- 202 -
strategies or confidential information to the Government. Cf.
Kersting v. United States, 865 F. Supp. at 671-674.
Mr. Izen had no knowledge, before and at the trial of the
test cases through the times that the Court issued the Dixon II
opinion and entered the initial decisions in the test cases, that
Messrs. Thompson and Cravens had entered into settlement
agreements with Mr. McWade.
OPINION
The Court of Appeals for the Ninth Circuit vacated this
Court's decisions in Dixon II and remanded the test cases for an
evidentiary hearing "to determine the full extent of the admitted
wrong done by the government trial lawyers." DuFresne v.
Commissioner, 26 F.3d at 107. The Court of Appeals, citing
Arizona v. Fulminante, 499 U.S. at 309, directed the Court to
consider "whether the extent of misconduct rises to the level of
a structural defect voiding the judgment as fundamentally unfair,
or whether, despite the Government's misconduct, the judgment can
be upheld as harmless error." Id. Further, the Court of Appeals
directed the Court to consider on the merits all motions of
intervention filed by parties affected by Dixon II. See id.
Pursuant to this last direction, the Court consolidated the cases
of three groups of petitioners to allow them to participate in
the evidentiary hearing: Test case and nontest case petitioners
represented by Mr. Izen, nontest case petitioners represented by
Mr. Jones, and nontest case petitioners represented by
Mr. Sticht.
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