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as a matter of fact (the settlement did not exist) and as a matter
of law (if it did, rule 408 barred its admission).
On February 4, 1991, petitioner was convicted on multiple
counts of Federal income tax offenses for years 1982 and 1983 in
violation of section 7206(1) and (2), and conspiracy to defraud the
United States in violation of 18 U.S.C. section 371. Petitioner's
conviction and sentence were affirmed by the U.S. Court of Appeals
for the Second Circuit. United States v. Manko, 979 F.2d 900 (2d
Cir. 1992). The Supreme Court denied certiorari. 509 U.S. 903
(1993).
In August 1995, petitioner filed a petition to the District
Court to vacate his conviction, presenting newly discovered evidence
of the settlement; namely, the January 21, 1988, letter. According
to petitioner, this evidence was relevant to prove that the
Government had allowed the deduction of a substantial portion of the
losses that were the subject of the criminal proceeding.
The District Court denied petitioner's motion without a hearing
and affirmed its earlier conclusion that any evidence of the
purported civil settlements was inadmissible. Manko v. United
States, 95 Civ. 1611 (S.D.N.Y., Aug. 18, 1995). Petitioner appealed
the District Court's decision. The U.S. Court of Appeals for the
Second Circuit vacated the District Court's denial of petitioner's
motion, and stated:
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