DocketNumber： 93-1264
Filed Date： 12/16/1993
Status： Precedential
Modified Date： 9/21/2015
December 16, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1264
UNITED STATES,
Appellee,
v.
CHARLES MERRILL MOUNT,
Defendant, Appellant.
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No. 93-1330
No. 93-1331
CHARLES MERRILL MOUNT,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Charles Merrill Mount on briefs pro se.
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A. John Pappalardo, United States Attorney, and Tobin N. Harvey,
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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
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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.
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United States, 380 F.2d 270 (1st Cir. 1967), is misplaced.
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See, e.g., Panzardi-Alvarez v. United States, 879 F.2d 975,
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985 (1st Cir. 1989), cert. denied, 493 U.S. 1082 (1990);
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Tracey v. United States, 739 F.2d 679, 681 (1st Cir. 1984),
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cert. denied, 469 U.S. 1109 (1985).
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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He there sought the return of some 135 historical documents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.
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Mount, 896 F.2d 612 (1st Cir. 1990). Because of such delay,
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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
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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
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Plaza, Inc., 875 F.2d 907, 911 (1st Cir. 1989) (laches
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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
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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.
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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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