Jerry and Patricia A. Dixon, et al - Page 174




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          B.   Discussion                                                             
               Whether the Government misconduct in these cases constitutes           
          reversible error as opposed to harmless error does not turn on              
          the "culpability of the prosecutor" but on whether nondisclosure            
          of the Thompson and Cravens settlements and the Alexander                   
          understanding was material to the outcome in Dixon II.  See Smith           
          v. Philips, 455 U.S. at 219; Brady v. Maryland, 373 U.S. at 87;             
          Mateyko v. Felix, 924 F.2d at 827-828; Chalmers v. City of Los              
          Angeles, 762 F.2d at 761-762.  We evaluate the impact of the                
          Government misconduct on the outcome in Dixon II on the basis of            
          the entire record.                                                          
               1.   Mr. Cravens                                                       
               Mr. McWade's settlement agreement with Mr. Cravens placed              
          a cap on the Cravenses' tax liabilities for 1979 and 1980.                  
          However, we have found that Mr. McWade deliberately misled                  
          Mr. Cravens regarding the nature and effect of his settlement.              
          In particular, Mr. McWade initially misinformed Mr. Cravens that            
          he could neither win nor lose at the trial of the test cases as             
          the basis for advising him that he need not retain counsel.                 
          Relying on this misinformation and bad advice, Mr. Cravens                  
          appeared at the trial of the test cases without counsel.  Mr.               
          Cravens was surprised when Mr. McWade informed him immediately              
          before his testimony at the trial of the test cases that he would           
          receive the better of his earlier settlement or a Tax Court                 
          decision in favor of the test case petitioners.                             



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