Cannon v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LIONEL CANNON, AKA Cannon, No. 24-1317

D.C. No.

Plaintiff - Appellant,

5:19-cv-02337-

FLA-SP

v.

UNITED STATES OF AMERICA,

OPINION

Defendant - Appellee.

Appeal from the United States District Court

for the Central District of California

Fernando L. Aenlle-Rocha, District Judge, Presiding

Argued and Submitted September 16, 2025

Pasadena, California

Filed June 29, 2026

Before: Jay S. Bybee, Kenneth K. Lee, and Danielle J.

Forrest, Circuit Judges. *

Opinion by Judge Bybee;

Dissent by Judge Lee

*

Judge Sandra S. Ikuta was originally a member of this panel. Following

her death on December 7, 2025, Judge Forrest was drawn to replace her.

See Ninth Cir. Gen. Order 3.2.h. Judge Forrest has read the briefs,

reviewed the record, and listened to oral argument.

2 CANNON V. USA

SUMMARY **

Fed. R. Crim. P. 41(g) / Motion for Return of Property

The panel reversed the district court’s grant of summary

judgment for the federal government in Lionel Cannon’s

motion under Federal Rule of Criminal Procedure 41(g)

seeking the return of his cash seized by the government.

The FBI was investigating Cannon on federal drug

trafficking charges. During a lawful search, agents seized

$585,000 in cash. FBI Special Agent Scott Bowmann

pocketed $218,200. Cannon moved under Rule 41(g) for the

return of the $218,000 that Agent Bowman stole and that had

never been forfeited.

The panel held that sovereign immunity did not bar

Cannon’s Rule 41(g) claim. In Ordonez v. United States,

680 F.3d 1135 (9th Cir. 2012), the court held that when

property seized by the government has been lost or

destroyed, “an award of money damages against the

government under Rule 41(g) is barred by sovereign

immunity.” Id. at 1140. The panel held that this same rule

does not apply to cash that the government seized, lost, but

then recovered in restitution proceedings.

The panel held that when the government has recovered

money traceable to the funds it lost, the person from whom

it was seized may seek its return under Rule 41(g). When its

return is sought, the government bears the burden of

demonstrating that it has a legitimate reason to retain the

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CANNON V. USA 3

money. Cannon provided evidence supporting his claim that

lawful funds were intermingled with the drug proceeds

subject to forfeiture. The government had the opportunity to

dispute this evidence. On this record, the government has

not done so. Accordingly, the panel held that summary

judgment was in error, and returned the case to the district

court for further proceedings.

Judge Lee dissented. He would hold that the government

has not waived sovereign immunity for claims for money no

longer in the government’s possession. There is no evidence

in the record that the government has possession of the

$218,000 found in Cannon’s safe and stolen by Agent

Bowman. Because Cannon sought property not in the

government’s possession, the government cannot return it to

Cannon. and Rule 41(g)’s waiver of sovereign immunity

does not apply.

COUNSEL

Alexander Botoman (argued), Deputy Federal Public

Defender; Cuauhtémoc Ortega, Federal Public Defender;

Office of the Federal Public Defender, Los Angeles,

California; for Plaintiff-Appellant.

Ryan Waters (argued) and Jonathan Galatzan, Assistant

United States Attorneys; Lindsey G. Dotson, Assistant

United States Attorney, Chief; Criminal Division; Joseph T.

McNally, Acting United States Attorney; Office of the

United States Attorney, United States Department of Justice,

Los Angeles, California; for Defendant-Appellee.

4 CANNON V. USA

OPINION

BYBEE, Circuit Judge:

Federal Rule of Criminal Procedure 41(g) provides that

a person who has been deprived of his property by the

government may move for the property’s return. In Ordonez

v. United States, 680 F.3d 1135 (9th Cir. 2012), we held that

when property seized by the government has been lost or

destroyed, “an award of money damages against the

government under Rule 41(g) is barred by sovereign

immunity.” Id. at 1140. The issue in this case is whether the

same rule applies to cash that the government seized, lost,

but then recovered in restitution proceedings. We hold that

when the government has recovered money traceable to the

funds it lost, the person from whom it was seized may seek

its return under Rule 41(g). When its return is sought, the

government bears the burden of demonstrating that it has a

legitimate reason to retain the money. The government did

not meet its burden here. We thus reverse the district court’s

grant of summary judgment for the government.

I. BACKGROUND

In August 2014, the FBI was investigating Lionel

Cannon on federal drug trafficking charges. During a lawful

search of his mother’s home, agents seized $585,000 in cash

from a safe in Cannon’s bedroom. The next day, after the

cash was in government custody but before it was placed in

an official cash-counting facility, FBI Special Agent Scott

Bowman pocketed $218,200. As a result, the official

inventory listed only $366,800 as seized.

Shortly after the cash was seized from Cannon’s safe, the

FBI caught wind of Bowman’s theft. In April 2015, FBI

CANNON V. USA 5

agents interviewed Cannon while he was in pretrial custody,

and Cannon informed them of the total amount in the safe.

With Cannon’s help, Bowman was indicted, and in

September 2016, Bowman pleaded guilty to conversion of

property by an employee or officer of the United States, 18

U.S.C. § 654, and related crimes. Bowman’s plea included

a money judgment of forfeiture requiring him to pay

$136,462 under 18 U.S.C. § 981(a)(1)(C), representing the

“proceeds of the offenses to which he has entered a guilty

plea.” Besides the cash from Cannon’s safe, Bowman had

converted $10,982 and $4,600 from unrelated searches.

Thus, conservatively, $120,880 of the $136,462 judgment

represents proceeds from Cannon’s safe. 1 It is undisputed

1

It is unclear from the record what methodology was used to calculate

the $136,462 judgment. In his deal, Bowman plead guilty to three

separate thefts and agreed with the government “that the total loss

amount for purposes of this plea agreement is $136,462.00.” The

amounts that Bowman stole from the two unrelated thefts—$10,982 and

$4,600—were ascertained and verified in his plea, while the amount he

converted from Cannon’s safe was unverifiable at the time. The plea

deal describes the amount stolen from Cannon’s safe as a “substantial

portion of the currency seized” and notes that “substantially more than

$366,800 in cash was removed from the safe.” It then describes the

various cash expenditures Bowman engaged in in the weeks after that

crime, which include purchasing a Toyota Scion FR-S coupe for

$27,500, a Dodge Challenger coupe for $43,850, $9,612 in luxury

upgrades for the Toyota, $17,000 in luxury upgrades for the Dodge,

$2,353 in upgrades for another car, $700 on a trip to Las Vegas, and

$15,000 on cosmetic surgery for his spouse, as well as depositing

$10,665 into bank accounts. The total of these verified cash expenditures

is $126,680. Thus, although the government has now acknowledged that

Bowman stole $218,000 from Cannon’s safe, the $120,880 figure may

have represented how much cash Bowman spent lavishly in the weeks

after that crime, less a $7,000 to $8,000 cash gift from his father.

6 CANNON V. USA

that the government has recovered some of this money and

expects to recover more funds through criminal forfeiture. 2

In April 2017, more than six months after Bowman’s

guilty plea and forfeiture order, Cannon pleaded guilty to

drug-trafficking charges. In his plea deal, he agreed to

forfeit “$366,800.00” from the safe, which represented the

$585,000 actually seized by the FBI, less the $218,000

purloined by Bowman. In March 2018, the court issued a

forfeiture order reflecting that amount. Despite knowing for

two years that far more money had been seized from

Cannon’s safe, the government never initiated forfeiture

proceedings for that additional money. The charging

documents, including the three amended indictments and the

final forfeiture order, listed $366,800 as the amount from the

safe subject to forfeiture. When negotiating Cannon’s plea,

both parties understood that an additional $218,800 had been

taken—the government even stated as much on the record at

Cannon’s sentencing—yet Cannon agreed to forfeit only

$366,800.

Shortly after his guilty plea and forfeiture, Cannon

moved under Rule 41(g) for the return of the $218,800 that

Agent Bowman stole and that had never been forfeited.

Because no criminal proceedings were pending, the district

court treated the Rule 41(g) motion as a civil complaint and

the government’s opposition as a motion for summary

judgment. The court found that Cannon had agreed to forfeit

“property ‘including but not limited to . . . $366,800.00 in

U.S. currency,’” and that his “admissions support an

2

At oral argument, counsel for the government confirmed that it is

recouping the money. During criminal forfeiture proceedings against

Bowman, the government credited him $15,767.40 toward his money

judgment “for proceeds of the offenses that have already been forfeited.”

CANNON V. USA 7

inference that he agreed to forfeit all property seized from

the safe in his mother’s house, which the government

incorrectly assumed to be $366,800.00 when the indictment

was returned, and wrongly stated in the plea agreement.”

The court found that Cannon’s evidence explaining why he

was lawfully in possession of some of the cash—wages,

sales of vehicles, and gifts—was “self-serving” and

insufficient to create a genuine issue of material fact. The

court concluded that no jury “could conclude the portion of

the money taken by [Agent] Bowman had been earned

through lawful means and was ‘clean’ as a result, while the

remaining $366,800 was tainted.” The court granted

judgment for the government. Cannon filed a timely appeal.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We

review de novo whether the government has waived its

sovereign immunity. Halverson v. Burgum, 148 F.4th 1089,

1093 (9th Cir. 2025). If no criminal proceedings are pending

when the movant files a Rule 41(g) motion and the district

court treats the motion as a civil complaint subject to the

Federal Rules of Civil Procedure, we review de novo a grant

of summary judgment on a Rule 41(g) motion. See United

States v. Ibrahim, 522 F.3d 1003, 1007–08 (9th Cir. 2008);

United States v. Ritchie, 342 F.3d 903, 906–07 (9th Cir.

2003).

III. ANALYSIS

There are two issues before us. First, we must address

the government’s argument that sovereign immunity bars

Cannon’s Rule 41(g) claim. Although this issue was not

presented to the district court, “[w]e will consider the issue

of sovereign immunity on the merits because it can be raised

at any time by the government, as it goes to a court’s

8 CANNON V. USA

jurisdiction.” Tobar v. United States, 639 F.3d 1191, 1195

(9th Cir. 2011) (quoting IRS v. Fed. Lab. Rels. Auth., 521

F.3d 1148, 1152 (9th Cir. 2008)). Concluding that sovereign

immunity does not bar Cannon’s claim, we then turn to

whether the district court properly granted summary

judgment on the government’s claim that Cannon was not

entitled to recover any cash seized by the government.

A. Rule 41(g) and Sovereign Immunity

Federal Rule of Criminal Procedure 41(g) provides that

“[a] person aggrieved . . . by the deprivation of property may

move for the property’s return.” Fed. R. Crim. P. 41(g). If

the district court grants the motion, “the court must return

the property to the movant.” Id.

In United States v. Martinson, 809 F.2d 1364 (9th Cir.

1987), we suggested that when the government has lost or

destroyed the property in question, a person could seek

monetary damages in compensation under Rule 41(g). Id. at

1370. We reexamined that suggestion in Ordonez v. United

States, 680 F.3d 1135 (9th Cir. 2012). 3 Ordonez sought the

return of personal items that the government had misplaced

due to poor recordkeeping and storage. Id. at 1137. Years

later, once it was clear that the government “was unable to

locate” the missing items, we held that Ordonez could not

recover monetary damages under Rule 41(g) in

compensation for the property the government lost. Id. We

framed the holding as applying “where the property cannot

3

We observed that “Martinson did not address directly the issue of

sovereign immunity” and was not binding on that point. Ordonez, 680

F.3d at 1139 (citing Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S.

89, 119 (1984)); see id. at n.4 (“To the extent Martinson has been read

as holding that sovereign immunity does not bar a claim for money

damages under Rule 41(g), we now clarify that reading is incorrect.”).

CANNON V. USA 9

be returned” or “where . . . the subject property has been lost

or destroyed.” See id. at 1137–38. This conclusion followed

from Rule 41(g)’s language, which we noted “provides only

for the ‘return [of] the property to the movant.’” Id. at 1139

(quoting Fed. R. Crim. P. 41(g)). Because the “clear and

unambiguous” text contains “no alternative provision for

money damages, . . . such a provision cannot be implied.”

Ordonez, 680 F.3d at 1139 (citation omitted). “[E]ven when

it results in a wrong without a remedy,” an award of money

damages against the government under Rule 41(g) is barred

by sovereign immunity. Id. at 1140; see United States v.

Wright, 49 F.4th 1221, 1226 n.3 (9th Cir. 2022) (“Rule 41(g)

is not a general waiver of sovereign immunity; it only allows

for the recovery of property currently in the government’s

control.”).

We must now determine how that rule applies to money

that the government seizes, loses, but then recovers.

Because Ordonez dealt with a case of lost belongings, there

was no serious question that the money the movant sought

was not “the property” that was seized, but rather

compensation in its place—namely, money damages. The

distinction we drew in Ordonez between the right to property

and the right to compensation for lost property is not as clear

when cash is the property at issue. Ordonez did not provide

a framework for, or even discuss, how to differentiate

between “the property” and “money damages” when the

property in question is cash. Fortunately, longstanding

precedent and common sense provide guidance on this

thorny issue.

The law has long distinguished between the recovery of

money damages as compensation for lost property or money

and “the recovery of specific property or monies”

themselves. See Larson v. Domestic & Foreign Com. Corp.,

10 CANNON V. USA

337 U.S. 682, 687–88 (1949). The difference hinges on

whether the remedy seeks return of the thing itself or a

substitute for the thing: “Damages are given to the plaintiff

to substitute for a suffered loss, whereas specific remedies

are not substitute remedies at all, but attempt to give the

plaintiff the very thing to which he was entitled.” Bowen v.

Massachusetts, 487 U.S. 879, 895 (1988) (quoting Maryland

Dep’t of Hum. Res. v. Dep’t of Health & Hum. Servs., 763

F.2d 1441, 1446 (D.C. Cir. 1985)) (internal quotation marks

omitted). Thus, “[t]he fact that a judicial remedy may

require one party to pay money to another is not a sufficient

reason to characterize the relief as ‘money damages.’”

Bowen, 487 U.S. at 893; see United States v. Park Place

Assocs., 563 F.3d 907, 930 (9th Cir. 2009) (contrasting

“specific relief . . . that the plaintiff would be owed even if

the defendant had never engaged in wrongful conduct” with

“compensatory relief, or relief that substitutes for that which

ought to have been done”); see also United States v. Minor,

228 F.3d 352, 355 (4th Cir. 2000) (“Even though [defendant]

seeks return of currency, we can see no persuasive reason to

treat his motion differently than an action in equity for the

return of a tangible item of personal property. In suing for

return of the currency, [defendant] seeks restitution of ‘the

very thing’ to which he claims an entitlement, not damages

in substitution for a loss.” (quoting Bowen, 487 U.S. at 895)).

Cannon seeks the return of the very thing to which he is

entitled, namely “the property” under Rule 41(g). In this

case, that is the cash the government seized but did not

pursue in forfeiture proceedings. As in Bowen, Cannon’s

claim is not for money damages; rather, it is “a suit seeking

to enforce the statutory mandate itself, which happens to be

one for the payment of money.” 487 U.S. at 900. The fact

that Cannon seeks the return of cash does not make his claim

CANNON V. USA 11

one for money damages. We have long treated Rule 41(g)

motions—even those for return of cash seizures—as motions

in equity, not law, and equity is directed to ownership of the

property itself, not to compensation, which is a legal remedy.

See United States v. Marolf, 173 F.3d 1213, 1216 (9th Cir.

1999) (“Rule 41(e) motions are treated as proceedings in

equity when there are no criminal proceedings pending

against the movant.”); 4 Martinson, 809 F.2d at 1367.

Despite Cannon’s affirmance that he is seeking equitable

return of the cash that was seized and not money damages in

its place, the government claims he must be seeking money

damages because he cannot be seeking the same currency

stolen by Agent Bowman. But that the money the United

States is recouping from Agent Bowman is not the same

“physical currency”—that is, the exact same bills that were

taken from Cannon’s safe—does not alter the result. Such a

hyperformalistic approach misconstrues the nature of

money. Money differs from other property in that its

principal value lies in the unit of account; its exchange value,

not its intrinsic value. Cf. Wisconsin Ctr. Ltd. v. United

States, 585 U.S. 274, 277–78 (2018); Juilliard v. Greenman

(The Legal Tender Cases), 110 U.S. 421, 449 (1884). Put

another way, money has no use outside its socially

constructed exchange value; its value derives from its ability

to be exchanged for property that does have inherent use

value. This lack of inherent value is money’s sine qua non.

After all, on a deserted island, a $100 bill might as well be

Monopoly money.

This characteristic of money is reflected in 31 U.S.C.

§ 5103, which makes “coins and currency . . . including

4

Rule 41(e) was renumbered to Rule 41(g) in 2002. See Fed. R. Crim.

P. 41, Adv. Comm. Notes, 2002 Amendments.

12 CANNON V. USA

Federal reserve notes . . . legal tender for all debts, public

charges, taxes and dues.” Paper money is “fiat money”—it

has fixed value because the government says that it has

value. See U.S. Const. art. I, § 8, cl. 5 (granting Congress

the power to “coin Money, [and] regulate the Value

thereof”). Federal reserve notes have little intrinsic value

outside of Congress’s declaration that they are legal tender

and whatever value the Bureau of Engraving and Printing

prints on them. 5 When FBI agents seized the money in

Cannon’s safe, they knew exactly what its value was. No

appraisals or negotiations necessary.

This peculiar quality of money is why our law has long

assessed and identified money by its amount, not by the

physicality of bills. Tax refunds are never the exact same

bills that were withheld; bankruptcy never obligates the

debtor to return the same bills she borrowed; cash bail is not

refunded with the same currency posted. A person entitled

to return of cash seized cannot object on the basis that the

cash was in $100 bills and he was given back $20 bills. As

the Supreme Court explained, “if the ‘property’ that was

‘damage[d],’ ‘los[t],’ or ‘destr[oyed]’ was the money, then

‘the property . . . returned’ must also be the money. Money

being fungible, however, ‘the property . . . returned’ need

not be the very same bills or checks.” Robers v. United

5

The exception that proves the rule is the numismatic value of certain

collectible coins and bills. That certain coins have value beyond their

face is a product of their historical significance, rarity, or metal content.

They thus lack money’s fungibility.

CANNON V. USA 13

States, 572 U.S. 639, 643 (2014) (emphasis added; citation

modified). 6

Adopting the government’s theory in this case would

also be inconsistent with the on-the-ground realities of the

way the government itself handles cash proceeds. The

United States Marshals Service (USMS) is responsible for

managing and safeguarding seized assets. When federal law

enforcement seizes cash during a criminal investigation,

federal regulations require that the cash be inventoried and

then “deposited promptly in the Seized Asset Deposit Fund.”

28 C.F.R. §§ 8.4–8.5. The Department of Justice instructs

its agents to take the cash to one of the “Treasury’s

contracted Seized Cash Currency Network (SCCN) vault

locations for cash counting services.” U.S. Dep’t of Just.,

Asset Forfeiture Policy Manual 4-18 n.22 (2025). After the

cash is counted at the vault, “the value is remitted

6

As one commentor has observed:

The key here is that money, aside from rare coins and

bills, is fungible. Allowing the plaintiff to recover

money for cash taken by the government is

functionally indistinguishable from allowing the

plaintiff to recover account funds in a bank account

that the government seized. A bank account does not

have specific coins and cash in it, but a plaintiff would

be able to recover the funds in the account as property

under Rule 41(g). In other words, even though the

government no longer has the actual coins and bills

that were seized, it should be treated nonetheless as

having the plaintiff’s property—that is, the plaintiff’s

specific money.

Colleen P. Murphy, Money as a “Specific” Remedy, 58 Ala. L. Rev. 119,

149 (2006).

14 CANNON V. USA

electronically to the USMS.” Id. 7 This regulation means

that the exact bills are never kept by the government. In fact,

“[t]he USMS does not accept cash.” Id. Yet because the

money is in the government’s bank account, by any measure,

the United States possesses the seized funds. If the money

is forfeited, it is then transferred to the Asset Forfeiture Fund

(AFF), where it is distributed to law enforcement agencies,

victims, and other relevant parties. See generally id. at 12-

2, 14-1–15-3. If the money is not forfeited and is returned

to the owner, the ordinary method for reimbursing the owner

is via EFT. 31 C.F.R. § 208.3. Nothing in the regulations

suggests that the USMS should store the cash in locked

boxes until it is clear the money does not have to be returned

to its owner. 8

The USMS’s process for managing other types of seized

property is entirely different: It contracts with property

custodians to oversee and dispose of seized assets. See

7

There is an exception to the requirement that the value of the seized

funds is transmitted electronically. If a supervisory official determines

in writing that the currency is “reasonably likely to serve a significant,

independent, tangible evidentiary purpose,” such as by having

fingerprints or drug residue, the cash may be kept. 28 C.F.R. § 8.5(b)

(emphasis added). The cash at issue here did not hold this special

evidentiary value.

8

The magnitude of having to store “the same money” would overwhelm

federal law enforcement and increase the risk of lost or stolen property.

In the 2023 fiscal year, $2.96 billion of AFF’s $3.18 billion in forfeiture

revenue came from cash or cash equivalents. See U.S. Dep’t of Just.,

Off. of the Inspector Gen., Audit of the Assets Forfeiture Fund and Seized

Asset Deposit Fund Annual Financial Statements Fiscal Year 2023, 6

tbl.1, 8 (Jan. 2024). Annually, the USMS processes more than 30,000

payments, typically exceeding $500 million, to asset forfeiture payees.

See Asset Forfeiture, U.S. Marshals Serv. (last visited Apr. 23, 2026),

https://perma.cc/YJV3-KNQT.

CANNON V. USA 15

Forfeiture Manual, supra, at 2-10. After all, while it is easy

to deposit seized cash into an account, you cannot put a boat

into a bank. When the government seizes a boat, the owner

is entitled to return of the same boat; but if the government

seizes money, the owner is not entitled to, and probably

would never ask for, the return of the same bills. Instead,

the owner is entitled to the return of money of equal value,

which represents the seized funds even if it is not composed

of the same bills. This aligns with common sense: If I lend

you $20, when you pay me back, I do not expect the same

$20 bill. As long as you give me $20, the debt is settled. But

if I lend you my car, I expect you to return the exact same

car, not some car of equal value.

The relevant question then is not whether the bills Agent

Bowman is remitting to the government have the same serial

numbers as the ones from Cannon’s safe, but whether he is

remitting the value or amount traceable to the money taken

from Cannon’s safe. 9 We think it clear that he is. In the

government’s own words, Bowman’s $136,462 money

9

The dissent acknowledges that the government has waived sovereign

immunity as to “the actual money in its possession,” and that seized

money is returnable when the government possesses the “same money.”

Dissent Op. at 25. We agree with that premise. But the dissent then errs

in thereby concluding that Cannon’s property cannot be returned because

the money the government is recouping from Agent Bowman may not

be the “same physical currency” stolen from Cannon’s safe. Dissent Op.

at 27. As discussed above, requiring that money be the same physical

currency to be the “same money” ignores the essential fungibility of

money. Money remains the same money even if it changes form, such

as when it is deposited into a bank, transferred electronically, or

recovered after being lost or stolen. Under the dissent’s approach, the

government could hide behind sovereign immunity to avoid its Rule

41(g) obligation to return seized currency by claiming it no longer has

the money—“the same bills”—that is, once it is deposited into a bank

account or transferred electronically.

16 CANNON V. USA

judgment represented the “proceeds of the offenses to which

he has entered a guilty plea.” The federal forfeiture statute

provides that the property subject to forfeiture is that “which

constitutes or is derived from proceeds traceable to a

violation [of certain predicate offenses].” 18 U.S.C.

§ 981(a)(1)(C). Thus, even if not the exact bills Bowman

stole, the money judgment represents precisely the property

Bowman stole.

What Bowman is remitting to the United States is

traceable to the proceeds from Cannon’s safe. The day after

Bowman stole the money from the safe, he bought a 2013

Toyota Scion FR-S coupe for $27,500 in cash. In the

ensuing days, he also made cash deposits of over $10,000

into a bank account. In his plea, Bowman agreed to hand

over the 2013 Toyota Scion and a bank account with

$4,438.79 for liquidation, acknowledging a “nexus” between

this property and the crimes and that it “constitutes proceeds

of his crimes.” The court credited him $15,767.40 toward

his money judgment based on the sale of the Toyota “for

these proceeds of the offenses.” Although the record is silent

on how much additional money Bowman has paid back to

date, it is clear that the government has recovered or will

recover some of the money it lost to Bowman. Because the

government currently possesses money that it seized but did

not declare forfeit from Cannon, sovereign immunity does

not bar Cannon’s Rule 41(g) claim for its return. 10 On

10

As for any money that Bowman stole and that was not reflected in the

criminal forfeiture order, or that is not traceable to Bowman’s theft,

Cannon cannot seek money damages in its place. This comports with

our holding in Ordonez that the government cannot be asked to return

property that it does not possess on a Rule 41(g) motion. 680 F.3d at

1137–38. It also comports with caselaw from other circuits holding that

if the government never actually seized the cash, or if the cash has

CANNON V. USA 17

remand, the government bears the burden to prove how

much it has obtained from Bowman. See Wright, 49 F.4th at

1225; Bailey v. United States, 508 F.3d 736, 739 (5th Cir.

2007).

Because sovereign immunity does not bar Cannon’s

claim for the money the United States has or will recoup

from Agent Bowman, we now proceed to the merits of the

district court’s grant of summary judgment.

B. Cannon’s Claim to the Remaining Funds

Once criminal proceedings end and the seized property

is no longer needed as evidence, “[t]he person from whom

the property is seized is presumed to have a right to its return,

and the government has the burden of demonstrating that it

has a legitimate reason to retain the property.” Martinson,

809 F.2d at 1369 (footnote omitted). We have recognized

three ways the government can rebut a defendant’s

presumptive entitlement to return of the property and

demonstrate a legitimate reason to retain the property.

Wright, 49 F.4th at 1226. First, it may establish that the

property is contraband. Id. Second, it may establish that

the property is subject to forfeiture. Id. Finally, it can show

that the defendant is not entitled to lawful possession of the

already been dispersed and is not recoverable, sovereign immunity

prevents a claim for its monetary equivalent. See Diaz v. United States,

517 F.3d 608 (2d Cir. 2008); Bailey v. United States, 508 F.3d 736 (5th

Cir. 2007); Clymore v. United States, 415 F.3d 1113 (10th Cir. 2005);

Okoro v. Callaghan, 324 F.3d 488 (7th Cir. 2003) (opinion of Posner,

J.). We disagree with the dissent that our holding is incompatible with

these cases. Dissent Op. at 26. We are unaware of any circuit that has

held that sovereign immunity bars Rule 41(g) claims when the

government loses but later recovers the property, or when the

government cannot return the exact bills seized because the money has

changed forms, such as by being deposited into a bank account.

18 CANNON V. USA

property. Id. To that end, district courts “must receive

evidence on any factual issue necessary to decide the

motion.” Fed. R. Crim. P. 41(g).

First, the district court erred in finding that the money

was contraband. The court relied on United States v.

Kaczynski, 551 F.3d 1120 (9th Cir. 2009), which described

derivative contraband as “items that may be lawfully

possessed but became unlawful due to their use or intended

use.” Id. at 1129. But in our later decision in Wright, we

considered the definition of contraband in Kaczynski and

clarified that currency is not contraband of any kind: “Heroin

and bomb-making materials are contraband; currency is

not.” Wright, 49 F.4th at 1226 n.2 (emphasis added) (citing

Bennis v. Michigan, 516 U.S. 442, 459–62 (1996) (Stevens,

J., dissenting)). The district court did not discuss Wright or

explain why it reached a different conclusion. The

government has not rebutted Cannon’s presumptive right to

have the seized property returned by showing it is

contraband.

Second, the additional $218,000 seized from the safe is

not subject to forfeiture. At oral argument, the government

conceded that it had not brought timely forfeiture

proceedings for the missing cash and that no forfeiture

proceedings could be brought because of the statute of

limitations. See 19 U.S.C. § 1621. The government cannot

use Rule 41(g) to circumvent the statutory protections of

forfeiture proceedings. “Congress has enacted a detailed

statutory forfeiture scheme through which the government

may establish title in seized property.” Wright, 49 F.4th at

1224. “Allowing the government to circumvent this

congressional scheme through a Rule 41(g) proceeding

would necessarily allow the government to side-step many

of these protections.” Id.; see also Marolf, 173 F.3d at 1216–

CANNON V. USA 19

17 (holding that the government may not use a Rule 41(g)

proceeding to elude the statute of limitations governing

forfeiture actions); United States v. One 1985 Mercedes-

Benz, 300 SD, VIN WDBCB20C6FA177831, 14 F.3d 465,

468 (9th Cir. 1994) (“Forfeitures are not favored; they

should be enforced only when within both letter and spirit of

the law.”) (quoting United States v. One 1936 Model Ford

V–8 De Luxe Coach, 307 U.S. 219, 226 (1939)). Property

used to facilitate a crime may be returned to a Rule 41(g)

claimant if the forfeiture statute of limitations has expired.

Marolf, 173 F.3d at 1215.

Third, even if the government has failed to establish its

title in the property through forfeiture, the government may

show that Cannon is not entitled to lawful possession of the

property. But we must begin with a presumption that

Cannon is in lawful possession of the property taken from

him; it is the government’s burden to show that he did not

lawfully possess it. See United States v. Gladding, 775 F.3d

1149, 1152 (9th Cir. 2014); United States v. Van

Cauwenberghe, 827 F.2d 424, 433–34 (9th Cir. 1987)

(finding defendant’s Rule 41(g) (then 41(e)) motion failed

because defendant could “no longer demonstrate that he is

entitled to lawful possession of the property” because he

admitted “that he irrevocably transferred full title to the

property to” third parties); United States v. Palmer, 565 F.2d

1063, 1065 (9th Cir. 1977) (finding that the government can

overcome the presumption by demonstrating a “cognizable

claim of ownership or right to possession adverse to that of”

the defendant).

The government has not satisfied its burden. In

November 2020, the district court ordered the parties to

provide evidence and briefing on whether the cash stolen

from Cannon was “contraband or subject to forfeiture.” In

20 CANNON V. USA

discovery responses and a sworn declaration, Cannon listed

specific, lawful sources of the cash, including money from

car sales, monetary gifts, tax returns, and two years of

employment income as a personal trainer. The government

could have disputed this provenance by verifying Cannon’s

employment, producing his tax returns, or obtaining

information on the car sales. 11 Instead, the government

relied on Cannon’s 2015 FBI interview, in which he told

officers investigating Bowman that the safe held $585,000

in cash when it was seized. Cannon recalled that he used a

money counter to place $200,000 and $400,000 in the safe

and later withdrew $15,000. Nowhere in the interview

memorandum does Cannon admit that the money was drug

proceeds or that he was otherwise not entitled to the money.

The government’s claim to the contrary is simply an

inference from silence. The bare fact that Cannon had

money in a safe—admittedly, a lot of money—is not proof

that the money was obtained from entirely illegitimate and

unlawful sources, and Cannon’s admission in his plea deal

that some of the money was drug proceeds is not an

admission that all of it was. 12

Wright is illustrative of the kind of proof the government

must produce. 49 F.4th 1221. There, the government

11

Some evidence in the FBI’s own records confirmed that Cannon was

employed as he claimed.

12

The district court thought that Cannon agreed to forfeit all of the cash

seized from the safe and that the government “incorrectly assumed” the

amount was $366,800 and “wrongly stated” so in the plea agreement.

The $366,800 was not a scrivener’s error, but a negotiated term. Both

sides understood that that amount Cannon agreed to forfeit was not the

total amount seized from the safe. If the government thinks it made a

mistake in the plea agreement, it is up to the government to seek its

correction. It is not our place to renegotiate the plea agreement.

CANNON V. USA 21

successfully rebutted the presumption that the defendant was

entitled to lawful possession of the seized cash by

“considerable evidence demonstrating that the money was

stolen.” Id. at 1224. The government’s evidence included

proof that defendant was unemployed during the relevant

period; that the cash seized bore “distinctive gold money

bands used by the Silverton Casino” wrapped around the

cash; that the defendant was in the area of the robberies when

they were committed; and that defendant had taken “efforts

to conceal” the cash, provided “vague testimony regarding

[its] origins,” and offered no explanation how defendant

“magically came into possession” of it. Id. at 1226–27.

Here, the government has not attempted to offer comparable

proof that Cannon lacked lawful possession of the cash. Cf.

United States v. Dean, 100 F.3d 19, 20–21 (5th Cir. 1996)

(per curiam) (government successfully rebutted presumption

of entitlement by showing the proceeds had the name of the

bank the defendant robbed on them, and the defendant

offered nothing to demonstrate the cash was from something

other than the robbery).

The district court stated that Cannon’s plea deal to forfeit

$366,800.00 from the safe “support[s] an inference that he

agreed to forfeit all property seized from the safe in his

mother’s house.” But this inference impermissibly shifts the

burden of proof and misstates the parties’ bargaining

position. During the plea negotiations, both Cannon and the

United States understood that the government had seized far

more than $366,800 from his safe that day. The $366,800

figure on the forfeiture order was no clerical error—it was

the amount the parties had negotiated.

The district court’s inference also mischaracterizes the

record: At no time did Cannon admit that the entire sum of

cash in his safe constituted drug proceeds. The plea

22 CANNON V. USA

agreement stated that “the above-described property

constitutes proceeds of the offense of drug trafficking and/or

was property used or intended to be used to facilitate the

commission of that offense.” What was described above was

only—and exactly—“$366,800.00 in U.S. currency” from

the safe. The government has no right to keep any lawfully

earned money from Cannon’s safe, even if it was stored with

tainted money. See Gladding, 775 F.3d at 1153 (holding that

the government had no right to keep noncontraband files

intermingled with contraband files on seized devices, and

because “[t]he government failed to submit any evidence,”

it “could not have carried its burden of proof”). We are

unwilling to assume that because some of the cash was ill-

gotten, all of it was.

The government—not Cannon—bears the burden of

demonstrating a legitimate basis for refusing to return the

money; if it cannot, it must return Cannon’s property.

Wright, 49 F.4th at 1225. Thus, the government bore the

burden of showing that the entire amount seized was

unlawful proceeds. Cannon provided evidence supporting

his claim that lawful funds were intermingled with the drug

proceeds subject to forfeiture. The government had the

opportunity to dispute this. On this record, it has not done

so, and summary judgment was in error. We return the case

to the district court for additional proceedings.

IV. CONCLUSION

We reverse the judgment and remand for further

proceedings consistent with this opinion.

REVERSED and REMANDED.

CANNON V. USA 23

LEE, Circuit Judge, dissenting:

Lionel Cannon—a drug dealer who lived with his

mother—kept $585,000 in cash in a safe in his bedroom.

Federal agents discovered that cache of money during a

lawful search of his mother’s house, but FBI agent Scott

Bowman secretly took $218,200 and reported finding only

$366,800. Agent Bowman spent most of the stolen money

on cars, a Vegas trip, and plastic surgery for his wife. He

later pleaded guilty. Meanwhile, Cannon also pleaded guilty

to drug trafficking and agreed to forfeit “all property subject

to forfeiture . . . including but not limited to . . . $366,8000.”

Cannon later sued the United States to demand the

“return” of the $218,200 stolen by Agent Bowman, invoking

Rule 41(g) of the Federal Rules of Criminal Procedure. But

sovereign immunity generally shields the federal

government from lawsuits unless it agrees to waive it. Rule

41(g) waives immunity only to allow the “return” of

unlawfully seized “property.” The property here, however,

cannot be returned because the money has already been

spent. So Cannon is essentially seeking money damages

from the United States—even though Rule 41(g) does not

waive immunity to allow it.

The majority assumes that because money is fungible,

Cannon is seeking a “return” of his “property” when he

demands the government give him $218,200. But the fact

that money may be fungible does not mean it is the same

property. His “property” of $218,200 in his safe is gone: The

government no longer has it and cannot return it under Rule

41(g). I respectfully dissent.

24 CANNON V. USA

* * * *

Rule 41(g) of the Federal Rule of Criminal Procedure

provides that “[a] person aggrieved by an unlawful search

and seizure of property or by the deprivation of property may

move for the property’s return.” Fed. R. Crim. P. 41(g). If

the district court grants the motion, “the court must return

the property to the movant.” Id.

Because a Rule 41(g) motion “is necessarily directed

against the United States,” we lack jurisdiction unless the

government has waived its sovereign immunity. Ordonez v.

United States, 680 F.3d 1135, 1138 (9th Cir. 2012). “It is

axiomatic that the United States may not be sued without its

consent and that the existence of consent is a prerequisite for

jurisdiction.” Id. (quoting United States v. Mitchell, 463

U.S. 206, 212 (1983).

The government has waived its sovereign immunity only

if the waiver is “unequivocally expressed in statutory text”

and “extend[s] unambiguously” to the monetary claim at

issue. Id. (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)).

“We apply traditional tools of statutory construction to

determine whether the scope of Congress’ waiver is ‘clearly

discernable from the statutory text.’” Id. (quoting FAA v.

Cooper, 566 U.S. 284, 291 (2012)). If the scope of a waiver

is ambiguous, we interpret the ambiguity “in favor of the

sovereign.” Id. (quoting Cooper, 566 U.S. at 291).

We have interpreted Rule 41(g) as barring a claim for

money damages against the government “where the property

cannot be returned.” Id. In Ordonez, the government seized

the defendant’s various personal property during an arrest.

Id. at 1137. Some items were returned, but the government

could not locate other items. Id. The defendant sued,

seeking money damages for the lost items. Id. We affirmed

CANNON V. USA 25

the district court’s dismissal because we could not “find an

unequivocally expressed waiver of the government’s

sovereign immunity that extends unambiguously to money

damages in the text of Rule 41(g).” Id. at 1139. Although

we recognized that this interpretation could “work an

injustice to someone losing valuable goods . . . these

equitable considerations—standing alone—cannot waive

the government's immunity from suit.” Id. at 1140.

“[B]ecause Rule 41(g) contains no express and unequivocal

waiver of the government’s sovereign immunity, money

damages are not a permitted form of relief.” Id.

Seized money no longer in the government’s possession

should not be treated differently than the lost items of

property discussed in Ordonez. Rule 41(g) provides an

express waiver of sovereign immunity only for the “return”

of property. See Fed. R. Crim. P. 41(g). Like any other item

of physical property, money can be seized by the

government, and that same money can be returned if still in

the government’s possession. By the same token, if that

money has been lost, stolen or disbursed, the government

cannot return it. As the Second Circuit has explained, while

money is fungible, “that says nothing about whether

sovereign immunity has been waived to allow payment from

the Treasury to compensate for any wrongful seizure of this

one form of property.” Diaz v. United States, 517 F.3d 608,

612 (2d Cir. 2008). In short, money is like other physical

property, and Rule 41(g) waives the government’s sovereign

immunity only as to the actual money in its possession.

Indeed, “[o]nce seized currency has been disbursed and

is no longer available, a claim for its return is analogous to

any Rule 41(g) claim for the return of tangible property that

is no longer at hand: such claims are jurisdictionally barred

by the principle of sovereign immunity.” Id. at 613. Rule

26 CANNON V. USA

41(g) does not unequivocally express the government’s

willingness to be sued for replacement funds. So if no clear

waiver of sovereign immunity exists under Rule 41(g) for

property generally, then no waiver exists for currency either.

Id. at 612 (“[S]eized currency should be treated like any

other seized property: if the property is no longer available,

sovereign immunity bars the claimant from seeking

compensation.”).

Contrary to the majority, I would join the Second, Fifth,

Seventh, and Tenth Circuits, which have held that the

government has not waived sovereign immunity for claims

for money no longer in the government’s possession. See id.

at 609; Bailey v. United States, 508 F.3d 736, 740 (5th Cir.

2007); Clymore v. United States, 415 F.3d 1113, 1120 (10th

Cir. 2005); Okoro v. Callaghan, 324 F.3d 488, 491 (7th Cir.

2003). 1

To support its claim that the government can effectively

“return” Cannon’s money, the majority argues that the

money Agent Bowman is repaying to the United States can

be traced to the proceeds from Cannon’s safe. But there is

no genuine issue of material fact—indeed there is no

evidence in the record—that the government has possession

1

The majority cites the Fourth Circuit’s decision in United States v.

Minor, 228 F.3d 352 (4th Cir. 2000) in contending that Cannon is not

seeking monetary damages. But Minor considered whether the court was

deprived of jurisdiction under the Tucker Act, not whether the

government had waived sovereign immunity under Rule 41(g). See id.

at 355. In concluding that the Tucker Act did not deprive the court of

jurisdiction, Minor held that a claimant’s challenge to the administrative

forfeiture was an action in equity, not law, because the claimant was

seeking restitution, not money damages. See id. This conclusion does

not provide guidance on whether the government waives sovereign

immunity under Rule 41(g) when the property seized is currency and

cannot be returned.

CANNON V. USA 27

of the $218,200 found in Cannon’s safe and stolen by Agent

Bowman. Rather, the record indicates that Agent Bowman

disbursed the funds he stole through purchases and deposits.

And although Agent Bowman agreed to forfeit $136,462 to

the government under his plea agreement, there is no

evidence that this forfeiture included the same physical

currency he stole from Cannon’s safe.

The majority also argues that an exception to Rule 41(g)

should exist when the government somehow recoups the

“value” of the lost currency, here via Agent Bowman’s plea

agreement. I disagree. To start, no such exception exists in

Rule 41(g)’s text or precedent, and we cannot create one

when Congress has not. As the Supreme Court has long

held, “limitations and conditions upon which the

Government consents to be sued must be strictly observed

and exceptions thereto are not to be implied.” Lehman v.

Nakshian, 453 U.S. 156, 161 (1981) (citation modified). 2 A

contrary rule would expose the government to countless

other suits claiming that the government obtained some

“value” purportedly traceable to the seizure of property—

even though the government has not consented to suit for

claims seeking the “value” of seized property, but has only

consented to suit for claims seeking return of the property

itself. See Okoro v. Callaghan, 324 F.3d 488, 490–491 (7th

Cir. 2003) (while usually a “plaintiff is entitled to [] proceeds

in an action for restitution,” such a suit under Rule 41(g) “is

subject to the defense of sovereign immunity when relief

would require disbursement of money from the treasury”).

2

The majority’s reliance on the discussion of the fungibility of money

in Robers v. United States, 572 U.S. 639, 640 (2014), is inapposite

because that case involved an action against a private individual, not the

government.

28 CANNON V. USA

This case demonstrates how problematic it would be to

subject the government to suit under the majority’s theory.

As the majority acknowledges, “[i]t is unclear from the

record what methodology was used to calculate” the

$136,462 money judgment against Agent Bowman. While

the money judgment represents the “proceeds of the offenses

to which [Agent Bowman] entered a guilty plea,” the theft

from Cannon’s safe is not the only offense to which Agent

Bowman pleaded guilty. Indeed, the plea agreement

resolved all the government’s charges against Agent

Bowman, not just those related to Cannon’s safe. The

majority assumes that “$120,880 of the $136,462 judgment

represents the proceeds from Cannon’s safe,” but that

division appears nowhere in the record. Thus, far from

simply ordering the government to facilitate the return of

property, Fed. R. Crim. P. 41(g), the majority would subject

the government to complicated actions that involve fact-

intensive remedial disputes. Rule 41(g) contains no waiver

of sovereign immunity for such involved claims. 3

3

And even if we addressed the merits of Cannon’s claim, his lawsuit

would fail because the government has shown that the $218,200 found

in Cannon’s safe was likely the fruit of unlawful drug-dealing. See

United States v. Wright, 49 F.4th 1221, 1226 (9th Cir. 2022) (“[T]he

government may rebut the presumption that the defendant is entitled to

lawful possession of the property.”). The government’s evidence shows

that Cannon was actively engaged in a drug dealing venture that involved

trafficking cocaine and heroin in the summer of 2014, the same period

in which the money was seized. Cannon did not present enough evidence

to establish a genuine issue of material fact as to his lawful possession

of the $218,200. For example, Cannon claimed that he earned $158,600

(presumably post-tax) through his work as a personal trainer during this

time period, even though that job paid him only $16 per hour at

FITWORKS.

CANNON V. USA 29

* * * *

Rule 41(g) provides a limited waiver of sovereign

immunity: While it may waive sovereign immunity for

actions seeking property that the government holds and can

return, it does not waive sovereign immunity for actions

seeking property that the government does not hold and

cannot return. Because Cannon seeks property not in the

government’s possession, the government cannot return it to

Cannon and Rule 41(g)’s waiver of sovereign immunity does

not apply. I respectfully dissent.