GOLDEN DOOR JEWELRY CREATIONS, INC., a corporation, and Suisse
Gold Assayer &
Refinery, Inc., a corporation, Plaintiffs,
Leach & Garner Company, Westway Metals Corp., Plaintiffs-Intervenors-Appellees,
Capital Bank and Stern Metals, Inc., Plaintiffs-Intervenors,
v.
LLOYDS UNDERWRITERS NON-MARINE ASSOCIATION, an association licensed
to
underwrite insurance in the State of Florida, and Peter Frederick Wright,
Defendants-Appellants,
Sanford Credini and Lawrence Systems, Inc., Defendants-Intervenors.
LEACH & GARNER COMPANY, Plaintiff-Appellee,
v.
Peter Frederick WRIGHT, Defendant-Appellant.
GOLDEN DOOR JEWELRY CREATIONS, INC., a corporation, and Suisse Gold
Assayer &
Refinery, Inc., a corporation, Plaintiffs,
Leach & Garner Company, Westway Metals Corp., Plaintiffs-Intervenors-
Appellants,
Capital Bank and Stern Metals, Inc., Plaintiffs-Intervenors,
v.
LLOYDS UNDERWRITERS NON-MARINE ASSOCIATION, an association licensed
to
underwrite insurance in the State of Florida, and Peter Frederick Wright,
Defendants-Appellees,
Sanford Credini and Lawrence Systems, Inc., Defendants-Intervenors.
LEACH & GARNER COMPANY, Plaintiff-Appellant,
v.
Peter Frederick WRIGHT, Defendant-Appellee.
Nos. 95-4731, 95-4797.
United States Court of Appeals,
Eleventh Circuit.
July 28, 1997.
Rehearing Denied Jan. 23, 1998.
117 F.3d 1328
*****
FN2. On cross-appeal, the Consignors argue that: (1) the district court should have found that Lloyds's payments to fact witnesses violated 18 U.S.C. S 201(c)(2) because the statute does not require that the payments constitute a bribe for false testimony; and (2) the court should have stricken Lloyds's pleadings as the appropriate sanction for these payments. We reject the Consignors' argument regarding section 201(c)(2) as meritless in light of our decision in United States v. Moody, 977 F.2d 1420, 1425 (11th Cir.1992) (section 201(c)(2) "obviously proscribes a bribe for false testimony; persons of ordinary intelligence would come to no other conclusion"), cert. denied, 507 U.S. 944, 113 S.Ct. 1348, 122 L.Ed.2d 730 (1993). Moreover, we find that the sanction imposed--barring Lloyds from using the testimony of paid witnesses-- adequately penalized Lloyds for violating Rule 4-3.4(b) of the Rules of Professional Conduct and did not constitute an abuse of the district court's discretion.
****
Relevant Excerpt from Moody
Moody attacks the statute of conviction for counts 7 and 9, 18 U.S.C. S 201(c)(2), as overbroad and vague. These counts involved a bribe given to Linn-West and one promised to Eckstrom. The argument is that 201(c)(2) does not expressly require a showing of evil intent on the bribe-giver's part or even that the testimony of the witness be false. We believe, however, that the statute is neither unconstitutionally overbroad or vague.
Section 201(c)(2) makes it a criminal offense to "directly or indirectly [ ] give[ ], offer[ ], or promise[ ] anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing or other proceeding, before any court...." A statute that regulates conduct, as opposed to pure speech, is subject to invalidation on overbreadth grounds only if the "overbreadth [is] ... not only ... real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973). Moody's conduct was clearly within the statute's "legitimate sweep," and he fails to demonstrate that applications that might go beyond constitutional limits are either real or substantial. Moody's overbreadth argument fails.
A criminal statute is not unconstitutionally vague if it "define[s]
the criminal offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement." Kolender
v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75, 1425 L.Ed.2d 903
(1983). Due
process is violated, however, when men of ordinary intelligence must
guess at a statute's meaning. Marshall v. City of Atlanta,
Bureau of Services, 614 F.Supp. 581, 584 (N.D.Ga.1984), aff'd, 770
F.2d 174 (11th Cir.1985). Section 201(c)(2) is sufficiently clear. Giving
something of value "for or because of" a person's testimony obviously proscribes
a bribe for false testimony; persons of ordinary intelligence would
come to no other conclusion. See Geaneas v. Willets, 911 F.2d
579, 583-85 (11th Cir.1990), cert. denied, 499 U.S. 955, 111 S.Ct.
1431, 113 L.Ed.2d 484 (1991) (rejecting vagueness challenge to similar
provision now codified at 18 U.S.C. S 201(c)(1)). We reject Moody's
vagueness challenge.
*****
Relevant Rule of Professional Conduct
Rule 4-3.4. Fairness of Opposing Party and Counsel
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or otherwise
unlawfully alter, destroy, or conceal a document or other material that
the lawyer knows or reasonably should know is relevant to a pending or
a reasonably foreseeable proceeding; nor counsel or assist another
person to do any such act.
(b) fabricate evidence, counsel or assist a witness to testify falsely,
or offer an inducement to a witness, except a lawyer may pay a witness
reasonable expenses incurred by the witness in attending or testifying
at proceedings; a reasonable, noncontingent fee for the professional
services of an expert witness; and reasonable compensation to reimburse
a witness for the loss of compensation incurred by reason of preparing
for, attending, or testifying at proceedings.
(c) knowingly disobey an obligation under the rules of a tribunal except
for an open refusal based on an assertion that no valid obligation exists.
(d) in pretrial procedure, make a frivolous discovery request or intentionally
fail to comply with a legally proper discovery request by an opposing party.
(e) in trial, allude to any matter that the lawyer does not reasonably
believe is relevant or that will not be supported by admissible evidence,
assert personal knowledge of facts in issue except when testifying as a
witness, or state a personal opinion as to the justness of a cause, the
credibility of a witness, the culpability of a civil litigant, or the guilt
or innocence of an accused.
(f) request a person other than a client to refrain from voluntarily
giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of
a client, and
(2) it is reasonable to believe that the person's interests
will not be adversely affected by refraining from giving such information.