692 F.2d 565 (9th Cir. 1982), 81-5380, Baumann v. United States

Docket Nº:81-5380.
Citation:692 F.2d 565
Party Name:Marcus T. BAUMANN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:October 27, 1982
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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692 F.2d 565 (9th Cir. 1982)

Marcus T. BAUMANN, Petitioner-Appellant,


UNITED STATES of America, Respondent-Appellee.

No. 81-5380.

United States Court of Appeals, Ninth Circuit

October 27, 1982

Submitted Nov. 12, 1981.

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Marcus T. Baumann, in pro per.

Susan A. Ehrlich, Asst. U. S. Atty., Phoenix, Ariz., for respondent-appellee.

Appeal from the United States District Court for the District of Arizona.

Before WALLACE, KENNEDY, and PREGERSON, Circuit Judges.

WALLACE, Circuit Judge:

Baumann appeals the district court's summary dismissal of his petition seeking postconviction relief pursuant to 28 U.S.C. Sec. 2255. He contends that the district judge erred in failing to order an evidentiary hearing on his claims of newly discovered evidence and prosecutorial suppression of Brady material, that the indictment under which he was charged was improperly drawn, that the use at his sentencing of the results of a presentence interview with a federal probation officer violated his rights

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under the sixth amendment and Miranda, and that his conviction was the product of ineffective assistance of trial counsel. We affirm in part, reverse in part, and remand for an evidentiary hearing on certain of these claims.


On January 12, 1977, Baumann was indicted, along with fifteen other persons, on four counts of mail fraud and aiding and abetting, 18 U.S.C. Secs. 1341, 2, arising out of the activities of Western Land Sales Co. (Western), a corporation which fraudulently sold what are referred to as "fenceposted" land sale contracts. Baumann was tried jointly with four other defendants in May of 1977. Hood, the president of Western, pleaded guilty to mail fraud and served as the government's chief witness at trial. Baumann was convicted on all four counts and his conviction was affirmed by this court on direct appeal. United States v. McDonald, 576 F.2d 1350 (9th Cir.), cert. denied, 439 U.S. 830 & 927, 99 S.Ct. 105 & 312, 58 L.Ed.2d 124 (1978). He was fined $1,000 and sentenced to five years' imprisonment on each count, two of which were to run consecutively, for a total sentence of ten years. On September 12, 1978, the district court reduced this sentence to five years, on Baumann's motion pursuant to Fed.R.Crim.P. 35, by ordering that the sentences on all four counts run concurrently. More than two years later, Baumann, acting in propria persona, petitioned the district court for postconviction relief, seeking to have his sentence vacated or set aside pursuant to 28 U.S.C. Sec. 2255. The district judge referred the petition to a magistrate, who recommended that the petition be dismissed because section 2255 "does not permit a party to relitigate issues that were or could have been raised on direct appeal." On April 27, 1981, the district judge ordered the petition dismissed. This appeal followed.

Because they are relevant to his allegation of newly discovered evidence, we must review the complex set of facts that led to Baumann's conviction. See United States v. McDonald, supra, 576 F.2d at 1352-53. Hood formed Western in 1966 to purchase and sell subdivision real estate lots on contract, with title remaining with the original owner in trust until a "release price" was paid by Western. Bankers Finance & Holding Co. (Bankers), owned by Baumann, marketed the land sale contracts held by Western on a commission basis. Bankers would sell the contracts at a discounted value to investors, forward the receipts to Western, and then collect periodic contract payments from the lot buyers and forward these to the investors who had purchased the contracts. McDonald Investment Co., owned by Baumann's co-defendant McDonald, also brokered land sale contracts for Western.

Subsequently, Western entered into several subdivision agreements under which it was required to make periodic payments to the owner-trustees irrespective of lot sales. As a result, its cash-flow needs steadily increased. When Western's revenues from the sale of legitimate contracts proved insufficient to cover operating expenses, it began the fraudulent practices that led to the federal indictments. Hood and Western would write spurious land sale contracts to persons who were not expected to make payments on them, or would, in a few instances, forge signatures on the contracts. These so-called "fenceposted" contracts were then marketed to investors or pledged as security for loans to Western. To conceal the fraud, Western supported the fenceposted contracts by making the requisite periodic payments on them, which were sent to Central Service Bureau (CSB), an agent of Western employed to collect payments on contracts sold to investors, and allegedly also to Bankers. The brokers would forward the receipts to the investors who had purchased the contracts. These investors were not notified when Western was making payments on a contract, whether Western did so to cover a fenceposted contract or because of the default of the primary obligor, the lot buyer.

Western's financial success depended upon the continuing brisk sale of contracts,

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whether legitimate or fenceposted, because these receipts covered the periodic payments Western was making on bogus contracts. Sales were too slow to support the fraud, however. In August of 1973, the operation collapsed when Western defaulted on corporate notes it had sold secured by first mortgages on real estate held in trust. Few of the note holders were able to obtain their lots, and many investors who had purchased land sale contracts discovered they were holding worthless paper.

Baumann, as president of Bankers, was a natural focus of the grand jury's inquiry. Nonetheless, he was named in only four of the fifty-five counts in the indictment. Two of the counts, Nos. 26 and 27, charged Baumann with mailing checks to investors in furtherance of the fenceposting scheme. The funds for these checks were allegedly supplied by Western. The third count, No. 28, charged Baumann with mailing a letter to investor Anderson; the letter notified Anderson of the default on his contract on which Baumann had allegedly altered the legal description of the underlying real estate. The final count, No. 29, charged Baumann with mailing a letter to Western "dunning" Western for payments on allegedly fenceposted contracts. All four counts charged Baumann with conduct knowingly in furtherance of the fraudulent scheme, and aiding and abetting, between March 5, 1972, and July 26, 1973.

Baumann never contested the acts of mailing these letters, but rather insisted that there was no proof that the acts were undertaken in furtherance of the fenceposting scheme. Proof that the mailings were in furtherance of a scheme to defraud was clearly an essential element of the crime necessary to sustain Baumann's conviction under the indictment. United States v. McDonald, supra, 576 F.2d at 1360 n.16. According to Baumann, the contracts underlying Counts 26 and 27 were good contracts, not fenceposted contracts, and any problems experienced by the investors who had purchased these contracts occurred well after he had sold Bankers to another company. He contends that the altered description of the real estate underlying the contract involved in Count 28 was the product of Western's activities, of which he had no knowledge. Finally, he asserts that the "dunning" letter, the subject of Count 29, was mailed to Western in accordance with a "recourse" agreement between Western and Bankers, rather than in furtherance of the fenceposting scheme. Little, if any, direct evidence of Baumann's involvement in the fenceposting scheme was presented to the jury. His conviction was sustained on the basis of circumstantial evidence of intent to defraud, including his status as a broker for Western's contracts and testimony that he had previously been involved in other fenceposting schemes. United States v. McDonald, supra, 576 F.2d at 1360 & n.17.

McDonald, also a broker for Western's contracts, was convicted on seven counts of mail fraud. He maintained that the evidence did not show participation with intent to defraud, that he marketed the contracts without knowledge of the fraud, and that he was in fact a victim of the scheme. Despite the government's contention that McDonald was aware of the "high probability" that at least some of the contracts he sold were fraudulent, his convictions were reversed on direct appeal because the record did not demonstrate facts from which the jury could have found specific intent to defraud beyond a reasonable doubt. Id. at 1358-59.


We emphasize at the outset that we need not decide the truth of Baumann's allegations. The petition was dismissed by the district court without an evidentiary hearing. Section 2255 expressly provides that an evidentiary hearing "shall" be granted "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. Sec. 2255 (emphasis added). 1 Obviously,

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a hearing is not automatically required on every section 2255 petition. Coco v. United States, 569 F.2d 367, 369 (5th Cir. 1978). Nonetheless, a hearing is mandatory whenever the record does not affirmatively manifest the factual or legal invalidity of the petitioner's claims. See Sosa v. United States, 550 F.2d 244, 250 (5th Cir. 1977). Mere conclusory statements by the petitioner do not justify a hearing. Wagner v. United States, 418 F.2d 618, 621 (9th Cir. 1969). On the other hand, the petitioner need not detail his evidence, but must only make specific factual allegations which, if true, would entitle him to relief. United States v. Hearst, 638 F.2d 1190, 1194-95 (9th Cir. 1980), cert. denied, 451 U.S...

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