1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0408P (6th Cir.)

File Name: 03a0408p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

JAMES L. BLASZAK,

Defendant-Appellant.

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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 

Before: KENNEDY, GUY, and DAUGHTREY, Circuit

Judges.

_________________

COUNSEL

ARGUED: Jerome A. Milano, MILANO & CO., Rocky

River, Ohio, for Appellant. Linda H. Barr, UNITED

STATES ATTORNEY, Youngstown, Ohio, for Appellee.

ON BRIEF: Jerome A. Milano, Stacey M. B. Ganor,

MILANO & CO., Rocky River, Ohio, for Appellant. David

2 United States v. Blaszak No. 02-3678

A. Sierleja, UNITED STATES ATTORNEY, Cleveland,

Ohio, for Appellee.

_________________

OPINION

_________________

MARTHA CRAIG DAUGHTREY, Circuit Judge. The

defendant, James Blaszak, entered a conditional plea of guilty

to a single count charging him with selling testimony in a

pending civil case, in violation of 18 U.S.C. § 201(c)(3),

based on his agreement to testify on behalf of the plaintiff in

an antitrust action in exchange for $500,000. Blaszak

reserved the right to appeal the constitutionality of § 201(c)(3)

as applied to him, after he failed to convince the district court

that the statute impinged upon his First Amendment rights on

the grounds that it is vague and overbroad and that it denied

him due process under the Fifth Amendment by failing to

give reasonable notice of the prohibited conduct. The crux of

his argument on appeal is that he should not have been

charged under § 201(c)(3) in the absence of evidence that the

testimony he proposed to provide was, in fact, manufactured

or otherwise untruthful. Giving the statute its plain meaning,

we find no constitutional deprivation and affirm the

conviction. 

I. PROCEDURAL AND FACTUAL BACKGROUND

The facts in this case are not in dispute. Pertinent

information taken from the plea agreement entered into by the

defendant and the government indicates that defendant

Blaszak was at the time of these events a licensed attorney in

Ohio with primarily a real estate practice. In January 2000,

Blaszak contacted Dennis Steed, a vice president of RE/MAX

International, supposedly to discuss potential business

opportunities. At that time, RE/MAX was the plaintiff in an

antitrust case pending in federal court. Blaszak told Steed

that he would be willing to testify in the case regarding
No. 02-3678 United States v. Blaszak 3

information he possessed that he believed would be beneficial

to RE/MAX. Blaszak demanded compensation in exchange

for his testimony, including $500,000 from RE/MAX to set

up a mortgage and title company, which Blaszak would then

run, and a $5,000 monthly retainer for his legal services. 

Blaszak’s proposal was to testify concerning a taped

telephone conversation and to offer as evidence a

memorandum that he described as a “smoking gun,” although

he acknowledged that the memo might be judged

inadmissible by the trial court due to 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 from the agreement.

RE/MAX officials referred this matter to the Cleveland

Division of the FBI. FBI Special Agent Michael

Bartholomew, acting under cover, was then introduced to

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 need either a title or mortgage company or

Blaszak’s legal services but would be wiling to purchase the

information Blaszak had relating to the antitrust case. The

two agreed that RE/MAX would pay Blaszak $500,000 for

his testimony. The terms of the agreement included a

$50,000 down payment and a monthly retainer for legal

services that Blaszak would purportedly render until the

amount was paid in full. 

At the second meeting, Bartholomew gave Blaszak the

$50,000 down payment. Also at that meeting, 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 then go to the authorities if each had made

unlawful payments 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 evidence 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 evidentiary value to the case. Neither side

subpoenaed Blaszak during the litigation, and he never

testified in the case. 

Following the entry of his conditional guilty plea, Blaszak

was sentenced to three years of probation and assessed a

$5,000 fine. 

II. DISCUSSION

The statute under which defendant Blaszak was charged, 18

U.S.C. § 201(c)(3), provides as follows:

Whoever directly or indirectly, demands, seeks, receives,

accepts, or agrees to receive or accept anything of value

personally for or because of the testimony under oath or

affirmation given or to be given by such a person as a

witness upon any such trial, hearing, or other proceeding,

or for or because of such person’s absence therefrom;

shall be fined under this title or imprisoned for not more

than two years, or both.

However, subsection (d) of the provision carves out certain

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 receipt of witness

fees provided by law, or the payment, by the party upon

whose behalf a witness is called and receipt by a witness,

of the reasonable cost of travel and subsistence incurred

and the reasonable value of time lost in attendance at any

such trial, hearing, or proceeding, or in the case of expert

witnesses, a reasonable fee for time spent in the

preparation of such opinion, and in appearing and

testifying.
No. 02-3678 United States v. Blaszak 5

1

There is, however, some disagreement as to whether the government

may make cash payments to fact witnesses in exchange for truthful

testimony. For example, United States v. Harris, 210 F.3d 165, 168 (3d

Cir. 2000), while holding that the government is permitted to pay a fact

witness for collecting evidence and testifying about what was found,

explicitly declined to rule on whether § 201(c) would permit the

“government to pay a witness solely or essentially for favorable

testimony.” Id.; see also United States v. Condon, 170 F.3d 687, 689 (7th

Cir. 1999). This circuit has not dealt with this specific question, but has

instead joined with several other circuits in holding that § 201(c)(3) does

not apply to the government under the traditional rule that a statutory

reference to “whoever” or “any person” includes government agents

unless application of the statute would “deprive the sovereign of a

recognized or established prerogative title or interest” or would “work

obvious absurdity.” Nardone v. United States, 302 U.S. 379, 383-84

(1937); see also United States v. Ware, 161 F. 3d 414, 420 (6th Cir. 1998)

(finding the Nardone rule applicable to § 201(c)). Of course, the question

of whether the government may make cash payments to fact witnesses

purely for testimony is not at issue in this case.

A. First Amendment Challenge

The defendant argues that § 201(c)(3) is an invalid

restriction on First Amendment speech rights because it

criminalizes behavior based on the content of the speech. In

support of this contention, he points to the fact that the

government may give a witness a reduced charge, a

recommendation for leniency, a payment, or any other thing

of value in exchange for testimony in a criminal prosecution

that is favorable to the government without violating the

statute, citing United States v. Ware, 161 F.3d 414, 418-19

(6th Cir. 1998) (holding that § 201(c)(3) does not apply to the

government). See also United States v. Anty, 203 F.3d 305,

308 (4th Cir. 2000)(holding that interpreting § 201(c)(3) to

apply to government prosecutors would “work obvious

absurdity”). Thus, if a person wishes to be paid for truthful

testimony, and that person is a witness for the government in

a criminal case, 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 truthful testimony in a civil case

or on behalf of a criminal defendant, then a violation has

6 United States v. Blaszak No. 02-3678

occurred. Blaszak contends, therefore, that the statute

promotes a “content-based” restriction on speech in violation

of the First Amendment. 

A statute which by its terms distinguishes favored speech

from disfavored speech based on the ideas or views of the

witness is considered content-based and thus unconstitutional.

See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622,

643 (1994). However, “laws that confer benefits or impose

burdens on speech without reference to the ideas or views

expressed are in most instances content neutral.” Id. In our

view, § 201(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 accepting monetary

compensation, beyondreimbursement ofreasonable expenses,

in exchange for testimony.

The case on which the defendant primarily relies is easily

distinguished. In Hoover v. Morales, 164 F.3d 221, 223-24

(5th Cir. 1998), the Fifth Circuit struck down two state

university 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 speech because they protected a professor who

testified on behalf of the state but punished one who acted on

behalf of an opposing party. Id. at 227. The defendant in this

case argues that § 201(c)(3) is similar, in that it allows

someone to be paid for testifying on behalf of the state but not

on behalf of an opposing party. His reliance on Hoover is

misplaced, however, because the provisions at issue in that

case targeted different conduct than that targeted by

§ 201(c)(3). In Hoover, the professors were prevented from

testifying – clearly a limitation on their free speech rights.

Section 201(c)(3), on the other hand, does nothing to prevent

a witness from testifying; it simply prohibits a witness from

demanding or accepting payment in exchange for that

testimony. Section 201(c)(3) criminalizes compensation “for

or because of” testimony, regardless of its content and,

therefore, does not implicate the First Amendment.
No. 02-3678 United States v. Blaszak 7

B. Fifth Amendment Challenge

1. Fair Warning

The defendant argues that § 201(c)(3) does not give fair

warning of prohibited conduct and therefore violates his Fifth

Amendment due process rights. Although citizens are

generally presumed to know the content of the law, one of the

basic tenets of due process jurisprudence is that citizens be

afforded fair notice of precisely what conduct is prohibited.

United States v. Baker, 197 F.3d 211, 218-19 (6th Cir. 1999);

Lambert v. California, 355 U.S. 225, 228 (1957). If a statute

is “so technical or obscure that it threatens to ensnare

individuals engaged in apparently innocent conduct,” notice

will not be presumed. Baker, 197 F.3d at 219.

We examine three issues when faced with a “fair warning”

constitutional challenge. First, we must determine whether

the statute “forbids or requires the doing of an act in terms so

vague that men of common intelligence must necessarily

guess at its meaning and differ as to its application.” United

States v. Lanier, 520 U.S. 259, 266 (1997) (internal quotation

marks omitted). Next, we apply the cannon of strict

construction, or the rule of lenity, which requires fair warning

of the prohibited conduct and under which we must resolve

any ambiguity in a criminal statute by applying it only to the

conduct clearly described in the 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 fairly disclosed to be within its

scope.” Id. The “touchstone” behind all of these concerns is

an examination of the statute to determine whether, either on

its face or as construed, the provision in question “made it

reasonably clear at the relevant time that the defendant’s

conduct was criminal.” Id. at 267. 

Here, the argument is that the statute did not put the

defendant on notice that it prohibited the sale of truthful

testimony, because there are no reported cases, in this or other

8 United States v. Blaszak No. 02-3678

2

Moody was a challenge to § 201(c) on the grounds that it was

unconstitutionally vague and overbroad. The defendant in Moody paid a

witness for completely fabricated testimony and promised money to

another witness for similar testimony. Moody, 977 F.2d at 1422. On

appeal, Moody argued that § 201(c)(2) is overbroad and vague because

it does not expressly require evil intent or even that the testimony is false.

The court rejected this constitutional challenge, finding that “[g]iving

something of value ‘for or because of’ a person’s testimony obviously

proscribes a bribe for false testimony; persons of ordinary intelligence

would come to no other conclusion.” Id. at 1425. As the district court

below pointed out, the only testimony at issue in Moody was indisputably

false. Moody held only that it was clear that § 201(c) encompassed false

testimony, not that it could not also reach truthful testimony.

jurisdictions, sustaining a conviction for demanding payment

in exchange for truthful testimony under § 201(c)(3). There

is, however, at least one federal district court that has held

that the statute does not apply to truthful testimony. See

Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters,

865 F.Supp. 1516, 1523-24 (S.D. Fla. 1994). Golden Door

involved payment by Lloyds of London to fact witnesses in

exchange for information and testimony regarding a robbery.

Id. at 1519-21. The court in Golden Door considered the

question of whether these payments ran afoul of § 201(c)(2),

which, as the companion subsection to § 201(c)(3), prohibits

offering or promising something of value in exchange for

testimony. The court acknowledged that “the plain language

of [§ 201(c)(2)] does not distinguish between truthful or

untruthful testimony” and that “the legislative history [of the

statute] is silent on 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

not apply 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 was misplaced, and that,

in any event, the opinion is neither controlling precedent in

this circuit nor, in our judgment, does it constitute persuasive

authority. 
No. 02-3678 United States v. Blaszak 9

Moreover, our own circuit precedent suggests a different

conclusion. In United States v. Donathan, 65 F.3d 537 (6th

Cir. 1995), we were asked to decide whether a conviction

under § 201(b)(4) required the government to prove that false

testimony was given. Section 201(b)(4) is identical to

§ 201(c)(3), except that it requires that a demand for

compensation be “corrupt” and that the compensation be

received “in return for being influenced.” 18 U.S.C.

§ 201(b)(4). Section 201(c)(3) is a lesser included offense of

the bribery provision contained in § 201(b)(4) and carries 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 defendant agreed to give was

false, we decline to read an additional falsity requirement into

§ 201(c)(3), which employs virtually the exact language of

§ 201(b)(4) in describing the type of testimony covered by the

statute.

Section 201(c)(3) clearly prohibits demanding or accepting

anything of value in exchange for testimony. Its meaning

should be clear to a person of common intelligence because

it is neither overly technical nor obscure. The defendant’s

conduct falls well within that prohibited by the statute, and no

novel construction of the statute is required to apply it to this

case. It is true that this statute is rarely used, especially

regarding truthful testimony. Nevertheless, it strains credulity

to argue that the defendant was not on notice that his conduct

was unlawful. Moreover, although the standard is whether a

person of common intelligence would understand his conduct

to be prohibited, we find it simply incredible that a licensed

attorney and member of the Ohio bar would claim that he

believed it lawful to accept $500,000 in exchange for nonexpert truthful testimony. Finally, we note that the

defendant’s own actions belie his contentions in this regard.

During his discussions with Bartholomew, the undercover

agent, the defendant agreed that the payments needed to be

made to appear “legitimate” and prepared a legal services

contract as a cover for RE/MAX’s monthly payments to him.

Tellingly, Blaszak and Bartholomew also discussed the fact

10 United States v. Blaszak No. 02-3678

that he could conceivably testify for both sides in the case and

that neither side would then have any recourse because of the

illicit nature of the payments.

2. Vagueness and Overbreadth

The defendant next argues that § 201(c)(3) is

unconstitutionally vague because it does not pass the

“ordinary intelligence” test by clearly establishing what

constitutes prohibited activity. This argument is closely tied

to the “fair warning” argument discussed above and also

derives from general due process protections, although it

involves a slightly different analysis. 

A statute imposing criminal sanction can withstand

constitutional scrutiny only if it “incorporates a high level of

definiteness.” Belle Maer Harbor v. Charter Tp. of Harrison,

170 F.3d 553, 557 (6th Cir. 1999); see also Village of

Hoffman Estates v. Flipside, 455 U.S. 489 (1982). Normally,

in making a vagueness analysis, we must first consider

whether the statute “reaches a substantial amount of

constitutionally protected conduct.” Belle Maer, 170 F.3d at

557 (internal quotation marks omitted). Statutes not reaching

constitutionally protected activity will therefore be evaluated

“in light of the facts of the particular case at hand,” rather

than for their facial validity. Id. However, even when a

statute does not threaten constitutionally protected activity, if

it imposes criminal sanctions, a facial analysis is appropriate,

see id., and a “relatively strict test is warranted.” Springfield

Armory, Inc. v. City of Columbus, 29 F.3d 250, 252 (6th Cir.

1994). 

A statute is unconstitutionally vague and violates the Due

Process Clause if it fails to define the offense with sufficient

definiteness such that ordinary people can understand the

prohibited conduct or to establish standards to permit law

enforcement personnel to enforce the law in a non-arbitrary,

non-discriminatory manner. See Kolender v. Lawson, 461

U.S. 352, 357 (1983). The defendant’s main contention
No. 02-3678 United States v. Blaszak 11

seems to be that § 201(c)(3) violates the first prong of this

standard by failing to give fair notice that truthful testimony

falls under the statute. But, for the reasons set out above, we

have already held that the statute’s plain language gives fair

notice of the conduct it proscribes. 

Finally, the defendant’s overbreadth argument is directed

to the second prong of the vagueness test. He contends that

the statute is overly broad because it potentially encompasses

payments to expert witnesses and preparation fees to fact

witnesses that routinely occur in civil cases. The defendant

does not claim, however, that he believed the payments he

was to receive were for expert testimony or valid expenses

incurred while preparing his testimony. He offers no

evidence that law enforcement may confuse such legitimate

payments with the illicit demand for $500,000 solely in

exchange for testimony at issue in this case. 

In any event, the analysis required for a challenge of

overbreadth is not as strict as the vagueness test. The

overbreadth doctrine is “an exception to traditional rules of

standing and is applicable only in First Amendment cases in

order to ensure that an overbroad statute does not act to ‘chill’

the exercise of rights guaranteed protection.” Leonardson v.

City of East Lansing, 896 F.2d 190, 195 (6th Cir. 1990)

(citing NAACP v. Button, 371 U.S. 415, 433 (1963)). If a

statute does not implicate the First Amendment, as

§ 201(c)(3) does not, then “a person to whom a statute may

constitutionally be applied will not be heard to challenge that

statute on the ground that it may conceivably be applied

unconstitutionally to others, in other situations not before the

Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973).

Because § 201(c)(3) does not implicate the First Amendment,

and because it may be constitutionally applied to defendant

Blaszak, he is precluded from basing his overbreadth

challenge 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 case was

constitutionally valid, and we therefore AFFIRM the

judgment of conviction entered by the district court.