                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 09-12982                NOVEMBER 17, 2009
                            Non-Argument Calendar            THOMAS K. KAHN
                          ________________________               CLERK


                      D. C. Docket No. 06-20556-CR-PAS

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

GEOVANNY ZAMBRANO,

                                                           Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                              (November 17, 2009)

Before CARNES, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

      Geovanny Zambrano, a federal prisoner proceeding pro se, appeals from the

district court’s denial of his motion for return of property, filed pursuant to

Fed.R.Crim.P. 41(g) (“Rule 41(g)”). Zambrano argues that the district court erred
in determining that it lacked the authority to consider his Rule 41(g) motion for

return of property because he failed to allege that his property was seized pursuant

to an unlawful arrest and because the $9,100.00 in dispute was administratively

forfeited. After thorough review, we affirm.

      We review questions of law dealing with a district court’s denial of a motion

for return of seized property de novo. United States v. Howell, 425 F.3d 971, 973

(11th Cir. 2005). Accordingly, we review “de novo a district court’s determination

that it lacks the authority to exercise equitable jurisdiction, as this is purely a

question of law.” United States v. Martinez, 241 F.3d 1329, 1330 (11th Cir. 2001).

However, where a district court declines to exercise equitable jurisdiction, we only

review the determination for abuse of discretion. See United States v. Machado,

465 F.3d 1301, 1307 (11th Cir. 2006), abrogated on other grounds by Bowles v.

Russell, 551 U.S. 205 (2007).      Moreover, we “may affirm the district court’s

decision on any adequate ground, even if it is other than the one on which the court

actually relied.” Smith v. Allen, 502 F.3d 1255, 1280 (11th Cir. 2007) (quotation

omitted). Here, the district court determined that it lacked the authority to consider

Zambrano’s Rule 41(g) motion and, thus, we review the matter de novo.

      Pursuant to Rule 41(g), “[a] person aggrieved by an unlawful search and

seizure of property or by the deprivation of property may move for the property’s



                                          2
return” by filing a motion in the district court where the property was seized.

Fed.R.Crim.P. 41(g). This rule not only provides recourse for persons aggrieved

by the unlawful seizure of personal property, but also when lawfully seized

property is unreasonably retained by the government.            See id., Advisory

Committee Note to the 1989 Amendments (explaining that the rule no longer

simply permits persons to seek return of property obtained from an unlawful search

or seizure). A Rule 41(g) motion is unavailable, however, when property is

retained pursuant to administrative or civil forfeiture.     See United States v.

Eubanks, 169 F.3d 672, 673-74 (11th Cir. 1999). Under such circumstances, the

proper method of recovery is a civil action. United States v. Castro, 883 F.2d

1018, 1019-20 (11th Cir. 1989).

      Where, as here, a Rule 41(g) motion is filed after the conclusion of criminal

proceedings, the motion is treated as a civil action in equity over which a district

may exercise equitable jurisdiction. Machado, 465 F.3d at 1307; Martinez, 241

F.3d at 1330-31.     The “decision to exercise equitable jurisdiction is highly

discretionary” and jurisdiction is generally appropriate “only when the petitioner’s

conduct and the merits of his petition require judicial review to prevent manifest

injustice.” Eubanks, 169 F.3d at 674. In Machado, we noted that it would be

inequitable to return property obtained through criminal activity or property that a



                                         3
defendant “voluntarily forfeited to the government as part of a valid plea

agreement” after receiving the “full benefit of the bargain.” 465 F.3d at 1307.

Moreover, for a district court to exercise equitable jurisdiction, “the owner of the

property must have clean hands.” Id. (quotation omitted).

      In determining that it lacked authority to consider Zambrano’s motion for

the return of property, the district erred in concluding that Rule 41(g) only applies

where property is taken pursuant to an unlawful arrest. Contrary to the court’s

contention, the rule also provides a mechanism for the recovery of property that

was lawfully seized but illegally retained by the government. Fed.R.Crim.P. 41(g);

id., Advisory Committee Note to the 1989 Amendments. Moreover, since

Zambrano’s motion was filed after the close of criminal proceedings, the district

court erred in not treating the motion as a civil action over which it could

theoretically exercise equitable jurisdiction.

      Nonetheless,     despite   any    actual   or   potential   errors,   the   record

overwhelmingly supports the district court’s ultimate determination that it lacked

authority to consider Zambrano’s motion for return of property. See Smith, 502

F.3d at 1280. Since Zambrano’s Rule 41(g) motion was filed after the close of

criminal proceedings, the court could only exercise jurisdiction if it were equitable

to do so. See Machado, 465 F.3d at 1307. Here, however, Zambrano pled guilty to



                                           4
a drug offense in which he used the disputed currency and, as part of his guilty

plea, he expressly agreed to forfeit the funds. Id. Given Zambrano’s conduct,

there are precious few equities we can discern that cut in Zambrano’s favor, and

indeed, so many equities that cut so heavily against him. As a result, we see no

basis on which the district court could have relied to exercise its discretion to

review Zambrano’s Rule 41(g) motion under its equitable authority. Accordingly,

we affirm.1

       AFFIRMED.




1
        As for Zambrano’s suggestion that the district court should have exercised equitable
jurisdiction in light of an alleged due process notice violation, we are also unpersuaded.
Zambrano did not raise his constitutional claim in the district court and, as a general rule,
appellate courts “will not consider a legal issue or theory raised for the first time on appeal” in
civil matters. See United States v. Southern Fabricating Co., 764 F.2d 780, 781 (11th Cir. 1985).
Moreover, even if this Court were to exercise its discretion to the consider the argument,
Zambrano’s unclean hands would still preclude the exercise of equitable jurisdiction over the
Rule 41(g) motion. See Machado, 465 F.3d at 1307.


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