United States Court of Appeals
                     For the First Circuit

No. 10-1459

                         UNITED STATES,

                            Appellee,

                               v.

                   RAMON ZORRILLA-ECHEVARRÍA,

                      Defendant, Appellant,

                      ANDRES CASTILLO-PEÑA,

                      Claimant, Appellant.


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

         [Hon. José Antonio Fusté, U.S. District Judge]



                             Before

                       Lynch, Chief Judge,
               Stahl and Thompson, Circuit Judges.



     Luis Rafael Rivera, on brief for appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, Julia M.
Meconiates, Assistant United States Attorney, and Rosa Emilia
Rodriguez-Velez, United States Attorney, on brief for appellee.



                        November 22, 2011
           LYNCH, Chief Judge.     This case involves the procedures

governing criminal forfeiture, the distinction between a criminal

forfeiture that constitutes an in personam money judgment and a

criminal forfeiture of specific assets, and the rights of third

parties in a forfeiture scenario.          We affirm in part, vacate in

part, and remand for further proceedings consistent with this

opinion.     The case provides a cautionary tale for forfeitures in

bulk cash smuggling and other cash seizure cases.

                                   I.

           On October 5, 2007, Ramon Zorrilla-Echevarría boarded the

Carribean Express, a ferry due to travel from Mayaguez, Puerto Rico

to the Dominican Republic.     Zorrilla-Echevarría checked as luggage

two doors, similar to those that would be found on a house, before

boarding the ferry.     United States Customs and Border Patrol is in

charge of inspecting luggage and cargo on ferries making such

foreign trips.    Customs, through use of a routine X-ray machine on

the doors, detected currency totaling approximately $543,801 inside

of them.   Zorrilla-Echevarría had not declared any of the currency

and was arrested.    Customs seized the cash located in the doors and

appears to have retained possession of it throughout the course of

the proceedings in this case.

           On October 24, 2007, a grand jury issued a two count

indictment    against   Zorrilla-Echevarría.         Count    one   charged

Zorrilla-Echevarría     with   knowingly    and   willfully   transporting


                                   -2-
approximately $543,8261 in cash from Mayaguez, Puerto Rico to the

Dominican Republic, without first filing a report in compliance

with regulations promulgated by the Secretary of the Treasury, in

violation of 31 U.S.C. § 5316(a)(1)(A) & (b) and § 5322(a).2

          Count two charged Zorrilla-Echevarría with willfully

evading the reporting requirements of § 5316 by concealing the same

amount of currency inside the two wooden doors in an attempt to

transport the currency to the Dominican Republic, in violation of

31 U.S.C. § 5332.3

          Criminal forfeiture of $543,826, pursuant to 31 U.S.C.

§ 5317(c)(1) and § 5332(b)(2), was sought based on both counts of

the indictment.   These provisions require a court, when imposing a

sentence for violations of various sections of Title 31, including

the portions Zorrilla-Echevarría was charged with violating, to


     1
        The record does not indicate why this amount and the
$543,801 testified to at trial differ.
     2
        These sections provide a criminal penalty for an individual
who "willfully" "transports, is about to transport, or has
transported, monetary instruments of more than $10,000 at one time
. . . from a place in the United States to or through a place
outside the United States," without first filing a report with the
Secretary of the Treasury. 31 U.S.C. §§ 5316(a)(1)(A), 5322(a).
     3
        This "[b]ulk cash smuggling" is a criminal offense under
§ 5332. The section provides a criminal penalty for "[w]hoever,
with the intent to evade a currency reporting requirement under
section 5316, knowingly conceals more than $10,000 in currency or
other monetary instruments on the person of such individual or in
any conveyance, article of luggage . . . or other container, and
transports or transfers or attempts to transport or transfer such
currency . . . from a place within the United States to a place
outside of the United States." 31 U.S.C. § 5332(a)(1).

                                -3-
"order the defendant to forfeit all property, real or personal,

involved in the offense and any property traceable thereto,"

utilizing the procedures found in 21 U.S.C. § 853.                 31 U.S.C.

§   5317(c)(1);   see   also   

  (substantially    same

forfeiture provision).     In addition, § 5332(b)(4) allows the court

to "enter a personal money judgment against the defendant for the

amount that would be subject to forfeiture" when "the property

subject to forfeiture . . . is unavailable, and the defendant has

insufficient substitute property that may be forfeited."                 

           A one-day jury trial was held on January 14, 2008, and

the jury found Zorrilla-Echevarría guilty on both counts.                The

government then moved for a preliminary forfeiture order, for the

same amount as detailed in the indictment ($543,826), pursuant to

Federal Rule of Criminal Procedure 32.2.              The district court

granted this motion on March 17, 2008, ordering that the "Defendant

shall forfeit to the United States $543,826.00 in U.S. currency,

which is equal to the total amount of money Defendant obtained as

the result of the above-mentioned violations."

           Zorrilla-Echevarría       was    sentenced    to   41     months'

imprisonment on May 14, 2008.            At the sentencing hearing, the

government requested that the forfeiture amount be included as part

of the judgment; the judge agreed, but as events transpired, that

did not happen.


                                     -4-
          The day after the sentencing hearing, Zorrilla-Echevarría

and a third party, Andres Castillo-Peña, filed petitions for

ancillary hearings, see 21 U.S.C. § 853(n); Fed. R. Crim. P.

32.2(c), asserting that Castillo-Peña was the rightful owner of

$343,000 of the forfeiture amount, while Zorrilla-Echevarría owned

the remaining $200,751.

          Before these petitions were acted on, the district court

entered judgment as to Zorrilla-Echevarría's crime.            The judgment,

however, made no mention of the forfeiture the district court had

agreed to impose in its order of preliminary forfeiture and at the

sentencing hearing.

          Zorrilla-Echevarría      immediately     filed   a    motion   for

reconsideration of his sentence, which was denied on June 5.                He

also filed a notice of appeal from the judgment on June 3, 2008;

this became case number 08-1823 on appeal.

          The district court denied both petitions for ancillary

hearings on June 5, explaining that "[a]ncillary hearings are not

appropriate in the context of a money judgment."           Both Zorrilla-

Echevarría and Castillo-Peña moved for reconsideration, which was

denied on June 25.     The district court again explained that the

forfeiture   was   pursuant   to   a   money   judgment,   rather    than    a

forfeiture of specific property, and "Zorilla and Castillo cannot

establish an interest in this money judgment."        A second notice of

appeal was filed, by both Castillo-Peña and Zorrilla-Echevarría,


                                   -5-
from this set of decisions regarding the ancillary hearing on July

11, 2008.    This became case number 08-2008 on appeal.

            These appeals were consolidated on January 6, 2009.

However, neither appeal was ever briefed.                 There were numerous

requests    for   extensions       of   time   by   Zorrilla-Echevarría       and

Castillo-Peña, and numerous notices of default and intent to

dismiss issued by the court for failure to prosecute the appeal.

Eventually,   Zorrilla-Echevarría         filed     a   motion    for   voluntary

dismissal on December 16, 2009; Castillo-Peña filed a similar

motion on March 31, 2010.               A judgment dismissing both cases

pursuant to Federal Rule of Appellate Procedure 42(b) was issued on

April 9, 2010.

            Meanwhile, on October 13, 2009, the government filed in

the district court a motion to amend the preliminary forfeiture

order to change the amount of forfeiture from "$543,826 in U.S.

currency" to "$543,731."4          However, it also attached a proposed

forfeiture order which was not suitable for money judgments.                  The

district court granted this motion on October 20, 2009.                 The order

accompanying this motion, however, discussed the procedures and

provisions relevant to a forfeiture of specific property, and not

to   imposition   of   a   money    judgment.       The   order    directed   the

government to publish notice of the order, so that third parties


      4
        The motion did not explain the reason for this change,
other than noting that the preliminary order of forfeiture
"[i]nadvertently" indicated the wrong amount.

                                        -6-
who   might    claim    an   interest    in   the    property   could   have   an

opportunity to establish that interest, as is required before a

forfeiture of specific property may become final as to third

parties.      See Fed. R. Crim. P. 32.2(b)(4)(A).               The government

published notice as required by the order for the requisite time

period, and submitted a notice certifying this compliance on

December 15, 2009.           This was not consistent with the court's

earlier statement that it had intended a money judgment.

              Shortly thereafter, on December 23, Zorrilla-Echevarría

filed a motion to strike and for a return of property, claiming

that, because the preliminary forfeiture order was for a money

judgment, the district court and the government could not now

switch   tack    and    attempt   to    impose   a   forfeiture   of    specific

property.      In a sense, this was a switch in tack by Zorrilla-

Echevarría, who had earlier challenged the order as one not for a

money judgment.        Zorrilla-Echevarría further argued that the time

period for amending the judgment had lapsed, and, as a result, that

Zorrilla-Echevarría and Castillo-Peña were entitled to a return of

the seized cash.

              This motion was denied by the district court on March 12,

2010.    The district court reiterated that the forfeiture order was

in the form of a money judgment.          It then explained that it viewed

the government's motion to amend the forfeiture order, which had

been filed on October 13, 2009 and granted on October 20, 2009, as


                                        -7-
a motion to attach the cash (which was still held by Customs) under

Federal Rule of Civil Procedure 64, which provides that "throughout

an action, every remedy is available that, under the law of the

state where the court is located, provides for seizing a person or

property   to   secure   satisfaction    of    the   potential   judgment,"

including attachment.     The court then found that under Puerto Rico

Rule of Civil Procedure 56.2, it could attach the funds given that

there was "a debt liquid, due, and payable."          The court concluded

by ordering the attachment of the $543,731 of cash in possession of

Customs,   "pending   execution   of    the    money-judgment    forfeiture

entered against Defendant."

           At the same time, the district court entered another

order that amended two prior orders.          First, the order amended the

amended preliminary order of forfeiture (which was issued on

October 13, 2009) to remove all references to the procedures

involved with orders of forfeiture of specific property, and

instead to simply provide that Zorrilla-Echevarría "shall forfeit

$543,731 in the form of a money judgment to be enforced against

him."   Second, the order amended the judgment to provide that

"[t]he defendant shall forfeit to the United States the amount of

$543,731."

           Zorrilla-Echevarría and Castillo-Peña have appealed, and

this decision is from that appeal.




                                  -8-
          After the filing of the notice of appeal, on August 9,

2010, the government filed a motion requesting issuance of a final

order of forfeiture, in the amount of $543,731.   The court granted

the motion on August 31, and once again explained that no ancillary

proceeding was necessary before the order became final because the

forfeiture consisted of a money judgment.

                                 II.

          There are three different types of criminal forfeiture;

the relevant statutory provisions, and applicable procedures, vary

between the types.    As this case involves dispute over which type

of forfeiture occurred and what procedures were required, a brief

description of each type is necessary.        Further complicating

matters is the fact that Federal Rule of Criminal Procedure 32.2

was amended in 2009, after the original entry of judgment in this

case but before the amendment of the judgment to include the

forfeiture order.    The pre-2009 rules are discussed below.

          A criminal forfeiture may take the form of either (1) "an

in personam judgment against the defendant for the amount of money

the defendant obtained as proceeds of the offense," (2) forfeiture

of specific assets related to criminal activity, or (3) forfeiture

of "substitute assets" if the specific assets are unavailable.

United States v. Candelaria-Silva, 

, 42 (1st Cir. 1999).

Only the distinction between the first two types is relevant here.




                                 -9-
          The beginning of the forfeiture process is the same for

both types.    The government must include notice of intent to seek

forfeiture in the indictment, and as soon as practicable after a

verdict or guilty plea, "the court must determine what property is

subject to forfeiture under the applicable statute." Fed. R. Crim.

P. 32.2(a), (b) (2008).

          At this point, the procedures diverge.                  For a money

judgment forfeiture, the court "must determine the amount of money

that the defendant will be ordered to pay," and upon such a

determination    must      issue   a   preliminary    notice    of    forfeiture

"setting forth the amount of any money judgment."              Fed. R. Crim. P.

32.2(b)(1), (b)(2) (2008). This order becomes final at sentencing,

"and must be made a part of the sentence and be included in the

judgment."    Fed. R. Crim. P. 32.2(b)(3) (2008).          At this point the

money judgment forfeiture order becomes appealable.              Fed. R. Crim.

P. 32.2 advisory committee's notes on the 2000 amendments ("Because

the order of forfeiture becomes final as to the defendant at the

time of sentencing, his right to appeal from that order begins to

run at that time.").           There is no provision for third party

involvement     in   the    forfeiture        determination:    "no   ancillary

proceeding is required to the extent that the forfeiture consists

of a money judgment."       Fed. R. Crim. P. 32.2(c)(1) (2008).          That is

because "[a] money judgment is an in personam judgment against the

defendant and not an order directed at specific assets in which any


                                       -10-
third party could have any interest."        Fed. R. Crim. P. 32.2

advisory committee's notes on the 2000 amendments.

          By contrast, for a forfeiture of specific assets, the

court "must determine whether the government has established the

requisite nexus between the property and the offense."      Fed. R.

Crim. P. 32.2(b)(1) (2008).   If such a nexus is found, the court

must issue a preliminary notice of forfeiture "directing the

forfeiture of specific property without regard to any third party's

interest in all or part of it."         Fed. R. Crim. P. 32.2(b)(2)

(2008).

          Before this order may become final, under the forfeiture

statute at issue in this case, 21 U.S.C. § 853, the government must

"publish notice of the order and its intent to dispose of the

property."   21 U.S.C. § 853(n)(1).     "Any person, other than the

defendant, asserting a legal interest in property which has been

ordered forfeited . . . may, within thirty days of the final

publication of notice . . . petition the court for a hearing to

adjudicate the validity of his alleged interest in the property."

          If no such petition is filed, the order becomes final "if

the court finds that the defendant . . . had an interest in the

property that is forfeitable under the applicable statute."    Fed.

R. Crim. P. 32.2(c)(2) (2008).    The forfeiture must be made a part

of the sentence and included in the judgment, as is the case with


                                 -11-
money judgments.     Fed. R. Crim. P. 32.2(b)(3) (2008).             At this

point in time, again as was the case with money judgments, the

order is final and appealable by the defendant.           See Fed. R. Crim.

P. 32.2(c)(2) (2008)      ("The defendant may not object to the entry

of the final order on the ground that the property belongs, in

whole or in part, to a codefendant or third party; nor may a third

party object to the final order on the ground that the third party

had an interest in the property.").

           If a third-party petition is filed, the court is to

determine whether the third party has a valid interest in the

property   and   amend,   or   leave   unaltered,   the    final    order   of

forfeiture as is appropriate.      See 21 U.S.C. § 853(n)(6); Fed. R.

Crim. P. 32.2(c)(2) (2008).      This ancillary hearing is irrelevant

to the finality of the order with respect to the defendant.             Fed.

R. Crim. P. 32.2 advisory committee's notes on the 2000 amendments

("[B]ecause the ancillary hearing has no bearing on the defendant's

right to the property, the defendant has no right to appeal when a

final order is, or is not, amended to recognize third party

rights.").

                                   III.

           Zorrilla-Echevarría     and    Castillo-Peña     raise   distinct

arguments on appeal.      Zorrilla-Echevarría advances two theories as

to why the forfeiture order was improper and the funds should be

returned to him. First, he argues that the statutory provisions he


                                   -12-
was convicted under do not confer the authority to impose a money

judgment.     Second, he claims that even if the court had such

authority, the court failed to include the money judgment as part

of the original sentence, and did not have the authority to later

amend that sentence because the amendment took place well after the

original sentence was imposed.

            Castillo-Peña also advances two theories on appeal.

First, he claims that he was deprived of due process because he was

never granted an ancillary hearing.             Second, he argues that the

delay between the seizure of property and the initiation of the

forfeiture proceedings took so long as to result in a due process

violation.

A.    Zorrilla-Echevarría's Claims

            1.    Lack of Authority to Enter Money Judgment

            Zorrilla-Echevarría argues that the district court lacked

the authority      to    impose a     money   judgment     under     the    relevant

statutory provision.         The argument begins with the premise that 31

U.S.C. § 5332(b)(4), by its terms, allows a personal money judgment

to be entered only when the property "involved in the offense" is

"unavailable."          31   U.S.C.   §   5332(b)(2),      (b)(4).         Zorrilla-

Echevarría contends that, since the government had seized the

actual cash involved in the offense, it was never unavailable,

§    5332(b)(4)   was    never triggered,      and   the    court     thus    lacked

authority to enter a personal money judgment.


                                       -13-
            We do not consider the merits of this argument,5 as

Zorrilla-Echevarría knew that the forfeiture was in the nature of

a money judgment at the time his first appeal was docketed, yet he

never raised the matter, and that appeal was dismissed.          Zorrilla-

Echevarría's   attempt   to   do   so   now   is   untimely;   the   initial

forfeiture decision is not before us.          As a result, we need not

address the government's contention that, if the issue is not

waived, review is for plain error.

            The version of Rule 32.2 in effect at the time of

sentencing explained that "[a]t sentencing . . . the order of

forfeiture becomes final as to the defendant."           Fed. R. Crim. P.

32.2(b)(3) (2008).       As a result, an appeal from the judgment

imposing the sentence was the appropriate vehicle for Zorrilla-

Echevarría to contest the court's authority to impose a money

judgment.   See Fed. R. Crim. P. 32.2 advisory committee's notes on

the 2000 amendments ("Because the order of forfeiture becomes final

as to the defendant at the time of sentencing, his right to appeal

from that order begins to run at that time."). The present attempt



     5
        We have held that 21 U.S.C. § 853 authorizes the imposition
of a money judgment. See United States v. Hall, 

, 58-60
(1st Cir. 2006). We have not addressed whether 31 U.S.C. § 5332,
which by its own terms requires a money judgment if the property
involved in the offense is "unavailable" and "the defendant has
insufficient substitute property," also authorizes money judgments
in other circumstances. 31 U.S.C. § 5332(b)(2), (b)(4). Section
5332 does provide that "the seizure, restraint, and forfeiture of
property under this section shall be governed by [21 U.S.C.
§ 853]." 31 U.S.C. § 5332(b)(3).

                                   -14-
to   challenge    this   judgment   by   arguing    that   the   court   lacked

authority to impose a money judgment forfeiture is untimely.               See

Fed. R. App. P. 4(b).

           This    is so    notwithstanding    two    potentially    contrary

considerations. First, it is true that the judgment itself did not

contain any mention of the forfeiture, in contravention of the

requirements of Rule 32.2(b)(3).         See Fed. R. Crim. P. 32.2(b)(3)

(2008) (explaining that the order of forfeiture "must . . . be

included in the judgment") (emphasis added).

           While this should not have happened, as it is a violation

of the Rule, "[t]he appropriate remedy for violation of the Rule

depends on context."       United States v. Yeje-Cabrera 

, 14

(1st Cir. 2005).         The failure to include the forfeiture in the

judgment, when a preliminary notice of forfeiture has issued, and

at sentencing the forfeiture question was discussed, is "largely a

housekeeping" issue and "does not itself go to any fundamental

rights of defendants."6       

       As a result, there is no

reason that the failure to explicitly include the forfeiture in the

judgment itself somehow prevented Zorrilla-Echevarría from raising

the issue during his first appeal.



      6
        This conclusion is reinforced by a 2009 amendment to Rule
32.2 (which was not in force at the time of the original judgment),
providing that "[t]he court must also include the forfeiture order,
directly or by reference, in the judgment, but the court's failure
to do so may be corrected at any time under Rule 36." Fed. R.
Crim. P. 32.2(b)(4)(B) (2010) (emphasis added).

                                    -15-
             Second, it is also true that there was some ambiguity in

the district court's preliminary forfeiture order as to whether

that order imposed a money judgment or a forfeiture of specific

property.7    However, the money judgment nature of the forfeiture

order was made clear when Zorrilla-Echevarría and Castillo-Peña's

motions for ancillary hearings were denied.      There, the district

court explained that such hearings "are not appropriate in the

context of a money judgment."    The district court again explained,

in denying the motion for reconsideration regarding the ancillary

hearing request, that the court "ordered forfeiture pursuant to a

money judgment, not the forfeiture of specific property . . . .

Accordingly, the amount that must be turned over . . . is not the

actual currency involved in the offense, but an amount equivalent

to it."   This clarification was provided after the first notice of


     7
        The preliminary order of forfeiture does not explicitly
state that it was a money judgment rather than a forfeiture of
specific property. It did state that "Defendant shall forfeit to
the United States $543,826.00 in U.S. Currency, which is equal to
the total amount of money Defendant obtained as the result of the
above-mentioned violations." The "in U.S. Currency" language is
unclear and does not indicate whether this was a money judgment or
a forfeiture of specific property.     The preliminary forfeiture
order also explained that "the government has established the
requisite nexus between this amount and the aforementioned
offenses," a requirement only applicable in the context of a
forfeiture of specific property.      See Fed. R. Crim. P. 32.2
advisory committee's notes on the 2000 amendments ("To the extent
that the government is seeking forfeiture of a particular asset
. . . the court must find that the government has established the
requisite nexus between the property and the offense.").
Nevertheless, any ambiguity in the preliminary order was clarified
in time for Zorrilla-Echevarría to raise the argument he now seeks
to make during his first appeal.

                                 -16-
appeal was filed.   Nevertheless, the clarification took place well

before the appeal was actually docketed in the First Circuit,

giving Zorrilla-Echevarría      ample    opportunity      to   challenge the

imposition of the money judgment.8

           The fact that the judgment was amended to include the

forfeiture, and that the preliminary order of forfeiture was

amended to slightly alter the value, explicitly include the phrase

"money judgment," and omit the "in U.S. currency" language does not

permit Zorrilla-Echevarría to raise this challenge that could have

been brought in the first appeal.9          When post-judgment relief is

granted, review of that action on appeal is limited to the change

in the judgment created by the post-judgment action; the simple

fact that a judgment was amended does not somehow open the entire

judgment up to attack.      See Fed. R. Crim. P. 32.2(b)(4)(C) (2010)

("If the court later amends or declines to amend a forfeiture order

to   include   additional   property    .   .   .   the   defendant   or   the

government may file an appeal regarding that property under Federal

Rule of Appellate Procedure 4(b).") (emphasis added); cf. Browder



      8
        The second notice of appeal adds further support to this
conclusion. This appeal, and its consolidation with the earlier
appeal, makes it clear that Zorrilla-Echevarría knew of, and could
have challenged the imposition of, the money judgment during the
first appeal.
      9
        The modified preliminary order of forfeiture also omitted
any reference to the nexus with the offense required for specific
asset forfeitures and the fact that it would become final at
sentencing.

                                  -17-
v. Dep't of Corr., 

, 263 n.7 (1978) (explaining that

"an appeal from denial of [Federal Rule of Civil Procedure 60(b)

post-judgment] relief does not bring up the underlying judgment for

review"); Rodriguez-Antuna v. Chase Manhattan Bank Corp., 

, 2 (1st Cir. 1989) (appeal from order denying request for relief

from judgment does not "resurrect appellants' expired right to

contest the merits of the underlying judgment, nor bring the

judgment itself before us for review").

             Here,      the    change    in   the     judgment   consisted     of    (1)

complying with the formal requirement that the judgment include the

forfeiture,       (2)    a    slight    change   in    the   dollar   amount    to    be

forfeited, (3) an explicit inclusion of the phrase "money judgment"

in the preliminary order of forfeiture, and (4) omission of the

phrase "in U.S. Currency" after the statement of the dollar amount.

None    of   these      changes   conferred      upon    Zorrilla-Echevarría         the

ability to attack the court's authority to impose a money judgment,

when it was perfectly clear during the pendency of the prior appeal

that such a judgment was what the court had in fact imposed.10

             2.         Amendment of the Judgment to Include Forfeiture

             Zorrilla-Echevarría's second argument is that, even if

the district court had the authority to impose a personal money

judgment, the process it used was procedurally improper, and thus


       10
        We do not address whether these changes, of themselves,
were permissible, as Zorrilla-Echevarría does not raise this
question on appeal.

                                          -18-
the final forfeiture is unenforceable.    This argument is premised

on the fact that the court's failure to include the forfeiture in

the judgment was error and his argument that this type of error

could not be corrected by amendment.       He contends this error

renders the forfeiture invalid.

           This is incorrect. Federal Rule of Criminal Procedure 36

provides that "[a]fter giving any notice it considers appropriate,

the court may at any time correct a clerical error in a judgment

. . . ."   We have noted and now conclude that the omission of a

forfeiture from the judgment, where there was a proper preliminary

order of forfeiture as well as an imposition of forfeiture at the

sentencing hearing, can be remedied under Rule 36.11   

, n.6; see also United States v. Quintero, 

, 353 (7th Cir. 2009) ("[T]he failure to include forfeiture

in a judgment, that everyone intended to be included, constitutes

a clerical error, correctable under Rule 36.") (applying pre-2009

Rule 32.2).

           This conclusion is reinforced by a 2009 amendment to Rule

32.2 (which was not in force at the time of the original judgment),



     11
        We do not address whether the amendment to the preliminary
forfeiture order itself was permissible, as Zorrilla-Echevarría
does not raise this question on appeal; he only challenges the
amendment of the judgment to include the forfeiture. See Fed. R.
Crim. P. 32.2 advisory committee's notes on the 2009 amendments
("Once the sentence has been announced, the rules give the
sentencing court only very limited authority to correct errors or
omissions in the preliminary forfeiture order.").

                                -19-
providing that "[t]he court must also include the forfeiture order,

directly or by reference, in the judgment, but the court's failure

to do so may be corrected at any time under Rule 36."             Fed. R.

Crim. P. 32.2(b)(4)(B) (2010) (emphasis added).12

             As a result, the fact that the district court did not

initially include the forfeiture in the judgment does not render

the forfeiture invalid, given that the district court issued a

preliminary notice of forfeiture and included the forfeiture during

the sentencing hearing.

B.   Castillo-Peña's Claims

             Castillo-Peña argues that he was deprived of due process,

because he filed a third party petition asserting that he had a

property interest in the seized funds that were in the possession

of Customs, but received no hearing to determine his interest in

those funds.     Castillo-Peña also makes a second argument that the

delay     "between   seizure   of   property   and   the   institution   of

forfeiture proceedings" was sufficient, of itself, to cause a

constitutional violation of due process.




     12
        Zorrilla-Echevarría also states that the court erred by not
issuing a final forfeiture order at the time of sentencing. This
is based on a misreading of Rule 32.2.         That "the order of
forfeiture becomes final as to the defendant," Fed. R. Crim. P.
32.2(b)(3) (2008), at the time of sentencing does not mean that the
court is required to issue a separate final order of forfeiture at
that time.

                                    -20-
          1.      Third-Party Hearing

          Castillo-Peña was not entitled to invoke the ancillary

proceeding provisions of 21 U.S.C. § 853(n) and Federal Rule of

Criminal Procedure 32.2, as the forfeiture was in the nature of a

money judgment.    It is clear that "no ancillary proceeding is

required to the extent that the forfeiture consists of a money

judgment," Fed. R. Crim. P. 32.2(c)(1) (2008), because such a

judgment "is an in personam judgment against the defendant and not

an order directed at specific assets in which any third party could

have any interest," Fed. R. Crim. P. 32.2 advisory committee's

notes on the 2000 amendments.

          However, two considerations lead us to accept the

government's invitation to remand.     First, at issue is not solely

the money judgment, but also the fact that the government seized

physical cash at the time of Zorrilla-Echevarría's arrest.        To

satisfy the money judgment forfeiture, the district court ordered,

on March 12, 2010 (in the same set of orders that amended the

judgment to include the forfeiture and amended the preliminary

forfeiture order), an attachment of those funds pursuant to Federal

Rule of Civil Procedure 64 and Puerto Rico Rule of Civil Procedure




                                -21-
56.13 This was done without a hearing, which Castillo-Peña contends

violates due process.

            Second, there was some confusion, as we have outlined, as

to the nature of the forfeiture order, for which the government

bears much of the responsibility.

            The government "concedes the case should be remanded to

the district court so that the government may properly notify

potential    third   parties,     including   Castillo-Peña,"    as    the

attachment of the actual, physical currency "only became clear" in

the district court's March 12 order.      To allow this to happen, the

government requests that we vacate that portion of the final order

of forfeiture which uses the attached funds to satisfy the money

judgment against Zorrilla-Echevarría.         Whether or not this is

required,    there   has   been   no   objection,   so   we   follow   the

government's suggestion. Accordingly, we vacate the final order of

forfeiture and remand to the district court to provide Castillo-

Peña14 with an opportunity to challenge the attachment of the


     13
        As no challenge is raised to the use of this procedure to
attach the funds, we do not comment on its propriety.         The
challenge here focuses solely on the lack of a hearing to protect
third party interests.
     14
        There is no need for the district court to assess on remand
the interests of any other third parties.       Publication of the
forfeiture has already taken place, no one other than Castillo-Peña
has responded, and no challenge has been raised to the
publication's adequacy.     See Fed. R. Crim. P. 32.2 advisory
committee's notes on the 2000 amendments ("[I]f a third party has
notice of the forfeiture but fails to file a timely claim, his or
her interests are extinguished, and may not be recognized when the

                                   -22-
$543,731 used to satisfy the money judgment against Zorrilla-

Echevarría.    We leave it to the district court to determine the

appropriate procedures to use to provide an adequate opportunity to

contest the attachment.15

          2.      Delay

          Castillo-Peña's second claim is that the delay between

the seizure of the property and the institution of forfeiture

proceedings was sufficient, of itself, to cause a deprivation of


court enters the final order of forfeiture.").
     15
         The government suggests that the ancillary proceedings of
21 U.S.C. § 853(n) and Federal Rule of Criminal Procedure 32.2(c)
are the appropriate procedures. However, neither Rule 32.2(c) nor
21 U.S.C. § 853(n) apply, on their face, to attachments of property
made to satisfy a personal money judgment. 21 U.S.C. § 853(n)(2)
requires a hearing to allow third parties to attempt to establish
an interest "in property which has been ordered forfeited." Rule
32.2 provides for a third party hearing only "as prescribed by
statute." Fed. R. Crim. P. 32.2(c)(1) (2010).     Here, however, we
do not have any "property which has been ordered forfeited"; as the
discussion above makes clear, the distinction between ordering
property forfeited and entering a money judgment is deeply embedded
in Rule 32.2 and the relevant caselaw.
        We have previously explained that "[a] money judgment
permits the government to collect on the forfeiture order in the
same way that a successful plaintiff collects a money judgment from
a civil defendant.     Thus, even if a defendant does not have
sufficient funds to cover the forfeiture at the time of the
conviction, the government may seize future assets to satisfy the
order." United States v. Misla-Aldarondo, 

, 73 (1st
Cir. 2007) (alteration in original) (quoting 

).
However, we have noted, but not taken a position regarding, an
ambiguity "as to whether the government can seize assets with a
money judgment just as any judgment creditor could, or whether the
government must follow the substitute assets provisions of 21
U.S.C. § 853(p)." 

        This distinction is relevant because there are particular
procedures in place governing forfeiture of substitute property.
See Fed. R. Crim. P. 32.2(e) (2010).

                               -23-
property in violation of the due process clause.             This is not so.

           Castillo-Peña relies on United States v. $8,850, 

(1983), for this argument.        There, the Supreme Court assessed

whether "the Government's delay in filing a civil forfeiture

proceeding violated [a criminal defendant's] due process right to

a hearing 'at a meaningful time.'"          

(quoting Fuentes v.

Shevin, 

, 80 (1972)).             The Court, analogizing to a

defendant's right to a speedy trial, explained that the same four

factors should determine whether a delay in instituting forfeiture

proceedings amounts to a constitutional violation: "length of

delay, the reason for the delay, the defendant's assertion of his

right, and prejudice to the defendant."           

           We do not need to address whether or not there is a

distinction for due process purposes between the status of a

defendant, as in $8,850, and the status of a third-party claimant,

as here.    The only delay complained about here was not in the

starting of the forfeiture procedures, but to hearing Castillo-

Peña's claim to the money.

           While   the   confusion    in    the   district   court,   largely

induced by the government's sloppiness, about whether this was a

money judgment or a forfeiture of the specific cash seized was




                                     -24-
unfortunate, there was no denial of due process.       Castillo-Peña

also had alternatives available to him which he did not take.16

          Castillo-Peña will receive a hearing on remand under the

government's concession and we see no prejudice to him.        As a

result, Castillo-Peña's claim that the delay itself constituted a

deprivation   of property without due process fails.

                                   IV.

          We affirm the entry of the money judgment order of

forfeiture with respect to Zorrilla-Echevarría.        We vacate the

portion of the final order of forfeiture ordering that the attached

$543,731 in cash shall be used to satisfy the money judgment, and

remand to the district court for further proceedings consistent

with this opinion.   So ordered.




     16
        The $8,850 Court noted that an individual can take various
steps to secure the return of property, including filing an
equitable action for return of the seized property and filing a
motion for return of property under Federal Rule of Criminal
Procedure 41(g).    United States v. $8,850, 

, 569
(1983).

                               -25-