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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.
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