June 29, 2026·24-1317·Published·Jay S. Bybee·By James Taylor
The Ninth Circuit reversed a district court's grant of summary judgment for the federal government in a motion seeking the return of cash stolen by an FBI agent. The panel held that sovereign immunity does not bar a claim under Federal Rule of Criminal Procedure forty-one G when the government has recovered funds traceable to the seized money.
FBI agents seized five hundred eighty-five thousand dollars in cash from a safe during a search of a defendant’s mother’s home. An FBI agent stole two hundred eighteen thousand two hundred dollars of that cash and reported a lower amount. The agent later pleaded guilty and agreed to a forfeiture judgment. The defendant moved for the return of the stolen funds under Federal Rule of Criminal Procedure forty-one G.
The court’s reasoning
The panel held that Rule forty-one G allows for the return of specific property, including fungible cash, even if the exact bills are not returned, provided the government possesses traceable funds. The court distinguished this from cases where property is lost or destroyed and no recovery is possible. The government failed to meet its burden of proving the funds were contraband, subject to forfeiture, or that the claimant lacked lawful possession.
The dissent
What it means going forward
The decision clarifies that the Ninth Circuit will permit Rule forty-one G claims for seized cash even after the original bills are lost, provided the government has recovered traceable value. It shifts the burden to the government to justify retaining funds when a claimant demonstrates lawful possession.
