United States v. Tashman

• Decision Date: 18 May 1973
• Docket Number: No. 72-2273.,72-2273.
• Citation: 478 F.2d 129
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen Irving TASHMAN and Andrew Goldberg, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

478 F.2d 129 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Stephen Irving TASHMAN and Andrew Goldberg, Defendants-Appellants.

No. 72-2273.

United States Court of Appeals, Fifth Circuit.

May 18, 1973.

Daniel S. Pearson, Arthur B. Cunningham, Philip T. Weinstein and Bruce S. Rogow, Miami, Fla., for defendants-appellants.

Robert W. Rust, U. S. Atty., Barbara E. Vicevich, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and WISDOM and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

Andrew Goldberg and Stephen Tashman, appellants, along with Ronald Osbrach, codefendant, were jointly indicted for violations of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2. Count I charged conspiracy to possess, with intent to distribute, quantities of marijuana. Count II charged possession of 140 pounds of marijuana with intent to distribute.

The case was called for trial on May 17, 1972. Prior to empanelling the jury, the district judge, on request of counsel for codefendant Osbrach, ordered that the courtroom be cleared except for Osbrach, his counsel and counsel for the Government. Counsel for Goldberg and Tashman requested that the district judge allow him to remain in the courtroom, but his request was denied.

The courtroom was then cleared as ordered and the following proceedings were conducted: Counsel for Osbrach announced that in agreement with the Government for a joint recommendation to the court, Osbrach would plead guilty to Count I of the indictment. The recommendation, which was subsequently honored by the court, was for a sentence to two years' probation under the Youth Corrections Act, 18 U.S.C. § 5005 et seq., contingent upon Osbrach's change of plea, his testimony against his codefendants Goldberg and Tashman, and the giving by him of "valuable" information to the Government. After having ascertained that Osbrach's plea of guilty was voluntary, the district judge at the request of counsel for Osbrach ordered the transcript of the proceedings sealed.¹ The case was then again called for trial and the district judge explained to the jury that they were to disregard the fact that Osbrach was named in the indictment as a defendant. The jury subsequently found appellants guilty on both counts. Goldberg was sentenced to four years on each count and Tashman to thirty months on each count, sentences of both defendants to run consecutively. This appeal followed. We reverse and remand for a new trial because of the "secret" proceedings referred to from which appellants and their counsel were excluded, and which we hold resulted in substantial prejudice to the rights of appellants.

On March 26, 1972, Goldberg, Tashman and Osbrach were arrested by United States Customs Agents at an airport at Homestead, Florida. Goldberg had arrived at the airport in a Cadillac. Tashman and Osbrach were occupying a Dodge Charger. The federal agents observed the transfer of three large bundles from an aircraft parked on the airstrip to the trunk of the Cadillac. They then saw Osbrach leave the Dodge and approach the Cadillac. All three defendants were then arrested. The bundles, one of which was observed on the front seat of the Cadillac, contained marijuana.

Goldberg and Tashman both testified at the trial. Osbrach also testified but as a Government witness, according to the agreement reached during the secret proceedings. Goldberg's defense was based principally on the theory that his participation in the events at the airport was the result of his honest belief that he was assisting the Government as a special employee or undercover agent. He testified that within the three months preceding his arrest he had on various occasions in New York, Maryland, Virginia and Toronto, Canada, been used by the Government in its investigations of drugs and counterfeit checks. Not only was this testimony not disputed, it was substantially corroborated by the testimony of United States Customs Agents Murphy and Woods, called by the Government as rebuttal witnesses. Agent Murphy testified that he had spoken by telephone with Goldberg about four or five days prior to the arrest herein, that the subject of the conversation was the interception of marijuana at Miami, that Goldberg asked for the name of an agent in Miami to contact in the event that there was "something doing," and that as a result of that conversation Murphy telephoned Agent Scrip in Miami. Scrip testified that he called Goldberg on March 22 as a result of Murphy's call to Scrip's office concerning Goldberg. Agent Woods testified that Goldberg asked that he accompany him to Miami in connection with a marijuana transaction. Goldberg testified that records, tapes and photographs were made by the Government of his meetings with "contacts."

Goldberg also defended on the ground of entrapment. Tashman defended on the theory that he was assisting Goldberg, although reluctantly, in his efforts to cooperate with the Government. Osbrach's testimony in essence placed both appellants in the role of purported buyers of the imported marijuana with intent to distribute.

Appellants' counsel contend that prior to the trial defense counsel was not informed that an agreement had been reached between the Government and Osbrach during the secret proceedings and that consummation of the Government's part of the agreement was contingent upon the value of Osbrach's testimony against appellants. The Government contends that defendants were not entitled to the information and the nature of the closed proceedings and then inexplicably avers that appellants' counsel knew, in toto, what transpired at Osbrach's plea. The action of counsel for Osbrach and the Government, acquiesced in by the trial court, was so prejudicial to appellants as to require a new trial. Being unaware of what had occurred behind the closed doors of the courtroom, appellants had no effective way of combating the damaging testimony elicited by the Government from Osbrach. Faced with an apparent hostile witness, defense counsel elected to forego cross-examination of Osbrach. As the Supreme Court said in Napue v. People of the State of Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959), "The jury's estimate of the truthfulness and...