On that date, the defendant moved for a new trial under Rule 33 based upon
newly discovered evidence, a claim of ineffective assistance of counsel.
On March 6, 2002, the Court directed that the parties appear for an
evidentiary hearing on the motion for a new trial. Between June 5, 2002
and July 2, 2002, the Court held a four day evidentiary hearing.
Thereafter, the Court permitted the parties to submit additional papers
in support of their respective positions.
B. The Clayton Tax Investigation
In or about March of 1999, the Criminal Tax Unit of the United States
Department of Justice (the "Tax Unit") began investigating Clayton for
failing to pay taxes in the total amount of $100,500 for years 1993, 1994
and 1995. Within a few weeks, the Tax Unit referred the matter to the
United States Attorney's Office for the Eastern District of New York.
During the government's investigation of Clayton, he represented four
individuals who were charged with crimes in the Eastern District of New
York. The last names of the individuals were: Garone, McKay, Okun and
Zangrillo. The McKay case was assigned to this Court. On May 27, 1999,
the government submitted a letter in McKay, apparently under seal,
requesting that the Court disqualify Clayton or conduct a Curcio
hearing. Clayton withdrew as soon as the letter was submitted and a
Curcio hearing was never conducted.
On February 24, 2000, Clayton pleaded guilty before United States
Magistrate Judge Arlene R. Lindsay to a misdemeanor information charging
him with failing to file a tax return for 1993. United States v.
Clayton, No. 00-83, at 11 (E.D.N.Y. Feb. 24, 2000). On September 7,
2000, United States Magistrate Judge Michael L. Orenstein sentenced
Clayton to three years of probation with two hundred hours of community
service. United States v. Clayton, No. 00-83, at 17 (E.D.N.Y. Sept. 7,
2000). Presently, Clayton owes back taxes, interest and penalties in
excess of $500,000 to the Internal Revenue Service (the "IRS") and
$176,000 to the New York State tax authorities. Pursuant to the plea
agreement, Clayton is negotiating with the civil authorities to pay his
C. The Disputed Material Facts
There were three areas of factual dispute presented to the Court: (1)
whether Clayton advised the defendant of his conviction and tax
problems; (2) whether Clayton advised the defendant of the plea
negotiations with the state and federal prosecutors; and (3) whether
Clayton advised the defendant of the mandatory life sentence if found
guilty of counts six and seven in the indictment.
1. As to Clayton's Conviction and Tax Problems
With regard to Clayton's tax conviction, the Court again notes that he
pleaded guilty to the misdemeanor charge of failing to file a tax return
on February 24, 2000. He was sentenced to probation on September 7,
2000. Also, Clayton is not cooperating with the government.
At the hearing, Clayton testified that shortly after his conviction in
February of 2000 the defendant told him that he read an article in
Newsday about his conviction for failing to file a tax return. Clayton
stated that he explained to the defendant that he made a mistake; that
his law license would not be affected; and that he hoped that the
defendant would continue to let him represent him. After this
explanation, the defendant acted graciously and stated that he still
wanted Clayton to represent him.
In particular, Clayton testified:
Q At the time of your plea, in other words, the next
day or shortly thereafter,
did you read about what had happened in the newspapers?
A I did, on the 23rd of February.