by Matt Clarke

On March 27, 2026, the United States Court of Appeals for the Ninth Circuit failed to grant an en banc rehearing of a panel decision holding that small deposits of money from outside sources that gradually accumulated in a federal prisoner’s trust fund account are subject to seizure under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3664(n). The contentious ruling prompted seven circuit judges to dissent and may have generated a circuit split.

In 2005, Roland Bruce Myers was sentenced after pleading guilty to possessing an instrument for counterfeiting state securities and transporting a stolen car across state lines. He was ordered to pay $40,406 in restitution, including at least 25% of his monthly gross income while incarcerated. Myers was released from prison in 2010 but reincarcerated on other charges in 2013, still owing over $35,000 in restitution.

Over $30,500 was deposited in Myers’s prison trust fund account between 2013 and 2022. A majority of the deposits ($27,872) were from family and friends while $2,747 came from wages for prison jobs. By late 2022, Myers had donated $1,580 to charity, sent $1,334 to other individuals, spent about $128 on subscriptions, and had an account balance of $1,622.53. He spent the remainder at the prison commissary.

The government filed a turnover motion asking the court to turn over most of the balance and apply it toward the restitution obligation. The government disclaimed targeting Myers’s prison wages but sought turnover of the accumulated deposits made by friends and family pursuant to the MVRA. The court granted the motion, rejecting Myers’s request for an evidentiary hearing. See: United States v. Myers, 2023 U.S. Dist. LEXIS 195205 (E.D. Wash.).

In doing so, the court assumed that Myers had not spent any of his $388.80 in prison wages from 2022 and left that amount in his account, turning over the remaining $1,233.73. Aided by Bowie, Idaho attorney W. Miles Pope of Goddard Pope PLLC, Myers appealed.

Amicus briefs were filed by the National Consumer Law Center, Federal Defenders of San Diego and the National Association of Criminal Defense Lawyers. A panel of the Ninth Circuit affirmed. See: United States v. Myers, 136 F.4th 917 (9th Cir. 2025). Myers petitioned for panel rehearing and rehearing en banc. The court filed an amended opinion and denied both panel rehearing and rehearing en banc. Seven circuit justices dissented from those decisions or joined dissents, believing that the panel opinion would cause a circuit split.

18 U.S.C. § 3664(n) states, “[i]f a person obligated to provide restitution, or pay a fine, receives substantial resources from any source, including inheritance, settlement, or other judgment, during a period of incarceration, such person shall be required to apply the value of such resources to any restitution, or fine, still owed.”

The disagreement among the circuit judges centered around the phrases “substantial resources” and “from any source.” The focus of the dispute was whether the statute meant that the resources had to be substantial upon receipt or could be received in lesser amounts that were immune to seizure but could be seized once they gradually accumulated into a substantial sum.

No circuit had previously addressed funds from family and friends that accumulate gradually but several had addressed the issue of gradually accumulating prison wages. In his dissent to the denial of en banc rehearing, Circuit Judge Wardlaw, joined by three other circuit judges, noted that the use of the present tense “receives” argues in favor of the requirement that the resources be substantial upon receipt to qualify for turnover.

“The panel decision is incorrect, creates a circuit split, and deprives inmates of the monies saved in their trust fund accounts to pay for necessities, including food and hygiene, to afford to communicate with friends and family, and to save for release and reentry,” the dissent argued.

Wardlaw also reviewed the other circuits’ opinions on MVRA turnover in the context of prison wages. In the first decision on the issue, the Fifth Circuit states that it did “not think the gradual accumulation of prison wages constitutes ‘substantial resources’ such that fit within § 3364(n)’s ambit; rather, we think this provision refers to windfalls or sudden financial injections.” See: United States v. Hughes, 914 F.3d 947 (5th Cir. 2019).

Next to chime in was none other than the Ninth Circuit. In an unpublished decision, United States v. Poff, 781 F. App’x 593 (9th Cir. July 12, 2019), the court noted that the MVRA examples cited in Hughes—“inheritance, settlement, or other judgment”—share a similar quality: they usually come as a one-­time, lump sum payment. In holding that the MVRA did not apply to prison wages, it was “satisfied that Congress would not have included those three examples if it intended § 3364(n) to apply more broadly.”

The Eighth Circuit disagreed with Hughes and Poff in that it believed the MVRA applied to any source, not just windfalls. However, it rejected the idea that the statute could apply to small deposits accumulated over time, such as prison wages, per United States v. Kidd, 23 F.4th 781 (8th Cir. 2022). It soon reaffirmed this position in United States v. Evans, 48 F.4th 888 (8th Cir. 2022).

In United States v. Carson, 55 F.4th 1053 (6th Cir. 2022), the Sixth Circuit held that prison wages were not substantial when received and thus were not subject to MVRA turnover. In doing so, it considered only the amount upon receipt, not any accumulated amounts.

The First Circuit was the last to weigh in before Myers. It held that “the district court must examine the source or sources of an inmate’s account before it may order the turnover of funds combined in the account under [the MVRA. When] examination discloses that the monies in the account consist only of gradually accumulated prison wages or other funds that do not qualify as ‘substantial resources,’ section 3364(n) is not implicated.”

Surprisingly, the panel majority opinion addresses the other circuits’ decisions and dismisses them as solely addressing prison wages and thus not on point or lacking reasoning.

The panel majority amended its original opinion to add: “Nothing in this opinion should be construed as preventing a future panel from agreeing with these other circuits on the issue of exempting prison wages.” Yet, it is hard to understand how its rationale would not render accumulated prison wages subject to the MVRA. If outside deposits that are insubstantial can become accumulated into a substantial sum, why not prison wages as well?

This decision will make life more difficult for federal prisoners in the Ninth Circuit. It will also be ineffective as the obvious countermeasure is not to allow accumulation in the trust fund account. This means prisoners will need to spend the money that arrives in their accounts and transfer any excess to a trusted outside person or entity. See: United States v. Myers, 136 F.4th 917 (9th Cir. 2026).  

Additional source: National Law Journal

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