applies only to cases involving sting operations — i.e., to
cases "where police recover stolen goods and deliver them to
another person who believes the goods to be stolen." (Gov't Mem.
The government's argument would be persuasive if the purpose
of the doctrine were to limit law enforcement officials by
creating a special entrapment defense — one particular to the
crime of receiving stolen goods. Some authorities suggest that.
See, e.g., United States v. Cohen, 274 F. 596, 599 (3d Cir.
1921) ("When the actual, physical possession of stolen property
has been recovered by the owner or his agent, its character as
stolen property is lost, and the subsequent delivery of the
property by the owner or agent to a particeps criminis, for the
purpose of entrapping him as the receiver of stolen goods, does
not establish the crime, for in a legal sense he does not
receive stolen property.") (emphasis added); see also Ex parte
Walls, 711 So.2d 490, 495 (Ala. 1997); State v. Hageman,
307 N.C. 1, 296 S.E.2d 433, 439 (1982); cf. State v. Minnick,
113 Kan. 385, 214 P. 111, 112 (1923).
However, the cases in which the doctrine was first articulated
do not refer to entrapment or any similar concept. See Regina
v. Dolan, 169 Eng.Rep. 794, 795-98 (1855); Regina v. Schmidt,
1 Cr. Cas. Res. 15 (1866). Similarly, in its only substantial
encounter with the doctrine, the Second Circuit did not mention
entrapment. Instead, the Court assumed that the doctrine is
rooted in agency principles, as do most modern courts. See
Muzii, 676 F.2d at 923 ("one cannot be convicted of receiving
stolen goods if, before the stolen goods reached the receiver,
the goods had been recovered by their owner or his agent,
including the police"); United States v. Monasterski,
567 F.2d 677, 679 (6th Cir. 1977) (describing "[t]he rule that one cannot
be convicted of receiving stolen goods if, before the stolen
goods reached the would-be receiver, the goods had been
recovered by their owner or his agent"); Ohio v. Pyle, Case
No. 9-237, 1983 WL 6072, at *3 (Ohio App. 11th Dist. Dec. 30,
1983) ("[t]he general rule . . . is that once the police
physically recover items of stolen property, the items lose
their status as `stolen' because the police are agents of the
true owner"); see also, e.g., State v. Diephaus,
55 Ohio App.3d 90, 562 N.E.2d 523, 525 (1st Dist. 1989); Farzley v.
State, 231 Ala. 60, 163 So. 394, 395 (1935); cf. People v.
Towery, 174 Cal.App.3d 1114, 220 Cal.Rptr. 475, 492 (1985).
Under the logic of the Second Circuit's approach, the doctrine
is not triggered by recovery of a stolen item only by the
police, but rather by recovery of a stolen item "by the owner
or his agent, including the police." Muzii, 676 F.2d at 923
(emphasis added). Therefore, the dispositive question is not
whether the U.S. Forces' recovery of the painting should be
characterized as a recovery by law enforcement officials.
Rather, the question is whether the U.S. Forces' recovery of the
painting was a recovery by an agent of the painting's true
owner. If so, the recovery is attributed to her and the painting
ceased to be stolen when the U.S. Forces took possession of it,
just as if she had done so herself.
Ordinarily, "[a]n agency relationship exists only if there has
been a manifestation by the principal to the agent that the
agent may act on [her] account." Restatement (Second) of
Agency § 15 (1958). However, for the purpose of triggering
application of the doctrine such consent is unnecessary, because
the law implies a principal-agent relationship between the true
owner of a lost item and the government officials who recover
it, and who are deemed to act on her behalf because they are
charged by law with doing so.*fn6 See Dove, 629 F.2d at 327
("Because law enforcement officers hold recaptured stolen goods
in trust for the true owner, the
courts have uniformly held the police to be agents of the owner
for purposes of the [doctrine]."); People v. Rojas,
55 Cal.2d 252, 10 Cal.Rptr. 465, 358 P.2d 921, 924-25 (1961) ("[T]he
People . . . [argue] that the goods, when they came into the
hands of defendants, had not lost their stolen character because
[the police officer] . . . was acting as `agent' of the city and
not of the true owner. We believe that both the owner and the
police would take unkindly to the suggestion that property which
has been the subject of larceny and has then been recovered by
law enforcement officers remains `stolen' while it is under the
surveillance of the police. It seems obvious that stolen
property, recaptured by the police, no longer has the status of
stolen goods but, rather, is held by the police in trust for, or
for the account of, the owner."); United States v. Johnson,
767 F.2d 1259, 1267 n. 7 (8th Cir. 1985) ("[The doctrine] has
evolved from English cases in the last century holding that
goods recovered by their true owner lose their stolen character.
Courts in this country added the principle that recovery by law
enforcement officials may be presumed to be recovery by the
owner's agent.") (citations to Dolan, Schmidt, and Rojas
Because this agency relationship does not depend on the
principal's consent, "[i]t is irrelevant that, at the time of
the sale to defendant [charged with receiving stolen goods], the
true owners of the property had not been located; from the time
of recovery, the police were, in effect, agents of the rightful
owners holding the property on their behalf." People v.
Zaborski, 59 N.Y.2d 863, 865, 465 N.Y.S.2d 927, 929,
452 N.E.2d 1255 (1983). Therefore, as a practical matter the doctrine "that
goods cease to be stolen if recovered by the owner or his agent
means that such goods cease to be stolen if recovered by the
owner or anyone who has a right to possession or control over
them." United States v. Cawley, 255 F.2d 338, 341 (3rd Cir.
1958) (per curiam) (emphasis added); cf. Theft Act, 1968,
ch. 60, § 24(3) (Eng.) ("no goods shall be regarded as having
continued to be stolen goods after they have been restored to
the person from whom they were stolen or to other lawful
possession or custody").
In this case, the U.S. Forces were charged with recovering
stolen items and acting on behalf of the items' true owners.
(Compl. ¶ 5(g)) Accordingly, when they recovered the painting
they did so as agents of Lea Bondi Jaray — even though they did
not know her name, or that the painting was hers. See
Zaborski, 59 N.Y.2d at 865, 465 N.Y.S.2d at 929,
452 N.E.2d 1255. This recovery purged the painting of the taint that it
had. Although the painting may not have been placed in the
correct hands when the Rieger heirs received it, in the eyes of
the law it was no longer stolen.
For the reasons stated above, the motion is granted and the
complaint is dismissed. The dissolution of Judge Francis's
seizure warrant is stayed pending a hearing before the United
States Court of Appeals for the Second Circuit as to any
application that the government may make to that Court for a