The Court of Appeals on a second remand on August 20, 2015, in LIHLAKHA v. U.S., clarifies further the return for reward defense for receiving stolen property (RSP) conviction.

Lihlakha was convicted at trial for RSP and her defense and arguments on appeal focused on return for reward defense. The Court on the first review outlined for the first time the elements needed to successfully assert the defense:

Specifically, the defense will be satisfied if the evidence shows that:

“(1) The reward had been announced, or was believed to have been announced, before the property was possessed or agreed to be possessed;

(2) the person claiming the reward had nothing to do with the theft;

(3) the possessor returned the property without unreasonable delay to the rightful owner or to a law enforcement officer; and

(4) the possessor imposed no condition on return of the property.”

The Court on the most current review of the case focused more closely on the burden of showing by the defense on these defensive elements as well as the burden on the government to disprove the defense elements asserted.

Specifically, because the return for reward defense relates to the defendant’s intent, an element of the offense of receiving stolen property, which the government must prove, the government bears the burden of disproving beyond a reasonable doubt the defensive elements of the return for reward as enumerated.

The defendant however only has the burden of persuasion or the burden of production — that is, he/she must only sufficiently raise the defense from either the prosecution or the defense side of the case and the burden shifts to the government.

What is critical to this review and ruling by the Court of Appeals is that the government only needs to disprove one of the four elements of the return for reward defense to knock out the defense as was the case here.

The trial court (senior Judge Morrison) on remand ruled that the Lihlakha had “something to do with the theft,” which knocks out the second element of the return for reward defense.

Specifically the trial court had ruled “[t]aken together, this evidence enables this court to find … beyond a reasonable doubt that defendant was involved in the theft by virtue of the character of her working relationship with the man “Kool-Aid.”

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