United States 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.

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

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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]

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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

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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,

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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.

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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).

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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.

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

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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

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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

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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

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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."

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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.

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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

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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.

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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

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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.

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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

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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.

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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

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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.

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Vacated and remanded for further proceedings.

Costs for appellant.

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