Mount v. Zobel ( 1993 )

[NOT FOR PUBLICATION]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
Per Curiam. Having reviewed the parties'
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.
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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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