
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT          No. 92-2113                           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                                  __________________                      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.                                         -3-                 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.            __________________________________                                         -5-
