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produce at least some substantive evidence indicating that
asserted benefits to the Thompsons are the result of the Thompson
settlement, at least when respondent is in the position of having
to prove the contrary. In this regard, it is appropriate for
petitioners to rely upon circumstantial evidence, although here,
as in other contexts, “‘mere suspicion or speculation does not
rise to the level of sufficient evidence’”. See United States v.
Dinkane, 17 F.3d 1192, 1196 (9th Cir. 1994) (quoting United
States v. Stauffer, 922 F.2d 508, 514 (9th Cir. 1990)).
Finally, we believe the factual issues regarding the
operative terms and scope of the Thompson settlement, now that
the existence and overall significance of the misconduct have
been determined, do not present policy considerations that
require a heightened standard of proof, such as the requirement
of “clear and convincing” proof of fraud imposed by our Rule
142(b) in deficiency cases, that we applied in Dixon III against
respondent in an earlier phase of these proceedings.
Accordingly, we hold that the quantum or level of respondent’s
burden is a “preponderance” of the evidence, the traditional
quantum or level of proof required under Rule 142(a) and the case
law thereunder.44 This is the same standard to which we and
44Petitioners have not sought to allocate the burden of
proof to respondent on the ultimate question of whether the
Thomson settlement is characterized as a 20-percent reduction in
deficiencies, plus the payment of the Thompsons’ legal fees, or
(continued...)
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