Defendant William Sheppard moves, pursuant to Rule 32(c)(3)(D), Federal Rules of Criminal Procedure, and 28 U.S.C. § 2255, to correct alleged factual errors in the pre-sentence report prepared by the United States Probation Office at the time of his sentencing on December 17, 1982. Sheppard claims that his trial attorney, Morton Berger, Esq., failed to take the steps necessary at the time of sentencing to correct the report; Sheppard asserts that this alleged error by his trial lawyer amounts to ineffective assistance of counsel at the time of sentencing. Sheppard boldly asserts on this motion that he did not have the opportunity to review the report before sentencing, nor was he informed of his right to review and correct the report.
Sheppard is now represented by his fourth privately retained attorney. As stated above, he was represented at the trial by Morton Berger of Spring Valley, New York; Mr. Berger was supplanted on Sheppard's unsuccessful appeal by Richard D. Weinberg, Esq., of the firm of Shereff, Friedman, Hoffman & Goodman in New York City; Mr. Weinberg, in conjunction with Mr. Berger, subsequently represented Sheppard in his motion for a new trial. They, in turn, were supplanted on Sheppard's unsuccessful appeal from the denial of a new trial by Barry A. Fisher, Esq., of the Los Angeles, California firm of Fisher & Moest; Mr. Fisher now is replaced by Sheppard's present counsel, Jon M. Kaufman, P.C., of New York City, on this application.
The background of Sheppard's conviction has been set forth in more detail in this Court's unreported opinion, dated January 7, 1985, denying Sheppard's motion for a new trial. Briefly, that background is as follows:
Sheppard was convicted in September 1982 of partnership in a scheme whereby $1,256,356.80 was embezzled from Bankers Trust Company by employees of the bank, and laundered through Sheppard. The funds were embezzled in the form of two official bank checks which Sheppard, on behalf of the co-conspirators, deposited in a bank account he opened for purposes of the scheme. The money was converted into gold coins, ordered and received by Sheppard, then into cash, and finally divided among the co-conspirators.
Sheppard's five partners in the embezzlement all pleaded guilty to the conspiracy prior to trial; two pleaded guilty to one count of embezzlement, and one to the count of wire fraud. Three of Sheppard's business partners testified at the trial as government witnesses. Through their testimony, the testimony of a bank investigator, an examiner of questioned documents, and documentary evidence, as well as the testimony of Sheppard himself, who took the stand, he was firmly planted in the criminal partnership. Sheppard's conviction was unanimously affirmed by order of the Court of Appeals for the Second Circuit on May 19, 1983. He surrendered for confinement on April 10, 1984.
Sheppard specifically states in his moving papers on this motion that "[n]o hearing of this motion is requested." The papers submitted in support of this motion consist of an affidavit by Carol Sheppard, wife of the defendant, a "certification" by Sheppard, some photocopies of documents submitted as exhibits in support of the motion, and a memorandum of law.
The thrust of Sheppard's claims on this motion, as stated in the moving papers, is that "Sheppard did not have the opportunity to review the [pre-sentence] report before sentencing, nor was he informed of his right to review and correct the report." Probation records, however, establish that Mr. Berger, Sheppard's attorney of record at that time, reviewed and commented upon the pre-sentence report on November 5, 1982, well in advance of sentencing. When the report was handed to Mr. Berger it was accompanied by a disclosure form used by the Probation Department. The disclosure form reads "Please indicate on the bottom of this form agreement with or objection to the facts as submitted in the report. Those specific parts of the report to which you object should be listed thereafter."
To acknowledge disclosure of the pre-sentence report to him, Mr. Berger signed the form at 9:45 on November 5, 1982. In the section provided for comments, he wrote, with regard to the statement that medical coverage existed from "the defendant's employment as a teacher with the Scotch Plains, New Jersey Board of Education:"
Page 5 - regarding medical coverage - insurance - not defendant's employment as a teacher - wife's employment as a teacher.
That objection was reviewed and the following change and correction was recommended by the Probation Department to the report:
As noted correctly by defense counsel, the reference on page 5 to medical coverage pertains to the defendant's wife's employment as a teacher, not the defendant.
The correction, not really material on the sentencing, was duly considered by this Court.
Subsequently, after Sheppard had surrendered at the Federal Prison Camp, Danbury, and pursuant to his request to prepare himself for a pre-parole hearing, Sheppard himself reviewed the probation report. No objection was voiced by Sheppard during the intervening eighteen months between that date, May 17, 1984, and the present attack on the content of the report.
On another occasion, November 12, 1984, Mrs. Sheppard communicated with this Court concerning the report because of her husband's prospective appearance before the Parole Board. She stated, in general legalistic terms regarding "the presentence report prepared by (sic) the Court," "that there are substantial misstatements of relevant fact contained in the report," ...