No. 24-1317

D.C. No.

5:19-cv-02337-

FLA-SP

OPINION

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

Page 2Fed. 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 Page 3money. 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.

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.

Page 4BYBEE, 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.

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, FBIPage 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 Page 6that 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 Page 7inference 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.

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).

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 Page 8jurisdiction.” 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.

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 Page 9be 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. ,Page 10 337 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 Page 11one 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 Page 12Federal 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 Page 13States , 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

Colleen P. Murphy, Money as a “Specific” Remedy , 58 Ala. L. Rev. 119, 149 (2006).

Page 14electronically 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 122, 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 Page 15Forfeiture 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 Page 16judgment 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 Page 17remand, 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.

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 Page 18property. 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–Page 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 MercedesBenz, 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 Page 20discovery 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 Page 21successfully 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 Page 22agreement 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 illgotten, 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.

We reverse the judgment and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

Page 23LEE, 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.

Page 24* * * *

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 Page 25the 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. RulePage 26 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 Page 27of 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”).

Page 28This 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 factintensive remedial disputes. Rule 41(g) contains no waiver of sovereign immunity for such involved claims.³

Page 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.