- 283 - VI. Mr. Izen's Allegations That Mr. DeCastro Was a "Mole" Mr. Izen created the strong impression, in oral argument before the Court of Appeals for the Ninth Circuit in the DuFresne appeal, that Mr. DeCastro had acted as a "mole" or "plant" for the Internal Revenue Service before and during the trial of the test cases. Mr. Izen returned to this subject in his opening brief following the evidentiary hearing, which argues: Any advantage gained by the Commissioner in utilizing DeCastro to "infiltrate" the test case Petitioners' camp is grounds for a new trial, standing alone. This would be so, in the civil, as well as a criminal context. Sims and McWade unlawfully paid DeCastro's attorney's fees in a successful effort to subvert the test cases. They inserted DeCastro into the Petitioners' camp. They converted what should have been a taxpayer's advocate into a government operative. All of the Petitioners' interests were harmed by this infiltration, since it prevented the cases from being "fairly" tried. [Citations omitted.] Although we agree that it was improper for the Government to use Mr. Thompson as a conduit to pay Mr. DeCastro's attorney's fees, there is no credible evidence in the record that Mr. DeCastro acted as a Government "mole" during the trial of the test cases or that Mr. DeCastro conveyed any of Mr. Izen's trial strategies or confidential information to the Government. Accordingly, we reject Mr. Izen's argument that Mr. DeCastro's misconduct, standing alone, or in conjunction with the misconduct of Messrs. McWade and Sims, warrants a new trial of the test cases, or a trial of any other cases in the Kersting project group on the issues that were tried on the test cases, for that matter.Page: Previous 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 Next
Last modified: May 25, 2011