UNITED STATES of America, Plaintiff-Appellee, v. Samuel KAMA, Defendant-Appellant, 394 F.3d 1236

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

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. “[Bjefore a district court can reach the merits of a pre-indictment [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. 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. 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 exception applies, see Ullah, 976 F.2d at 514, and we will not apply an exception on our own accord.

CONCLUSION 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. . The 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.