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.

____________

SUBMITTED NOVEMBER 13, 2002—DECIDED MARCH 25, 2003

____________

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, seeking the return of gems and cash that he claims the defendants 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 judgment 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 allowed 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 defendants 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 testified; 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 evidence 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 conviction, 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 district 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 theoretical possibility mentioned in our opinion that the defendants 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 federaldefendant equivalent, 28 U.S.C. § 2255. It is irrelevant

that he disclaims any intention of challenging his conviction; 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 complaining about unconstitutional actions by federal law enforcement 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 proceedings 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 Procedure 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 criminal 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 otherwise 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 holding 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 government)? Then the issue of sovereign immunity falls away
6 No. 02-2033

and the question becomes whether Bivens offers the exclusive 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 officers for violation of constitutional rights; it does not truncate 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 directed against the custodian. If the federal government’s

agents have secreted or sold the property that they unlawfully 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 transferring 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 procedure 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 independently requires that the judgment in favor of the defendants 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