
USCA1 Opinion

	




          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.                                          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.                                         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 & Alfred S. Palaez, 7A Moore's Federal Practice                                                 ________________________                                         -9-            E.08  - E.09  (2d  ed. 1988  &  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.                                         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 & 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.  &            ___________________________     _____________________________            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.                                         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.                                          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-
