
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        December 16, 1993       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                 ____________________                                 ____________________                 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.                                           -3-                 The judgments are affirmed.                 ___________________________                                         -4-
