                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 29 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10251

               Plaintiff - Appellee,             D.C. No. 2:07-CR-00066-JCM

  v.
                                                 MEMORANDUM *
MAURICE DONNELL COOPER,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                           Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Maurice Donnell Cooper appeals from the district court’s order denying his

motion under Federal Rule of Criminal Procedure 41(g) for return of property. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       Cooper contends that the district court erred by failing to return the $982 in

cash found on his person on the day of his arrest for bank robbery. This contention

fails because the government has demonstrated that Cooper was never lawfully in

possession of the money, which corresponded to the amount stolen from the bank

on the day of both the robbery and Cooper’s arrest. See United States v. Mills, 991

F.2d 609, 612 (9th Cir. 1993) (government can rebut presumption of property’s

return by demonstrating right of possession adverse to defendant); see also United

States v. Kaczynski, 551 F.3d 1120, 1129 (9th Cir. 2009) (defendant not entitled to

property where government shows that he never lawfully possessed such property).

       To the extent that Cooper challenges the propriety of the seizure itself, the

challenge is outside the scope of this appeal. See, e.g., United States v. Ritchie,

342 F.3d 903, 906 (9th Cir. 2001) (“If a Rule 41(e) motion is filed when no

criminal proceeding is pending, the motion is treated as a civil complaint seeking

equitable relief.”).

       Cooper’s motions under Federal Rules of Civil Procedure 12 and 56, which

are made in his reply brief, are denied.

       AFFIRMED.




                                           2                                     09-10251
