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defendants' conversations that had never been played in open
court. In Riley v. Deeds, 56 F.3d at 1119, the Court of Appeals
held that there was a structural defect in a criminal trial in
which, in the trial judge's absence, the trial judge's law clerk
convened the court and permitted the court reporter to read back
part of the victim's testimony to the jury. Considering the
obvious distinctions between the errors of omission of the trial
judges in the jury trial cases relied upon by Mr. Sticht, and
Judge Goffe's role in the trial of the test cases, we reject Mr.
Sticht's structural defect argument.
We likewise reject Mr. Sticht's argument that a structural
defect occurred by reason of respondent's failure to inform
nontest case petitioners who signed piggyback agreements that
two test case petitioners had received contingent settlements.
Although Mr. Sticht characterizes this failure as a structural
defect, Mr. Sticht's argument amounts to little more than a
breach of contract theory--a matter we address more fully below.
In any event, we restate our earlier conclusion that the trial of
the test cases served its fundamental function as the vehicle for
redetermining the tax liabilities of Mr. Izen's test case
petitioners to embrace the broader proposition that the nontest
case petitioners who signed piggyback agreements received what
they bargained for, an opinion and a series of decisions on the
merits in Dixon II that covers a broad array of Kersting programs
for the taxable years 1975 through 1983.
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