Mount v. Zobel ( 1993 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT



          No. 92-2113

                                CHARLES MERRILL MOUNT,
                                Plaintiff, Appellant,

                                          v.

                                      RYA ZOBEL,
                                 Defendant, Appellee.

                               ________________________

                    APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS 
                                 ___________________

                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________

                                 ___________________

          Nos. 92-2127
               92-2128

                                CHARLES MERRILL MOUNT,
                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,
                                 Defendant, Appellee.
                               _______________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________


                                   ________________

                                        Before

                              Torruella, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ___________________












               Charles Merrill Mount on brief pro se.
               _____________________
               A. John Pappalardo,  United States Attorney, and  Suzanne E.
               __________________                                __________
          Durrell,  Assistant  United  States  Attorney,  on Memorandum  in
          _______
          Support of Motion for Summary Disposition for appellee in No. 92-
          2113.
               A. John  Pappalardo, United  States Attorney,  and Tobin  N.
               ___________________                                _________
          Harvey, Assistant United States Attorney, on Memoranda in Support
          ______
          of Motion for  Summary Disposition for  appellee in Nos.  92-2127
          and 92-2128.

                                  __________________

                                     June 8, 1993
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                      Per  Curiam.       Having  reviewed   the  parties'
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            submissions and  the district  court records,  we affirm  the

            judgment of  dismissal in  each of  these three  consolidated

            appeals.

                 In No. 92-2113, Mount seeks the return of cash ($18,400)

            and  property (135 "autograph  letters") that were  seized in

            connection   with  his   criminal   prosecution.     In   the

            alternative,  he seeks  damages  for  the "embezzlement"  and

            "misappropriation"  of  such  property.     The  lower  court

            properly characterized  each  of these  claims as  frivolous.

            Defendant (the  district court  judge who  presided over  the

            criminal trial)  is protected by absolute immunity  as to any

            claim for damages.  See,  e.g., Decker v. Hillsborough County
                                ___   ____  ______    ___________________

            Attorney's  Office, 845  F.2d  17, 21  (1st  Cir. 1988)  (per
            __________________

            curiam).  We rejected in  a previous appeal Mount's effort to

            regain possession of the currency.   Mount v. United  States,
                                                 _____    ______________

            No. 92-1576 (1st Cir. Mar. 16, 1993) (per curiam).   And Fed.

            R. Crim. P.  41(e) provides the proper avenue  for his effort

            to  regain possession of  the letters.   The record discloses

            that he filed  such a motion  for just that purpose  on April

            22, 1992,  which the  district  court denied  on January  14,

            1993.









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                 The  remaining  two  appeals involve  28  U.S.C.    2255

            petitions.1   In  the  first, Mount  alleges  that the  trial

            court's refusal  to  subpoena, and/or  authorize  payment  of

            travel  expenses  for,  various  witnesses  in  this  country

            deprived  him of compulsory  process guaranteed by  the Sixth

            Amendment.  We rejected a nearly identical argument on direct

            appeal.   See United  States v. Mount,  896 F.2d  612, 620-21
                      ___ ______________    _____

            (1st Cir.  1990).  Mount  alleges that, whereas  that earlier

            argument  involved  foreign  witnesses,   his  instant  claim

            involves  domestic witnesses.  Yet the only such witness here

            identified  (Barbara Johnson) not  only was discussed  in the

            direct  appeal  but  "eventually paid  her  own  expenses and

            testified at trial."   Id. at 620.   Mount fails to  identify
                                   ___

            the  other  alleged  witnesses involved,  referring  to  them

            simply  as "autograph  dealers in  New York  and  Boston" and

            "associates and friends."  

                 In  the  remaining  appeal, Mount  alleges  that  he was

            denied  the  right  to  confront  a  "witness"  named  Rodney

            Armstrong.   Yet  Armstrong did  not testify  at trial.   And

            there is  no suggestion that  Mount was denied access  to the


                                
            ____________________

            1.  The  district court dismissed each of these petitions sua
                                                                      ___
            sponte  without calling for  a response from  the government.
            ______
            As a result, the government did  not--indeed, was unable to--
            plead abuse of the writ below.  See, e.g., McCleskey v. Zant,
                                            ___  ____  _________    ____
            111  S. Ct. 1454,  1470 (1991); Whittemore  v. United States,
                                            __________     _____________
            986  F.2d 575,  578 (1st  Cir. 1993) ("The  burden is  on the
            government to first plead abuse of the writ.").  We therefore
            will address the   2255 petitions on the merits.  

                                         -4-















            notes  of the relevant FBI interview or was himself precluded

            from calling Armstrong as  a witness.  As such, this claim is

            likewise baseless. 

                 The  judgments are  affirmed.   The  motion for  default
                 ________________________________________________________

            judgment in No. 92-2127 is denied.
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