United States v. Shepherd, Cr. A. No. 5997.

• Decision Date: 26 September 1952
• Docket Number: Cr. A. No. 5997.
• Citation: 108 F. Supp. 721
• Court: U.S. District Court — District of New Hampshire
• Parties: UNITED STATES v. SHEPHERD.

108 F. Supp. 721

UNITED STATES v. SHEPHERD.

Cr. A. No. 5997.

United States District Court D. New Hampshire.

September 26, 1952.

John J. Sheehan, U. S. Atty., Concord, N. H. and Denis F. O'Connor, Asst. U. S. Atty., Manchester, N. H., for plaintiff.

Abraham Kauffman, Concord, N. H., for respondent.

CONNOR, District Judge.

Invoking the provisions of Section 2255 of Title 28 United States Code, the respondent moved "to vacate and set aside an illegal judgment and sentence."

Shepherd, on October 10, 1944, was indicted in this district on two counts, charging that he did falsely pretend to be an officer acting under the authority of the United States, to wit, a Lieutenant in the United States Navy, and in such pretended character did obtain, from certain persons, certain sums of money, in violation of Section 76 of Title 18 of United States Code, 1940 ed.¹ Thereafter, on October 17, he was arraigned and pleaded not guilty. Acting on his request for the assistance of counsel, the court, Morris J. presiding, assigned Arthur J. Bergeron, Esq., a member of this bar, to represent him. A jury was impaneled, but before the introduction of evidence, he withdrew his plea of not guilty and entered a plea of guilty, and thereupon was sentenced to be confined for a period of three years on each of the two counts of the indictment, said sentences to run concurrently.

In view of the interval between conviction and the present pleading, it seems appropriate to recount the attendant circumstances.

After committal, the respondent, under a writ of habeas corpus ad prosequendum, was removed to the United States District Court at Grand Island, Nebraska, and was there, on April 10, 1945, sentenced to a term of eighteen months, to run consecutively with the sentence which had been imposed by this court. This conviction was for an offense similar to that for which sentence was here imposed. Late in 1947, he was released on parole, and on October 27, 1948, the parole board issued a conditional release violator warrant against him, charging violation of the terms of his release under the above commitments. On March 17, 1949, the respondent was brought before the United States Court for the District of Kansas, at Hutchinson, and there received a four-year term upon conviction for a like offense. While serving this sentence, the conditional release violator warrant was placed against him as a detainer, and on May 26, 1952, when he was conditionally released, he then came within the custody of the parole board's warrant.

The present motion was filed shortly thereafter. Neither the motion nor the files and records in the case conclusively showed that the respondent was entitled to no relief, and the court accordingly caused notice of the motion to be served upon the United States Attorney. Being unable to ascertain from the pleadings the true status of the movant's confinement, further action by the court could not be taken until the necessary information was provided by the United States Board of Parole, following which a writ of habeas corpus ad testificandum was allowed, and a date of hearing assigned.

At the hearing respondent was present, and had the benefit of counsel of his own choosing. The movant's claim for relief was then predicated upon the contention that his plea of guilty was made under a misapprehension of the nature of the charge, in that he acted without a full understanding of its effect and of the facts on which it was founded; that through promises and threats, an involuntary and coerced plea of guilty resulted; and "that there is absent from the transcript of record a showing of an understanding admission of the offense on his part or that his plea was intelligently made;"...