Opposition Brief — Alexander v. United States

(3) FILE D

JUN 5 4997

No. 91-1526 : '

THE Cl nek

ae en

In the Supreme Court of the United States

OCTOBER TERM, 1991

FERRIS J. ALEXANDER, SR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the forfeiture provisions of the RICO

statute violate the First Amendment when the predicate

acts of racketeering are obscenity violations and the

forfeited property consists of the assets of a business

dealing in magazines and video cassettes.

2. Whether the forfeiture of petitioner’s property

resulting from his RICO convictions was disproportion-

ate to his crimes, in violation of the Eighth Amendment.

(I)

TABLE OF CONTENTS

Page

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ES ae 1

ee seuueonocansene 2

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TABLE OF AUTHORITIES

Cases:

Adult Video Ass'n v. Barr, No. 90-55252 (9th Cir. Mar.

EEE a ee 6, 8,9

City of Paducah v. Investment Entertainment, Inc., 791

F.2d 463 (6th Cir.), cert. denied, 479 U.S. 915 (1986) .... 8

4447 Corp. v. Goldsmith, 504 N.E.2d 559 (Ind. 1987) ....... 6

Entertainment Concepts, Inc., III v. Maciejewski, 631

F.2d 497 (7th Cir. 1980), cert. denied, 450 U.S. 919

IITITTTIIiiciadhi ali aracnseesideeaeeateibeatiamndiddiibeanetuansansendesenessenee s

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989)... 4,5, 6

Gayety Theaters, Inc. v. City of Miami, 719 F.2d 1550

en &

Harmelin v. Michigan, 111 S. Ct. 2680 (1991) ................. 10, 11

J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482

(9th Cir. 1984), rev’d sub nom. Brockett v. Spokane

Arcades, Inc., 472 U.S. 4912 (1985) .........cccccecceceeeeeeeeees 8

Kingsley Books, Inc. v. Brown, 354 U.S. 456 (1957) ........ 5

Near v. Minnesota, 283 U.S. 697 (1981) ......cccccccceeeeeeeees 6, 7

Rummel v. Estelle, 445 U.S. 263 (1980) ...0........cccccccceeeees 10

Simon & Schuster, Inc. v. Members of the New York

State Crime Victims Board, 112 S. Ct. 501 (1991) ......... 7

Smith v. California, 361 U.S. 147 (1959) .................0..000 5

Solem v. Helm, 463 U.S. 277 (1959) ..........cccccceceeceeeeneeneees 10, 11

State v. Bauer, 768 P.2d 175 (Ariz. Ct. App. 1988), cert.

SME TED EEC ccccccessococesencssssscessssssessesssess hI

(IIT)

IV

Cases Continued: Page

State v. Feld, 745 V.2d 146 (Ariz. Ct. App. 1987), cert.

is Ge ee Be I eaiirirttertiiicctintintnetiteeritiirnrinitaaians ~

United States v. Busher, 817 F.2d 1409 (9th Cir. 1987)... 11, 12

United States vy. Cauble, 706 F.2d 1322 (Sth Cir. 1983),

cert. denied, 465 U.S. 10065 (1984) .0........00..0ccc cece eece eee 6

United States v. Harris, 903 F.2d 770 (10th Cir. 1990)...” 11

United States v. Pryba, 900 F.2d 748 (4th Cir.), cert.

denied, 111. S. Ct. 306 (1990) .............ccccccceeeees %, 4, 5,6, 7, 11, 12

U/nited States v. Vriner, 921 F.2d 710 (7th Cir. 1991) ...... 1

Vance v. Universal Amusement Co., 445 U.S. 308 (1980). ~

Western Buisness Systems, Inc. v. Slaton, 492 F. Supp.

SI I i ea 6

Constitution and statutes:

U.S. Conat. :

ae ae Sideaien anctininaeiieiiele 3, 4,5, 7, 8,9

Amend. VIII (Cruel and Unusual Punishments 4,10

EE rire Aree Se en mats Than ili

Racketeer Influenced and Corrupt Organizations Act, 1

U.S.C. 1961 et seq.:

18 U.S.C, 1962(a) ......... peuapnduaddedsonepsenmnnsmmeusnanmiouseseese: 2

es II cticsinsiciiienrinilacaateeietilibiectebaninidtintealadinss 2

A suimeeoswabenmseveveameonegtes 2

Se? MERE ite MEEETITEIIED <dncenesituicinsinnsienenivibsentnndiniaiapoenunsiisntiiuadiaing 4

SP aati SUED ethicipecbsiaeibiastindneiiarienenipeninindaeipammatentttniimainaiaiinasi 2

SP Sees UNTIED cccecnsnssncsenscapusmesisinianiniaitienntinaniinbdibininasidaitiningiis 2

Sia TREE SETITTIED cnsiteicdeniiemerpsecnnnciinbitndiatiiininnaiianiientminidhiabimibianiaaniuiis 2

ee Es HEITIIIED ecrcnnsersenmnennnnsenpeornegmnennpionncsesiameatitanniaieas 2

Ae es TUTE ‘cinestctissuannnetetenncicnainisnntapenidatinas 2

In the Supreme Court of the Cuted States

OcTOBER TERM, 1991

No. 91-1526

Ferris J. ALEXANDER, SR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals, Pet. App. 1-26, is

reported at 943 F.2d 825. The opinion of the district

court, Pet. App. 27-124, is reported at 736 F. Supp.

968.

JURISDICTION

The judgment of the court of appeals was entered on

August 30, 1991. Pet. App. 163. A petition for rehear-

ing was denied on October 30, 1991. On February 19,

1992, Justice Blackmun extended the time for filing a

petition for a writ of certiorari to March 16, 1992, and

the petition was filed on that date. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

After a jury trial in the United States District

Court for the District of Minnesota, petitioner was

convicted on one count of conspiring to defraud the

United States by impeding the lawful functions of the

Internal Revenue Service, in violation of 18 U.S.C.

371; two counts of filing false income tax returns, in

violation of 26 U.S.C. 7206(1); one count of receiving

and using income derived from a pattern of racketeer-

ing activity, in violation of 18 U.S.C. 1962(a); one

count of conducting the affairs of an enterprise

through a pattern of racketeering activity, in vio-

lation of 18 U.S.C. 1962(c); one count of conspiring to

commit that offense, in violation of 18 U.S.C. 1962(d);

12 counts of transporting obscene material in inter-

state commerce for the purpose of sale or dis-

tribution, in violation of 18 U.S.C. 1465; six counts of

engaging in the business of selling obscene material,

in violation of 18 U.S.C. 1466; and one count of falsely

representing a social security number for the purpose

of impeding the IRS, in violation of 42 U.S.C. 408(g)(2)

(1988).

Petitioner was sentenced to a total of six years’

imprisonment, fined $100,000, and ordered to pay the

costs of the prosecution, his incarceration, and his

supervised release. In addition, the court ordered for-

feiture of petitioner’s interest in several pieces of

commercial real estate, his wholesale business and

retail book and video stores, and the bank accounts,

furniture, fixtures, and inventory of those businesses.

He was also ordered to forfeit $8,910,548.10, which

constituted the proceeds of his racketeering activity.

Pet. App. 145. The court of appeals affirmed.

1. Petitioner was in the “adult entertainment”

business for 30 years, selling magazines, showing

3

movies, and selling and leasing video cassettes. He

sold his products through retail stores, rental stores,

and theatres in several Minnesota cities. The mate-

rial was distributed to those stores from a central

warehouse operated by petitioner, where the ma-

terials were wrapped in plastic, priced, and boxed.

The sales of the sexually explicit materials generated

millions of dollars in annual gross receipts for

petitioner. Petitioner established sham corporations,

and he used false names and names of employees in

opening bank accounts, obtaining licenses, and

complying with various state and federal reporting

requirements. He also filed false tax returns in 1982

and 1983 that underreported his gross receipts by $2.7

million. Pet. App. 3-7; Gov’t C.A. Br. 17.

The four magazines and three video cassettes that

were the basis for the racketeering and obscenity

counts on which the jury convicted petitioner

contained graphic depictions of nude men and women

in groups of two or more engaging in heterosexual

and homosexual intercourse, fellatio, cunnilingus,

sodomy, and masturbation. The minimal conversation

in the videos was sexually explicit in nature. Gov't

C.A. Br. 17-18.

2. On appeal, petitioner contended that the forfei-

ture of nonobscene expressive material under the

forfeiture provision of the RICO statute violates the

First Amendment. Relying on the Fourth Circuit’s

decision in United States v. Pryba, 900 F.2d 748, cert.

denied, 111 S. Ct. 305 (1990), the court of appeals held

that forfeiture of such material under RICO does not

violate the First Amendment as long as “there is a

nexus established between the ill-gotten gains from

racketeering activity and the protected materials

forfeited.” Pet. App. 21. The court emphasized the

distinction between a prior restraint and a criminal

4

penalty imposed following a conviction for rack-

eteering. Id. at 21-22. While the court acknowledged

that the RICO forfeiture provisions could have some

chilling effect on the exercise of First Amendment

rights, the court explained that deterring the sale of

obscene materials is a “legitimate end” of anti-

obscenity laws, and that all criminal obscenity

statutes have some tendency to inhibit the

dissemination of nonobscene material. /d. at 22

(quoting Fort Wayne Boors, Inc. v. Indiana, 489 U.S.

46, 60 (1989)).

Petitioner also claimed that the forfeiture order

violated the Eighth Amendment's ban on cruel and

unusual punishments. The court of appeals rejected

chat claim, again in reliance on the Fourth Circuit's

decision in United States v. Pryba, 900 F.2d at 753,

756-757. The court noted that in Pryba the Fourth

Circuit held that the Eighth Amendment was not

violated by the forfeiture of a business with total

annual sales of $2 million, in which the forfeiture

resulted from the seizure of $105.30 of obscene

material. Pet. App. 24-25.

ARGUMENT

1. Petitioner contends that the forfeiture provi-

sions of the RICO statute, 18 U.S.C. 1963(a), violate

the First Amendment when the predicate acts are

obscenity violations and the property forfeited con-

sists of the assets of a business dealing in expressive

material, such as magazines and video cassettes. Pet.

14-26. That claim does not warrant review by this

Court.

This Court has held that obscenity violations may

serve as predicate acts for a conviction under state

racketeering laws. Fort Wayne Books, Inc. v. Indi-

anc, 489 U.S. 46 (1989). In Fort Wayne Books, the

h

Court acknowledged that the prison sentence and fine

authorized by the state RICO statute there at issue

were more severe than those authorized for a simple

obscenity offense and that, as a result, some book-

sellers might “practice self-censership and remove

First Amendment protected materials from their

shelves.” 489 U.S. at 60. But the Court went on to

observe that “deterrence of the sale of obscene

materials is a legitimate end of state anti-obscenity

laws, and our cases have long recognized the practical

reality that ‘any form of criminal obscenity statute

applicable to a bookseller will induce some tendency

to self-censorship and have some inhibitory effect on

the dissemination of material not obscene.’ ” /hid.

(quoting Smith v. California, 361 U.S. 147, 154-155

(1959)). Accordingly, the Court concluded that “[t|he

mere assertion of some possible self-censorship

resulting from a statute is not enough to render an

antiobscenity law unconstitutional.” /bid.

That analysis applies to the RICO forfeiture provi-

sions at issue here. No First Amendment principle

bars Congress from imposing a forfeiture penalty for

engaging in a pattern -acketeering activity

consisting of multiple obsc. violations. See Fort

Wayne Books, 489 U.S. at 60 (“[i]t is not for this

Court .. . to limit the [government] in resorting to

various weapons in the armory of the law”) (quoting

Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441

(1957)). A forfeiture penaity is no more “chilling”

than a prison sentence or fine. Indeed, if the indict-

ment had simply alleged obscenity offenses, petitioner

would have been subject to 60 years’ imprisonment

and a fine of $3 million. That penalty is far more

severe than the RICO forfeiture imposed here. See

United States v. Pryba, 900 F.2d at 756.

6

Furthermore, there is no merit to petitioner’s

argument that the forfeiture of racketeering-related

assets is impermissible where the forfeited property

is the assets of a business dealing in expressive

material. The purpose of the RICO forfeiture provi-

sions is to “divore[e] guilty persons from the

enterprises they have corrupted.” United States v.

Cauble, 706 F.2d 1322, 1350 (5th Cir. 1983), cert.

denied, 465 U.S. 1005 (1984). Expressive materials are

subject to forfeiture “not because of any likelihood of

obscenity, but because they were personal property

realized through or derived from crime.” Western

Business Systems, Inc. v. Slaton, 492 F. Supp. 513, 514

(N.D. Ga. 1980). As the Ninth Circuit recently stated

in Adult Video Ass’n v. Barr, No. 90-55252 (Mar. 12,

1992), slip op. 2563, “[djefendants simply have no First

Amendment right to use the profits and proceeds from

trafficking in obscenity to finance their constitution-

ally protected speech.” That the RICO predicate acts

are obscenity violations rather than, for example,

narcotics violations is irrelevant. In either case, the

purpose of the forfeiture is “not to restrain the future

distribution of presumptively protected speech but

rather to disgorge assets acquired through racke-

teering activity.” 4447 Corp. v. Goldsmith, 504 N.E.2d

559, 565 (Ind. 1987), rev’d on other grounds sub nom.

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46

(1989). Indeed, if bookstores, newsstands, publishing

houses, and the like were immune from forfeiture,

drug lords and other criminals would waste no time in

investing in those businesses and insulating their

criminal proceeds from seizure. Pryba, 900 F.2d at

755; Adult Video Ass'n, slip op. 2563.

Petitioner errs in relying on Near v. Minnesota,

283 U.S. 697 (1931). There, a Minnesota law provided

that the publication or sale of “malicious, scandalous

7

and defamatory” periodicals was a nuisance and could

be judicially enjoined. Near published a newspaper

that was found to be “malicious, scandalous and

defamatory,” and the state court issued a permanent

injunction against him, prohibiting him from conduct-

ing any further business under the name and title of

the newspaper. This Court held that the state

nuisance abatement law constituted a prior restraint

and violated the First Amendment. Jd. at 713. Un-

like the RICO forfeiture provisions, however, the

object of the statute in Near “[was] not punishment, *

* * but suppression of the offending newspaper or

periodical.” Jd. at 711.

Unlike the defendant in Near, petitioner is free to

engage in the production and distribution of any First

Amendment-protected material after the forfeiture.

Expressive material was forfeited not for the purpose

of suppressing it, but because it happened to

constitute an asset of a racketeering enterprise. As

the Fourth Circuit explained in United States v.

Pryba, 900 F.2d at 754-755, “Near has no application

to obscenity, and sheds no light” on the question of

the constitutionality of RICO forfeiture in obscenity

cases.

Nor is petitioner helped by Simon & Schuster, Inc.

v. Members of the New York State Crime Victims

Board, 112 S. Ct. 501 (1991). In that case, the Court

held unconstitutional New York’s “Son ef Sam” law,

which required that an accused or convicted crimi-

nal’s income from works describing his crime be

deposited in an escrow account to be made available to

the victims of the crime and the criminal’s other

creditors. The Court explained that the statute im-

permissibly created a financial disincentive to the

exercise of First Amendment rights by “singl[ing]

out income derived from expressive activity for a

8

burden the State places on no other income,” and by

targeting “only * * * works with a specified content.”

Id. at 508. The RICO forfeiture provisions, by

contrast, do not create a financial disincentive to

speak or write, nor do they target expressive activity

at all. They merely “preclude[] * * * defendant(s]

from using assets derived from [racketeering] to

subsidize future speech.” Adult Video Ass’n, slip op.

2563. Nothing in Simon & Schuster suggests that

that purpose is unconstitutional."

1 Petitioner cites several decisions invalidating other types

of state action aimed specifically at restricting expressive

activity, such as padlocking a business where obscenity offenses

occurred in the past or revoking a business license because of

an obscenity violation. E.g., Vance v. Universal Amusement

Co., 445 U.S. 308 (1980); City of Paducah v. Investment

Entertainment, Inc., 791 F.2d 463 (6th Cir.), cert. denied, 479

U.S. 915 (1986); Gayety Theatres, Inc. v. City of Miami, 719

F.2d 1550 (11th Cir. 1983); Entertainment Concepts, Inc., Hl

v. Maciejewski, 631 F.2d 497 (7th Cir. 1980), cert. denied, 450

U.S. 919 (1981); State v. Bauer, 768 P.2d 175 (Ariz. Ct. App.

1988), cert. denied, 493 U.S. 1042 (1990). None of those cases

bars the forfeiture of racketeering-related assets under the

RICO statute just because those assets happen to consist of

material protected by the First Amendment. Nor is petitioner

helped by State v. Feld, 745 P.2d 146 (Ariz. Ct. App. 1987),

cert. denied, 485 U.S. 977 (1988), in which a state court upheld

the constitutionality of the State’s RICO forfeiture provisions

but apparently limited their application to the obscene

materials themselves and to the proceeds of obscene material or

of other racketeering activity. One state court’s interpretation

of its own state law, which predated this Court’s decision in

Fort Wayne Books, obviously has little bearing here. Finally,

J-R Distributors. Inc. v. Eikenberry, 725 F.2d 482 (9th Cir.

1984), which petitioner also cites, was reversed on standing

grounds by this Court sub nom. Brockett v. Spokane Arcades,

Inc., 472 U.S. 491 (1985), and therefore has no precedential

value.

9

A few days before this petition was filed, the Ninth

Cireuit decided Adult Video Ass’n v. Barr, supra,

which addressed the question whether RICO’s post-

trial forfeiture provisions violate the First Amend-

ment. The court held that “[blecause a RICO forfei-

ture occurs only after a criminal trial on the obscen-

ity issue, with its full panoply of procedural

protections, the forfeiture represents punishment for

engaging in obscenity rather than a prior restraint.”

Slip op. 2561. Although the court concluded that

“the authorization of a forfeiture does not by itself

render the RICO statute unconstitutional,” id. at

2564, it went on to say that “the current breadth of

RICO’s forfeiture provision cannot pass constitu-

tional muster,” id. at 2565. The court explained that

the government can forfeit “assets actually used in

connection with the obscenity offense—that is, used

to produce, market, or move obscenity through inter-

state commerce.” Jd. at 2565-2566. The court also

explained that the government may also forfeit

“assets and interests substantially financed, directly

or indirectly, by the proceeds of criminal activity.”

Id. at 2566. But, according to the Adult Video

court, “those assets or interests of the defendant

invested in legitimate expressive activity being

conducted by parts of the enterprise uninvolved or

only marginally involved in the racketeering activity

may not be forfeited.” Jbid.

For the reasons discussed above, we take issue with

the Ninth Circuit’s holding thatthe breadth of

RICO’s forfeiture provisions is incompatible with the

First Amendment, and we have filed a petition for

rehearing and a suggestion for rehearing en banc

with the Ninth Circuit challenging that holding.

Nonetheless, even if the Ninth Circuit adheres to the

panel’s decision in the Adult Video case, there is no

10

need for review by this Court, because it is not clear

that the Ninth Circuit would upset the forfeiture

order entered in this case. Adult Video involved only

a facial attack on RICO’s forfeiture provisions; the

court explicitly left “for the district courts the

specific formulation of RICO forfeiture orders that

are consistent with the First Amendment, in light of

the particular facts presented in individual cases.”

Slip. op. 2566. In the forfeiture order entered in this

case, the district court found that all of the forfeited

property constituted proceeds of racketeering activ-

ity, substantially facilitated the racketeering activ-

ity, or “supported the RICO scheme by providing the

means and methods of transporting and selling

obscene materials.” Pet. App. 159. Such an order of

forfeiture does not appear to fall outside the permissi-

ble scope of forfeiture even under the Ninth Circuit's

decision in Adult Video.

2. Petitioner also challenges the forfeiture portion

of his sentence under the Eighth Amendment Cruel

and Unusual Punishments Clause. He does not chal-

lenge his six-year term of imprisonment, nor does he

attack his fine or the requirement that he pay the

costs of his incarceration and supervised release.

Instead, he argues that the amount of the RICO

forfeiture rendered it unconstitutional. Pet. 26-29.

That claim does not warrant further review.

This Court recently explained that “the Eighth

Amendment does not require strict proportionality

between crime and sentence. Rather, it forbids only

extreme sentences that are ‘grossly disproportionate’

to the crime.” Harmelin v. Michigan, 111 8S. Ct.

2680, 2705 (1991) (Kennedy, J., concurring in part and

concurring in the judgment) (quoting Solem v. Helm,

463 U.S. 277, 288 (1983)); id. at 2684-2701 (opinion of

Scalia, J.). What is more, “{oJutside the context of

1]

capital punishment, successful challenges to the

proportionality of particular sentences [will be]

exceedingly rare.” Solem v. Helm, 463 U.S. at 289-

290 (quoting Rummel v. Estelle, 445 U.S. 263, 272

(1980)). A “reviewing court rarely will be required to

engage in extended analysis to determine that a

sentence is not constitutionally disproportionate,”

Solem, 463 U.S. at 290 n.16; “intra- and inter-jurisdic-

tional analyses are appropriate only in the rare case

in which a threshold comparison of the crime commit-

ted and the sentence imposed leads to an inference of

gross disproportionality.” Harmelin, 111 S. Ct. at

2707 (Kennedy, J., concurring in part and concurring

in the judgment).

The court of appeals correctly held that the

forfeiture of petitioner’s property was not unconsti-

tutionally disproportionate to his crimes. As this

Court has explained, courts “should grant substantial

deference to the broad authority that legislatures

necessarily possess in determining the types and

limits of punishments for crimes.” Solem, 463 U.S. at

290. Congress has concluded that petitioner’s of-

fenses are serious. Under the penalties that

Congress has set, petitioner’s predicate obscenity

offenses alone could have been punished by 60 years’

imprisonment and a fine of $3 million. In this light,

the RICO forfeiture falls clearly within Eighth

Amendment bounds. See United States v. Pryba, 900

F.2d at 756-757.

Petitioner’s reliance on United States v. Busher,

817 F.2d 1409 (9th Cir. 1987); United States, v. Har-

ris, 903 F.2d 770 (10th Cir. 1990); and United States v.

Vriner, 921 F.2d 710 (7th Cir. 1991), is unavailing. In

those cases, the courts of appeals themselves con-

ducted a proportionality analysis, or remanded the

case to the district court for it to perform such an

12

analysis, in order to determine whether the interest

ordered forfeited was so grossly disproportionate to

the offense as to violate the Eighth Amendment. It is

doubtful that those courts would have required a

proportionality analysis in this case, however, since

petitioner did not make out a prima facie case that the

forfeiture was excessive. In fact, the court in Busher

noted that a proportionality analysis need be con-

ducted only if the defendant has made a prima facie

showing that a forfeiture may be excessive. 817 F.2d

at 1415. Petitioner did not even attempt to make a

proffer in the district court as to the value of the

forfeited assets, Gov’t C.A. Br. 56, and there is no

record evidence to support his claim, Pet. 26, that the

value of his business was $25 million. Accordingly,

here, as in United States v. Pryba, 900 F.2d at 757,

even if proportionality review otherwise would have

been appropriate, petitioner has “failed to proffer the

information that would be required for such an

undertaking.” Moreover, as noted above, the district

court found that all of the forfeited property consti-

tuted proceeds of racketeering activity, substantially

facilitated the racketeering activity, or “supported

the RICO scheme by providing the means and

methods of transporting and selling obscene materi-

als.” Pet. App. 159. Ordering that property forfeited

is not grossly disproportionate to petitioner’s crimes

under the cases he cites.*

2 It appears likely that the value of the forfeiture will be

significantly less than petitioner now estimates. Of the 15 bank

accounts forfeited, all but a handful had been closed at the time

of the forfeiture, and those still active had either a negligible or

negative balance. Eighteen of the forfeited business entities

were essentially the same entity, representing the different

names used by petitioner over the years for his sole proprietor-

ship. The value of the tangible assets has yet to be determined

13

CONCLUSION

The petition for a writ of certi i

4 iorari should be

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

JUNE 1992

but it appears likely that it will fall well short of petitioner's

estimate. Gov't C.A. Br. 45.