Hastie, Aldisert and James Rosen, Circuit Judges.
Appellant, Augustus Hunt, initiated a post-conviction proceeding by a pro se motion pursuant to 28 U.S.C. § 2255 which was denied.*fn1
Hunt was convicted of violations of Federal statutes arising out of an operation of a liquor distillery.*fn2 His convictions were affirmed by this court, 419 F.2d 1 (1969) cert. denied 397 U.S. 1016, 90 S. Ct. 1250, 25 L. Ed. 2d 430 (1970).
Appellant now claims that he was denied his Sixth Amendment right to a speedy trial prior to and after indictment. This issue was not raised before, during, or after trial, nor in the direct appeal.
The Government contends that Hunt cannot assert a denial of a speedy trial on a § 2255 motion when the issue was not raised at the trial level or on appeal. We disagree. A Federal postconviction court has the power to adjudicate the merits of constitutional claims. The question is whether the case is one in which refusal to exercise that power would be appropriate. Kaufman v. United States, 394 U.S. 217, 89 S. Ct. 1068, 22 L. Ed. 2d 227 (1969).*fn3
The background facts leading to Hunt's convictions are essential for a proper determination on the speedy trial issue. On August 10, 1966 the Government authorities raided a still operated by Josiah Hardy, appellant's co-defendant.*fn4 Hardy identified Hunt from photographs provided by a federal agent within two or three days after the raid. Hunt was not present on the date of the raid. Hardy was indicted on December 13, 1966 and entered a plea of not guilty on January 6, 1967. He changed his not guilty plea to guilty on May 9, 1967, and was sentenced on July 7, 1967 to five years probation with supervision.
Hunt was indicted on March 7, 1967 and subsequently entered a plea of not guilty on March 17, 1967. He was tried on February 13, 1968 and as previously stated was found guilty on all five counts on February 14, 1968. There was approximately a seven month span between the time the alleged crimes were committed on August 11, 1966 and the indictment date of March 7, 1967.
Hunt contends that there was no justifiable reason for waiting approximately seven months before he was indicted. He advances the thesis that he was available and the Hardy family testimony was "within the knowledge of the government within a few days after Hardy's arrest." However, Hunt's associate Hardy did not plead guilty until May 9, 1967, several months after Hunt was indicted. The cooperation of Mr. Hardy was important to the Government's case. Obviously he could not be compelled to be a government witness. "Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction." Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 417, 17 L. Ed. 2d 374 (1966).
In United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), the court said:
"it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engages the particular protections of speedytrial provision of the Sixth Amendment."
"Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself.
But this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government's case." P. 320, 92 S. Ct. p. 463
The court concluded that any rights under the Sixth Amendment or F.R.Crim.P. 48(b) do not attach to a pre-indictment or pre-arrest delay. The effect of Marion is well summarized ...