Marcus T. Baumann v. United States

Baumann appeals the district court’s summary dismissal of his petition seeking postconviction relief pursuant to 28 U.S.C. § 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 *569 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.

I

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. §§ 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…

concurring in part in the judgment and dissenting in part:

I agree with the result reached by the majority that the record conclusively shows that the indictment was not defective for duplicity and that the district court, without ordering an evidentiary hearing, properly rejected this claim on the merits.

I concur in Section IV of the majority’s opinion, which reverses summary dismissal of that portion of the Section 2255 petition relating to the government’s failure to disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963).

Section V of the majority’s opinion covers certain claims of error asserted before the district court by Baumann with respect to his sentencing. One claim involves a writ *582 ten communication made by an Assistant U. S. Attorney to the U. S. Parole Commission. This communication, which was not disclosed to the trial judge before sentencing, is clearly not a report prepared by the court’s probation service to which Fed.R. Crim.P. 32(c) applies. Baumann’s claim concerning this communication is patently frivolous and was properly subjected to summary dismissal by the district court.

Baumann also…

692 F.2d 565 Marcus T. BAUMANN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 81-5380. United States Court of Appeals, Ninth Circuit. Submitted Nov. 12, 1981. Decided Oct. 27, 1982. 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: 1 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 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…