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

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.