March 12, 1993    UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-1555
No. 92-1800

                  UNITED STATES OF AMERICA,

                     Plaintiff, Appellee,

                              v.

           APPROXIMATELY TWO THOUSAND, FIVE HUNDRED
            THIRTY-EIGHT POINT EIGHTY-FIVE SHARES
           (2,538.85) OF STOCK CERTIFICATES OF THE
           PONCE LEONES BASEBALL CLUB, INC., ETC.,

                    Defendants, Appellees.

                                    

                    DOMINGO COTTO-GARCIA,

                     Claimant, Appellant.

                                         

                         ERRATA SHEET

   The  opinion of  this  court issued  on  March 5,  1993,  is
amended as follows:

   On  page 17,  line  5 of  footnote  7, delete  "be"  between
"might" and "not".

March 5, 1993     UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-1555
No. 92-1800
                  UNITED STATES OF AMERICA,

                     Plaintiff, Appellee,
                              v.

           APPROXIMATELY TWO THOUSAND, FIVE HUNDRED
            THIRTY-EIGHT POINT EIGHTY-FIVE SHARES
           (2,538.85) OF STOCK CERTIFICATES OF THE
           PONCE LEONES BASEBALL CLUB, INC., ETC.,
                    Defendants, Appellees.

                                    
                    DOMINGO COTTO-GARCIA,

                     Claimant, Appellant.
                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF PUERTO RICO

       [Hon. Gilberto Gierbolini, U.S. District Judge]
                                                     
                                         

                            Before
                   Torruella, Circuit Judge,
                                           

               Campbell, Senior Circuit Judge,
                                             
             and Skinner,* Senior District Judge.
                                                

                                         

Rafael F.  Castro Lang with  whom F. Castro  Amy was  on brief for
                                                
claimant-appellant.
Jose  F.  Blanco, Assistant  United  States  Attorney,  with  whom
                
Daniel F. Lopez-Romo,  United States  Attorney, was on  brief for  the
                
United States.

                                         

                        March 5, 1993
                                         

                

*Of the District of Massachusetts, sitting by designation.

          CAMPBELL, Senior  Circuit Judge.  At  issue in this
                                         

appeal is whether appellant  Cotto-Garc a was tardy in filing

his "claim" contesting the government's in rem seizure, under
                                              

drug laws, of his stock shares.  Under relevant rules, infra,
                                                            

appellant had  "10 days after  process has been  executed" to

file the required claim.   He contends he filed the  claim on

time (in  fact, prematurely), as process  was executed, under

his theory,  only when notice of  the government's forfeiture

action was published     an  event that did  not occur  until
                    

after Cotto-Garc a had filed  his claim.  The  district court
     

rejected  this argument.   It ruled that  "process [had] been

executed" much earlier, at  the time appellant was personally

served  with   notice  of  the  forfeiture   action,  causing

appellant's later filing to  fall outside the ten-day period.

          Like the district  court, we reject  Cotto-Garc a's

theory   that  the   date  when   notice  was   published  is
                                                         

determinative as to him.   We agree  with the court that  the

earlier  notification  to   appellant  by  personal   service

constituted  the  relevant  notice.   But  while  service  of

personal  notice upon the owner of the res (or other adequate
                                          

notification)  was a  necessary element  of the  execution of

process in this proceeding  in rem, it was not  sufficient by
                                                          

itself  to fulfill  the triggering  requirement in  the rules

that "process has  been executed."   "Process" in  an in  rem
                                                             

                             -3-

action consists  fundamentally of  the warrant for  arrest of

the property  to be  seized.  "Execution"  of such  "process"

consists of service of the  arrest warrant upon the defendant

property, after which the marshal files with the court  proof

of service.   In the present  case, we find in  the record an

issued  arrest warrant, but we find no process return form or

other  proof showing that the  arrest warrant was served upon

appellant's shares of stock and when this  occurred.  Without

a return or at  least some showing that service  occurred, it

is  impossible to say whether and when the arrest warrant was

executed.  Had the arrest warrant been properly served on the

stock  on or before January  3, 1992, the  day when appellant

personally was served, we would agree with the district court

that  the ten-day  period  commenced to  run  on the  day  of

personal  service,  to wit,  January 3.    But if  the arrest

warrant  had not by then  been served, and  was served either

later or not at all, the mere giving of personal notice alone

would not have constituted the "execution" of "process."  And

until process had been  executed, the ten-day period  did not

begin to run.

          We accordingly  vacate and remand,  with directions

to  the  district court  to  determine whether  and  when the

warrant  for   arrest  of   the  property  was   served  upon

appellant's stock  shares, and, applying  that information in

light of the  present opinion, to determine if "process [had]

                             -4-

been executed" as of  January 3, 1992 when notice  was served

upon  appellant.   Until this  is correctly  ascertained, the

timeliness  of   appellant's  filing  of   claim  cannot   be

determined.

          We  turn  now  to  a detailed  discussion  of  this

appeal.

                              I.

          Appellant  Domingo  Cotto-Garc a  was arrested  and

indicted  in June 1991 for federal drug offenses.  He pleaded

guilty  to  these in  October 1991.    After his  arrest, the

United   States   government   initiated   civil   forfeiture

proceedings  against all  known  properties of  Cotto-Garc a.

One  of the  forfeiture actions began  on December  18, 1991,

when the United States  government filed a complaint pursuant

to 21  U.S.C.   881(a)(6) and  18 U.S.C.   981  in the United

States District Court for  the District of Puerto Rico.   The

government sought forfeiture of approximately 2,538.85 shares

of stock  of the Ponce  Leones Baseball Club,  Inc. allegedly

owned  by Cotto-Garc a  and purchased  with proceeds  of drug

transactions.  A motion for issuance of warrants was filed by

the government on the same day.  

          On December 31, 1991, the clerk of the court issued

and delivered two warrants to  the U.S. Attorney, pursuant to

a magistrate's order of December 30.  One of the warrants was

a warrant for arrest in rem.  It ordered the  U.S. Marshal to
                           

                             -5-

seize the defendant  (the 2,538.85  shares of  stock) and  to

notify "the owner and/or possessor" to file a claim "ten (10)

days  after service,  .  . .  [and]  thereafter a  responsive

pleading  to  the Complaint  filed  within  twenty (20)  days

following such claim  or thirty (30) days  after the service,

whichever is less .  . . ."   The second warrant was  one for

"seizure  and monition,"  ordering the  marshal to  publish a

newspaper announcement to  notify "all  persons claiming  the

same" to file a claim "no  later than ten (10) days after the

last publication."

          On  January  3,  1992,  the alleged  owner  of  the

stocks,  appellant Cotto-Garc a      imprisoned  at  a  state

penitentiary at  Rio Piedras,  Puerto Rico     was personally

served by a marshal with copies  of the complaint and of both

warrants.  On January 30, 1992, the government  requested the

court to enter default judgment against Cotto-Garc a (and the

various other persons who had been personally served) because

no claim for  the property  had been filed.   The  magistrate

later denied this request for default.

          The next day, January  31, 1992, Cotto-Garc a filed

a verified notice of  claim, attesting that he was  the owner

of the property named in the complaint.  The government moved

to strike  the notice of  claim on February  4, 1992,  on the

grounds that it was filed late under Supplemental  Rule C(6).

A magistrate  granted the  motion to  strike on February  12,

                             -6-

1992.1   In the meantime,  a copy of  the warrant  of seizure

and monition was published on  February 7 in El Nuevo  D a, a
                                                          

newspaper  in  Puerto  Rico;  no  one  filed  a  claim  after

publication of the notice.  

          Cotto-Garc a appealed from  the magistrate's  order

striking his claim to the district court.  The district court

issued an  opinion agreeing  with the magistrate  that Cotto-

Garc a's claim had been filed out of time.  Pursuant thereto,

the court dismissed Cotto-Garc a's appeal from the magistrate

and,  finding  no  other  claimants,  ordered  the   property

forfeited  to the  United  States of  America.   Cotto-Garc a

appeals from the final judgment.

                             II.

          We now review the  procedures that must be followed

in  civil  forfeiture actions  like  this.   This  forfeiture

action  was  brought by  the  United States  pursuant  to the

Comprehensive Drug Abuse Prevention  and Control Act of 1970,

21  U.S.C.    881(a)(6),  and the  Money  Laundering Act,  18

U.S.C.    981.   21  U.S.C.    881(a)(6) provides  that, "all

moneys,  negotiable instruments, securities,  or other things

of  value furnished or intended to be furnished by any person

in exchange  for a controlled substance in  violation of this

                    

1.  Nevertheless, one  week after  the magistrate struck  his
claim, Cotto-Garc a requested an  extension of time to answer
the complaint.   The  government responded  that Cotto-Garc a
had  no standing  in  the  case  since  his  claim  had  been
stricken.  The court took no action on this motion.

                             -7-

subchapter [and] all proceeds  traceable to such an exchange"

are subject to  forfeiture to the United States.   Similarly,

18 U.S.C.   981 subjects property related to money laundering

to forfeiture.

          Both  forfeiture  statutes  provide,  with  certain

exceptions, that  the property  shall be seized  upon process

issued  pursuant  to  the   Supplemental  Rules  for  Certain

Admiralty  and Maritime Claims  by any district  court of the

United  States having  jurisdiction over  the property.2   21

U.S.C.     881(b);   18  U.S.C.      981(b)(2).    Thus   the

Supplemental Rules govern the procedures for civil forfeiture

actions.   See  Fed. R.  Civ. P.,  Supp. R.  A  et seq.   The
                                                       

Federal Rules for  Civil Procedure also  apply except to  the

extent  that  they  are inconsistent  with  the  Supplemental

Rules.  See Supp. R. A.
           

          Supplemental Rule C contains special provisions for

actions in rem, including  civil forfeiture proceedings.  The
              

action in rem is  brought by the plaintiff (here,  the United
             

States)  against the  defendant property  which  is allegedly

                    

2.  "Alternatively,  the government  may commence  a criminal
forfeiture  proceeding  by  requesting  'the  issuance  of  a
warrant  authorizing  the  seizure  of  property  subject  to
forfeiture under [section 881] in the same manner as provided
for a  search warrant  under the  Federal  Rules of  Criminal
Procedure.'  21 U.S.C.    881(b) (Supp. 1990).   Federal Rule
of  Criminal  Procedure 41  governs  the  issuance of  search
warrants.   See Fed. R. Crim.  P. 41."  United  States v. One
                                                             
Parcel  of Real  Property, 921  F.2d 370,  373 n.4  (1st Cir.
                         
1990).

                             -8-

subject to  forfeiture (here,  the stock certificates).   The

government must file a verified complaint, in accordance with

the requirements of Supplemental Rules C(2) and E(2)(a), with

the clerk of the court and request issuance of a  warrant for

the arrest of the property.  

          If  upon  reviewing  the complaint  and  supporting

papers the court finds  that conditions for an action  in rem
                                                             

appear  to exist,  the  court orders  the  clerk to  issue  a

warrant  for arrest of  the property.   Supp.  R. C(3).   The
                                    

clerk delivers the warrant to the marshal or other authorized

person, who  serves the  warrant for arrest  of the  property

either by taking possession of the property or by other means

pursuant to Supplemental Rule E(4).  See Supp. R. C(3); Supp.
                                        

R. E(4).   Rule E(4),  which governs execution of the warrant

for arrest of the property, provides, in part:

          (a)   In  General.    Upon  issuance  and
                            
          delivery of the process . . . the marshal
          or other person or organization  having a
          warrant   shall  forthwith   execute  the
                                                   
          process    in   accordance    with   this
                 
          subdivision  (4),  making due  and prompt
          return.  [Emphasis supplied.]

Service,  or execution,  of process  on tangible  property is

generally done by  taking it into possession;  service of the

warrant on intangible  property is generally accomplished  by

leaving  a  copy  of  the  complaint  and  process  with  the

garnishee or other obligor.  See Supp. R. E(4)(b), (c); James
                                

Wm.  Moore &amp; Alfred S. Palaez, 7A Moore's Federal Practice   
                                                          

                             -9-

E.08  - E.09  (2d  ed. 1988  &amp;  Supp. 1992-93).3   A  process

return and receipt form, or other proof of service indicating

when  the warrant was served upon the property, is filed with

the  court by  the  person serving  process.   See  Supp.  R.
                                                  

E(4)(a); Fed. R. Civ. P. 4(g).  In addition to service on the

property,  notice of the action  in rem is  given by personal
                                       

service  of copies of the  complaint and warrant upon persons

known to have an interest in the property that is the subject

of the action, and, in most cases, by  publication in a local

newspaper.  See Supp. R. C(4).4
               

          Before  a claimant in a forfeiture case can file an

answer and defend  on the  merits, the claimant  must file  a

claim pursuant to Rule C(6).  United States v. One Urban Lot,
                                                            

978 F.2d 776, 778 (1st  Cir. 1992).  If no claim  is properly

filed,  a  putative   claimant  lacks  standing  to   contest

forfeiture of the property.  Id.; United States v. One Parcel
                                                             

of  Real Property,  921 F.2d  370, 373  n.5 (1st  Cir. 1990);
                 

                    

3.     While  stock  certificates   probably  are  considered
intangible  for  the purposes  of Rule  E(4), see  7A Moore's
                                                             
Federal Practice   E.09, we leave that determination, and all
                
related determinations, to the district court.

4.  The Supplemental  Rules do not expressly  provide for the
giving of notice to persons known to have an interest in  the
property,  such as  the owner or  possessor of  the property.
See 7A Moore's  Federal Practice    C.14; David  B. Smith,  1
                                
Prosecution and Defense of Forfeiture Cases   9.03[1] (1992).
                                           
However,  such  notice  is  constitutionally  required.   See
                                                             
Mennonite  Board of  Missions  v. Adams,  462  U.S. 791,  800
                                       
(1983).  Courts accordingly routinely order personal  service
to be made upon the owner or possessor of the property.

                             -10-

United  States v. Parcels of Land,  903 F.2d 36, 38 (1st Cir.
                                 

1990).  Rule  C(6) of the Supplemental Rules  establishes the

time requirements for filing a claim.  Id. at 777.  
                                          

          The  claimant of  property  that  is  the
          subject of an action  in rem shall file a
          claim  within 10  days after  process has
          been executed, or within  such additional
          time as may be  allowed by the court, and
          shall file an answer within 20 days after
          the filing of the claim. . . .

Supp. R. C(6).   

          The crucial  issue in this appeal is the meaning of

the  phrase in  Rule C(6),  "10 days  after process  has been

executed."  

                             III.

          We  dispose  quickly   of  Cotto-Garc a's   primary

argument  on appeal,  namely, that  his notice  of claim  was

timely filed on  January 31  because, in his  view, the  term

"process  has been executed" in  Rule C(6) refers  to the day

the final published notice appeared (February 7), not the day

he was personally served  with notice (January 3).   He looks

to the warrant of  seizure and monition for support,  as that

warrant  (as  distinguished  from the  separate  warrant  for

arrest  in  rem)  states   that  "all  persons  claiming  the
               

[property] . . . be and appear before the said  Court, at the

City of San Juan no  later than ten (10) days after  the last

publication."  The government  agrees with the district court

that   Cotto-Garc a's  argument  would  be  correct  for  any

                             -11-

claimant  that had  not earlier  been personally  served with

copies of  the  warrants, but  contends  that Mr.  Cotto  was

personally   served  with   process   on  January   3,  1992.

Therefore,  the  government urges,  his  ten days  to  file a

notice of claim established by Rule  C(6) had run out by  the

time he filed  his claim on January 31, 1992.   See Dist. Ct.
                                                   

Order at 3.

          Cotto-Garc a's reading of Rule C(6)  is perhaps not

entirely inconceivable, see United States v.  Various Parcels
                                                             

of Real Property, 650  F. Supp. 62, 64 n.2  (N.D. Ind. 1986),
                

given the  confusion surrounding the requirements  of Rule C.

See United  States v. $38,570  U.S. Currency, 950  F.2d 1108,
                                            

1114 (5th Cir. 1992);  7A Moore's Federal Practice    C.16 at
                                                  

700.13-700.14.    However,  a  deadline tied  to  the  notice

publication date would, for  someone who had already received

notice  by personal  service,  make little  sense.   Personal

service is  virtually certain to alert  the intended noticee.

Notice  by publication,  on  the  other  hand,  is  far  less

reliable, being a stop  gap for persons whose  identities and

possible  interests are  unknown.   Once alerted  by personal

service, an individual has nothing  left to learn by awaiting

publication  of  notice in  the  newspaper.   All  that would

occur, were  we to  adopt appellant's  position, would  be to

permit  claimants  who  have  been  personally  notified   to

unjustifiably  delay filing  their  claims.   See 7A  Moore's
                                                             

                             -12-

Federal Practice    C.16 at 700.14  ("A claimant with  actual
                

knowledge,  of   course,   should  not   [wait  until   after

publication]  lest he  be  deemed guilty  of  laches.")   The

purpose of the Rule C(6) time limit is "to force claimants to

come forward as soon as possible after forfeiture proceedings

have  begun and to prevent  false claims."   United States v.
                                                          

One  Urban Lot Located  at 1 Street  A-1, 885 F.2d  994, 1001
                                        

(1st Cir. 1989); United States v. 1982 Yukon Delta Houseboat,
                                                            

774 F.2d  1432, 1436 (9th Cir. 1985).  Furthermore, newspaper

notice is not required  in all cases, see Supp.  R. C(4), and
                                         

"a claimant with  actual notice of the arrest,  especially if

such notice was  obtained by service upon  him, cannot object

to  a failure to advertise."   7A Moore's  Federal Practice  
                                                           

C.14  at 700.1; see also  $38,570 U.S. Currency,  950 F.2d at
                                               

1115  n.8 (rejecting  argument that  process is  not executed

until the final  day of  publication of notice).   For  these

reasons,  we  have  little  difficulty  rejecting appellant's

reading of Rule C(6).

          We  add  that  the  case  law in  this  circuit  is

consistent with  treating the  date on which  adequate notice

was first given to a particular claimant, whether by personal
                               

service  or publication, as the trigger of the Rule C(6) time

period.   See, e.g., United  States v. One 1987  BMW 325, No.
                                                        

92-1827, at 3, 1993 U.S.  App. LEXIS 2505 (1st Cir.  Feb. 18,

1993); One Urban Lot, 978 F.2d  at 777; One Urban Lot Located
                                                             

                             -13-

at 1 Street A-1, 885 F.2d at 1001; United States  v. One 1978
                                                             

BMW, 624 F. Supp. 491,  492 (D. Mass. 1985); see  also United
                                                             

States  v.  Estevez, 845  F.2d  1409,  1412 (7th  Cir.  1988)
                   

(considering date  that claimant  received notice in  mail to

commence  filing period  under  21 U.S.C.    853(n));  United
                                                             

States  v. United  States Currency  Totalling $3,817.49,  826
                                                       

F.2d  785, 786  (8th Cir.  1987) (assuming  that  claim filed

within ten days of notice, but five months after seizure, was

timely); United  States v.  $38,000.00 in U.S.  Currency, 816
                                                        

F.2d 1538, 1545-46 (11th  Cir. 1987) (refusing to  apply Rule

C(6) deadline  to claim  where government failed  to properly

notify claimant  of action).   We, therefore, agree  with the

district court that, in the  case of an owner of  property to

whom notice  is first given  by personal service,  the notice

component  of "process"  is fully  satisfied by  the personal

service.   There  is  no justification  whatever for  waiting

thereafter until notice by newspaper publication is made    a

form of notification clearly  addressed only to those persons

who have not earlier been identified and personally served.

          But  a  harder  question  lurks  here.    Appellant

asserts,  and  the record  seems to  bear  him out,  that the

warrant  for arrest and seizure  of the res,  i.e., the stock
                                           

shares, was never served.  Insofar as service of such process

is also  an essential part  of the  "execution" of  "process"

that triggers the  running of the  ten-day period under  Rule

                             -14-

C(6), it may be that January 3, 1992, the date when appellant

was personally served, did not trigger the running of the ten
                              

days.   Indeed, while personal service of notice on the owner

(or alternative  means of  giving notice) seems  an essential

ingredient of execution  of process in an  in rem proceeding,
                                                 

it is not the process specifically mentioned in the Admiralty
         

Rules.  The  text of  the Rules quite  clearly indicate  that

Rule C(6)'s reference to execution of process  applies to the

service of the warrant for arrest in rem on the res, here the
                                                   

stock shares. The description of the  triggering date in Rule

C(6)      when "process  has been  executed"     is  the same

phraseology found in  Rule E(4) describing service  of the in
                                                             

rem warrant.   It seems clear, therefore,  that the reference
   

to process  execution in Rule  C(6) comprehends service  of a

duly issued warrant of arrest on the defendant property.

          We hold,  therefore,  that the  words "process  has

been  executed" are satisfied under Rule C(6) only when (1) a

properly issued warrant for  arrest in rem has been  properly
                                          

executed, i.e., served upon  the res; and, (2)  the requisite
                                    

notice  has been given to potential claimants.5  If the first

element has already been met,  then the ten-day filing period

begins to  run as to a  claimant who is personally  served on

                    

5.  As we have  discussed and will discuss  at greater length
below, while the personal notice requirement is not expressly
set  out in  the Admiralty Rules,  we think  it also  must be
regarded as an element of the "process" required by Rule C(6)
to be "executed."

                             -15-

the date of  personal service.   For  others, assuming  again

that  the first  element has  been previously  fulfilled, the

ten-day period  begins on the  date of the  final publication

notice (if any is required by Rule C(4)).

          The first element    that the warrant for arrest of

the  property  be  issued  and  executed  before  process  is

considered to  have  been  executed     arises,  as  we  have

already said,  from Supplemental  Rules C(3) and  E(4), which

define the  procedures for execution  of process.   See supra
                                                             

Part II.  Clearly  "process" as used there means  the warrant

for  arrest in rem, and  that process is  executed by service
                  

upon  the property  subject to  forfeiture.   Supp. R.  E(4);

$38,570  U.S.  Currency,  950  F.2d at  1113;  United  States
                                                             

Currency Totalling $3,817.49, 826  F.2d at 786-87; $38,000.00
                                                             

in U.S.  Currency, 816 F.2d  at 1545-46;  7A Moore's  Federal
                                                             

Practice   E.08 at E-355-56.  Serving a copy of  a warrant on
        

the  property owner  is  not the  same  as execution  of  the

warrant.   "Service  must  be  made  upon  the  res  itself."
                                                   

$38,570 U.S.  Currency, 950 F.2d at  1113.  We see  no way to
                      

escape from the conclusion that process has not been executed

within the  meaning of  Rule C(6)  unless the  procedures for

execution  of process  within Rules C(3)  and E(4)  have been

met.   These  procedures  do not  expressly include  personal

service of  a copy of the warrant upon the owner, and plainly

are not met merely by such personal service.

                             -16-

          This  is not  to say  that notice  to the  owner is

irrelevant  to  the Rule  C(6)  formulation.   Claimants  can

hardly be  expected to  file a  claim before  they personally

have  notice  of the  pending  action.   While  admiralty law

traditionally  presumed that  service of  the warrant  on the

property (e.g., by seizing the vessel or posting  notice) was

sufficient to  give constructive  notice of the  action, that

presumption  is  dubious   in  the  circumstances  of   civil

forfeiture  proceedings such  as  the instant  case.   See  4
                                                          

Charles Alan Wright &amp; Arthur R.  Miller, Federal Practice and
                                                             

Procedure   1074, at 462  (2d ed. 1987).  Some courts,  it is
         

true, have suggested  that service of the  warrant for arrest

on  the  res itself  suffices,  in all  forfeiture  cases, to
            

constitute  execution of  process  for purposes  of the  time

limits  in Rule  C(6),  regardless of  when  the claimant  is
                                  

notified.  See  $38,570 U.S. Currency,  950 F.2d at  1113-14;
                                     

see also United States Currency Totalling $3,817.49, 826 F.2d
                                                   

at 786-87 (rejecting argument  that process is served through

publication of the notice).  That interpretation of the rule,

however,  raise both constitutional6  and practical problems7

                    

6.  Constitutional  questions  arise   because  this   strict
interpretation implicitly assumes that service of the warrant
on the  property    either by seizing it or posting notice of
the action,  pursuant to  Supplemental Rule E(4)     provides
adequate  notice  to  potential claimants  that  a forfeiture
action  is pending.   This  presumption applied  in admiralty
law,  where it was presumed "that the vessel owner, through a
master, agent, or personal presence, will maintain reasonable
contact  with  and  continuing  interest in  the  status  and

                             -17-

when it is applied.  For  example, under this interpretation,

a person  might not receive notice  (through personal service

or publication) until  seven days after the  warrant has been

                    

condition  of  the vessel."    MacDougalls'  Cape Cod  Marine
                                                             
Serv.,  Inc. v. One Christina  40' Vessel, 900  F.2d 408, 412
                                         
(1st Cir. 1990).   While constitutional  in some cases,  this
presumption is  rebuttable; for example, this  court has held
in  an admiralty action that  posting notice on  a vessel was
insufficient   to   satisfy   constitutional    due   process
requirements where the owner was known to be out of the area.
Id.  
   
     The Supreme Court  has expressly held  that, even in  an
action in rem, "[n]otice by mail or other means as certain to
             
ensure actual notice is a minimum constitutional precondition
to a proceeding  which will adversely  affect the liberty  or
property interests  of any party, whether  unlettered or well
                          
versed  in commercial practice,  if its name  and address are
reasonably  ascertainable."   Mennonite Board of  Missions v.
                                                          
Adams, 462 U.S. 791, 800 (1983) (emphasis in original).
     

7.  Practical problems arise because  notice of the action in
                                                             
rem,  whether  by personal  service  or  publication, is  not
   
required  to  be  given  at  any  particular  time,  and,  in
practice,  is usually  given at  least a  few days  after the
seizure of the property.  Notice might not be given until ten
days  or more after the property is seized.  Therefore, under
the Fifth Circuit's interpretation of Rule C(6), the deadline
for  filing claims could have passed by the time one receives
notice of the  action.   $38,570 U.S. Currency,  950 F.2d  at
                                              
1114;  United States v. One  1987 27 Foot  Boston Whaler, No.
                                                        
92-2992, 1992 U.S. Dist. LEXIS  19323, at *12-13 (D.N.J. Nov.
30, 1992).  
     "Even if  [a claimant] does  receive notice  in time  to
file a  claim, he may have  much less time than  the ten days
contemplated by Rule  C(6)."  David  B. Smith, 1  Prosecution
                                                             
and  Defense of Forfeiture Cases  9.03 at 9-42.14 (1992).  In
                                
addition, the  government is  not required to  tell claimants
the date of the seizure, but only to put claimants "on notice
        
that execution of process on the res had recently occurred or
                                    
was  imminent."   $38,570 U.S.  Currency, 950  F.2d at  1114.
                                        
Thus, even when  one receives  notice before the  end of  the
ten-day period,  claimants are left  to their own  devices to
investigate the  records at  the courthouse to  discover when
their ten-day filing period began.  Id.
                                       

                             -18-

executed on the property,  leaving only three days to  file a

claim.  We believe that the drafters of Rule C(6) intended to

give claimants ten days, not three, to file their claims, and

that the  rule should be interpreted  to avoid constitutional

questions.   See  Public Citizen  v. United  States Dept.  of
                                                             

Justice, 491 U.S.   440, 465-66 (1989) ("It has long  been an
       

axiom of  statutory interpretation  that 'where  an otherwise

acceptable  construction  of a  statute  would  raise serious

constitutional  problems, the  [courts  should] construe  the

statute to  avoid such  problems unless such  construction is

plainly  contrary to  the  intent of  Congress.'")   (quoting

Edward  J. DeBartolo  Corp.  v. Florida  Gulf  Coast Bldg.  &amp;
                                                             

Constr. Trades  Council, 485 U.S. 568, 575  (1988)); see also
                                                             

Public Citizen, at 454-55 (stating that courts should avoid a
              

reading  of a statutory term which leads to "odd" or "absurd"

results  inconsistent with Congress'  intention).   For these

reasons, we hold  that the  giving of adequate  notice is  an

essential element  of the "process" to be executed before the

ten-day  filing  period  of  Rule  C(6) begins.    But  while

personal  service of a copy  of the arrest  warrant (or other

suitable notice) is,  therefore, part and parcel  of the Rule

C(6)  execution-of-process trigger,  it  is  not  coextensive

therewith.   Equally  fundamental  is service  of the  arrest

                             -19-

warrant  upon the res, and this also must be fulfilled before
                     

process can be deemed to have been executed.8

          The district court order in this case does not make

clear exactly how the  court interpreted the phrase, "process

has been  executed."  While it  rejected appellant's argument

that  the  publication date  was  relevant  to claimants  who

received  personal service,  it did  not consider  whether or

when the first element    execution of the warrant for arrest

in rem    had been fulfilled.   This, by itself, would not be
      

fatal if, as might normally be  expected, it could reasonably

be  assumed that the arrest warrant had, in fact, been served

on the  res before  or in  conjunction with  personal service
           

upon appellant.   But such, unfortunately, was  not the case,

as we next discuss.

                             IV.

          The  district court found that because Cotto-Garc a

was personally served  on January  3, 1992, his  ten days  to

file a claim began then.  The difficulty with this finding is

that there is absolutely no indication  in the district court

record that as of January 3, 1992, the  warrant for arrest of

                    

8.  The  situation can  perhaps  be analogized  to serving  a
defendant in a  personal action  with a copy  of a  complaint
that  was  never   filed  in  court.     While  the   service
requirements of  Fed. R.  Civ. P.  4 may  have been met,  the
failure to have instituted a  viable lawsuit would render the
notice meaningless.  Here,  the failure to serve  the warrant
on the  res leaves the  court without  jurisdiction over  the
           
"defendant" (i.e.,  the object in dispute),  hence the giving
of notice is a meaningless exercise.

                             -20-

the  property had ever been executed upon the stock shares in

issue.   There is in the record no process receipt and return

form  or  other proof  of  service  executed by  the  marshal

indicating service of the warrant upon the res.  That  is not
                                              

to say  that the  marshal's return  would necessarily  be the

sole  means to  prove  execution of  process; other  evidence

might suffice.  See Fed. R. Civ. P. 4(g); 4A Federal Practice
                                                             

and Procedure    1130  at 344-48.   But  the date of  process
             

execution must be known  in order to determine when  the ten-

day  period  commenced   to  run.     And  this  problem   is

intensified, and not  resolved, by the  government's puzzling

post-argument filing described in the note below.9 

                    

9.  Two  months after  oral argument  before this  court, the
government filed  a motion setting  forth its version  of the
date and  circumstances of the  alleged seizure of  the stock
certificates.  The government  asserted that the property was
seized on December 17, 1991.  This date is one day before the
                                                         
forfeiture  complaint  was  filed.    While  no  warrant  was
attached  to the  motion, the  motion was  accompanied  by an
unauthenticated copy  of a  process receipt and  return form,
purportedly  signed by  a U.S.  Marshal, indicating  that one
Wender Colon, Secretary of  Ponce Leones Baseball Club, Inc.,
was personally  served with  a "seizure warrant"  on December
18,  1991 at  9:30 a.m., and  a copy  of a  stock certificate
certifying that  the United  States of America  owns 2,535.07
shares  (not 2,538.85  shares) of  the Ponce  Leones Baseball
Club as of December 18, 1991.
     These documents were apparently never filed or submitted
to  the district court; they  are not listed  on the district
court's docket sheet.  The only warrant in the record is  the
later,  apparently unserved, warrant dated December 31, 1991,
raising  the question  why, if  the seizure had  already been
validly  executed, a  further warrant  was secured.   In  any
case, papers not  filed with the  district court or  admitted
into evidence by  that court are  not part of  the record  on
appeal.   See Fed. R. App. P. 10(a); Kirshner v. Uniden Corp.
                                                             
of America, 842 F.2d  1074, 1077 (9th Cir. 1988).   Counsel's
          

                             -21-

          We recognize that appellant has waited until appeal

to  object  to  the adequacy  of  the  process  used for  the

seizure.  Only in  extraordinary circumstances will we remand

for further findings on an issue not timely raised below. See
                                                             

Germany v. Vance,  868 F.2d 9, 11 n.1 (1st Cir. 1989); United
                                                             

States v.  Krynicki, 689 F.2d  280, 291-92  (1st Cir.  1982).
                   

But  we find this to be such  an extraordinary case.  On this

record, it  is impossible  reliably to determine  whether the

district   court  correctly   applied   Rule  C(6),   whether

appellant's claim was  in fact  filed late,  and whether  the

government  itself complied with  the procedural requirements

of the  Supplemental Rules.   Because "forfeiture is  a harsh

medium," courts generally favor disposing of forfeiture cases

on  their merits.    One  1987 BMW  325,  No.  92-1827 at  7.
                                       

Moreover, without  an effective  seizure of the  property the

court may lack  jurisdiction to forfeit  the property to  the

government.  See $38,570 U.S. Currency, 950 F.2d at 1113 ("No
                                      

in rem suit  can be maintained without a  valid arrest of the
      

res by the marshal.");  Alyeska Pipeline Serv. Co.  v. Vessel
                                                             

                    

representation  that  the  seizure occurred  on  December  17
(contradicting  the December  18 process  receipt) is  not an
adequate  substitute  for a  record  showing.   Goldstein  v.
                                                         
Kelleher,  728 F.2d 32, 37 (1st Cir.), cert. denied, 469 U.S.
                                                   
852 (1984); Fisher v.  Flynn, 598 F.2d 663, 666 n.5 (1st Cir.
                            
1979).
     We disregard the proffered documents and deny the motion
without  prejudice to  the government's  right to  submit and
explain this evidence to the district court on remand.

                             -22-

Bay  Ridge, 703 F.2d 381,  384 (9th Cir.  1983) (same), cert.
                                                             

dismissed,  467 U.S. 1247 (1984).   But cf.  United States v.
                                                          

TWP 17 R 4, Certain Real Property in Maine, 970 F.2d 984, 989
                                          

(1st Cir. 1992) (suggesting that posting of arrest warrant on

real estate, though insufficient  to constitute a  "seizure,"

is adequate to confer jurisdiction over property in an in rem
                                                             

action);  Trans-Asiatic Oil, Ltd., S.A.  v. Apex Oil Co., 804
                                                        

F.2d  773,  778-79 (1st  Cir.  1986)  (discussing differences

between  jurisdictional requirements  for Rule  B attachments

and  Rule C actions  in rem).   In any event, this  is a case
                           

where the government seeks to benefit by a strict application

of the Rules, alleging  appellant to have failed to  meet the

ten-day  deadline by a relatively  few days.   Given that the

government may itself have failed to comply strictly with the

same  Rules, we  think  it fair  that  the correct  facts  be

ascertained.  See  United States v.  Borromeo, 945 F.2d  750,
                                             

753 (4th Cir. 1991); $38,000.00 In U.S. Currency, 816 F.2d at
                                                

1547.

          Faced with a record  suggesting a real  possibility

that the government never effected valid service upon the res
                                                             

prior to January 3, 1992, we remand to the district court for

it to determine when  the warrant for arrest of  the property

was  executed and, accordingly,  whether Cotto-Garc a's claim

was indeed  filed late.    If the  court finds that  a proper

arrest warrant was, in  fact, executed on the property  on or

                             -23-

before January 3, 1992,  then the court should find  that the

Rule  C(6) ten-day period began  on January 3,  the date that

Cotto-Garc a was  personally served.  If,  however, the court

finds that the warrant was not executed until later,  whether

the claim was  late depends  on the date  of that  execution,

which becomes the triggering  date under Rule C(6).   If, for

some reason, the  warrant was never  served on the  property,
                                   

then Cotto-Garc a's  claim was  not late because  process had

yet to be executed by the time he filed his claim.  

                              V.

          In  conclusion, because the  record is insufficient

to  determine the  timeliness  of  Cotto-Garc a's  claim,  we

vacate  both the  affirmance  of the  magistrate's ruling  to

strike the notice of claim by Cotto-Garc a and the forfeiture

order, and we remand to the district court with directions to

reopen the record  and redetermine, in light of this opinion,

whether Cotto-Garc a's  notice of claim was  in fact untimely

under Rule C(6).   Because we vacate on  other grounds, we do

not  reach Cotto-Garc a's  argument that  the  district court

should have exercised  its discretion to extend the  time for

filing his claim.   Granting a discretionary  extension is an

option that we  leave open  to the district  court on  remand

should  it conclude  that, although  the claim  was untimely,

there were sufficient factors justifying an extension.

                             -24-

          Vacated  and  remanded  for   further  proceedings.
                                                             

Costs for appellant.
                   

                             -25-
