ONE LEAR JET AIRCRAFT, SERIAL NO. 35A-280, REGISTRATION NO. YN-BVO
AND LEYBDA CORPORATION, S.A., PETITIONERS V. UNITED STATES OF AMERICA

   No. 86-1725

   In the Supreme Court of the United States

   October Term, 1987

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

   Supplemental Memorandum for the United States in Opposition

   1. The government instituted this action for civil forfeiture under
8 U.S.C. (& Supp. IV) 1324(b), alleging that crewmembers of the Lear
Jet at issue in this case had made material misrepresentations on
their visa applications, within the meaning of 8 U.S.C. (Supp. IV)
1182(a)(19).  Petitioner Leybda Corporation is a Panamanian subsidiary
of a Nicaraguan coporation and, as the owner of the jet, challenged
the forfeiture.  The district court held that the pilot and
crewmembers of the jet had violated the statutory scheme through the
misrepresentations they made on their visa applications.  Accordingly,
the district court ordered the jet forfeited.  The court of appeals
affirmed the forfeiture judgment.  808 F.2d 765 (1987).  In doing so,
the court of appeals rejected the argument by petitioner Leybda
Corporation that the lower court erred by applying the wrong standard
of materiality in determining whether the misrepresentations satisfied
the statute.  The court of appeals also found that it had jurisdiction
to consider to matter even though the res in question, the Lear Jet
aircraft, had been removed by the government to Mississippi and was
therefore beyond the court's jurisdiction.  Removal of the plane
occurred only after Leybda failed to file a motion for a stay of
judgment with the district court or a supersedeas bond with the court
of appeals.  In addition, no stay was in effect under the automatic
stay provision, Fed. R. Civ. P. 62(a), which expired after ten days.

   2. Subsequently, the panel opinion was vacated and the case ordered
to be reheard before the court en banc.  831 F.2d 221 (1987).  Upon
reconsideration, which was limited to the jurisdictional issue, the
court issued a published opinion on February 11, 1988.  836 F.2d 1571
(1988) (en banc).  In that opinion the court observed that the
government had initiated this action under 28 U.S.C. 1345 and 1355.
The court found that there was no in personam jurisdiction over the
parties because the action was solely in rem.  As such, the court
concluded that the government was free to remove the aircraft once the
judgment became final and that there was no stay in effect preventing
the government from taking that action.  Because the res had been
removed from the jurisdiction of the court, the en banc court held
that it lacked jurisdiction to entertain Leybda's claim on the merits.

   3. Petitioners filed their petition with this Court prior to the
entry of the order of the en banc court vacating the panel opinion.
Accordingly, the petition addresses only the panel's ruling with
regard to the materiality of the statements leading to forfeiture of
the aircraft.  Because the court of appeals' judgment no longer rests
on the court's materiality ruling, further review of that issue is no
longer appropriate.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   MARCH 1988