United States v. Karma

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-30231
Plaintiff-Appellee,
v.  D.C. No.
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
UNITED STATES v. KAMA 553
COUNSEL
Richard S. White, Portland, Oregon, for the defendant-
appellant.
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 med-
ically 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 discre-
554 UNITED STATES v. KAMA
tion in declining to exercise its equitable jurisdiction. We con-
clude 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 argu-
ments 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 Cir-
cuit Court for the State of Oregon for Multnomah County,
requesting return from Portland of the 2.49 grams of mari-
juana 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 mari-
juana 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
UNITED STATES v. KAMA 555
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 dis-
trict 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 contra-
band, and Kama was not entitled to possess contraband.
DISCUSSION
[1] Kama’s motion to return property is governed by Fed-
eral Rule of Criminal Procedure 41(g).1 Under that rule, a per-
son 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 prop-
erty 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, there-
fore, a district court must exercise ‘caution and restraint’
before assuming jurisdiction.” Id.
1
The district court examined Kama’s motion under Rule 41(e), the sub-
section 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.
556 UNITED STATES v. KAMA
[2] “[B]efore a district court can reach the merits of a pre-
indictment [Rule 41(g)] motion,” the district court must con-
sider whether: (1) “the Government displayed a callous disre-
gard 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 fac-
tor 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 discre-
tion. See id. at 324. But, Kama never challenged the district
court’s decision to decline to exercise its equitable jurisdic-
tion. 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 dis-
trict 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 open-
ing 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
UNITED STATES v. KAMA 557
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 pre-
scribed 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 errone-
ously 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
558 UNITED STATES v. KAMA
Bureau had confiscated and, at the time, possessed. The Gov-
ernment 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 war-
rant, 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 federally-
issued seizure warrant would have necessarily required the
Bureau to contravene the state court order. The City of Port-
land, 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 sub-
stance.” (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 ordi-
narily 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 “pre-
sumption that ‘person’ does not include the sovereign may
only be disregarded upon some affirmative showing of statu-
tory intent to the contrary.” Vt. Agency of Natural Res. v.
UNITED STATES v. KAMA 559
United States ex rel. Stevens, 529 U.S. 765, 781 (2000) (argu-
ing 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 mean-
ing 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 “per-
sons” within the meaning of 42 U.S.C. § 1983. Hervey v.
Estes, 65 F.3d 784, 791 (9th Cir. 1995); see also Dean v. Bar-
ber, 951 F.2d 1210, 1214 (11th Cir. 1992) (affirming a district
court’s dismissal of claims against a county sheriff’s depart-
ment); 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.
560 UNITED STATES v. KAMA
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 assum-
ing 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 juris-
diction, it does establish a strong prudential limitation—so
strong, in fact, that if concurrent in rem jurisdiction is estab-
lished, 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 pursu-
ant 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 jurisdic-
tional 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 res-
toration of items seized. Given this clear assertion of exclu-
UNITED STATES v. KAMA 561
sive control by Oregon courts over seized items,2 the
Multnomah County Circuit Court possessed the subject mari-
juana 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 Cir-
cuit 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.
2
The 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 unequivo-
cally” demonstrated that “the state court asserts control over items seized
pursuant to its warrant”). See also In re $490,920 in United States Cur-
rency, 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).
562 UNITED STATES v. KAMA
III.
In granting a seizure warrant to the DEA without first wait-
ing 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.