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UNITED STATES v. GOLDBERGER

October 27, 1993

UNITED STATES OF AMERICA
v.
ARON GOLDBERGER


GREEN


The opinion of the court was delivered by: JOYCE HENS GREEN

On October 6, 1992, a grand jury returned an indictment charging that defendant Aron Goldberger ("Goldberger") willfully and knowingly made a false statement in an application for a passport in violation of 18 U.S.C. ยง 1542. Subsequently, defendant filed a Motion to Dismiss the Indictment or, in the Alternative, to Suppress Evidence, which was opposed by the government, and a Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), evidentiary hearing was held. For the reasons stated below, Goldberger's motion to suppress is granted, however, the government will be afforded the opportunity to demonstrate an independent basis for its prosecution, failing which, the single count indictment will be dismissed.

 BACKGROUND

 I. Prior Proceedings

 In 1989, in the Circuit Court for Baltimore city, Goldberger's wife, Esther Goldberger, sought a divorce, child custody and child support from her husband. In the bitter dispute, which included allegations of child abduction, child abuse, and mental illness, Goldberger contested both the divorce and custody of the couple's six children. In light of the abduction allegations, Goldberger surrendered his United States passport in January 1991 to insure that he could not take his children to Israel during the pendency of the proceedings. The relinquishment of his passport was memorialized in an Order dated February 27, 1971 by Circuit Judge Hubbard, stating that "pending further Order of this Court, the Defendant will allow his passport(s) to remain in the custody and possession of his counsel. . . ." At the time a pretrial conference was held in March 1992, no future Order had been issued modifying the February 1991 Order.

 On March 4, 1992, in the midst of the state court proceedings, the case was placed on the docket for Judge Edward J. Angeletti ("the Judge") who held a pretrial conference. The matter commenced with an untranscribed conference in chambers between the Judge and the attorneys. At its conclusion, the attorneys *fn1" and the Judge entered the courtroom, where the Goldbergers were already present. Once seated, the Judge made some preliminary remarks regarding the upcoming trial, support payments, and a medical examination. In the course of these remarks, the Judge warned Goldberger that if he failed to pay the child support that he currently owed or was, in the future, late with payments, he would be incarcerated for contempt of court. Then, the Court forbade Goldberger from leaving the jurisdiction without prior approval, heard and denied Goldberger's motion for marriage counseling, and began to address Goldberger's motion to travel to Israel for his brother's wedding. The Judge commented that he had "been advised that since (Goldberger) was ordered not to leave the country and to turn in his American passport, he used his Israeli passport to leave the country. . . ." Transcript of Esther Goldberger v. Aron Goldberger, case no. 89333019/CE 105927 (Baltimore, Md. March 4, 1992) ("Maryland Transcript"), at 8. When asked for her position on Goldberger's motion to travel to Israel, Esther Goldberger's counsel, stated:

 
in light of the fact that Mr. Goldberger, when he's desperate, has taken the children before, just as a point, you had stated that he turn over his Israeli passport. I think to be more specific, the Court should make sure that Mr. Goldberger understands in case he has another American passport, or whatever he's using to exit the country, I'm not an expert on immigration, but I don't know what he used to go out of the country last time.

 Id. at 11. The Judge replied that Goldberger

 
has an Israeli passport, and you haven't heard a single protestation from him to the contrary and to what everything that I've said. And if he has any other passports, then he's in violation of American law, and he will be appropriately prosecuted for it.

 Id. The Judge thereupon stated: "I'll put the question point blank to him. Stand up, please, Mr. Goldberger. Raise your right hand and be sworn, sir." Id. at 12. The Judge proceeded to question Goldberger regarding his passport situation. Under oath, Goldberger admitted that he did not have an Israeli passport, instead he had earlier left the country with an American passport -- a duplicate of the one he had surrendered to his attorney in February 1991. That information was ascertained through the following colloquy between the Court and Goldberger:

 
Q. After you gave the passport to your counsel you testified under oath that you lied on a passport application that you lost the passport?
 
A. No, your Honor. It was lost to me.
 
Q. Mr. Goldberger, I'm not going to play semantical games with you sir. Answer my questions. You're an intelligent man. You're also very duplicitous and very devious, as I'm finding out. And my initial impression of you is absolutely correct. Now, did you in fact lie on your application to get a duplicate passport?
 
A. I didn't consider it lying.
 
Q. Did you tell something on the passport application under penalty of perjury that you lost the passport, when in fact, you did not?
 
A. It was lost to me.
 
Q. Mr. Goldberger, don't play semantical games with me, sir. Did you, in fact, misrepresent the truth on your duplicate passport application, sir?
 
A. I wrote that I lost it.
 
Q. Are you going to answer my question or not, sir? Are you going to finally start acting like a man, instead of like a baby and like a child? I'm waiting, sir.
 
A. I guess what your Honor is saying is correct.
 
Q. So did you lie on the application for a duplicate passport?
 
A. I didn't think I was ...

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