CAPLIN & DRYSDALE, CHARTERED, PETITIONER V. UNITED STATES OF
   AMERICA

   No. 87-1729

   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 Fourth Circuit

   Supplemental Brief for the United States

   Pursuant to Rule 22.6 of the Rules of this Court, the Solicitor
General files this supplemental brief to call the Court's attention to
two decisions of other courts of appeals that address issues closely
related to those presented by the petition for a writ of certiorari in
this case.  In our brief in opposition to the certiorari petition,
which was filed on June 9, 1988, we urged the Court to deny the
petition, primarily because there was no firm conflict among the
circuits on the statutory and constitutional issues presented.  See
Br. in Opp. 8-9.  Since that time, however, the Second Circuit,
sitting en banc, has rendered its sharply divided decision in United
States v. Monsanto, No. 87-1397 (July 1, 1988), and a panel of the
Eighth Circuit has rendered a decision in United States v. Unit No. 7
& Unit No. 8 of Shop in the Grove Condominium, etc. (Kiser), No.
87-2499 (Aug. 5, 1988), petition for rehearing en banc pending (filed
Sept. 16, 1988).  On September 14, 1988, we filed a petition for a
writ of certiorari to review the judgment of the en banc Second
Circuit in the first of these cases.  United States v. Monsanto,
petition for cert. pending, No. 88-454.  We believe that in light of
the decisions in Monsanto and Kiser, the Court should grant certiorari
in the present case as well.

   1. The en banc Second Circuit held in Monsanto:  (i) that a
pretrial restraining order that has the effect of preventing the
defendant from retaining counsel of his choice must be vacated or
modified to the extent necessary to permit the defendant to pay
legitimate (i.e., non-sham) attorney's fees, and (ii) that any fees
actually paid to an attorney will thereafter be exempt from forfeiture
under 21 U.S.C. (Supp. IV) 853(c), even if the defendant is
subsequently convicted and the jury returns a special verdict finding
that the assets were the proceeds of his illegal drug activities.  The
en banc court's disposition was set forth in a brief per curiam
opinion (Monsanto, slip op. 4743-4746), which was followed by eight
separate opinions concurring in or dissenting from that disposition.

   Eight of the twelve judges on the en banc court voted to vacate the
restraining order, but they were divided on their reasons for doing
so.  Three judges concluded that Section 853 does provide for the
forfeiture of assets that the defendant wishes to use to pay his
attorney, but that the statute is unconstitutional under the Sixth
Amendment to the extent it does so.  Monsanto, slip op. 4746-4750
(opinion of Feinberg, C.J.).  /1/ Three other judges declined to reach
the Sixth Amendment issue, because they concluded that the statutory
provision authorizing the issuance of a pretrial restraining order, 21
U.S.C. (Supp. IV) 853(e)(1), should be construed to exempt all
"ordinary" expenditures (including those for attorney's fees), and
that assets actually transferred to an attorney as payment of
attorney's fees must thereafter be exempt from forfeiture under 21
U.S.C. (Supp. IV) 853(c).  Monsanto, slip op. 4753-4766 (opinion of
Winter, J.).  The two remaining judges in the majority concluded that
Section 853 does not exempt assets used to pay attorney's fees and
that application of the statute in this manner would not violate the
Sixth Amendment if the government established at an adversarial
hearing that there was a likelihood that the jury would find the
property in question to be the proceeds of the defendant's illegal
drug activities;  but those two judges concluded that Section
853(e)(1)(A) does not permit a district court to hold such a hearing.
Monsanto, slip op. 4766-4768 (opinion of Miner, J.).  /2/

   The decision of the en banc Second Circuit in Monsanto squarely
conflicts with the ruling by the Tenth Circuit in United States v.
Nichols, 841 F.2d 1485 (1988), which sustained a pretrial restraining
order that had the effect of preventing the defendant from using the
restrained assets to pay his attorney.  The decision in Monsanto also
is in tension with the en banc decision of the Fourth Circuit in the
instant case, which rejected statutory and constitutional claims that
attorney's fees are exempt from forfeiture.  For these reasons, and
because questions concerning the application of the forfeiture
statutes in this setting are important and recurring, we have filed a
petition for a writ of certiorari to review the judgment of the en
banc Second Circuit in Monsanto.

   2. In Kiser, the Eighth Circuit did not resolve the question
whether the Sixth Amendment would absolutely bar the forfeiture of
assets that the defendant wishes to use to pay an attorney.  The panel
instead held that the property in question, which had been restrained
in parallel civil forfeiture proceedings, must be transferred to
defense counsel, because the government had not established at an
adversarial hearing that there was a likelihood that the property
would be found by the jury in the criminal prosecution to be forfeited
to the United States.  The panel further held that the property would
thereafter be exempt from forfeiture even if the defendant is
ultimately convicted.  /3/

   3. As we explain in the petition for a writ of certiorari in
Monsanto, /4/ in light of these recent development, we believe that
the statutory and constitutional questions arising from the
application of the forfeiture statutes to assets that are used (or to
be used) to pay an attorney warrant review by this Court.  We urge the
Court to grant the petition in Monsanto because of the square conflict
between the Second Circuit's decision in that case and the Tenth
Circuit's decision in Nichols concerning the circumstances in which a
district court may enter a pre-conviction restraining order that has
the effect of preventing the defendant from transferring assets to a
lawyer in payment of attorney's fees.

   By contrast, although the district court also entered a
pre-conviction restraining order in this case, defendant Reckmeyer
pleaded guilty before the district court ruled on his motion to vacate
that order, and he accordingly had no occasion to appeal it.  Nor was
the restraining order subject to review by the Fourth Circuit on the
government's appeal of the district court's order granting petitioner
Caplin & Drysdale's application for payment of its attorneys' fees out
of the forfeited estate.  The instant case therefore does not present
the Court with an occasion to consider questions concerning the
propriety of and the procedural prerequisites to the issuance of
restraining orders in this setting.  Moreover, because petitioner
Caplin & Drysdale chose to remain as counsel for defendant Reckmeyer
despite the risk that it would not be paid, this case does not present
an occasion for the Court to consider the constitutionality of Section
853 where it actually has had the effect of deterring the defendant's
counsel of choice from representing him in the prosecution.  For these
reasons, we do not believe that this case would be a suitable vehicle,
standing alone, for resolution of several of the important
constitutional and statutory issues that have arisen in this general
area.  We therefore have asked the Court to review the Second
Circuit's decision in Monsanto to address those issues.

   At the same time, however, we believe that the instant case would
be a good companion to Monsanto, and we therefore urge the Court to
grant the petition in this case as well and to consolidate it with
Monsanto for purposes of oral argument.  Monsanto involves a
pre-conviction challenge by the defendant to a restraining order that
has the effect of temporarily barring the defendant from transferring
assets to his attorney, while this case involves a post-conviction
motion by counsel to receive payment of their fees out of assets that
already have been finally determined by the district court to be the
illegal proceeds of (or otherwise associated with) the defendant's
illegal drug activities.  In our view, the Court's consideration of
the full range of statutory and constitutional issues that have arisen
in the lower courts would be assisted by having before it two cases
that are in these different postures and involve parties who have
somewhat different perspectives.  We note as well that if the Court
were to grant certiorari only in Monsanto and then affirm the judgment
of the Second Circuit on grounds that pertain only to the issuance of
a pretrial restraining order, the Court's decision would not control
this case.  Although we argue in Monsanto that the judgment of the
Second Circuit should be reversed -- a disposition that, a fortiori,
would establish the correctness of the Fourth Circuit's judgment in
this case -- the possibility that the Court could find the differences
between the two cases to be significant for purposes of statutory or
constitutional analysis leads us to conclude that it would be
appropriate for the Court to grant review in both.  /5/

   For the foregoing reasons, the petition for a writ of certiorari
should be granted and the case should be consolidated for purposes of
oral argument with United States v. Monsanto, petition for cert.
pending, No. 88-454 (filed Sept. 14, 1988).

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   SEPTEMBER 1988

   /1/ All citations are to the amended opinion of the en banc court
of appeals.  The amended opinion only changed the order of the
separate opinions concurring in or dissenting from the court's per
curiam opinion;  the content of the separate opinions, as originally
issued on July 1, 1988, was not amended.

   /2/ Judges Mahoney, Cardamone, Pierce, and Pratt each filed a
separate dissenting opinion (slip op. 4769-4790).

   /3/ On September 16, 1988, the United States filed a petition for
rehearing, with suggestion for rehearing en banc, in Kiser.  In that
petition, we requested the en banc court either to address the
question whether the Sixth Amendment absolutely bars application of
the forfeiture statutes in this setting, or at least to remand the
case to the district court in order to afford the government an
opportunity to make the showing that the panel had held to be
required, since that issue had not been raised in the district court.
In the event the court was not prepared to grant that relief, however,
we asked the en banc court to hold the rehearing petition and to
dispose of it in light of this Court's disposition of the petition for
a writ of certiorari in Monsanto.

   /4/ We have furnished petitioner Caplin & Drysdale with a copy of
the certiorari petition in Monsanto.

   /5/ The decision of the en banc Fourth Circuit in this case
conflicts with United States v. Jones, 837 F.2d 1332 (5th Cir. 1988),
which held that defense counsel may recover fees out of assets that
have already been declared forfeited to the United States.  However,
as we have pointed out (Br. in Opp. 9 & n.7), the Fifth Circuit has
granted the government's petition for rehearing en banc in Jones.
Oral argument on rehearing en banc in Jones was held on September 19,
1988.