ROBERT M. ADLER, PETITIONER V. UNITED STATES OF AMERICA

   EDWARD HELLER, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-2004, No. 88-7439

   In the Supreme Court of the United States

   October Term, 1988

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

   Memorandum for the United States in Opposition

   Petitioners contend that the court of appeals erred in reversing an
order dismissing an indictment against them.

   1. On July 26, 1984, petitioners were charged in an 11-count
indictment returned in the United States District Court for the
Southern District of Florida.  The indictment charged both petitioner
Heller, the promoter, and petitioner Adler, a lawyer, with five counts
of mail fraud, in violation of 18 U.S.C. 1341.  Petitioner Heller was
also charged with four counts of transporting fraudulently obtained
property through interstate commerce, in violation of 18 U.S.C. 2314,
and two counts of making false statements on his income tax returns,
in violation of 26 U.S.C. 7201.

   The charges against petitioners are described in the opinion of the
court of appeals (Adler Pet. App. 2a-8a).  Briefly, the indictment
charged that between 1976 and 1979, petitioners devised a scheme to
defraud investors and the Internal Revenue Service by creating and
selling limited partnerships in a company that was ostensibly engaged
in buying and selling shrubbery.  The partnerships, if they had
functioned as represented, would have generated tax deductions in
excess of the cash contribution by each limited partner.  The validity
of the deductions depended in part upon the validity of a series of
monetary transactions on December 17, 1979, including loans made to
the partnership by Fin Serve, an entity under petitioner Heller's
control.  Clariden Bank of Zurich, Switzerland, loaned the cash to Fin
Serve that Fin Serve loaned to the partnerships.  If the loans lacked
economic substance, the limited partners' claimed deductions would not
be respected for tax purposes.

   On January 20, 1987, the district court dismissed the five mail
fraud counts and three of the fraudulently obtained property counts
following an evidentiary hearing at which several Swiss and American
banking experts testified.  Pet. App. 20a-33a.  The court found that,
as a matter of Swiss banking law, the loans from Clariden Bank to Fin
Serve were real and not fictitious and that the funds that circled
among the parties on December 17, 1979, were not fictitious but real.
Accordingly, the district court concluded that as a matter of law the
allegations of the indictment could not be proved.  Alternatively, the
district court ruled as a matter of law that neither petitioner could
have formed the requisite criminal intent, because the absence of any
Internal Revenue Service statement or court opinion condemning similar
schemes and the conflicting opinions of tax experts demonstrated legal
uncertainty as to the tax consequences of the scheme.

   2. The court of appeals reversed (Adler Pet. App. 1a-15a),
concluding that the district court's findings about Swiss banking law
were irrelevant to the legal sufficiency of the indictment.  The court
held that the indictment adequately alleged that petitioners sought to
defraud the limited partners and the Internal Revenue Service by
representing that the Fin Serve loans could enable the partners to
realize a tax benefit, and that a jury could find that petitioners
defrauded the partners and the Service if they found that this
representation was baseless.  The court also ruled that petitioners
could have formed the requisite criminal intent.

   3. Petitioner Adler contends (Adler Pet. 17-25) that the court of
appeals erred because his written tax opinion about the shelters was
correct as a matter of law and because legal uncertainty about the
pertinent law makes it impossible to infer that he issued the opinion
with fraudulent intent.  Petitioner Heller contends (Heller Pet. 9-17)
that the indictment violates his right to due process of law because
the applicable tax law was so vague that he could not have the
requisite intent to violate the law.  Whatever the merits of
petitioners' contentions they are not presently ripe for review by
this Court.  The court of appeals' decision places petitioners in
precisely the same position they would have occupied if the district
court had denied their motions to dismiss.  If petitioners are
acquitted following a trial on the merits, their contentions will be
moot.  If, on the other hand, petitioners are convicted and their
convictions are affirmed on appeal, they will be able to raise their
current contentions, together with any other claims they may have, in
a petition for a writ of certiorari seeking review of a final judgment
against them.  Accordingly, review by this Court of the court of
appeals' decision would be premature at this time.  /*/

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

   KENNETH W. STARR

      Solicitor General

   JULY 1989

   /*/ Because this case is in an interlocutory posture, we are not
responding on the merits to the questions presented by the petitions.
We will file a response on the merits if the Court requests.