FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 03-30231 Plaintiff-Appellee,

D.C. No.

v.  M-02-00469-AS

SAMUEL KAMA,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Oregon

Donald C. Ashmanskas, Magistrate Judge, Presiding

Argued and Submitted

November 2, 2004—Portland, Oregon

Filed January 13, 2005

Before: Warren J. Ferguson, Stephen S. Trott, and

Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Trott;

Concurrence by Judge Ferguson

551
COUNSEL

Richard S. White, Portland, Oregon, for the defendantappellant. 

Mark T. Quinlivan, U.S. Department of Justice, Washington,

D.C., for the plaintiff-appellee. 

OPINION

TROTT, Circuit Judge: 

Samuel Kama appeals the district court’s decision to deny

his motion to return property, specifically, 2.49 grams of medically prescribed marijuana seized by the Portland Police

Bureau’s Drug and Vice Division (“Police Bureau”) and,

later, by the Drug Enforcement Administration (“DEA”). The

district court denied Kama’s motion, concluding that it lacked

equitable jurisdiction to consider the motion. Here, Kama

argues only the merits of his motion and fails to address the

threshold issue of whether the district court abused its discreUNITED STATES v. KAMA 553
tion in declining to exercise its equitable jurisdiction. We conclude that Kama waived the equitable jurisdiction issue by

failing to raise it in his opening brief, or for that matter, by

failing to address the issue at all. Consequently, Kama’s arguments concerning the merits of his motion are rendered moot,

and we affirm.

BACKGROUND

The marijuana at issue was seized in January of 1999 while

the Police Bureau investigated a reported marijuana grow at

the residence of Richard LeBus and Maria Jackson. While the

police were still searching for the grow, Kama arrived at the

LeBus-Jackson residence in a pick-up truck, and after being

questioned, he admitted to an officer that he had marijuana on

his person. Kama voluntarily surrendered the marijuana to the

officer and told the officers that he smoked marijuana only for

medicinal purposes. Kama admitted also to being involved in

the marijuana grow. 

Although Kama was never prosecuted, the City of Portland

(“Portland”) did not return the marijuana seized from him by

the Police Bureau and now held by Portland. In August of

1999, Kama filed a motion for return of property in the Circuit Court for the State of Oregon for Multnomah County,

requesting return from Portland of the 2.49 grams of marijuana and the marijuana confiscated from the grow. The state

court granted the motion as to the 2.49 grams but denied it as

to the other marijuana. The state appellate court affirmed the

decision. 

Unhappy with the state court’s order to return the marijuana to Kama, the DEA applied for a seizure warrant in the

United States District Court for the District of Oregon. The

district court issued the warrant, and Portland moved to quash

it. The district court denied the motion to quash but stayed

execution of the warrant so that Portland could confer with

the state court as to whether it would be in contempt of the

554 UNITED STATES v. KAMA
state court order by turning over the marijuana to the DEA.

The next day, without explanation, the district court vacated

the order staying the warrant. Subsequently, the DEA seized

the marijuana from Portland before it could be returned to

Kama pursuant to the state court order. 

After the DEA seized the marijuana from Portland, the district court granted Kama leave to intervene and file a motion

to return property. The district court denied Kama’s motion

after it determined that it did not have equitable jurisdiction

to consider the motion. The district court noted also that even

if the court had jurisdiction to consider it, the court would

have denied it on its merits because the marijuana was contraband, and Kama was not entitled to possess contraband.

DISCUSSION

[1] Kama’s motion to return property is governed by Federal Rule of Criminal Procedure 41(g).1

 Under that rule, a person deprived of his property may move for the property’s

return in the district court where the property was seized.

Although Rule 41(g) is ordinarily used to seek return of property after an indictment is issued, “district courts have the

power to entertain motions to return property seized by the

government when there are no criminal proceedings pending

against the movant.” Ramsden v. United States, 2 F.3d 322,

324 (9th Cir. 1993) (construing former Rule 41(e)). “These

motions are treated as civil equitable proceedings, and, therefore, a district court must exercise ‘caution and restraint’

before assuming jurisdiction.” Id.

1The district court examined Kama’s motion under Rule 41(e), the subsection that formerly governed motions to return property. Motions to

return property are now relegated to Rule 41(g). H.R. Doc. No. 107-203,

at 420 (2002). With the change in the subsection, the language of Rule

41(g) has been amended “as part of the general restyling of the Criminal

Rules to make them more easily understood,” but the substance of the rule

has not changed. Fed. R. Crim. P. 41 note on 2002 amends. 

UNITED STATES v. KAMA 555
[2] “[B]efore a district court can reach the merits of a preindictment [Rule 41(g)] motion,” the district court must consider whether: (1) “the Government displayed a callous disregard for the constitutional rights of the movant”; (2) “the

movant has an individual interest in and need for the property

he wants returned”; (3) “the movant would be irreparably

injured by denying return of the property”; and (4) “the

movant has an adequate remedy at law for the redress of his

grievance.” Id. at 324-25 (citing Richey v. Smith, 515 F.2d

1239, 1243-44 (5th Cir. 1975)). If the “balance of equities tilts

in favor of reaching the merits” of the Rule 41(g) motion, the

district court should exercise its equitable jurisdiction to

entertain the motion. Ramsden, 2 F.3d at 326. 

[3] Here, the district court found that all but the fourth factor weighed against reaching the merits of Kama’s motion,

and the court accordingly declined to exercise its jurisdiction.

Normally, we would review this decision for abuse of discretion. See id. at 324. But, Kama never challenged the district

court’s decision to decline to exercise its equitable jurisdiction. Instead, Kama jumped straight to the merits of his

motion by raising a number of constitutional issues that attack

the district court’s power to issue the warrant in the first

place. Even if these claims are meritorious, Kama misses the

mark—we can only reach the merits of his motion if the district court abused its discretion when it declined to exercise its

equitable jurisdiction. See id.

[4] Therefore, we must decide if Kama waived the issue of

whether the district court abused its discretion. Generally, an

issue is waived when the appellant does not specifically and

distinctly argue the issue in his or her opening brief. See

Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003)

(quoting United States v. Ullah, 976 F.2d 509, 514 (9th Cir.

1992)). It is undisputed that Kama did not argue in his opening brief that the district court abused its discretion when it

declined to exercise its equitable jurisdiction, so we conclude

that Kama waived the issue. Kama does not argue that any

556 UNITED STATES v. KAMA
exception applies, see Ullah, 976 F.2d at 514, and we will not

apply an exception on our own accord. 

CONCLUSION

[5] Kama waived the threshold issue of whether the district

court abused its discretion when it declined to exercise its

equitable jurisdiction. This result renders all issues concerning

the merits of Kama’s motion moot. 

AFFIRMED.

FERGUSON, Circuit Judge, concurring specially: 

I concur that Kama waived his challenge to the District

Court’s determination that it lacked equitable jurisdiction to

entertain his motion to return 2.49 grams of medically prescribed marijuana. I write separately, however, to underscore

the District Court’s disruption of state judicial administration

in this case. 

The District Court committed two distinct errors in granting

the seizure warrant to the Drug Enforcement Administration

(“DEA”). First, it erroneously permitted the DEA to seize the

subject marijuana from the Portland Police Bureau (“the

Bureau”) even though the Bureau is not a “person” within the

meaning of the federal Controlled Substances Act (“CSA”),

21 U.S.C. § 801 et seq. In so doing, it prevented the Bureau

from enforcing a valid state court order. Second, it erroneously attempted to establish concurrent in rem jurisdiction

over the subject marijuana. 

I.

Respondent (“the Government”) sought and obtained a

warrant from the District Court to seize marijuana that the

UNITED STATES v. KAMA 557
Bureau had confiscated and, at the time, possessed. The Government based its request for a seizure warrant in part on

§ 844(a) of the CSA, contending that Kama knowingly or

intentionally possessed marijuana, a controlled substance,

and, as such, violated federal law. Consequently, according to

the Government, probable cause existed such that the DEA

was entitled to confiscate the subject marijuana from the

Bureau. 

Prior to the execution of the federally-issued seizure warrant, however, the Circuit Court for the State of Oregon for

Multnomah County (“Multnomah County Circuit Court”) had

already granted, and the Oregon Court of Appeals and Oregon

Supreme Court had so affirmed, Kama’s motion to return the

marijuana in his possession that the Bureau had previously

seized. The Bureau was under direct state court order to return

the subject marijuana to Kama. To comply with the federallyissued seizure warrant would have necessarily required the

Bureau to contravene the state court order. The City of Portland, therefore, filed a motion to quash the federal seizure

warrant, but the District Court summarily denied it. 

A plain reading of § 844(a) of the CSA makes clear that the

DEA may enforce penalties only upon those “person[s] [who]

knowingly or intentionally . . . possess a controlled substance.” (emphasis added). The Supreme Court has observed

that “ ‘in common usage, the term ‘person’ does not include

the sovereign, [and] statutes employing the [word] are ordinarily construed to exclude it.’ ” Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 64 (1989) (holding that neither a state

nor its officials acting in their official capacity are “persons”

within the meaning of 42 U.S.C. § 1983) (quoting United

States v. Cooper Corp., 312 U.S. 600, 604 (1941)). 

More recently, the Supreme Court has held that the “presumption that ‘person’ does not include the sovereign may

only be disregarded upon some affirmative showing of statutory intent to the contrary.” Vt. Agency of Natural Res. v.

558 UNITED STATES v. KAMA
United States ex rel. Stevens, 529 U.S. 765, 781 (2000) (arguing that the State was not a “person” for purposes of qui tam

liability under the False Claims Act), noted in Donald v. Univ.

of Cal. Bd. of Regents, 329 F.3d 1040, 1042-3 (9th Cir. 2003)

(finding that state entities are not “persons” within the meaning of the False Claims Act); United States v. Errol D., Jr.,

292 F.3d 1159, 1162 (9th Cir. 2002) (finding that the federal

government is not a “person” within the meaning of the

Indian Major Crimes Act). Moreover, municipal police

departments and bureaus are generally not considered “persons” within the meaning of 42 U.S.C. § 1983. Hervey v.

Estes, 65 F.3d 784, 791 (9th Cir. 1995); see also Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (affirming a district

court’s dismissal of claims against a county sheriff’s department); Smith-Berch, Inc. v. Baltimore County, 68 F.Supp. 2d

602, 626-27 (D. Md. 1999) (citing cases for the proposition

that municipal departments, including police departments, are

not persons within the meaning of 42 U.S.C. § 1983). 

Applying Stevens and supporting case law to this case, the

Bureau cannot be considered a “person” within the meaning

of § 844(a) of the CSA unless the statutory intent of the CSA

suggests otherwise. Nowhere in the CSA is there mention that

a police bureau or such other entity is a “person” for purposes

of penalizing possession of controlled substances.1 To seize

the subject marijuana pursuant to § 844(a) of the CSA, the

Government needed to first establish that the marijuana was,

indeed, in Kama’s possession. Here, however, the subject

marijuana was in the Bureau’s possession. Thus, the District

1

In its opposition to the City of Portland’s motion to quash the federal

seizure warrant, the Government erroneously summarized § 823(f) of the

CSA as follows: “[n]o individual or entity may distribute or dispense a

Schedule 1 Controlled Substance except as part of a strictly controlled

research project that has been registered with the Drug Enforcement

Administration and approved by the Food and Drug Administration.”

(emphasis added). In fact, neither § 823(f) nor any other provision under

the CSA uses the word “entity” for purposes of penalizing possession of

controlled substances. 

UNITED STATES v. KAMA 559
Court should have abstained from issuing a seizure warrant

pursuant to § 844(a) of the CSA until the subject marijuana

was in fact in Kama’s possession. This would necessarily

have required the District Court to allow the Bureau to

enforce the state court order. 

II.

A long-standing common-law rule prohibits a court,

whether state or federal, from assuming in rem jurisdiction

over a res that is already under the in rem jurisdiction of

another court. Penn Gen. Cas. Co. v. Pennsylvania, 294 U.S.

189, 195 (1935); In re One 1985 Cadillac Seville, 866 F.2d

1142, 1145 (9th Cir. 1989). According to the Supreme Court,

the rule’s purpose is “[t]o avoid the unseemly and disastrous

conflicts in the administration of our dual judicial system . . .

and to protect the judicial processes of the court first assuming jurisdiction.” Penn Gen. Cas. Co., 294 U.S. at 195. This

Circuit has reiterated the rule’s purpose as “[maintaining] . . .

comity between courts . . . .” In re One 1985 Cadillac Seville,

866 F.2d at 1145. While Penn General Casualty Co. does not

establish a constitutional limitation on a federal court’s jurisdiction, it does establish a strong prudential limitation—so

strong, in fact, that if concurrent in rem jurisdiction is established, a federal district court has no discretion as to whether

to yield to a prior state proceeding; it “must yield.” In re One

1985 Cadillac Seville, 866 F.2d at 1145 (quoting Penn Gen.

Cas. Co., 294 U.S. at 195) (emphasis added). 

The subject marijuana seized by Oregon state police pursuant to a search warrant was within the in rem jurisdiction of

the Multnomah County Circuit Court. Sections 133.623-

133.663 of the Oregon Code collectively establish a jurisdictional element to Oregon’s statutory warrant and seizure

scheme. Specifically, § 133.633(1) provides Oregon courts

exclusive discretion to grant or deny motions for return or restoration of items seized. Given this clear assertion of exclu560 UNITED STATES v. KAMA
sive control by Oregon courts over seized items,2

 the

Multnomah County Circuit Court possessed the subject marijuana such that it fell within the court’s in rem jurisdiction. 

The rule against concurrent in rem jurisdiction therefore

applies in this case. In fact, this case appears to be of the very

type envisioned by the Court in Penn General Casualty Co.

Pursuant to a search warrant, Portland police officers seized

the subject marijuana. Thereafter, the Multnomah County Circuit Court assumed in rem jurisdiction and ordered that the

subject marijuana be returned to Kama. The Oregon Court of

Appeals subsequently affirmed the decision, and the Oregon

Supreme Court denied review. Before the court order could be

enforced, however, the DEA sought and secured a seizure

warrant from a federal district court. The District Court

attempted to establish in rem jurisdiction over the subject

marijuana by issuing a seizure warrant prior to the full

enforcement of the state court order. The ensuing conflict in

judicial administration here appears evident: a federal district

court issues a seizure warrant for a res under state control and,

in so doing, nullifies prior to its execution a state court order

affirmed by the highest state court. 

2The Fifth Circuit has held that, where a state statute places items seized

by local law enforcement under judicial control, seizure by state police

itself constitutes an assertion of in rem jurisdiction over the seized item.

Scarabin v. DEA, 966 F.2d 989, 993-94 (5th Cir. 1992) (noting that the

provision of Louisiana’s rules of criminal procedure governing disposition

of property seized by police pursuant to a warrant “clearly and unequivocally” demonstrated that “the state court asserts control over items seized

pursuant to its warrant”). See also In re $490,920 in United States Currency, 911 F. Supp. 720, 725 (S.D.N.Y. 1996) (finding that a New York

statute conferred in rem jurisdiction where it provided that seized items be

held “in the custody of the court”); Commonwealth v. Rufo, 708 N.E.2d

947, 949 (Mass. 1999) (finding that a Massachusetts statute conferred in

rem jurisdiction where it provided that seized evidence be held “under the

direction of the court” and “disposed of as the court or justice orders”)

(citing Massachusetts General Laws Annotated 276, Section 3). 

UNITED STATES v. KAMA 561
III.

In granting a seizure warrant to the DEA without first waiting for the full enforcement of a valid order issued by the

Multnomah County Circuit Court, and in assuming concurrent

in rem jurisdiction over the subject marijuana, the District

Court disrupted Oregon’s judicial administration. 

562 UNITED STATES v. KAMA