In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2033
RALPHAEL OKORO,
Plaintiff-Appellant,
v.
WILLIAM CALLAGHAN, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94 C 6343—Matthew F. Kennelly, Judge.
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SUBMITTED NOVEMBER 13, 2002—DECIDED MARCH 25, 2003
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Before FLAUM, Chief Judge, and POSNER and KANNE,
Circuit Judges.
POSNER, Circuit Judge. This is a suit by a federal prisoner,
Ralphael Okoro, against federal and state officers, seek-
ing the return of gems and cash that he claims the defen-
dants seized in the course of a search of his home. The
district court dismissed the suit, but we reversed and
remanded. Okoro v. Bohman, 164 F.3d 1059 (7th Cir. 1999). A
bench trial was held, and the district judge rendered judg-
ment for the defendants because he disbelieved Okoro’s
story. The appeal has no possible merit—the issue on which
the judgment pivots was a straightforward issue of cred-
2 No. 02-2033
ibility—and we write only to respond to the defendants’
argument that the district judge should never have al-
lowed the case to go to trial, even after our remand.
Okoro had been arrested in his home by several of the
defendants on suspicion of being a heroin dealer, and it
was during a search incident to the arrest that the defen-
dants are alleged to have stolen the gems and cash. The
Supreme Court held in Heck v. Humphrey, 512 U.S. 477, 486-
87 (1994), that a convicted criminal may not bring a civil
suit questioning the validity of his conviction until he
has gotten the conviction set aside. Okoro could be guilty
of drug violations yet also have been the victim of a theft
by the officers who arrested him. But we noted in our
previous opinion that from the outset he has insisted that
he was not trying to sell the officers heroin, as they testi-
fied; he was trying to sell them gems and they stole them.
If this is true, then almost certainly he was convicted in
error, for that testimony was an essential part of the evi-
dence against him in the criminal case; and if he cannot
prevail in his claim for the return of the gems without
undermining the criminal case against him, then he is
barred by Heck unless and until he knocks out his convic-
tion, which he has never done. But as this point had not
been raised by the defendants, we did not consider it
an appropriate ground for affirming the judgment.
On remand, however, the defendants pleaded Heck.
Without suggesting that they had done so too late (nor
had they, for they were not obligated to defend the dis-
trict court’s judgment in their favor on every possible
ground, Schering Corp. v. Illinois Antibiotics Co., 89 F.3d
357, 358 (7th Cir. 1996); Transamerica Ins. Co. v. South, 125
F.3d 392, 399 (7th Cir. 1997); Crocker v. Piedmont Aviation,
Inc., 49 F.3d 735, 740 (D.C. Cir. 1995) (“forcing appellees
to put forth every conceivable alternative ground for af-
No. 02-2033 3
firmance might increase the complexity and scope of
appeals more than it would streamline the progress of
the litigation”)), the court rejected it because of the theo-
retical possibility mentioned in our opinion that the defen-
dants had both found illegal drugs in Okoro’s home and
stolen gems and cash that they also found there. This was
error. Okoro adhered steadfastly to his position that there
were no drugs, that he was framed; in so arguing he
was making a collateral attack on his conviction, and
Heck holds that he may not do that in a civil suit, other
than a suit under the habeas corpus statute or its federal-
defendant equivalent, 28 U.S.C. § 2255. It is irrelevant
that he disclaims any intention of challenging his convic-
tion; if he makes allegations that are inconsistent with the
conviction’s having been valid, Heck kicks in and bars
his civil suit. Edwards v. Balisok, 520 U.S. 641, 646-48 (1997);
Ryan v. DuPage County Jury Commission, 105 F.3d 329, 330-
31 (7th Cir. 1996) (per curiam). He is the master of his
ground. He could argue as we have suggested that the
defendants had taken both drugs and gems, and then
the fact that they had violated his civil rights in taking the
gems (if they did take them) would cast no cloud over the
conviction. Or he could simply argue that they took the
gems and not say anything about the drugs, and then
he wouldn’t be actually challenging the validity of the
guilty verdict. But since he is challenging the validity of the
guilty verdict by denying that there were any drugs and
arguing that he was framed, he is barred by Heck.
The government also objects to the judge’s allowing
Okoro’s suit for the return of the gems and the cash to be
converted to a suit for damages. Damages suits complain-
ing about unconstitutional actions by federal law enforce-
ment officers are governed by Bivens if the suit is against
the officers and by the Federal Tort Claims Act if it is
against the United States. Okoro’s Bivens claims were dis-
4 No. 02-2033
missed (and he has not appealed that dismissal), and he
has not exhausted administrative remedies, as the Tort
Claims Act requires. But we do not interpret the proceed-
ings on remand as a trial for damages. Okoro (if he were
believed) did not know whether the defendants had the
gems or whether they had sold them. His suit is best
understood as seeking the return either of the gems or of
the proceeds of their sale. Federal Rule of Criminal Pro-
cedure 41(g) (formerly, and at the time of our first opinion,
41(e)) entitles a person to the return of his property that
has been unlawfully seized by a federal law enforcement
officer. The position of this court is that a claim under Rule
41(g) may be brought after the defendant’s conviction,
as well as before, as an ancillary proceeding to the crim-
inal case. United States v. Solis, 108 F.3d 722 (7th Cir. 1997);
United States v. Taylor, 975 F.2d 402, 402-03 (7th Cir. 1992);
Mora v. United States, 955 F.2d 156, 158 (2d Cir. 1992);
United States v. Garcia, 65 F.3d 17, 20 (4th Cir. 1995); but
see Bartlett v. United States, 317 F.2d 71 (9th Cir. 1963)
(per curiam); Toure v. United States, 24 F.3d 444, 445 (2d
Cir. 1994) (per curiam); United States v. Rapp, 539 F.2d
1156, 1160 (8th Cir. 1976).
Rule 41(g) creates a remedy analogous to the common
law writ of replevin. And if the defendant in a suit for
replevin has sold the property that the plaintiff is seeking
to replevy, the plaintiff is entitled to the proceeds in an
action for restitution. 1 Dan B. Dobbs, Law of Remedies
§ 5.18(1), p. 923 (2d ed. 1993). For generally the law does
not distinguish between a claim to the ownership of a thing
and a claim to the proceeds if the thing is sold or other-
wise transferred, transmuted, or substituted for. E.g.,
Mattson v. Commercial Credit Business Loans, Inc., 723 P.2d
996, 999 (Ore. 1986); UCC § 9-315(a); 1 Dan B. Dobbs, Law
of Remedies § 4.3(2), pp. 588-89 (2d ed. 1993); 2 id. §§ 6.1(2),
(3), pp. 5, 11. That is why a suit for proceeds is not a suit for
No. 02-2033 5
damages, unlike the case in which property is lost or
destroyed and the owner seeks money to compensate him
for his loss. He is seeking damages in that case, and a
suit for damages is not authorized by Rule 41(g). United
States v. Hall, 269 F.3d 940, 943 (8th Cir. 2001); United
States v. Potes Ramirez, 260 F.3d 1310, 1316 (11th Cir. 2001);
United States v. Jones, 225 F.3d 468, 469-70 (4th Cir. 2000);
United States v. Bein, 214 F.3d 408, 415 (3d Cir. 2000); Pena
v. United States, 157 F.3d 984, 986 (5th Cir. 1998). But if
the government has sold the defendant’s property and
pocketed the proceeds, there is nothing in Rule 41(g)
itself to prevent the court from ordering the government
to remit the proceeds to the defendant, and cases such
as United States v. Minor, 228 F.3d 352, 355 (4th Cir. 2000);
Mora v. United States, supra, 955 F.2d at 159-60, and United
States v. Martinson, 809 F.2d 1364, 1368-69 (9th Cir. 1987),
though distinguishable, can be read to suggest that Rule
41(g) authorizes such relief. But it does not. A suit for
restitution is subject to the defense of sovereign immunity
when relief would require disbursement of money from
the treasury, United States v. Nordic Village, Inc., 503 U.S. 30,
38-39 (1992); Edelman v. Jordan, 415 U.S. 651, 663-69 (1974);
Kalodner v. Abraham, 310 F.3d 767, 769-70 (D.C. Cir. 2002),
even if the government is merely an escrow agent hold-
ing funds owned by the plaintiff. Kalodner was such a
case. No one supposes that Rule 41(g) was intended to
waive the sovereign immunity of the federal government.
United States v. Potes Ramirez, supra, 260 F.3d at 1316; United
States v. Jones, supra, 225 F.3d at 469-70; cf. United States
v. Nordic Village, Inc., supra, 503 U.S. at 38-39.
But what if relief under Rule 41(g) is sought against
individual officers rather than against the United States,
because the government has disposed of the property to
them (or maybe they never turned it over to the govern-
ment)? Then the issue of sovereign immunity falls away
6 No. 02-2033
and the question becomes whether Bivens offers the ex-
clusive route to a suit against the officers or whether Rule
41(g) is available since the relief sought is in the nature
of restitution. Although Bivens is conventionally described
as providing a damages remedy, e.g., Sinclair v. Hawke,
314 F.3d 934, 939 (8th Cir. 2003); Yeager v. General Motors
Corp., 265 F.3d 389, 398 (6th Cir. 2001), what it really does
is create a right of action against individual federal offi-
cers for violation of constitutional rights; it does not trun-
cate the remedies available. It would be odd to be able
to proceed by way of Bivens if one sought damages yet
be remitted to Rule 41(g) if one sought restitution.
Since in the usual case the only relief sought by the Rule
41(g) motion is return of the property by the government,
the fact that the government doesn’t have it is ordinarily
a conclusive ground for denial of the motion. See, e.g.,
United States v. Solis, supra, 108 F.3d at 723; United States
v. White, 718 F.2d 260, 261 (8th Cir. 1983) (per curiam). But
an action for the return of property is necessarily di-
rected against the custodian. If the federal government’s
agents have secreted or sold the property that they unlaw-
fully seized while exercising investigative powers with
which the government had clothed them, the owner of
the property is entitled to seek the return of the property
or its proceeds from them. Otherwise the government
could defeat a motion under Rule 41(g) simply by trans-
ferring the property to one of its agents. It is no answer
that if they hold it as the agents of the government and
the government is ordered to return it, they must return
it. Of course they must. United States v. Wright, 610 F.2d
930, 938-39 (D.C. Cir. 1979). The question is the proce-
dure the owner should follow to get it back from them.
One possibility would be to direct his Rule 41(g) motion
to them. Yet the case would be squarely in the sights
No. 02-2033 7
of Bivens and there are obvious objections to multiplying
remedies without compelling need.
We need not penetrate further into this thicket. The
suit should have been dismissed on the basis of the Heck
decision; and in any event the plaintiff’s challenge to the
district judge’s credibility finding is doomed and inde-
pendently requires that the judgment in favor of the de-
fendants be
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-25-03