Jerry and Patricia A. Dixon, et al - Page 198




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          presenting their cases at trial.  In particular, our review of              
          the record convinces us that Mr. Izen, who represented                      
          petitioners in six of the eight test cases, was not impeded in              
          any sense by the Government misconduct in presenting his cases to           
          the Court.  Because Mr. Izen was aware before the trial that the            
          Government intended to rely on the so-called comfort letters at             
          the trial of the test cases, we are satisfied that Mr. Izen was             
          not unduly surprised by Messrs. Thompson's and Alexander's                  
          testimony that Mr. Kersting had assured them that they could                
          exchange their Kersting corporation stock certificates for the              
          cancellation of their promissory notes.113  Further, Mr. Izen was           
          prepared and permitted to cross-examine Messrs. Thompson,                   
          Cravens, and Alexander and to probe and expose the bases of                 
          Messrs. Thompson's and Alexander's hostility towards Mr.                    
          Kersting.  Considering all the facts and circumstances, we                  
          conclude that petitioners are not entitled to relief under rule             
          60(b) of the Federal Rules of Civil Procedure or Rule 161 or 162.           






          113  Mr. Izen testified at the evidentiary hearing that he                  
          was aware of the comfort letters because some of them were                  
          part of the stipulated record.  Further, Mr. Izen informed                  
          Mr. DeCastro before the trial of the test cases that he would               
          offer evidence of collection actions brought by various Kersting            
          companies against Kersting program participants to counter                  
          respondent's reliance on the comfort letters.  However,                     
          Mr. McWade was aware of collection litigation before the trial              
          because Mr. Kersting had encouraged certain program participants            
          to raise the point with Mr. McWade during pretrial settlement               
          discussions.                                                                

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