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.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.
At issue in this appeal is whether appellant Cotto-Garcia 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-Garcia 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-Garcia’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 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] 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-Garcia 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-Garcia. 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-Garcia and purchased with proceeds of drug transactions. A motion *1283 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 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-Garcia — 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-Garcia (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-Garcia 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, 1992. 1 In the meantime, a copy of the warrant of seizure and monition was published on February 7 in El Nuevo Día, a newspaper in Puerto Rico; no one filed a claim after publication of the notice.
Cotto-Garcia 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-Garcia’s claim had been filed out of time. Pursuant thereto, the court dismissed Cotto-Garcia’s appeal from the magistrate and, finding no other claimants, ordered the property forfeited to the United States of America. Cotto-Garcia’s 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 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 *1284 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 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 ¶¶ 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,
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-Garcia’s primary argument on appeal, namely, *1285 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-Garda’s argument would be correct for any 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-Garcia’s reading of Rule C(6) is perhaps not entirely inconceivable,
see United States v. Various Parcels of Real Property,
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,
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 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 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,
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 A. 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
*1287
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,
*1288 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-Garcia 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 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
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,
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-Garcia’s claim was indeed filed late. If the court finds that a proper arrest warrant was, in fact, executed on the property on or 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-Garcia 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-Garcia’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-Garcia’s claim, we vacate both the affirmance of the magistrate’s ruling to strike the notice of claim by Cotto-Garcia 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-Garcia’s notice of claim was in fact untimely under Rule C(6). Because we vacate on other grounds, we do not reach Cotto-Garcia’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.
Vacated and remanded for further proceedings. Costs for appellant.
Notes
. Nevertheless, one week after the magistrate struck his claim, Cotto-Garcia requested an extension of time to answer the complaint. The government responded that Cotto-Garcia had no standing in the case since his claim had been stricken. The court took no action on this motion.
. "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,
. 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.
. 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,
. 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."
. 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 condition of the vessel."
MacDougalls’ Cape Cod Marine Serv., Inc. v. One Christina 40’ Vessel,
The Supreme Court has expressly held that, even in an action
in rem,
"[njotice 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,
. 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,
"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,
.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 *1288 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.
. 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,
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.