Jerry and Patricia A. Dixon, et al - Page 212




                                       - 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