- 17 -
trial is required only if "'the court [is
left] with a firm belief that but for [the
erroneous exclusion], the defendant would most
likely not have been convicted.'" Wallach,
935 F.2d at 456 (quoting Sanders v. Sullivan,
863 F.2d 218, 226 (2d Cir. 1988)). We leave
this, and any other remaining issues as to the
effect of nondisclosure, to the judgment of
the district court.
Manko v. United States, 87 F.3d 50, 55 (2d Cir. 1996). As of the
release date of the opinion in this case, the District Court has not
rendered its decision.
G. Respondent's Suspension Letter
On June 22, 1988, Mr. Kletnick sent petitioner a letter
(suspension letter) stating that, at the request of the U.S.
Attorney's Office, the IRS was "suspending consideration of the
settlement" of petitioner's case until September 30, 1988.
Petitioner's counsel understood this letter only to mean that the
implementation of the settlement was deferred. Mr. Kletnick never
received a response to the suspension letter.
Prior to the issuance of the suspension letter, the IRS had
never treated the settlement of petitioner's case any differently
than the settlement of cases of the other Arbitrage Management
partners. Nor did the IRS ever advise petitioner that respondent
would treat petitioner's distributive share of Arbitrage Management
partnership losses as a nonpartnership item. At no time during the
settlement negotiations that preceded Ms. Kaplan's January 15, 1988,
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