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U.S.C. section 371 and for willfully aiding or assisting in the
preparation or presentation of returns which were false or
fraudulent in violation of section 7206(2).
The criminal cases against Mr. Kilpatrick and Mr. O'Donnell
began in 1982 and continued through December 1989. This included
(1) an appeal to the U.S. Court of Appeals for the Tenth Circuit,
(2) a grant of certiorari by the U.S. Supreme Court (Supreme
Court), (3) a decision by the Supreme Court remanding to the
Federal District Court, (4) an acquittal by the Federal District
Court on 26 of the 27 counts, and (5) a dismissal of the 27th
count by the Department of Justice.
In 1985, the Court assigned the civil cases to Judge
Whitaker. Neither petitioner nor Mr. O'Donnell filed a motion to
calendar the GIG case.
Initially, respondent did not file a motion to calendar the
civil cases because the Government chose to conclude the criminal
cases against Mr. Kilpatrick and Mr. O'Donnell first. Respondent
chose this litigation strategy for several reasons. If
respondent had chosen instead to proceed first with the civil
cases, many of his potential witnesses at the civil trials might
have had legitimate Fifth Amendment claims as a result of the
ongoing criminal proceedings. Respondent also intended to use
information obtained in the ongoing grand jury proceedings in the
civil trials, to the extent permissible. Further, respondent
intended to call witnesses in the criminal trials who resided
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