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exception, petitioner objects to the application of collateral
estoppel on the ground that the judgment in the prior case was
obtained by perpetrating fraud upon the court. On brief,
petitioner identifies two instances of what he claims was fraud
perpetrated on the District Court. First, petitioner claims that
during Kersting (Consolidated Cases), the Government used grand
jury material obtained in violation of Rule 6(e) of the Federal
Rules of Criminal Procedure and deceived the court about the
origin of that material. Second, petitioner claims that the
Government impermissibly used a John Doe summons to identify
petitioner's tax liability and subsequently deceived the court
about this purpose.
Petitioner's allegations of fraud upon the court concern
allegedly false statements or representations made by the
Commissioner's agents or counsel for the Government either prior
to or during the trial of Kersting (Consolidated Cases).
Petitioner's claims of fraud on the court have previously been
considered and rejected by the District Court. See Kersting v.
United States, 865 F. Supp. 669, 671-676 (D. Haw. 1994)(wherein
the court rejected petitioner's claim the Government improperly
used grand jury materials); United States v. Kersting, 891 F.2d
1407, 1411-1413 (9th Cir. 1989)(wherein the District Court
5(...continued)
318, 327 (9th Cir. 1988).
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