moved from the investigatory to the accusatory stage.
Defendant demanded trial in writing on August 10, 1971. There were counsel on both sides and judges available. Plenty of time for investigation had already passed. Instead of trying defendant or setting a trial date, defendant was transferred to the Philadelphia Naval Base, 8,000 miles from his attorney, without notice to either defendant or attorney, on August 11, 1971. The reason given by Lt. Carroll, who procured the transfer, was that the Navy was afraid they couldn't prove the case they had brought in Vietnam without unacceptable expense, and that it would be better for the prosecution to transfer defendant to Philadelphia where all the prosecution witnesses were. No thought was given to defendant's position. Although defendant had already offered to plead guilty, Lt. Carroll was afraid he would change his mind. (If defendant had changed his mind, however, the Government would surely have been given a reasonable time to prepare its case.) Without thought for defendant's access to witnesses in his own behalf or notice to either defendant or his counsel, defendant was transferred after a demand for trial. On arriving in Philadelphia defendant was incarcerated for ten days, from August 20 to August 30, and formal charges were lodged on September 14, 1971. In the intervening months defendant renewed his demand for trial but was never tried. In March of 1972, the Navy dropped its charges, discharged defendant, and the U.S. Attorney immediately indicted.
First, it is clear that since the authority of both prosecutors proceeds from the same sovereignty, an accusation by one has the same effect as an accusation by the other for Sixth Amendment purposes, and rights enforceable against the Navy are rights against the United States. Actions by the Navy denying defendant's Sixth Amendment right to speedy trial are chargeable to and enforceable against the United States Government in a non-military prosecution on the same charges. See: Grafton v. United States, 206 U.S. 333, 27 S. Ct. 749, 51 L. Ed. 1084 (1907). The Federal Government can't turn a sow's ear into a silk purse by switching tribunals.
Count I and Count III of the present indictment are clearly identical to part of the Navy charges, and there is no question that, by Navy action, defendant was an accused as to those Counts by July 26, 1971.
It might be argued that the charges pressed in the Navy are not identical with the charge pressed by the U.S. Attorney's Office in Count II of the indictment under United States v. Bayer, 331 U.S. 532, 67 S. Ct. 1394, 91 L. Ed. 1654 (1947), since no conspiracy to possess with intent to distribute count was ever put forth by the Navy, and therefore that Sixth Amendment rights did not attach to that charge until the March indictment. We are unpersuaded. Bayer dealt with the narrow and technical question of former jeopardy. The scope and the purposes of the right to speedy trial are different from those of the prohibition against double jeopardy and the concept of an "accused" for Sixth Amendment purposes is clearly broader than the narrow and technical concept of a "charge" for purposes of the prohibition against double jeopardy. As previously noted Marion, supra must be read for the proposition that one can become an accused for Sixth Amendment purposes by arrest. 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 at 479. At arrest there are no formal charges usually outstanding. However, the right to speedy trial attaches. It must by implication attach therefore to all charges accruing to the sovereign springing from the incident giving rise to arrest. The prosecution can't hold out a "kicker" from the effect of the Sixth Amendment by not putting it in the formal indictment once a person is an accused. This interpretation of Marion is clearly in line with our traditional dislike of serial and piecemeal prosecutions. Under this interpretation of Marion it is clear that when defendant became an accused for purposes of the right to speedy trial, he became an accused as to all charges inherent in the incident in question which could be raised by the sovereignty making the accusation, and that obviously includes Count II of the present indictment.
The Court has concluded that defendant's Sixth Amendment rights have been violated. There are generally four factors to be considered in a claimed denial of speedy trial: the length of the delay, the reason for the delay, the prejudice to the defendant and any waiver of the right by defendant. United States rex rel. Lowry v. Case, 283 F. Supp. 744 (E.D. Pa. 1968). Although the delay here may not be sufficient to give rise to an inference of prima facie prejudice, it has been recognized that when the reason for the delay is improper or oppressive, actual prejudice need not be shown. United States ex rel. Lowry v. Case, supra; United States v. Seafarers Int. Union, 343 F. Supp. 779 (E.D.N.Y. 1972). Each case must be judged individually on the relative strengths of these factors in the particular context of that case. Case, supra; Seafarers Union, supra.
In the present case the delay was at least seven months from the time of defendant's first written demand for trial to defendant's discharge from the Navy and the current indictment. The delay was brought on by defendant's transfer after a demand for trial without any regard for defendant's rights, or defendant's access to witnesses or his already working and able counsel. If that were not enough, the Navy did not try defendant in the ensuing six months despite repeated demands for trial, and finally even the Navy apparently became apprehensive about the way they had handled Small's case. Hence, the fancy footwork in the well-coordinated dropping of charges, discharge and civilian indictment. Perhaps the Navy did not have to bring charges in Vietnam originally, and could have properly transferred defendant to Philadelphia before he was accused. However, the decision was to proceed in Vietnam and certain rights accrued from that decision. This Court finds even from the admittedly incomplete evidence before it, that defendant's right to speedy trial has been violated and that the ends of justice can only be served by the dismissal of the present indictment against him.