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array, inasmuch as the remaining test cases provided full
coverage of the Kersting programs and taxable years in dispute.
Under the circumstances, we must weigh the impact of the
Government misconduct in the Cravens cases on two levels. First,
because Mr. McWade led Mr. Cravens to believe that he did not
need counsel at the trial of the test cases, we must consider
whether Mr. Cravens' pro se status (and attendant lack of
preparation and organization) was material to the outcome in the
trial of the test cases. Second, because Judge Goffe might
have removed the Cravens cases from the test case array if he had
known that they had been settled, we must consider whether Mr.
Cravens' testimony was material to the outcome in Dixon II. As
discussed in greater detail below, we are convinced that the
outcome in Dixon II would not have been different irrespective of
whether Mr. Cravens had been represented at trial by competent
counsel or whether Judge Goffe would have excluded Mr. Cravens'
testimony in its entirety.
i. Sham Analysis
We will assume that, but for Mr. McWade's interference,
Mr. Cravens would have appeared at the trial of the test cases
with counsel and testified (consistent with the testimony of the
other test case petitioners) that he participated in the Kersting
programs with a view towards making a profit and that his
promissory notes constituted genuine indebtedness. Nevertheless,
on the basis of our review of Dixon II, we are convinced that
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