IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50626
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
IRVIN JAY MILZMAN, also known as Irvin Jay Mitzman, also known as
Irvin Jay Milsman,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-97-CV-134
USDC No. W-88-CR-130-16
- - - - - - - - - -
May 17, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Irvin Jay Milzman appeals the district court’s denial of his
28 U.S.C. § 2255 motion alleging (1) that the Government withheld
exculpatory, impeachment evidence, in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and (2) that he was denied effective
assistance of counsel. He also moves this court to expand the
certificate of appealability (COA) to include a third issue that
was dismissed as frivolous by the district court, i.e., whether he
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 98-50626
-2-
waived his right to be present during voir dire, and in particular,
the portion of voir dire when peremptory challenges are exercised.
We affirm in part, and vacate and remand.
Milzman argues that the Government violated Brady by
suppressing the participation of two key Government witnesses,
Wesley Gerald Schneider and Edward Francis Crawford, in a specific,
additional methamphetamine conspiracy. A review of Schneider’s
trial testimony supports the district court’s conclusion that the
other conspiracy was disclosed when Schneider testified at
Milzman’s trial. We therefore AFFIRM the district court’s
conclusion that there was no Brady violation with regard to
disclosure of the other conspiracy. Milzman also contends that the
Government failed to disclose the perjury committed by Crawford in
a prior state prosecution, and that the district court erred in
relying on the affidavit of Special Agent George Mading, and the
unsworn statement of the prosecutor, Steven Snyder, to find,
without a hearing, that the transcripts in which Crawford admitted
his perjury were available to the defense at trial. Because
Crawford apparently did not admit his prior perjury until after
Milzman’s trial, the district court erred in finding that the
transcripts containing the admission of perjury were made available
to Milzman. This factual finding was clearly erroneous and is
VACATED. The district court did not make a finding regarding the
availability of the state trial transcripts containing the perjured
testimony. The appropriate factual findings regarding Crawford’s
No. 98-50626
-3-
state trial testimony should be made upon remand; Milzman’s
concomitant Brady argument, i.e., suppression of Crawford’s
perjury, can then be ruled upon.
Milzman argues that counsel was ineffective for failing to
convey to him a plea offer that he would have accepted. He relies
on the affidavit of David Botsford, his appellate counsel, which
affidavit was based on a secretly recorded telephone conversation
with the prosecutor, Steven Snyder. The transcript of the
telephone conversation indicates that although Snyder could not
recall the exact terms, Snyder believed he had offered to dismiss
the drug counts against Milzman in exchange for Milzman’s
cooperation and a guilty plea to the tax counts. Snyder admitted
he was desperate for witnesses at the time, and apparently, the tax
counts would have resulted in a three-year sentence as opposed to
the 235-month sentence that Milzman received for the drug
conviction. Milzman contends that his trial counsel never conveyed
such an offer to him, and an unsworn statement by Snyder suggests
that although a formal plea was never offered, it was due to
Milzman’s alleged refusal to cooperate and testify.
It is unclear from the record whether the fault lies with
Milzman’s trial counsel for failing to convey the offer, or with
Milzman for refusing to cooperate. When viewed together, the
telephone conversation and the unsworn statement of Snyder suggest
that Milzman’s counsel failed to convey to him the possibility of
a substantially reduced sentence in exchange for his cooperation
No. 98-50626
-4-
and testimony. Because such a failure on counsel’s part, if it
occurred, resulted in a much lengthier sentence for Milzman, he has
shown the requisite prejudice, as well as the possibility of
deficient performance. See Teague v. Scott, 60 F.3d 1167, 1170 (5th
Cir. 1995)(counsel’s failure to inform the defendant of a plea
offer may amount to ineffective assistance of counsel); Spriggs v.
Collins, 993 F.2d 85, 88 (5th Cir. 1993).
Milzman also argues that counsel was ineffective in his
discovery and cross-examination of Schneider and Crawford because
he failed to uncover a separate methamphetamine manufacturing
conspiracy, as well as Crawford’s prior perjury, with which he
could have impeached them. The telephone transcript on which
Milzman relies to support his argument that a plea offer was not
conveyed contains statements indicating that trial counsel was
deficient in his cross-examination of witnesses, and in his failure
to conduct sufficient discovery. Similarly, two affidavits
attached as exhibits to Milzman’s § 2255 motion indicate that
counsel may have been ineffective due to a drinking problem. The
district court’s denial of relief on Milzman’s ineffective-
assistance claim is therefore VACATED and this case is REMANDED for
resolution of the underlying factual issues of what transpired
regarding the possibility of a plea and whether counsel was
deficient in his discovery and cross-examination of witnesses.
Milzman has failed to make a substantial showing of the denial
of a constitutional right with regard to his absence during voir
No. 98-50626
-5-
dire. § 2253(c)(2). His motion to expand the COA to include this
issue is DENIED. His motion to supplement the record with the
transcript of the telephone conversation between Botsford and
Snyder is GRANTED.
AFFIRMED IN PART; VACATED AND REMANDED IN PART; MOTION TO
EXPAND COA DENIED; MOTION TO SUPPLEMENT RECORD GRANTED.