CYRIL ONWUASOANYA, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-28

   In the Supreme Court of the United States

   October Term, 1988

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

   Supplemental Memorandum for the United States

   Pursuant to Rule 22.6 of the Rules of this Court, the Solicitor
General respectfully files this supplemental memorandum to inform the
Court that on October 21, 1988, a check in the amount of the funds
that were seized from petitioner's bank account was delivered to
counsel for petitioner at the Office of the United States Marshal,
which had custody of the funds.  Because the property in question has
been returned to petitioner, there no longer is a live controversy in
this case over whether petitioner was entitled to file a motion under
Fed. R. Crim. P. 41(e) seeking the return of that property.  This
development removes any doubt that this case is moot.

   Petitioner stated in his reply brief (at 1-2), filed on October 18,
1988, that the seized funds had been placed by the Marshal's Service
in an interest-bearing account.  However, petitioner subsequently
informed the Clerk, by letter dated October 20, 1988, that this
statement was erroneous.  The Marshal's Service likewise has informed
us that the account in which the funds were deposited does not draw
interest.  Accordingly, if we assume for present purposes that Rule
41(e) applies in this setting, there can be no basis for a claim that
the property "returned" to petitioner under Fed. R. Crim. P. 41(e)
must include interest that was actually earned on the property while
it was in federal custody.

   It is unclear whether petitioner further argues that he is entitled
to be paid interest even though the funds did not actually earn
interest during the period that they were in federal custody.  But
even if petitioner's filings are understood to present such an
argument, that argument cannot be litigated in proceedings on a motion
for return of property under Fed. R. Crim. P. 41(e).  As a
jurisdictional matter, any claim to a money judgment representing the
interest that petitioner believes should be paid on the property must
be litigated in another forum, such as in the district court or the
Claims Court under 28 U.S.C. 1346(a)(2) or 1491 -- although, on the
merits, the United States would not in any event be liable for an
allegedly unauthorized or otherwise wrongful seizure of property.
Regional Rail Reorganization Act Cases, 419 U.S. 102, 127 n.16 (1974);
 Florida Rock Industries, Inc. v. United States, 791 F.2d 893, 899
(Fed. Cir. 1986), cert. denied, 479 U.S. 1053 (1987);  see also 28
U.S.C. 2680(c).  Accordingly, the matter of interest does not save
petitioner's claim under Fed. R. Crim. P. 41(e) from being moot.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   OCTOBER 1988