United States of America v. James L. Blaszak

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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

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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.

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No. 02-3678 United States v. Blaszak 5
1There 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. 199 9). This circuit has not dealt with this sp ecific question, but has
instead joined with several other circuits in holding that § 201(c)(3) does
not app ly to the government under the traditional rule that a statutory
reference to “who ever” or “any perso n” includes government agents
unless application of the statute would “deprive the so vereign of a
recognized or established prero gative title or interest” or would “work
obvious absurdity.” Nardone v. United States, 302 U.S. 379, 383-84
(1937); see also United States v. Wa re, 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, beyond reimbursement of reasonable 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.

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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
2Moody was a challenge to § 201(c) on the grounds that it was
unco nstitutionally vague and o verbroad . The defendant in Moody paid a
witness for completely fabricated testimony and promised money to
another witness for sim ilar testimo ny. Moody, 977 F.2d at 1422. On
app eal, Mood y argued that § 201(c)(2) is overb road 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 o f’ a perso n’s testimo ny obviously
proscribes a bribe for false testimony; persons of ord inary 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 § 20 1(c) enco mpassed false
testimony, not that it could not also reach truthful testimo ny.
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.

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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 non-
expert 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

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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.

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