United States v. Blaszak

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 1425the 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.