United States v. Samuel Kama

Samuel Kama appeals the district court’s decision to deny his motion to re *1237 turn 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 discretion 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,…

concurring specially:

I concur that Kama waived his challenge to the District Court’s determination that *1239 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 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…

394 F.3d 1236 UNITED STATES of America, Plaintiff-Appellee, v. Samuel KAMA, Defendant-Appellant. No. 03-30231. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 2, 2004. Filed January 13, 2005. Richard S. White, Portland, OR, for the defendant-appellant. Mark T. Quinlivan, U.S. Department of Justice, Washington, D.C., for the plaintiff-appellee. Appeal from the United States District Court for the District of Oregon; Donald C. Ashmanskas, Magistrate Judge, Presiding. D.C. No. M-02-00469-AS. Before: FERGUSON, TROTT, and KLEINFELD, Circuit Judges. TROTT, Circuit Judge: 1 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 discretion in declining to exercise its equitable jurisdiction.…