FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABDUL MASIH KARDOH, 

No. 07-15700 Plaintiff-Appellee,

D.C. No.

v.  CV-06-80275-VRW

UNITED STATES OF AMERICA,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Northern District of California

Vaughn R. Walker, Chief District Judge, Presiding

Argued and Submitted

October 24, 2008—San Francisco, California

Filed July 10, 2009

Before: Procter Hug, Jr., Glenn L. Archer*, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

*The Honorable Glenn L. Archer, Jr., United States Circuit Judge for

the Federal Circuit, sitting by designation. 

8643
COUNSEL

Joseph P. Russoniello, U.S. Attorney, Barbara J. Valliere,

Hartley M. K. West (argued), and Stephanie M. Hinds, Assistant U.S. Attorneys, San Francisco, California, for defendant-appellant United States.

Erik Babcock (argued), Oakland, California, and Jonathan M.

Kaufman, San Francisco, California, for plaintiff-appellee

Abdul Masih Kardoh.

KARDOH v. UNITED STATES 8645
OPINION

CLIFTON, Circuit Judge:

Abdul Masih Kardoh, a Syrian national, obtained four alien

registration cards bearing names of persons not entitled to

enter the United States from an undercover agent posing as a

corrupt immigration official, to whom Kardoh paid $40,000

in exchange. A few minutes after the transaction, Kardoh was

arrested, still carrying the four cards. The government did not

prosecute Kardoh, but he was deported two months later. Kardoh then sought to recover the $40,000. After the government

declined to return the money voluntarily, Kardoh filed a

motion for return of property under Federal Rule of Criminal

Procedure 41(g). The district court concluded that the government could not retain the money and granted Kardoh’s motion

for return of property. Concluding that Kardoh’s claim is subject to the doctrine known as in pari delicto, we reverse.

I. Background

Kardoh became the subject of an investigation by Department of Homeland Security, Immigration and Customs

Enforcement (“ICE”) in July 2004. At that time, Kardoh was

residing unlawfully in the U.S. on an expired tourist visa. ICE

received information that he was seeking to acquire immigration documents. A few months later, he was introduced to an

undercover ICE agent posing as a corrupt immigration official. Over the next fourteen months, on multiple occasions,

Kardoh expressed to the undercover agent his desire to purchase alien registration cards to benefit himself and others. In

separate transactions, Kardoh purchased from the agent a card

with his name for $12,500 and a card for another Syrian

national also living in the U.S. unlawfully on an expired tourist visa for $15,000.

Kardoh’s last meeting with the undercover agent resulted in

the transaction which is the subject of this appeal. It was

described in a declaration by the undercover agent as follows:

8646 KARDOH v. UNITED STATES
On December 12, 2005, during my last meeting with

Kardoh in my vehicle parked at the terminus of Clay

Street in San Francisco, California, I provided Kardoh with four Alien Registration Cards bearing the

identity of four Syrian nationals not legally entitled

to the cards nor entitled to enter the United States. In

exchange for the cards, Kardoh removed from his

person and handed me four bundles of U.S. paper

currency bound with rubber bands, shortly after

which Kardoh exited my vehicle with the four Alien

Registration Cards in his possession. Immediately

thereafter, Kardoh was arrested and the four cards

were found on his person. A subsequent count confirmed that the amount of money provided by Kardoh to me to be $40,000.

The declaration went on to state that the agent had on several occasions spoken with Kardoh about the illegality of the

transaction and expressed the agent’s conclusion that it was

apparent that Kardoh “understood that the transactions were

illegal.” During an interview following his arrest, after signing a form which indicated that he understood his rights, Kardoh admitted knowing that the transaction was illegal. As

expressed in the agent’s declaration:

Kardoh admitted knowing what he did was illegal

and to being told that it was illegal. Kardoh further

admitted that his understanding of the fact that the

cards were obtained “under the table” meant that

they were obtained illegally, and that he could not

deny the fact that what he did was “one-hundred percent (100%) wrong.”

Kardoh offered no declaration of his own nor any other evidence to rebut the testimony contained in the agent’s declaration. 

KARDOH v. UNITED STATES 8647
Kardoh was deported from the United States two months

after his arrest. He was never indicted, nor did the government

ever initiate forfeiture proceedings.

By letter, Kardoh’s attorney asked the government to return

the $40,000 to him. The government declined to do so. After

it became apparent that neither an indictment nor a return of

the money was forthcoming, Kardoh filed a motion with the

district court under Rule 41(g) of the Federal Rules of Criminal Procedure, seeking an order that the $40,000 be returned.1

After conducting two hearings and receiving supplemental

briefing, the district court concluded that it could properly

exercise equitable jurisdiction over the motion and that the

money should be returned to Kardoh:

The court therefore finds that continued retention of

the $40,000 in the absence of a forfeiture proceeding, investigation or prosecution is unreasonable.

The property was taken over a year ago. The government confiscated the money as an instrumentality of

an illegal act without ever establishing the illegal act.

No charges have been filed. The government has not

provided evidence justifying a delay in filing

charges. Finally, Kardoh has had no notice and no

legal process for protecting his interest in the money.

Accordingly, equitable principles mandate that the

$40,000 be returned.

1Rule 41(g) provides: 

Motion to Return Property. A person aggrieved by an unlawful

search and seizure of property or by the deprivation of property

may move for the property’s return. The motion must be filed in

the district where the property was seized. The court must receive

evidence on any factual issue necessary to decide the motion. If

it grants the motion, the court must return the property to the

movant, but may impose reasonable conditions to protect access

to the property and its use in later proceedings. 

8648 KARDOH v. UNITED STATES
The government appealed.

II. Discussion

Where no criminal proceeding is pending, a district court

has discretion to hear a motion for the return of property as

a civil equitable proceeding. United States v. Kama, 394 F.3d

1236, 1238 (9th Cir. 2005). Courts should exercise “caution

and restraint” before assuming jurisdiction over such a motion

and they must consider four specific factors to determine if

jurisdiction is warranted. Id. (quoting Ramsden v. United

States, 2 F.3d 322, 324 (9th Cir. 1993)). One of those factors

is whether “the movant has an individual interest in and need

for the property he wants returned.” Id. (quoting Ramsden, 2

F.3d at 325). If jurisdiction is warranted, a court considers

whether the government’s retention of the property would be

reasonable under all of the circumstances. Ramsden, 2 F.3d at

326. In this case, whether Kardoh was entitled to the $40,000

is dispositive of both the jurisdictional and merits issues.

The government offered multiple arguments why Kardoh

was not entitled to the money. We focus on one of them, that

the doctrine of in pari delicto prevents Kardoh from obtaining

the court’s assistance in recovering money voluntarily paid in

furtherance of an illegal contract. We agree.

[1] “It has long been ‘the settled rule that property delivered under an illegal contract cannot be recovered back by

any party in pari delicto.’ ” United States v. Farrell, 606 F.2d

1341, 1348 (D.C. Cir. 1979) (quoting Harriman v. Northern

Securities Co., 197 U.S. 244, 295 (1905)). The general rule,

in its full Latin glory, is “in pari delicto potior est conditio

defendentis,” or “[i]n case of equal fault the condition of the

party defending is the better one.” Farrell, 606 F.2d at 1348

& n.21. The D.C. Circuit restated the doctrine to be that

“[n]either party to an illegal contract will be aided by the

court, whether to enforce it or set it aside.” Id. at 1348-49.

KARDOH v. UNITED STATES 8649
[2] This principle was originally used in the context of

criminal activity to bar the return of funds used in an attempt

to bribe a public official. See Clark v. United States, 102 U.S.

332 (1880); United States v. Thomas, 75 F.2d 369 (5th Cir.

1935); United States v. Iovenelli, 403 F.2d 468 (7th Cir.

1968). The in pari delicto doctrine has previously been recognized by our court in the bribery context. United States v. Wilson, 591 F.2d 546, 547-48 (9th Cir. 1979).

[3] In Farrell, the D.C. Circuit extended the in pari delicto

doctrine to other illegal transactions, concluding that $5,000

that had been paid to an undercover officer in an illegal transaction for heroin should not be returned to the claimant. 606

F.2d at 1350. Even though the government could not forfeit

the money because at that time the forfeiture statute did not

provide for the forfeiture of money paid in exchange for a

controlled substance, the Farrell court held:

[I]t is contrary to public policy to permit the courts

to be used by the wrongdoer Farrell to obtain the

property he voluntarily surrendered as part of his

attempt to violate the law. If as the cases hold it is

sound public policy to deny the use of the courts to

persons in pari delicto who seek the return of illegally paid money, a fortiori it is sound public policy

to deny the aid of the courts to a single violator of

the law who seeks the return of money paid to a government agent in an attempt to contract for the purchase of contraband drugs. 

Id. The Eighth and Third Circuits have since followed Farrell

in applying the in pari delicto doctrine to prevent the return

of money voluntarily paid to a government agent in an illegal

transaction. United States v. Smith, 659 F.2d 97, 100 (8th Cir.

1981) (applying the in pari delicto rule to prevent the return

of $25,000 which the claimant gave to an undercover agent in

an attempt to purchase hashish); Mantilla v. United States,

302 F.3d 182, 186-87 (3d Cir. 2002) (applying the doctrine to

8650 KARDOH v. UNITED STATES
decline the return of $900,000 which the claimant paid in an

undercover narcotics transaction).

[4] Like the claimants in these cases, Kardoh paid the

money at issue here in furtherance of an illegal scheme. Kardoh gave the $40,000 to the undercover ICE agent in

exchange for the forged alien registration cards. Indeed, it

might fairly be questioned whether the $40,000 was “seized”

by the government at all or whether Kardoh has been “deprived” of the $40,000, apparent requirements under the terms

of Rule 41(g) for that rule to apply. When Kardoh was

arrested, he did not have that money in his possession, since

he had already paid it over to the undercover agent in

exchange for the registration cards. Not surprisingly, he does

not seek to recover the cards which he did have in his possession when he was arrested. Those forged cards were seized

from him and retained by the government, but to request their

return would highlight the absurdity of the request. We conclude, in any event, that ordering the government to return the

$40,000 to Kardoh would be contrary to public policy for the

reasons expressed in Farrell.

The district court recognized the in pari delicto doctrine but

concluded that it should not apply here because Kardoh was

never convicted of a criminal offense. The court’s order

explained that “[a]djudicating Kardoh’s guilt on the basis of

this record, where Kardoh has had no opportunity to conduct

discovery and has not conceded any wrongdoing, is inconsistent with Kardoh’s due process rights.” We do not agree.

[5] A conviction has not historically been required to establish the illegality of a transaction. There is no mention of a

criminal conviction in the Supreme Court’s 1880 decision in

Clark. Similarly, a conviction was specifically held not to be

necessary by the Fifth Circuit in Thomas. Thomas was

arrested for the unlawful possession and transportation of

intoxicating liquor and the attempted bribery of a customs

officer. 75 F.2d at 370. While Thomas pled guilty to the

KARDOH v. UNITED STATES 8651
unlawful possession of liquor, he was never prosecuted for

bribery. After the statute of limitation had expired, Thomas

sought the return of the $1,000, arguing that he was the lawful

owner and he was entitled to the money because of the presumption that he was innocent of the bribery charge. The

Fifth Circuit held to the contrary:

Thomas cannot avoid [presenting evidence that he

was innocent of bribery] by relying on the presumption of innocence and alleging merely that the money

was received from him and retained by the customs

officers; for that is an allegation which is entirely

consistent with bribery. In order to recover [the bribe

money] he is required by statute to make full proof

of his right to the money deposited in the Treasury,

and this he cannot do without showing that he is

innocent of the charge of bribery. If he was guilty of

bribery, he could not have recovered the bribe

money back from the customs officers, and has no

better claim against the United States. 

Id. at 370-71. 

[6] It is to be expected that in most cases of this kind the

government will undertake criminal prosecutions or forfeiture

proceedings, but the failure to do so does not automatically

mean that a claimant’s motion for return of property must be

granted. There is no basis to conclude that the government

acted here in bad faith. If there were, that would be a factor

to consider in whether the court should exercise jurisdiction

over or grant the claimant’s motion. That the government

elected to deport Kardoh rather than to prosecute him did not

make his payment to the undercover agent any more innocent,

however, nor did it deprive him of due process.

[7] The question of the illegality of Kardoh’s payment was

properly before the district court. Because there were no criminal proceedings pending, the motion should have been

8652 KARDOH v. UNITED STATES
treated as a civil complaint governed by the Federal Rules of

Civil Procedure. United States v. Ibrahim, 522 F.3d 1003,

1007 (9th Cir. 2008); United States v. Ritchie, 342 F.3d 903,

906-07 (9th Cir. 2003). The government’s opposition to Kardoh’s motion was the equivalent of a motion for summary

judgment under Rule 56 of the Federal Rules of Civil Procedure, as to which the court should determine whether “the

government has demonstrated that there is no ‘genuine issue

as to any material fact,’ and that it is ‘entitled to judgment as

a matter of law.’ ” Ibrahim, 522 F.3d at 1008 (citing

Fed.R.Civ.P. 56(c)).

[8] In this case, the government supported its position with

the declaration of the undercover agent who met with Kardoh

multiple times and who was given the $40,000 by Kardoh.

The declaration described not only the transactions in sufficient detail to make their impropriety clear but also the statements by Kardoh both before and after his arrest admitting his

awareness that the transactions were illegal. Kardoh offered

no evidence to rebut the agent’s declaration.2 That is not

enough to defeat a motion for summary judgment. See

Fed.R.Civ.P. 56(e)(2). On this record, there was no genuine

issue as to any material fact and the government was entitled

to a judgment as a matter of law.

[9] Accordingly, we conclude that the district court should

not have assumed jurisdiction over and granted Kardoh’s

motion for return of the $40,000.

 REVERSED.

2Kardoh had been deported by the government and was thus not in the

United States at the time of the court proceeding. He could have submitted

evidence, including his own declaration, without being in the United

States, however, so his failure to rebut the agent’s declaration cannot be

excused by his deportation. 

KARDOH v. UNITED STATES 8653