               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this opinion should not be published and is not precedent except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
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                                  -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.
