Académique Documents
Professionnel Documents
Culture Documents
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
amended as follows:
this
court issued
5 of
footnote
on
March 5,
7, delete
"be"
1993,
is
between
March 5, 1993
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.
_____________________
____________________
____________________
March 5, 1993
____________________
____________________
*Of the District of Massachusetts, sitting by designation.
At
issue in this
__ ___
drug laws, of his stock shares.
appellant had
an
this argument.
notice
of
that
the
date
determinative as to him.
earlier
notification
constituted
personal
the
to
relevant
his claim.
not occur
The
It ruled that
until
district court
forfeiture
action,
causing
court, we reject
when
notice
We agree
was
published
_________
appellant
notice.
Cotto-Garc a's
by
But
personal
while
is
the
service
service
of
notification)
was a
necessary element
claim on
served
executed" to
his theory,
rejected
to fulfill
of the
execution of
sufficient by
__________
the triggering
requirement in
been executed."
"Process" in
the rules
an in
__
rem
___
-3-
action consists
the property
fundamentally of
to be
seized.
"Execution"
arrest of
of such
"process"
In the present
case, we find in
the record an
other
proof
occurred.
Without
occurred, it
executed.
stock
on or before January
3, 1992, the
the ten-day
personal
warrant
service,
period
commenced to
to wit,
run
January 3.
on the
But if
day
of
the arrest
And
did not
begin to run.
We accordingly
to
the
warrant
district court
for
arrest
appellant's stock
light of the
of
with directions
determine whether
the
property
and
was
when the
served
upon
that information in
-4-
been executed" as of
upon
appellant.
timeliness
of
Until this
appellant's
is correctly
filing
of
was served
ascertained, the
claim
cannot
be
determined.
We
turn
now
to
a detailed
discussion
of
this
appeal.
I.
I.
Appellant
indicted
guilty
United
Domingo
Cotto-Garc a
was arrested
these in
States
October 1991.
government
After his
initiated
civil
and
He pleaded
arrest, the
forfeiture
proceedings
against all
One
of the
U.S.C.
known
properties of
Cotto-Garc a.
on December
18, 1991,
881(a)(6) and
18 U.S.C.
981
in the United
The
of the Ponce
by Cotto-Garc a
transactions.
and purchased
Inc. allegedly
with proceeds
of drug
It ordered the
U.S. Marshal to
-5-
(the 2,538.85
shares of
stock) and
to
after service,
pleading
to
. .
the Complaint
[and]
filed
thereafter a
within
responsive
twenty (20)
days
and monition,"
ordering the
marshal to
one for
publish a
newspaper announcement to
notify "all
persons claiming
the
last publication."
On
stocks,
January
3,
1992,
appellant Cotto-Garc a
penitentiary at
Rio Piedras,
owner
imprisoned
Puerto Rico
the alleged
of
at
the
state
was personally
requested the
the property
The
magistrate
the notice of
claim on February
4, 1992,
granted the
motion to
-6-
the owner
on the
Rule C(6).
strike on February
12,
1992.1
In the meantime,
a copy of
in
Puerto
Rico;
the warrant
of seizure
February 7 in El Nuevo D a, a
_____________
no
one
filed
claim
after
the magistrate's
order
opinion agreeing
that Cotto-
Pursuant thereto,
finding
forfeited
no
to the
other
claimants,
ordered
the
United
States of
America.
property
Cotto-Garc a
civil
action
forfeiture actions
was
brought by
the
U.S.C.
U.S.C.
moneys,
of
881(a)(6),
981.
21
and the
U.S.C.
This
United States
this.
forfeiture
pursuant
to the
Laundering Act,
881(a)(6) provides
18
that, "all
or other things
in exchange
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-
Similarly,
to forfeiture.
Both
forfeiture
statutes
exceptions, that
the property
issued
to
pursuant
Admiralty
the
States having
U.S.C.
881(b);
shall be seized
Supplemental
United
provide,
Rules
by any district
jurisdiction over
18
U.S.C.
with
certain
upon process
for
Certain
court of the
the property.2
981(b)(2).
Thus
21
the
See
___
Fed. R.
Civ. P.,
Supp. R.
extent
that
are inconsistent
Rules.
See Supp. R. A.
et seq.
__ ____
apply except to
with
the
The
the
Supplemental
___
Supplemental Rule C contains special provisions for
actions in rem, including
__ ___
action in rem is
__ ___
States)
against the
defendant property
which
The
the United
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
warrant for
If
upon
reviewing
the complaint
and
supporting
appear
court orders
warrant
to exist,
the
the
clerk to
Supp.
in rem
__ ___
issue
R. C(3).
a
The
serves the
of the
property
Rule E(4),
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,
generally done by
copy
of
property is
service of the
on tangible
warrant on intangible
leaving
of process
complaint
and
process
with
by
the
-9-
E.08
- E.09
(2d
ed. 1988
&
Supp. 1992-93).3
process
the
person serving
See
___
Supp.
R.
process.
in rem is
__ ___
given by personal
on the
publication in a local
putative
of Real Property,
_________________
claimant
921 F.2d
Cir. 1992).
must file
If no claim
lacks
standing
is properly
to
contest
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-
Rule
establishes the
Id. at 777.
___
phrase in
Rule C(6),
"10 days
after process
has been
Cotto-Garc a's
primary
executed."
III.
III.
We
argument
dispose
on appeal,
timely filed on
"process
quickly
of
namely, that
January 31
his notice
because, in his
of claim
view, the
was
term
to the day
the final published notice appeared (February 7), not the day
he was personally served
to the warrant of
warrant
arrest
(as
distinguished
in rem)
_______
states
from the
that
"all
publication."
warrant
for
persons
claiming
the
that
Cotto-Garc a's
Court, at the
The government
as that
separate
He looks
the last
argument
-11-
would
be
correct
for
any
claimant
that had
copies of
the
personally
not earlier
warrants, but
served
Therefore,
the
with
been personally
contends
process
government urges,
that Mr.
Cotto
January
3,
on
his
served with
ten days
was
1992.
to
file a
the
is perhaps not
Order at 3.
Various Parcels
_______________
(N.D. Ind. 1986),
of Rule C.
F.2d 1108,
However,
by personal
service is
Notice
make little
by publication,
interests are
on
the
other
of
unknown.
notice in
occur, were
we to
the
sense.
notice
the
Personal
is
far
less
identities and
Once alerted
to
service,
deadline tied
C.16 at
by personal
newspaper.
adopt appellant's
All
that would
position, would
be to
permit
claimants
unjustifiably
who
have
delay filing
been
their
personally
claims.
notified
See 7A
___
to
Moore's
_______
-12-
Federal Practice
________________
knowledge,
of
publication]
C.16 at 700.14
course,
lest he
should
be
[wait
until
of
laches.")
deemed guilty
actual
after
The
false claims."
United States v.
_____________
994, 1001
Furthermore, newspaper
a failure to advertise."
7A Moore's
R. C(4), and
especially if
_________________________
C.14
1115
n.8 (rejecting
we
argument that
day of
have
950 F.2d at
not executed
publication of notice).
little
difficulty
For
these
rejecting appellant's
add
consistent with
that
the
case
treating the
law in
date on which
this
circuit
is
adequate notice
period.
Feb. 18,
-13-
v. One 1978
________
States
______
v.
Estevez, 845
_______
(considering date
commence
States
______
F.2d
F.2d
1409,
that claimant
filing period
under
1412 (7th
Cir.
received notice in
21 U.S.C.
1988)
mail to
853(n));
United
______
(8th Cir.
1987) (assuming
that
826
claim filed
within ten days of notice, but five months after seizure, was
timely); United States v.
______________
F.2d 1538, 1545-46 (11th
C(6) deadline
to claim
notify claimant
apply Rule
of action).
to properly
with the
case of an owner of
property to
whom notice
by personal service,
the notice
is first given
component
of "process"
service.
There
is
is fully
satisfied by
no justification
the personal
whatever for
waiting
asserts,
warrant
But
harder
and
the record
seems to
question
an essential part
lurks
bear
here.
him out,
of the res,
___
Appellant
that the
running of the
-14-
"execution" of
"process"
Rule
(or alternative
means of
ingredient of execution
an essential
in rem proceeding,
__ ___
The
text of
clearly indicate
that
applies to the
service of the warrant for arrest in rem on the res, here the
__ ___
___
stock shares. The description of the
C(6)
when "process
phraseology found in
rem warrant.
___
to process
has been
executed"
is
the same
of the in
__
of a
therefore,
that the
words "process
has
notice
the requisite
run as to a
properly
If the first
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
that
personal service.
the first
ten-day period
element has
begins on the
For
others, assuming
been previously
date of the
again
fulfilled, the
final publication
property
be
issued
been
considered to
have
already said,
from Supplemental
executed
executed
before
arises,
process
as
we
is
have
E(4), which
define the
Part II.
for
upon
that process is
subject to
950
F.2d at
the
property owner
warrant.
"Service
is
be
E(4);
United States
______________
Serving a copy of
not the
must
Supp. R.
1113;
at 1545-46;
E.08 at E-355-56.
the warrant
executed by service
forfeiture.
Practice
________
See supra
___ _____
of process.
same
made
a warrant on
as execution
upon
the
1113.
res
___
We see
of
the
itself."
no way to
escape from the conclusion that process has not been executed
within the
execution
met.
meaning of
of process
These
service of
Rule C(6)
unless the
procedures
do not
procedures for
and E(4)
expressly include
have been
personal
-16-
This
irrelevant
to
hardly be
have
is not
to say
the Rule
expected to
notice
of the
traditionally
that notice
to the
C(6)
formulation.
file a
claim before
pending
action.
presumed that
Claimants
admiralty law
the warrant
give constructive
is
dubious
in
notice of the
the
proceedings such
as
Procedure
_________
1074, at 462
the
res itself
___
constitute
limits
in Rule
notified.
See
___
C(6),
of
civil
case.
See
___
Some courts,
execution of
action, that
suffices,
on the
notice) was
circumstances
the instant
can
they personally
While
service of
owner is
in all
process
forfeiture
for purposes
regardless of
__________
when
it is
cases, to
of the
the claimant
950 F.2d at
time
is
1113-14;
____________________
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.
a person
For
or publication) until
____________________
condition
of
the vessel."
property interests
file a
give claimants ten days, not three, to file their claims, and
that the
questions.
See
___
Public Citizen
______________
construction
constitutional
statute to
plainly
statutory interpretation
acceptable
to avoid constitutional
of a
problems, the
avoid such
contrary to
that 'where
statute
[courts
would
intent of
an otherwise
raise serious
should] construe
been an
the
construction is
Congress.'")
(quoting
results
reasons, we hold
essential element
ten-day
personal
filing
that the
giving of adequate
For these
notice is
an
of
service of a copy
intention).
Rule
C(6) begins.
of the arrest
it
is
while
execution-of-process trigger,
But
not
of the Rule
coextensive
therewith.
Equally
fundamental
is service
of the
arrest
-19-
warrant
executed."
the
received
publication date
personal service,
was
relevant
it did
to claimants
not consider
who
whether or
on the
res before
___
upon appellant.
or in
conjunction with
personal service
as we next discuss.
IV.
IV.
The
on January
3, 1992, his
ten days
to
____________________
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
issue.
form
other proof
of
service
executed by
the
marshal
That
is not
to say
sole
that the
means to
might suffice.
and Procedure
_____________
marshal's return
prove
execution of
would necessarily
process; other
evidence
at 344-48.
But
the date of
day
to
period
be the
commenced
run.
resolved, by the
And
this
process
the ten-
problem
is
government's puzzling
object
seizure.
to
the adequacy
Only in
of
the
process
used for
the
record, it
district
is impossible
court
government
of the
an extraordinary case.
applied
in fact
Rule
filed late,
Supplemental Rules.
(1st Cir.
reliably to determine
correctly
280, 291-92
1982).
On this
whether the
C(6),
whether
and whether
the
Because "forfeiture is
a harsh
their merits.
Moreover, without
court may lack
No.
seizure of the
jurisdiction to forfeit
92-1827 at
7.
property the
the property to
the
government.
in rem suit
______
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-
But cf.
_______
United States v.
_____________
to constitute a
"seizure,"
_____________________________
F.2d
773,
between
and
778-79 (1st
Cir.
1986)
jurisdictional requirements
Rule C actions
in rem).
__ ___
____________
(discussing differences
for Rule
B attachments
is a case
deadline by a relatively
few days.
meet the
Rules, we
ascertained.
See
___
think
it fair
that
United States v.
_____________
the correct
facts
be
750,
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
was
was indeed
filed late.
If the
the property
a proper
-23-
on or
Cotto-Garc a was
on January 3,
personally served.
If,
that the
late depends
on the date
execution,
of that
whether
claim was
served on the
If, for
property,
process had
determine the
vacate
both the
timeliness
affirmance
of
record is insufficient
Cotto-Garc a's
of the
claim,
we
magistrate's ruling
to
Because we vacate on
other grounds, we do
the
district court
Granting a discretionary
leave open
it conclude
argument that
in fact untimely
to the district
that, although
time for
extension is an
court on
the claim
remand
was untimely,
-24-
-25-