- 225 -
In sum, the record in these cases reveals a scheme by
Messrs. Sims and McWade to mislead the Court and manipulate the
test case procedure in a misplaced effort to enhance the already
overwhelming likelihood that respondent would prevail on the
merits of the Kersting adjustments and their continuing efforts
at the evidentiary hearing to cover up what they had done.
D. Discussion
Petitioners unanimously advance the view that the Government
misconduct should be considered a structural defect. We are
convinced that Messrs. Sims' and McWade's misconduct diluted the
adversarial character of the presentation of what the Court and
the other petitioners were led to believe were the Thompson and
Cravens test cases. To conclude, however, that the Government
misconduct resulted in a structural defect in the trial of the
test cases, one also must accept the proposition that the harm
caused by the Government misconduct pervaded and altered the
basic constitution of the trial mechanism in all the test cases.
As previously indicated, Messrs. Izen and Jones contend that
the Government misconduct in these cases includes the alleged
illegal search of Mr. Kersting's office and the issuance of
erroneous notices of deficiency. However, Messrs. Izen and Jones
disregard the fact that every court considering the matter has
rejected the contention that the search of Mr. Kersting's office
was illegal. See Kersting v. United States, 865 F. Supp. at 674-
675. In addition, the Court held in Dixon I that petitioners
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