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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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