       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2     United States v. Blaszak                     No. 02-3678
    ELECTRONIC CITATION: 2003 FED App. 0408P (6th Cir.)
                File Name: 03a0408p.06                    A. Sierleja, UNITED STATES ATTORNEY, Cleveland,
                                                          Ohio, for Appellee.
UNITED STATES COURT OF APPEALS                                                _________________
              FOR THE SIXTH CIRCUIT                                               OPINION
                _________________                                             _________________

 UNITED STATES OF AMERICA , X                               MARTHA CRAIG DAUGHTREY, Circuit Judge. The
                                                          defendant, James Blaszak, entered a conditional plea of guilty
            Plaintiff-Appellee, -                         to a single count charging him with selling testimony in a
                                   -
                                   -  No. 02-3678         pending civil case, in violation of 18 U.S.C. § 201(c)(3),
           v.                      -                      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)
 JAMES L. BLASZAK,                 -
         Defendant-Appellant. -                           as applied to him, after he failed to convince the district court
                                                          that the statute impinged upon his First Amendment rights on
                                  N                       the grounds that it is vague and overbroad and that it denied
      Appeal from the United States District Court        him due process under the Fifth Amendment by failing to
     for the Northern District of Ohio at Cleveland.      give reasonable notice of the prohibited conduct. The crux of
   No. 01-00432—Patricia A. Gaughan, District Judge.      his argument on appeal is that he should not have been
                                                          charged under § 201(c)(3) in the absence of evidence that the
              Argued: September 12, 2003                  testimony he proposed to provide was, in fact, manufactured
                                                          or otherwise untruthful. Giving the statute its plain meaning,
        Decided and Filed: November 18, 2003              we find no constitutional deprivation and affirm the
                                                          conviction.
 Before: KENNEDY, GUY, and DAUGHTREY, Circuit
                   Judges.                                    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
                       COUNSEL                            defendant and the government indicates that defendant
                                                          Blaszak was at the time of these events a licensed attorney in
ARGUED: Jerome A. Milano, MILANO & CO., Rocky             Ohio with primarily a real estate practice. In January 2000,
River, Ohio, for Appellant. Linda H. Barr, UNITED         Blaszak contacted Dennis Steed, a vice president of RE/MAX
STATES ATTORNEY, Youngstown, Ohio, for Appellee.          International, supposedly to discuss potential business
ON BRIEF: Jerome A. Milano, Stacey M. B. Ganor,           opportunities. At that time, RE/MAX was the plaintiff in an
MILANO & CO., Rocky River, Ohio, for Appellant. David     antitrust case pending in federal court. Blaszak told Steed
                                                          that he would be willing to testify in the case regarding

                            1
No. 02-3678                     United States v. Blaszak      3    4      United States v. Blaszak                     No. 02-3678

information he possessed that he believed would be beneficial         The government has offered no evidence that Blaszak was
to RE/MAX. Blaszak demanded compensation in exchange               attempting to provide false testimony on RE/MAX’s behalf.
for his testimony, including $500,000 from RE/MAX to set           It is also not clear whether the information he was to provide
up a mortgage and title company, which Blaszak would then          had any evidentiary value to the case. Neither side
run, and a $5,000 monthly retainer for his legal services.         subpoenaed Blaszak during the litigation, and he never
                                                                   testified in the case.
   Blaszak’s proposal was to testify concerning a taped
telephone conversation and to offer as evidence a                    Following the entry of his conditional guilty plea, Blaszak
memorandum that he described as a “smoking gun,” although          was sentenced to three years of probation and assessed a
he acknowledged that the memo might be judged                      $5,000 fine.
inadmissible by the trial court due to privilege issues.
Blaszak also described in detail the services he would render                             II. DISCUSSION
RE/MAX through the title and mortgage company, asserting
that RE/MAX would benefit financially from the agreement.            The statute under which defendant Blaszak was charged, 18
                                                                   U.S.C. § 201(c)(3), provides as follows:
  RE/MAX officials referred this matter to the Cleveland
Division of the FBI.         FBI Special Agent Michael                 Whoever directly or indirectly, demands, seeks, receives,
Bartholomew, acting under cover, was then introduced to                accepts, or agrees to receive or accept anything of value
Blaszak as a “can do” man for RE/MAX. Bartholomew met                  personally for or because of the testimony under oath or
with Blaszak on March 16 and 31, 2000, and told Blaszak that           affirmation given or to be given by such a person as a
RE/MAX did not need either a title or mortgage company or              witness upon any such trial, hearing, or other proceeding,
Blaszak’s legal services but would be wiling to purchase the           or for or because of such person’s absence therefrom;
information Blaszak had relating to the antitrust case. The            shall be fined under this title or imprisoned for not more
two agreed that RE/MAX would pay Blaszak $500,000 for                  than two years, or both.
his testimony. The terms of the agreement included a
$50,000 down payment and a monthly retainer for legal              However, subsection (d) of the provision carves out certain
services that Blaszak would purportedly render until the           exceptions to the general prohibition in subsection (c):
amount was paid in full.
                                                                       [P]aragraphs (2) and (3) or subsection (c) shall not be
   At the second meeting, Bartholomew gave Blaszak the                 construed to prohibit the payment or receipt of witness
$50,000 down payment. Also at that meeting, Bartholomew                fees provided by law, or the payment, by the party upon
asked Blaszak if he would also be willing to sell his testimony        whose behalf a witness is called and receipt by a witness,
to the defendants in the antitrust case, explaining that neither       of the reasonable cost of travel and subsistence incurred
side could then go to the authorities if each had made                 and the reasonable value of time lost in attendance at any
unlawful payments to Blaszak. Blaszak indicated that he had            such trial, hearing, or proceeding, or in the case of expert
no desire to testify on behalf of the antitrust defendants, and        witnesses, a reasonable fee for time spent in the
he assured Bartholomew that he would testify truthfully on             preparation of such opinion, and in appearing and
behalf of RE/MAX.                                                      testifying.
No. 02-3678                           United States v. Blaszak             5    6    United States v. Blaszak                     No. 02-3678

                 A. First Amendment Challenge                                   occurred. Blaszak contends, therefore, that the statute
                                                                                promotes a “content-based” restriction on speech in violation
   The defendant argues that § 201(c)(3) is an invalid                          of the First Amendment.
restriction on First Amendment speech rights because it
criminalizes behavior based on the content of the speech. In                       A statute which by its terms distinguishes favored speech
support of this contention, he points to the fact that the                      from disfavored speech based on the ideas or views of the
government may give a witness a reduced charge, a                               witness is considered content-based and thus unconstitutional.
recommendation for leniency, a payment, or any other thing                      See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622,
of value in exchange for testimony in a criminal prosecution                    643 (1994). However, “laws that confer benefits or impose
that is favorable to the government without violating the                       burdens on speech without reference to the ideas or views
statute, citing United States v. Ware, 161 F.3d 414, 418-19                     expressed are in most instances content neutral.” Id. In our
(6th Cir. 1998) (holding that § 201(c)(3) does not apply to the                 view, § 201(c)(3) is just such a statute – it does not
government). See also United States v. Anty, 203 F.3d 305,                      discriminate based on the content of speech but, instead,
308 (4th Cir. 2000)(holding that interpreting § 201(c)(3) to                    prohibits the conduct of seeking or accepting monetary
apply to government prosecutors would “work obvious                             compensation, beyond reimbursement of reasonable expenses,
absurdity”). Thus, if a person wishes to be paid for truthful                   in exchange for testimony.
testimony, and that person is a witness for the government in
a criminal case, Blaszak argues, then no violation of                              The case on which the defendant primarily relies is easily
18 U.S.C. § 201(c)(3) has occurred.1 On the other hand, if a                    distinguished. In Hoover v. Morales, 164 F.3d 221, 223-24
person wishes to be paid for truthful testimony in a civil case                 (5th Cir. 1998), the Fifth Circuit struck down two state
or on behalf of a criminal defendant, then a violation has                      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
    1
      There is, however, some disagreement as to whether the government
                                                                                restrictions on speech because they protected a professor who
may make cash payments to fact witnesses in exchange for truthful               testified on behalf of the state but punished one who acted on
testimony. For example, United States v. Ha rris, 210 F.3d 165, 168 (3d         behalf of an opposing party. Id. at 227. The defendant in this
Cir. 2000), while holding that the government is permitted to pay a fact        case argues that § 201(c)(3) is similar, in that it allows
witness for collecting evidence and testifying about what was found,            someone to be paid for testifying on behalf of the state but not
explicitly declined to rule on whether § 201(c) would permit the
“government to pay a witness solely or essentially for favo rable
                                                                                on behalf of an opposing party. His reliance on Hoover is
testimony.” Id.; see also United States v. Condon, 170 F.3d 687 , 689 (7th      misplaced, however, because the provisions at issue in that
Cir. 199 9). This circuit has not dealt with this sp ecific question, but has   case targeted different conduct than that targeted by
instead joined with several other circuits in holding that § 201(c)(3) does     § 201(c)(3). In Hoover, the professors were prevented from
not app ly to the government under the traditional rule that a statutory        testifying – clearly a limitation on their free speech rights.
reference to “who ever” or “any perso n” includes government agents
unless application of the statute would “dep rive the so vereign of a
                                                                                Section 201(c)(3), on the other hand, does nothing to prevent
recognized or established prero gative title or interest” or would “work        a witness from testifying; it simply prohibits a witness from
obvious absurdity.” Nardone v. United States, 302 U.S. 379, 383-84              demanding or accepting payment in exchange for that
(1937); see also United States v. Wa re, 161 F. 3d 414, 420 (6th Cir. 1998)     testimony. Section 201(c)(3) criminalizes compensation “for
(finding the Nardone rule applicable to § 201(c)). Of course, the question      or because of” testimony, regardless of its content and,
of whether the government may make cash payments to fact witnesses
purely for testimony is not at issue in this case.
                                                                                therefore, does not implicate the First Amendment.
No. 02-3678                     United States v. Blaszak      7    8       United States v. Blaszak                             No. 02-3678

              B. Fifth Amendment Challenge                         jurisdictions, sustaining a conviction for demanding payment
                                                                   in exchange for truthful testimony under § 201(c)(3). There
1. Fair Warning                                                    is, however, at least one federal district court that has held
                                                                   that the statute does not apply to truthful testimony. See
  The defendant argues that § 201(c)(3) does not give fair         Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters,
warning of prohibited conduct and therefore violates his Fifth     865 F.Supp. 1516, 1523-24 (S.D. Fla. 1994). Golden Door
Amendment due process rights. Although citizens are                involved payment by Lloyds of London to fact witnesses in
generally presumed to know the content of the law, one of the      exchange for information and testimony regarding a robbery.
basic tenets of due process jurisprudence is that citizens be      Id. at 1519-21. The court in Golden Door considered the
afforded fair notice of precisely what conduct is prohibited.      question of whether these payments ran afoul of § 201(c)(2),
United States v. Baker, 197 F.3d 211, 218-19 (6th Cir. 1999);      which, as the companion subsection to § 201(c)(3), prohibits
Lambert v. California, 355 U.S. 225, 228 (1957). If a statute      offering or promising something of value in exchange for
is “so technical or obscure that it threatens to ensnare           testimony. The court acknowledged that “the plain language
individuals engaged in apparently innocent conduct,” notice        of [§ 201(c)(2)] does not distinguish between truthful or
will not be presumed. Baker, 197 F.3d at 219.                      untruthful testimony” and that “the legislative history [of the
                                                                   statute] is silent on whether Congress intended to make such
   We examine three issues when faced with a “fair warning”        a distinction.” Id. at 1523. Nevertheless, the Golden Door
constitutional challenge. First, we must determine whether         court held that, under United States v. Moody, 977 F.2d 1425
the statute “forbids or requires the doing of an act in terms so   (11th Cir. 1992), it was constrained to find that § 201(c) did
vague that men of common intelligence must necessarily             not apply to truthful testimony. Golden Door, 865 F.Supp. at
guess at its meaning and differ as to its application.” United     1523-24. We conclude, however, that Golden Door relied on
States v. Lanier, 520 U.S. 259, 266 (1997) (internal quotation     dicta in Moody,2 that such reliance was misplaced, and that,
marks omitted). Next, we apply the cannon of strict                in any event, the opinion is neither controlling precedent in
construction, or the rule of lenity, which requires fair warning   this circuit nor, in our judgment, does it constitute persuasive
of the prohibited conduct and under which we must resolve          authority.
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        2
                                                                         Moody was a challenge to § 201(c) on the grounds that it was
prior judicial decision has fairly disclosed to be within its      unco nstitutionally vague and o verbroad . The defendant in Moody paid a
scope.” Id. The “touchstone” behind all of these concerns is       witness for completely fabricated testimony and promised money to
an examination of the statute to determine whether, either on      another witness for sim ilar testimo ny. Moody, 977 F.2d at 1422. On
its face or as construed, the provision in question “made it       app eal, Mood y argued that § 201(c)(2) is overb road and vague because
reasonably clear at the relevant time that the defendant’s         it does not expressly require evil intent or even that the testimony is false.
                                                                   The court rejected this constitutional challenge, finding that “[g]iving
conduct was criminal.” Id. at 267.                                 something of value ‘for or because o f’ a perso n’s testimo ny obviously
                                                                   proscribes a bribe for false testimony; persons of ord inary intelligence
   Here, the argument is that the statute did not put the          would come to no other conclusion.” Id. at 1425 . As the district court
defendant on notice that it prohibited the sale of truthful        below pointed out, the only testimony at issue in Moody was indisputably
testimony, because there are no reported cases, in this or other   false. Moody held only that it was clear that § 20 1(c) enco mpassed false
                                                                   testimony, not that it could not also reach truthful testimo ny.
No. 02-3678                     United States v. Blaszak       9    10    United States v. Blaszak                     No. 02-3678

   Moreover, our own circuit precedent suggests a different         that he could conceivably testify for both sides in the case and
conclusion. In United States v. Donathan, 65 F.3d 537 (6th          that neither side would then have any recourse because of the
Cir. 1995), we were asked to decide whether a conviction            illicit nature of the payments.
under § 201(b)(4) required the government to prove that false
testimony was given. Section 201(b)(4) is identical to              2. Vagueness and Overbreadth
§ 201(c)(3), except that it requires that a demand for
compensation be “corrupt” and that the compensation be                The defendant next argues that § 201(c)(3) is
received “in return for being influenced.” 18 U.S.C.                unconstitutionally vague because it does not pass the
§ 201(b)(4). Section 201(c)(3) is a lesser included offense of      “ordinary intelligence” test by clearly establishing what
the bribery provision contained in § 201(b)(4) and carries a        constitutes prohibited activity. This argument is closely tied
lesser penalty. Donathan, 65 F.3d at 540. Because Donathan          to the “fair warning” argument discussed above and also
held that § 201(b)(4) did not require that the government           derives from general due process protections, although it
prove that the testimony the defendant agreed to give was           involves a slightly different analysis.
false, we decline to read an additional falsity requirement into
§ 201(c)(3), which employs virtually the exact language of              A statute imposing criminal sanction can withstand
§ 201(b)(4) in describing the type of testimony covered by the      constitutional scrutiny only if it “incorporates a high level of
statute.                                                            definiteness.” Belle Maer Harbor v. Charter Tp. of Harrison,
                                                                    170 F.3d 553, 557 (6th Cir. 1999); see also Village of
   Section 201(c)(3) clearly prohibits demanding or accepting       Hoffman Estates v. Flipside, 455 U.S. 489 (1982). Normally,
anything of value in exchange for testimony. Its meaning            in making a vagueness analysis, we must first consider
should be clear to a person of common intelligence because          whether the statute “reaches a substantial amount of
it is neither overly technical nor obscure. The defendant’s         constitutionally protected conduct.” Belle Maer, 170 F.3d at
conduct falls well within that prohibited by the statute, and no    557 (internal quotation marks omitted). Statutes not reaching
novel construction of the statute is required to apply it to this   constitutionally protected activity will therefore be evaluated
case. It is true that this statute is rarely used, especially       “in light of the facts of the particular case at hand,” rather
regarding truthful testimony. Nevertheless, it strains credulity    than for their facial validity. Id. However, even when a
to argue that the defendant was not on notice that his conduct      statute does not threaten constitutionally protected activity, if
was unlawful. Moreover, although the standard is whether a          it imposes criminal sanctions, a facial analysis is appropriate,
person of common intelligence would understand his conduct          see id., and a “relatively strict test is warranted.” Springfield
to be prohibited, we find it simply incredible that a licensed      Armory, Inc. v. City of Columbus, 29 F.3d 250, 252 (6th Cir.
attorney and member of the Ohio bar would claim that he             1994).
believed it lawful to accept $500,000 in exchange for non-
expert truthful testimony. Finally, we note that the                  A statute is unconstitutionally vague and violates the Due
defendant’s own actions belie his contentions in this regard.       Process Clause if it fails to define the offense with sufficient
During his discussions with Bartholomew, the undercover             definiteness such that ordinary people can understand the
agent, the defendant agreed that the payments needed to be          prohibited conduct or to establish standards to permit law
made to appear “legitimate” and prepared a legal services           enforcement personnel to enforce the law in a non-arbitrary,
contract as a cover for RE/MAX’s monthly payments to him.           non-discriminatory manner. See Kolender v. Lawson, 461
Tellingly, Blaszak and Bartholomew also discussed the fact          U.S. 352, 357 (1983). The defendant’s main contention
No. 02-3678                     United States v. Blaszak      11    12   United States v. Blaszak                   No. 02-3678

seems to be that § 201(c)(3) violates the first prong of this                          III. CONCLUSION
standard by failing to give fair notice that truthful testimony
falls under the statute. But, for the reasons set out above, we       For the reasons set out above, we find that the application
have already held that the statute’s plain language gives fair      of the statute to the defendant’s conduct in this case was
notice of the conduct it proscribes.                                constitutionally valid, and we therefore AFFIRM the
                                                                    judgment of conviction entered by the district court.
  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.
