PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 99-6398
BYRON JONES, a/k/a Carl Lee, a/k/a
"B",
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-92-153-3-P)

Argued: May 4, 2000

Decided: September 13, 2000

Before WILKINS, MOTZ, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Motz and Judge King joined.

_________________________________________________________________

COUNSEL

ARGUED: Nathan Antonni Vitan, Third Year Law Student, UNI-
VERSITY OF VIRGINIA SCHOOL OF LAW APPELLATE LITI-
GATION CLINIC, Charlottesville, Virginia, for Appellant. Timika
Shafeek, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Neal L. Walters, Jonathan Siegelbaum, Third
Year Law Student, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW APPELLATE LITIGATION CLINIC, Charlottesville, Virginia,
for Appellant. Mark T. Calloway, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Byron Jones appeals an order of the district court denying in part
his motion for the return of property. See Fed. R. Crim. P. 41(e). We
affirm.

I.

At Jones' arrest in 1992, four firearms, one gray duffle bag, $266
in currency, five digital pagers, one calculator, several pieces of gold
jewelry, and miscellaneous personal papers were seized. It is undis-
puted that the Government never instituted forfeiture proceedings
concerning this property. Jones filed a Rule 41(e) motion for the
return of the property in June 1997. Concluding that the motion was
untimely, the district court denied the motion based on the doctrine
of laches. On appeal, we determined that the district court abused its
discretion in denying Jones' motion because the court failed to con-
sider one element of the doctrine of laches: whether the non-moving
party was materially prejudiced by the delay. See United States v.
Jones, No. 97-6959, 1998 WL 454090, at *1 (4th Cir. July 28, 1998)
(unpublished). Accordingly, we vacated the order and remanded for
the district court to consider whether the Government was materially
prejudiced by Jones' delay in filing his Rule 41(e) motion. See id.

On remand, the district court ordered the Government to respond
to Jones' motion. The Government submitted a two-page response in
which it indicated that the firearms, duffle bag, pagers, calculator, and
jewelry had been "destroyed or disposed of otherwise," and that the
Government therefore had been prejudiced by Jones' delay. J.A. 40.
The district court granted Jones' motion for the return of all property

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that had not been destroyed by the Government, i.e., Jones' personal
papers and the $266 in currency. However, the court denied Jones'
motion with regard to the destroyed property, reasoning that it lacked
jurisdiction to entertain Jones' claim for damages arising out of the
destruction of the property.1

II.

Jones argues that the district court erred in concluding that it lacked
jurisdiction over his claim for damages brought under Rule 41(e). We
review the jurisdictional determination of the district court de novo.
See Hukill v. Auto Care, Inc., 192 F.3d 437, 441 (4th Cir. 1999), cert.
denied, 120 S. Ct. 1978 (2000).

As authority for his assertion that the district court possesses juris-
diction to award damages in a Rule 41(e) action, Jones points to a
footnote in United States v. Kanasco, Ltd., 123 F.3d 209 (4th Cir.
1997), in which we held that a Rule 41(e) action does not become
moot when the government destroys the property being sought. See
Kanasco, 123 F.3d at 210 n.1. We stated the maxim that "`When a
court possessing equitable powers has jurisdiction over a complaint
that seeks equitable relief, it has authority to award whatever damages
are incident to the complaint.'" Id. (quoting Soviero v. United States,
967 F.2d 791, 793 (2d Cir. 1992)). Since we decided Kanasco, how-
ever, at least two circuits have held that sovereign immunity deprives
courts of jurisdiction to award damages in a Rule 41(e) action. See
United States v. Bein, 214 F.3d 408, 412-16 (3d Cir. 2000); Pena v.
United States, 157 F.3d 984, 986 (5th Cir. 1998). Because Kanasco
did not address the effect of sovereign immunity on the legal jurisdic-
tion of the courts in the Rule 41(e) context, we are free to address the
issue now.2 See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
_________________________________________________________________
1 The district court also determined that the doctrine of laches pre-
vented Jones from obtaining any Rule 41(e) relief for the destroyed items
because the Government would be prejudiced if it were penalized for
failing to retain possession of these items. In light of our decision to
affirm on the jurisdictional basis, we need not address this issue.
2 Nor did either of the cases on which we relied in Kanasco address the
jurisdictional issue of sovereign immunity. See Soviero, 967 F.2d at 793-
94; Mora v. United States, 955 F.2d 156, 159-60 (2d Cir. 1992).

                    3
89, 119 (1984) (holding that a court faced with a jurisdictional ques-
tion is not bound by its exercise of jurisdiction in a prior case in
which the jurisdictional question was not directly confronted); Web-
ster v. Fall, 266 U.S. 507, 511 (1925) (stating that "[q]uestions which
merely lurk in the record, neither brought to the attention of the court
nor ruled upon, are not to be considered as having been so decided
as to constitute precedents").

Sovereign immunity deprives a court of jurisdiction. See Global
Mail Ltd. v. United States Postal Serv., 142 F.3d 208, 210 (4th Cir.
1998). Further, sovereign immunity can be waived only by an
unequivocal and express act of Congress. See Lane v. Pena, 518 U.S.
187, 192 (1996). Rule 41(e) does not contain a waiver of sovereign
immunity. See Fed. R. Crim. P. 41(e). We therefore agree with the
Third and Fifth Circuits that courts lack jurisdiction to award damages
under Rule 41(e).3 See Bein , 214 F.3d at 412-16; Pena, 157 F.3d at
986. Accordingly, we hold that the district court correctly concluded
that it lacked jurisdiction to award damages under Rule 41(e) for the
property destroyed by the Government.

III.

We affirm the order of the district court granting Jones' motion for
the return of his personal papers and $266 in currency and denying
relief as to the destroyed property.4
_________________________________________________________________
3 We are mindful of the concern expressed by the Ninth Circuit that the
government should not be able to defeat jurisdiction by the unilateral act
of destroying the property sought in a Rule 41(e) motion. See United
States v. Martinson, 809 F.2d 1364, 1368 (9th Cir. 1987). We are bound,
however, to honor the government's sovereign immunity from damages
in a Rule 41(e) action. We express no view as to whether alternative
legal avenues may afford Jones and others in his situation some relief.
See United States v. James Daniel Good Real Property , 510 U.S. 43, 48
(1993) (noting that the Due Process Clause generally requires the gov-
ernment to provide notice and an opportunity to be heard before depriv-
ing an individual of his property).
4 We also affirm that portion of the order denying Jones' motion for the
return of $1,180 in currency that was not seized in relation to the same
offense as the other property.

                    4
AFFIRMED
_________________________________________________________________
In United States v. Minor, No. 99-6047 (4th Cir. Sept. 13, 2000),
argued the same day as this case, we held that we had equitable jurisdic-
tion over Minor's suit for the return of forfeited currency. If Minor's
claim is eventually successful, he will receive money as his relief. How-
ever, our holding here does not bar the relief sought by Minor, because
that remedy is not legal: "the fact that the government obviously cannot
restore to Minor the specific currency that was seized does not transform
the motion into an action at law."

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