                      NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1




            United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                            Submitted October 31, 2007*
                            Decided November 28, 2007

                                       Before

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. DIANE P. WOOD, Circuit Judge

                    Hon. DIANE S. SYKES, Circuit Judge

No. 06-3206

SEANTAI SUGGS,                                  Appeal from the United States District
    Plaintiff-Appellant,                        Court for the Northern District of
                                                Indiana, Hammond Division
      v.
                                                No. 2:06cv217
UNITED STATES OF AMERICA,
    Defendant-Appellee.                         James T. Moody,
                                                Judge.

                                     ORDER

       Seantai Suggs, a federal prisoner, appeals from an order denying the return
of cash, guns, and other personal property he alleges was seized during the
investigation leading to his arrest and conviction for his participation in a cocaine
conspiracy. We affirm the judgment with respect to the forfeiture of the cash and
guns, but we vacate the judgment as to the remaining property, and remand for
further proceedings.



      *
        After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 06-3206                                                                    Page 2

       In July 2001 a grand jury charged Suggs and seventeen others with various
drug offenses. The indictment included a four-page forfeiture allegation directed at,
among other things, $1,445.18 in cash and three guns. After a jury convicted Suggs
in 2002, his counsel affirmatively waived Suggs’s rights to the cash and guns, and
the district court found that Suggs forfeited his interest in those items. Suggs
appealed his convictions, which we affirmed in July 2004. See United States v.
Suggs, 374 F.3d 508 (7th Cir. 2004). Suggs did not challenge the forfeiture of his
property in his direct appeal.

       Nearly two years later, in May 2006, Suggs filed a motion under his criminal
case number for return of his property. See Fed. R. Crim. P. 41(g). Suggs alleged
that his personal property was “seized and/or used as evidence” in his trial, and
should be returned to him. The list of items allegedly seized not only included the
cash and guns, but also jewelry, clothing, electronics, photos, and his driver’s
license. The district court informed Suggs that his motion must be refiled as a civil
action, see United States v. Howell, 354 F.3d 693, 695-96 (7th Cir. 2004), and
warned him that doing so would put him at risk of incurring a strike under
28 U.S.C. § 1915(g). Suggs nevertheless informed the court that he wished to
proceed, and the court directed the clerk to assign Suggs’s motion a civil case
number. The district court then dismissed Suggs’s complaint sua sponte, holding
that “Mr. Suggs has waited five years to bring this lawsuit, so it is barred by the
doctrine of estoppel.” Suggs did not incur a strike in the district court, and he
timely appealed.

         We construe the district court’s order as applying the defense of laches,
which is a form of equitable estopple. See Teamsters & Employers Welfare Trust of
Ill. v. Gorman Bros. Ready Mix, 283 F.3d 877, 882 (7th Cir. 2002). Where, as here,
the district court dismisses a complaint based on an affirmative defense, we will
review the district court’s judgment de novo. See Woidtke v. St. Clair County, Ill.,
335 F.3d 558, 562 (7th Cir. 2003); Perry v. Sullivan, 207 F.3d 379, 382 (7th Cir.
2000). A plaintiff may plead himself out of court by alleging facts sufficient to
establish an affirmative defense. Hollander v. Brown, 457 F.3d 688, 691 n.1 (2006).
But dismissal based on an affirmative defense is appropriate only where the
validity of the defense is apparent from the face of the complaint and so
unmistakable that the action is frivolous. Walker v. Thompson, 288 F.3d 1005, 1010
(7th Cir. 2002); see also Topping v. Fry, 147 F.3d 715, 718 (7th Cir. 1945) (holding
laches is an affirmative defense “not to be set up for summary disposition by motion
to dismiss”).

      We begin by noting that Rule 41(g) is not a proper basis to seek the return of
property forfeited during a criminal proceeding. Young v. United States, 489 F.3d
313, 315 (7th Cir. 2007); United States v. Sims, 376 F.3d 705, 708 (7th Cir. 2004). A
criminal forfeiture is part of the criminal sentence; it can only be challenged on
No. 06-3206                                                                     Page 3

direct appeal, and if not raised then, it is waived. Young, 489 F.3d at 315. The
cash and guns at issue here were forfeited as part of Suggs’s criminal sentence, and
because he did not challenge that forfeiture in his direct appeal, he cannot do so
now. We thus affirm the district court’s judgment with respect to the cash and
guns.

       Rule 41(g) may be invoked, however, to seek the return of property that was
seized but not forfeited. See Sims, 376 F.3d at 708. The government admits that
the balance of the property Suggs seeks was not forfeited in his criminal proceeding
and was never the subject of a civil or administrative forfeiture proceeding. Thus
Suggs properly relied on Rule 41(g) for the return of his remaining property, but the
district court held that Suggs waited too long to file his motion. The government
concedes on appeal, however, that Suggs’s motion was timely filed, and we agree.
See United States v. DeMaree, 459 F.3d 791, 793 (7th Cir. 2006) (holding we may,
but are not required, to accept government’s confession of error). Motions raised
under Rule 41(g) after criminal proceedings or civil-forfeiture proceedings have
concluded are subject to a six-year statute of limitations. Sims, 376 F.3d at 708-09.
Suggs was sentenced and judgment was entered in December 2002. He filed his
Rule 41(g) motion in May 2006, well within the six-year window. Because Suggs
did not allege that his delay caused prejudice to the government, the validity of
laches was not apparent from the face of the complaint. See Pruitt v. City of
Chicago, 472 F.3d 925, 927 (7th Cir. 2006) (noting laches requires proof of lack of
diligence and prejudice). The district court therefore erred in dismissing Suggs’s
complaint regarding his remaining property.

       We note, however, that the record is silent as to whether the government
ever seized anything other than the cash and guns. On remand the district court
should develop the record to determine whether the government ever seized the
property Suggs alleges and if so whether the government currently possesses it.
See Fed. R. Civ. P. 41(g); United States v. Stevens, 500 F.3d 625, 628 (7th Cir. 2007).

        Accordingly, we AFFIRM the district court’s judgment as to the cash and
guns; we VACATE the judgment as to the remaining property, and REMAND the
case to the district court for further proceedings.
