fact, manufactured
or otherwise untruthful. Givingthe statu te it s plai n mean ing,
we find no constitutional deprivation and affi rm t he conviction.

I. PROCEDURAL AND FACTUAL BACKGROUND

The facts in this case are n ot in dispute. Pertinent informationtaken from the plea ag reemen t entere d into by the defendant and the government indicates that defendant Blaszak was at the

time of the se event s a

licensed attorne y in Ohio with primarily a rea l estate practice. I

n Jan uary 2000 , Blaszak contacted Dennis Steed, a vice president of RE/MAX Inte rnationa l, supposed

ly to discuss po tential bu siness opportuni ties. At that time, RE/MAX was the plaintiff in an antitrust case pending in federal cour t. Blasz ak told Steed that he would b e willing

to testify

inth e case regardingNo. 02-3678 United States v. Blaszak 3

informationhe possessed that he believed would be beneficial to RE/MAX. Blaszak demanded compe nsati on in exch ange for his testimony, in cluding $500,000 from RE/MAX to set up a mortg age a

nd titlecompany

, which B laszak wou

ld then run, and a $5,000 monthly re tainer for his legal services.

Blaszak’s proposal was to testify conc erninga t aped te leph one conversation and to offer as evidence a memorandum

that he de scribed

as a “smoking gun,” a ltho ugh he acknowledged that the memo might be judg ed inadmissib le by t

he trial c ourt due t o privilege issues. Blaszak also described

in detail the services he would render RE/MAX through the title and mortgage company , asserting that RE/MAX would benefit financially fromthe agree

ment.
RE/MAX offi ci als referred this matter to the Cleveland Division of the FBI. F BI Special Ag ent Michael Bartholomew, acting under cover, was then introduc ed t o Blaszak as a “can do” man for RE/MAX. Bartholomew met with Blaszak on

March 16 and 31, 2000, and told Blaszak that RE/MAX did not nee d either a titleor mortgage company or Blaszak’s legal s ervice s but would be wiling to purchase the infor mation Blaszak had relating to the antitrust case. T h e two agree d that RE/MA

X would pay Bla szak $500,000 for his testimony. The t erms of the agreement included a $50,000 dow n pa yment and a monthly retainer for legal services that Blas zak would purportedly rende r until the amount was paid in full.

At the second meeting, Bartholomew ga ve Blaszak the $50,000 down pay

ment. Also

at tha t meet ing, Bartholomew asked Blaszak if he would

also be willing to sell his testimony to the defendants in the antitrust case, explaining that neither side could the

n go to the

authoriti e s if each had made unlawful pay

ments to Blaszak. Blaszak indicated that he had
no desire to testify on

behalf of the antitrust defendants, and he assured Bartholomew that he would testify truthfully on behalf of RE/MAX. 4 United States v. Blaszak No. 02-3678

The government has offered no evide nce that Blaszak was attempting to provide false testimony on RE/MAX’s behalf. It is also not clear whether the information he was to provide had any evidentiar

y value to the ca s e. Neither side subpoen a ed

Blaszak during the litigation, and he never testified in the case. Following the entry of his conditional guilty plea, B laszak
wa s sentenc ed to thre e years of probation and asse ssed a $5,000 fine.

II. DISCUSSION

The statute under which defendant Blaszak was cha rged, 18 U.S.C. § 201 (c)(3) , provide s as follow s:
Whoever directly or indire ctly , demands , seeks, receiv es, accept s, or agrees to receive or accept anything of

value persona lly for or because of

the testimony under oath or affi rmati ongiven or to be g iven by such a pe

rson as a witness uponany such t rial, hearin g, or oth er proc eedin g, or for o r b ecause

of such pe

rson’s a bsence t herefr om; shallbe fined

under thi s title or imprisoned for not more than two years, or both.
However, subsection (d) of the provision carves out cert ain exceptions to the general prohibition in subsection (c): [P]aragraphs (2) and ( 3) or subsection (c) shall not be construed to prohibit the payment or rec eipt of witne ss fees provided by

law, or the payment, by

the party upon whosebehalf a witness is called an d r ec ei pt by a witness, of the reasonable cost of travel and subsistence incurred and the rea sonable v alue of t

ime lost in

attendance at any suchtrial, hearing, or proceeding , or in the caseof expert witnesse s, a reasonable fe e for time spent in t he pre paration

of suc h opi nion , and i n appe aring an d testi fying.No. 02-3678 United States v. Blaszak 5

1 There is, however, s ome disagreement as to whether the government may make cash payments to fact witnesses in exchange for tr uthful testimo ny. For e xam ple, United States v. Ha rris , 210 F. 3d 165, 168 ( 3d Cir. 2000), whil e holdin g that the gover

nment i s permit

ted to pay

a fac t witness for co llectin g evi dence a nd te sti fy ing aboutwhat was f ound, exp licitly declined to rule on whether § 201(c) would permit the “government to pa y a witness solely o r essen tially for favo rable testimo ny.” Id. ; see also United States v. Condon , 170 F.3d 687 , 689 (7th Cir. 199 9). Th is circuit ha s not d ealt with this sp ecific questi on, but h as inst ead joined with several other circuit s in holding tha t § 201( c)(3) does

no t app ly t o the government under the tradit ional rule t hat a stat

utory ref e rence to “who ever” or “an y perso n” inclu des g ove rnme nt agen ts unless app licatio n of th e statute w ould “dep rive the so vereig n of a recogniz ed or esta blished prero gative titl e or interest ” or would “work obvious absurdit

y.” Nardone v. United Stat es , 302 U .S. 37 9, 383- 84 (1937); see also United States v. Wa re , 161 F. 3d 414, 420 (6t h Cir . 1998) (finding the Nardone rule app licable to § 2 01( c)). Of cour se, the quest ion of whe th er t

he g over nmen t ma y ma ke c ash pay me nts to fact witn esses purely for t esti mony is not at

iss ue in t

his ca se. A. First Amendment Ch allenge

The defenda

nt argu es that § 2 01(c)( 3) is an in valid restriction

on First A

me ndment speech r

ights be cause it criminalizes behavior based on th e co nt ent of t he s pee ch. In support of this contention, h e poi nts to the fact that the gov ernment

may g ive a witness a reduced charg e, a recommendation

for lenie ncy , a pay

ment, or a

ny o ther thin

g of value in exchange for testimony in acriminal prosecution that i s fa vorable to the government without violating the statute, citi ng United States v. W are , 161 F.3d 414, 418-19 (6th Cir. 1998) (holding that § 201(c)(3) does not apply to the governm ent). See also United Sta tes v. Ant y , 203 F.3d 305 , 308 ( 4th Cir. 2000)(holding that interpreting § 201(c)(3) t o apply to government

pr osecutors would “work obvious absurdity”). Thus, if a person wishes to be paid for t ruth ful te st im on y, and that p erson is a witness f or the g overnme

nt in
a crimin al c ase, Blaszak argues, then no violation of 18 U.S.C. § 201(c)(3) has occurred. 1 On the other hand, if a person wishes to be paid

for truth ful testimony i

n a civil c ase or on behalf of a criminal defendant , the n a violation has 6 United States v. Blaszak No. 02-3678

occurred. Blaszak contends, therefor e , that the statute promotes a “content-based” restriction on speec h inviolation of the First Amendment.

A statut e whic h by its terms distinguishes favore d speech from disfavor

ed speec h based on the idea s or views o f th e witness is considered conten t-based and thus unconstit

utional. See Turner

Broadcasting

System, Inc. v. F

CC , 512 U.S. 622, 643 (1994). However, “laws that con fer ben efits or i mpose bu rdens on speech without reference to the idea s or views expressed are in mo st

instances content

neutral.” Id. In our view, § 2 01(c)(3) is just such a statute – it does not discriminate based

on the content of speech but, instead, prohibits the conduct of seeking or acce p tin g monetary comp ensation, beyond reimbursement of reasona ble expenses, in ex ch an ge fo r t es ti mo ny.
The case on w

hich the d

efenda nt primar ily r elies is e asily distinguished. In Hoover v. Morales , 164 F.3d 221 , 22 3-24 (5th Cir. 1998), the Fifth Circ uitstruck down two sta te universi ty policies that

prohibited university professors from working as consultants or expert witnesses against the state. The court found that both provisions were content-based restrictions on speec

h becau se they

protected a professor who testified onbehalf of the state but

punished one who acted on behalf of an opposing party

. Id

. at 227. Th e defen dant in this
caseargue s that § 201 (c)(3)is similar, in th at it all ows someone to be paid for testifying on behalf of the state but

not
onbehalf of an oppos ing party. His relianc e on Hoover is misplaced, however, because the provisions at issue in that
casetargeted different conduct than that targeted by § 201(c)(3). In Hoover , the professors were prevented fr om testifying – clearly a

limitation on the ir fre e speec h rights

. Section201(c)( 3), on the

other ha nd, does nothing to

prevent
a witn ess from testifying ; it simply prohibits a witness from demandingor accep ting p a yment in exchange for that te st im on y. Section201(c)(3) criminalizes compensation “for
o rbecause of” testimony, re gardless of its content and, theref ore, doe s not implic ate the F irst Amendment.No. 02-3678 United States v. Blaszak 7

B. Fifth Amendment Ch allenge

1. Fair Warning
The defendant argues that § 201( c )(3) doe s not give fair warningof prohibited

conduct and therefore

violates h is Fifth Amendment

due proc ess rig

hts. Alt h ough citizens are gener ally presumed to knowthe content of the law, one of the basic tenets of due process jurisprudence is that citizens be afforded fair noti ce of pr

ecise ly w hat conduct is prohibited. United States v. Baker , 197 F.3d 211, 218-19 (6th Cir. 1999); Lambert v. Californ ia , 355 U.S. 225, 228 (1957). If a statute is “ so technical or obscure that it threatens to ensnare individua ls engaged in appare

ntly innocent conduct,” notice will not be presumed. Baker , 197 F.3d at 219.

We exam ine th ree is sues w hen fac ed wit h a “fai r warni ng” constitutional challenge. First, we must determine whe ther the statute “forbids or

require s the doing

of an act in terms s o vague that men o f common in tellige nce must necessa

rily guessat its meaning and

differ as to its application.” United States v. Lanier , 520 U.S. 259, 266 (1997) (internal quotation marks omitted). Next, we a pply the cannon of strict construction, or

the rule of lenity, whic

h requires fair warning of the prohibited co nduct and under which we must resolve any ambig

uity in a criminal statute by apply ing it only to the conduct clearly describ ed in th e statute. Id. Finally, due process does not permit application of a novel construction of
a criminal statute “to conduct that neither the statute nor any prior judicial decision has fa ir ly disclose d to be with in its scope.” Id. The “touchstone” behind al l of these concer ns is
anexamination of the st

atute todetermine whether, either on its face or

as constr ued, the p

rovisi on in qu estion “ma de it
reasona bly clear at the relevant time that the defen dant ’s conduct was criminal.” Id. at 267.
Here, the arg ument is that the statute did not put the defendant on no tic e that it prohibited the sale of truthful te st im on y, because there are no re ported cases, in this or other 8 United States v. Blaszak No. 02-3678

2 Moody was achal leng e to § 201( c) on t he gr ou nds that

it was
unco nstitutiona lly vague and o verb road . The defen dan t in Moody paid a witness for

complet ely

fabr icat ed te sti mony an d promis ed mon ey t o
ano ther w itness for sim ilar testimo ny. Moody , 9 77 F .2 d at 142 2. On app eal, Mood y argue d tha t § 201 (c)(2) is overb road a nd vague because it does not e xpres sly

requi re ev il int ent or even th at the tes timony is f alse. The court rejected this c onstit utional chall enge, findi ng that “[ g]iving something of value ‘fo r or bec ause o f’ a perso n’s testimo ny ob viously proscri bes a bri be for

fal se t est imony ; per sons of ord in ary i ntel lig ence
wou ld come to no other conclus ion.” Id . at 1425 . As the dist rict cour t below pointed out, the only testi mony at iss ue in Moody was indisp utably fals e. Moody held only that it was clear that § 20 1(c) enco mpasse d false testimo ny, not tha t it could not also reach truthful testimo ny. jurisdict ions, sustaining a conviction for demandingpayment in ex change for truthful testimony under § 201(c)(3). There is, how ever, a t least one

federa l district c ourt that has held that the statute does not apply to truthf ul t estimony. See Golden Door Jewelry Creations, Inc. v. Lloyds Underwrit ers , 865 F.Supp. 1516, 1523-24 (S.D. Fla. 1 994 ). Golden Door i nvolved payment by

Lloy ds of London to fact witne sses i n exch ange for information and testimony reg ardinga r ob be ry. Id. a t 151 9-21. The court in Golden Door considered the question of whether these pay ments ran afoul of § 201(c)(2), which, as the companion subsection to § 201(c)(3), prohibits offering or promisi

ng somet h ing of value in exchange for te st im on y. The court

ackno wledge d that “the p lain l anguage of [§ 201(c)(2)] does not distinguish between truthful or untruthful testimony” and that “the legislative history

[of the statute] is silenton whether Congress intended to make such
a distinction .” Id. at 1523. Nevertheless, the Golden Door court held that, under United

States v. Moody , 977 F.2d 1425 (11th Cir. 1992), it was constrained to find that § 201(c) did notapply to truthful testimony. Golden Door , 865 F.Supp. at 1523-24. We conclude, however , that Golden Door relied on dicta in Moody , 2 that such reliance wa s misplace d, and tha t, inany event, the opinion i s neither cont rolling preced ent in this circuit nor, in our judgment, does it constitute persuasive authority.No. 02-3678 United States v. Blaszak 9

Moreover, our ow n circu it pre cedent sugge sts a different conclusion. In Unit

ed St ates v. Donathan , 65 F.3d 5 37 (6th Cir. 1995), we were ask ed to decide whether a conviction under § 201(b)(4) required the government to prove that false testimony was given. Sect ion 201(b)( 4) is iden

tical to § 201(c)( 3), except that it re quires th at a dema nd f or compensation

be “corrupt” and that the co mp ensation be received “in ret ur n for bei

ng influ enced. ” 18 U.S.C. § 201(b)( 4). Secti on 201(c )(3) isa

lesser included offense of the bribery provision cont ain ed in § 201 (b)(4)and car ries a lesser penalty. Donathan , 65 F.3d at 540. Because Donathan held that § 201(b)(4) did not require that the government prove that the testimony the defend an t agreed to give was false, we decline to read an additional falsity requirement

into § 201(c)(3), which em

plo ys virtually

the exact language of § 201(b)( 4) in describing the ty

pe of testimony

covered by

the statute.
Section201(c)(3) clearly

prohibits demanding or

accepting anything of value in exchange for testimony . I ts meaning should be clea r to a person of com

mo n intellig ence be cause it is neither overly tec

hni cal nor obscure. The defendant’s conduct falls well within that

prohibited by the statute, and no novel construc

tion of the

statute is require d to apply

it to this
case. It is true that this statut e is rarely used, esp ecially regarding truthful t estimo ny. Neverthe less, it str ains cre dulity to argue that the defendant was not on notice that his conduct
was unlawfu

l. Moreover, although the standard is whether a person of commonintellig ence wo uld understand hisconduct to be prohibited, we find it simply incredi ble that a licensed
a ttorney and member of the Ohio bar would claim that he believed it lawful to accept $500,000 in exch ang e for nonexperttruthful testimony. Finally, we note that the defendant’s own actions beliehis contentions in this regard. During his discus sio n s with Bartholomew, the undercover agent, the defendant agreed tha t the paymen

ts ne eded to be made to appear “legitimate” and pre pared a legal services contract as a cover f or RE/MAX ’s monthly

pay ments to him. Tell in gl y, Blaszak and Bartholomew also discussed the fa c t 10 United States v. Blaszak No. 02-3678

that he could c onceiva

bly testify for both sides in the case and that neither side would then

have an y r ecourse because of the illicit nat ure of th e pay

ments.
2. Vaguene

ss and Ove

rbreadth

The defendant nex t argue s that § 201 (c)(3)is unconstit ution ally vague because it does not pass the “or d inary intelligence” test by

clearly e stablishing what constitutes prohibited

activity. This arg

ument is closely tied to the “ fair wa

rning” argume nt discuss ed above

and also derives from ge

neral d ue proce ss protections, although it involves a slightly diffe

rent analysis.

A s tatute imposing criminal sanction can withstan d constitutional scrutiny

only if it “incorp orates a

high level of definiteness.” Belle Maer Harbor v. Charter Tp. of Harrison , 17 0 F.3d 553, 557 (6th Cir . 1999); see also Vi llage o f Hoffman Estates v. Flipside , 45 5 U .S . 4 89 (1 98 2) . N or ma ll y, inmaking a vagueness ana lysis, we must first consider wheth er the statute “reaches a substantial amount of constituti onally

protected conduct.” Belle Maer , 170 F.3d at 557 (internal quotation marks omitted). Statutes not reaching constituti onally

protect ed activity w

ill therefore be evaluated “in light of the facts of t

he particular case at hand,” rathe r thanfor their facial validity

. Id. However, eve n whe n a statute does not th

reaten constituti onally

protect ed activ ity, if it imposes criminal sanctions, a facial analy sis is appropriate,

see id. , and

a “relatively strict test is warranted.” Springfie ld Armory, Inc. v. City of Columbus , 29 F.3d 2 50, 252 (6 thCir. 1994).

A statute is

unconstit utionally vague and viola tes th e Due ProcessClauseif it fails

to define the offe nse with sufficient definite ness such that ordinary pe ople can unde rstand the prohib ited c onduct or to establish standards to permit law enforcement

personnel to enforce the law in a no n- ar bi tr ar y, non-discriminator

y manner. See Kolender v. Lawson , 461 U. S. 352, 357 (1983). The defendant’s main content io nNo. 02-3678 United States v. Blaszak 11

seems to be that § 201(c)(3) violates the first prong of t hi s standard by failing

to give fair notice that truthful testimony falls under the statute. But, for the reasons set out above, we have alread

y he ld that the

statu te’s plain lan

guag e gives

fair notice of the conduct it proscribes.

Fi na ll y, the defendant’s overbreadth arg ument is directed to the second prong of the vague ness test. He conten ds tha t the statute is overly broad because it potentially encompasses paymen ts t o expert witnesses and preparation fees to fact witnesses that routi

ne ly o ccur in civil cases. The defendant does not claim, however , that he b eli eved the payments he
was to receive were for expert testimony or va lid expenses incurred while pre

paring his te stimony. He offers no evi dence that law e

nforce ment may confuse such legitima

t e pay ments with the ill icit dem and for $ 500,000 so lely in exchange for testimony

at issue in this case.

Inany eve

nt, the analysis require d for a challenge of overbre adth

is not as strict as the va gueness test. The overbre adth

doctrine is “an exception to tra ditio nal rules of standing and is app licable only

inFirst Amendment

cases in order to ensure that an overbroad statute does not act to ‘c hill’ the exercise of rights guarantee d protection.” Leonardson v. City of East Lansing , 896 F.2d 190, 195 (6th Cir. 19 90) (citing NAACP v. Bu tton , 371 U.S. 415, 433 (1963)). If a statute does not im

pli cat e the First Amendment, as § 201(c)(3) does not, then “a person to whom a statute may constituti onally

be applied will not be heard to challenge that statute on the ground that it may con ceivab ly be applied unconstit utionally to others , in other situations not before the Court.” Broadrick v. Oklahoma , 413 U.S. 601, 610 (1 9 73). Becau se § 201(c) (3) does

not implica

te the Fi rst Amend

ment, and because it may be consti tutionally applie d to defendant Bl asz ak, he is pre cluded f rom basin

g his ove

rbread th chall enge on the possibility that the statute could be unconstitutionally applied to others. 12 United States v. Blaszak No. 02-3678

III. CONCLUSION

For the reasons set out

above, we find that

the application of the statute to the defendant’s conduct in this cas e wa s constitutional l y

valid, and we therefore AFF IRM the judgmen t of convi ction ent

ered by the distri ct court

.