Not For Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit


No. 06-1560

                          MANUEL PÉREZ-COLÓN,

                         Plaintiff, Appellant,

                                      v.

                         ALEX CAMACHO, ET AL.,

                        Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. García-Gregory, U.S. District Judge]


                                   Before

                    Torruella, Lynch and Howard,
                          Circuit Judges.


     Manuel Peréz-Colón on brief pro se.
     Rosa E. Rodríguez-Vélez, United States Attorney, Nelson Pérez
Sosa, Assistant United States Attorney, and Germán A. Rieckehoff,
Assistant United States Attorney, on brief for appellees.



                           November 21, 2006
          Per Curiam.    Appellant Manuel Perez-Colon appeals from

the district court's judgment dismissing his complaint.        This

complaint seeks the return of property ($3,000 in cash) which the

United States Marshals had seized from appellant.        Forfeiture

proceedings against the cash were never instituted, and, shortly

after the seizure, the money was turned over to the Puerto Rico

Treasury Department.    The district court, prior to service of

process, dismissed the complaint, sua sponte, on the ground that

appellant had failed to exhaust his prison remedies as required by

42 U.S.C. § 1997e(a).   On appeal, we reversed the dismissal and

remanded for further proceedings, holding that if the money had

been seized at the time of appellant's arrest, as opposed to having

been seized at the time he entered prison, exhaustion would not be

required, and appellant would be permitted to bring a civil action

in equity for the return of the $3,000.   Perez-Colon v. Camacho, 73

Fed. Appx. 474, 475-76 (1st Cir. 2003) (per curiam).

          On remand -- where it was established that the money, in

fact, had been seized during appellant's arrest -- the government

filed a motion to dismiss the complaint, arguing essentially that

(1) construing the complaint as asserting a tort claim, appellant

had failed to comply with the requirements for filing such a claim

as set out in the Federal Tort Claims Act (FTCA), (2) construing

the complaint as asserting a claim under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 

(1971),


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qualified immunity protected the defendants from a money judgment,

and (3) since the seizure had been legal, appellant's rights under

the Fourth Amendment had not been violated.          After appellant filed

a response, the district court entered a judgment dismissing the

complaint, stating that it was relying on the reasons given by the

government in its motion to dismiss.         The instant appeal ensued,

and, once again, the judgment of the district court must be vacated

and the matter remanded for further proceedings.

             Generally, after a defendant has been convicted, the

defendant "is presumed to have a right to [the] return" of any

property that has been seized from him or her.             United States v.

Chambers, 

, 377 (3d Cir. 1999); United States v. Potes

Ramirez, 

, 1314 (11th Cir. 2001).         In a case where, as

here, the government has not forfeited the property in question, a

motion under Fed. R. Crim. P. 41(g) -- formerly Rule 41(e) -- is

the proper basis for a request for the return of such property.

See, e.g., United States v. Sims, 

, 708 (7th Cir. 2004)

(holding that, unless the seized property has been forfeited, Rule

41(g)   is   the   proper   remedy   for   seeking   the   return   of   such

property); 

(holding, in a case where

there had been no forfeiture, that "[a] person aggrieved by the

deprivation of property may file a motion under Rule 41(e) . . . to

request the return of that property") (footnote omitted).            When a

Rule 41(g) motion is filed after the criminal proceedings have


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ended, also as here, the motion is treated as a civil proceeding

for equitable relief. See 

; Potes 

; Chambers, 

.

            Because appellant has a cause of action under Rule 41(g),

he has no need to base his claim for the return of the $3,000 on

either the FTCA or Bivens.      As a result, the questions whether

appellant complied with the requirements of the FTCA and whether

the defendants are entitled to qualified immunity are not relevant

to a resolution of this case.     We therefore turn to the terms of

Rule 41(g).

            Rule 41(g) provides as follows:

                      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.

(emphasis added). Given the highlighted language, it is plain that

Rule 41(g) applies to legally, as well as to illegally, seized

property.     See Government of the Virgin Islands v. Edwards, 

, 273 (3d Cir. 1990) ("Under [a] 1989 amendment, Rule 41(e)

is no longer limited to property held following an unlawful search

or seizure"); 3A Charles Alan Wright, Nancy J. King & Susan R.

                                 -4-
Klein, Federal Practice and Procedure § 673, at 336 (3d ed. 2004)

(same).     Thus, it is no answer to appellant's motion to say that

the seizure of the $3,000 was legal.

            A Rule 41(g) motion nonetheless may be denied "if the

defendant is not entitled to lawful possession of the seized

property, the property is contraband or subject to forfeiture[,] or

the government's need for the property as evidence continues."

(internal quotation marks and citation

omitted).    It is the government's burden, after the termination of

criminal proceedings, to demonstrate that return of the property is

not warranted, and one way that the government may meet this burden

is to show "a cognizable claim of ownership or right to possession

adverse to that of the movant."             

on point is United

States v. Francis, 

(6th Cir. 1981).

            In   Francis,   federal   agents      had   seized   approximately

$20,000 from the defendant and then, while the defendant's Rule

41(e) motion was pending, transferred the cash to the state of

Michigan under a warrant of levy on the defendant's property for

nonpayment of state taxes.      In affirming the denial of defendant's

motion for the return of the money, the court of appeals first

rejected the government's argument that, since it no longer had the

property, the case was moot.          The question remained, the court

held, whether the government's transfer had been lawful -- i.e.,




                                      -5-
whether the transfer had been made pursuant to a right to the money

that trumped the defendant's rights.            

              Turning to this question, the court, by analogy to cases

involving     the   Internal      Revenue    Service,     determined      that   the

government, in fact, had a "continuing interest" in the money and

that   this    interest     was   sufficient    to    defeat    the     defendant's

interest:

                    The courts have uniformly held that
                    the [IRS] may lawfully attach
                    property belonging to a defendant .
                    . . and that the tax lien will
                    frustrate a motion for return of the
                    property. [T]he lien cannot violate
                    any rights that defendant has in the
                    money because even if the money were
                    returned to him, nothing would
                    prevent    the    government    from
                    immediately levying on it at the
                    time of its return.     It makes no
                    difference that in this case it is
                    a state rather than the IRS which
                    has asserted an interest in the
                    seized cash. The State of Michigan
                    may validly levy on money owned by
                    defendant that is in the possession
                    of the government.

(citations and footnote omitted).

              The court of appeals then determined that the lien that

the state had attached to the defendant's money was facially valid

and that it was broad enough to reach the money that the government

had seized.      

.       Given this, and given that the federal

government     lacked   a   greater    interest      in   the   cash,    the   court

concluded that the government had been required to comply with the


                                       -6-
lien by turning the money over to the state.         

court

held, the transfer had been lawful.        

United States v.

Fitzen, 

, 388-89 (9th Cir. 1996) (affirming the denial

of the appellant's Rule 41(g) motion to the extent that the seized

property (1) was subject to an Idaho state tax levy or (2) had been

forfeited pursuant to Idaho forfeiture law).

           The problem here is that the government never explained

the precise nature of the Commonwealth's interest in appellant's

money, and, as a result, there is no way to determine whether the

transfer of that money was lawful.               A remand, therefore, is

required so that the court can make a finding on the matter.             See

Rule 41(g) ("[t]he court must receive evidence on any factual issue

necessary to decide the motion").      We add that, given the course of

the proceedings up until now, appellant may desire, on remand, to

request the appointment of counsel.        See United States v. Giraldo,

, 512 (1st Cir. 1995) (per curiam) (where a pro se

prisoner   was   challenging,   in    a    civil   equitable   action,    an

administrative forfeiture of property that had been seized from

him, we noted that he was free to request an appointment of counsel

in   the   district   court;    citing     cases    permitting   such     an

appointment).

           Finally, we note that, if the district court decides that

appellant is entitled to the return of the $3,000, the government's

argument that sovereign immunity bars relief in this case is


                                     -7-
misplaced.   That is, appellant is not asking for money damages

here.   Rather, he is seeking equitable relief "notwithstanding the

fact that the property at issue is currency."      Polanco v. United

States Drug Enforcement Admin., 

, 652 (2d Cir. 1998).

That is, "[i]n suing for return of the currency, [appellant] seeks

restitution of 'the very thing' to which he claims an entitlement,

not damages in substitution for a loss."     United States v. Minor,

, 355 (4th Cir. 2000).       Further, "the fact that the

government obviously cannot restore to [appellant] the specific

currency that was seized does not transform the motion into an

action at law."   

of the district court is vacated, and the

matter is remanded for further proceedings consistent with this

opinion.   No costs are awarded.




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