United States v. Mount ( 1993 )

USCA1 Opinion

        December 16, 1993       [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1264 

                                    UNITED STATES,
                                      Appellee,

                                          v.

                                CHARLES MERRILL MOUNT,
                                Defendant, Appellant.
                                 ____________________

        No. 93-1330
        No. 93-1331

                                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

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________
                                 ____________________

            Charles Merrill Mount on briefs pro se.
            _____________________
            A. John Pappalardo, United States Attorney,  and Tobin N.  Harvey,
            __________________                               ________________
        Assistant United States  Attorney, on Memoranda in  Support of Motions
        for Summary Dismissal of Appeal, for appellee.


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                 Per  Curiam.   In Nos.  93-1330  and 93-1331,  appellant
                 ___________

            contends  that  the  district  judge lacked  jurisdiction  to

            preside over his collateral proceedings because  she presided

            at  trial.   This allegation,  which is  identical to  one we

            recently  rejected in  another series  of  appeals from  this

            appellant, is frivolous.  Appellant's reliance on Halliday v.
                                                              ________

            United  States, 380 F.2d  270 (1st Cir.  1967), is misplaced.
            ______________

            See, e.g., Panzardi-Alvarez  v. United States, 879  F.2d 975,
            ___  ____  ________________     _____________

            985  (1st  Cir. 1989),  cert. denied,  493 U.S.  1082 (1990);
                                    ____________

            Tracey v. United  States, 739 F.2d 679, 681  (1st Cir. 1984),
            ______    ______________

            cert. denied, 469 U.S. 1109 (1985).
            ____________

                 In No.  93-1264, appellant appeals from the  denial of a

            motion under Fed.  R. Crim. P. 41(e) for  return of property.

            He  there sought the return of  some 135 historical documents

            which, he alleged,  had been stricken from the indictment due

            to lack  of proof of  government ownership.  This  motion was

            filed  nearly four  years after  his conviction and  over two

            years after our  affirmance thereof.   See  United States  v.
                                                   ___  _____________

            Mount, 896 F.2d 612 (1st Cir.  1990).  Because of such delay,
            _____

            the district court denied the motion on the ground of laches.

            See, e.g., Soviero v. United States, 967 F.2d 791, 792-93 (2d
            ___  ____  _______    _____________

            Cir.  1992)  (noting  that request  for  return  of property,

            whether deemed  a  Rule  41(e)  motion or  a  separate  civil

            proceeding, is subject  to equitable concerns).   We find  no

            abuse  of discretion.   See, e.g.,  K-Mart Corp.  v. Oriental
                                    ___  ____   ____________     ________



















            Plaza,  Inc.,  875 F.2d  907,  911  (1st  Cir. 1989)  (laches
            ____________

            determination reviewed "only for abuse of discretion"). 

                 We  note initially  that the  factual  premise on  which

            appellant's request  rests--that 135 documents  were stricken

            from the  indictment--flies in the  face of the record.   See
                                                                      ___

            896 F.2d at 614, 616-20  (discussing proof of ownership as to

            all  167   documents  charged  in   superseding  indictment).

            Appellant  points  to  a  two-page  excerpt  from  the  trial

            transcript indicating that certain exhibits (listed by number

            but not otherwise identified) were  stricken.  To be sure, we

            cannot rule out the possibility, on the limited record before

            us, that such excluded exhibits may have included some  small

            number  of documents  as to  which  government ownership  was

            never established.    Yet  it  is precisely  because  of  the

            difficulties  of ascertaining such  facts at this  late stage

            that the doctrine of laches was, we  think, properly applied.

            Appellant had  ample opportunity to  seek such relief  in the

            wake  of  his conviction,  when the  full record  was readily

            available and the events at trial  were fresh in the minds of

            all  parties.1   His request  that  the trial  record now  be

            parsed, document by  document, in order to  reconstruct proof

            of ownership is one that  the district court was justified in

            summarily rejecting as a matter of equitable discretion.

                                
            ____________________

            1.  Given  the  quantity   of  post-conviction  motions   and
            petitions he has  filed, his claim that he  was disabled from
            doing so because of his incarceration is frivolous.  

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                 The judgments are affirmed.
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