MR. CHIEF JUSTICE WARREN, with whom MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE BRENNAN join, dissenting. Our duty to supervise the administration of justice in the federal courts calls for a reversal here because of disregard shown for the procedural rights of petitioner-rights with which the law surrounds every person charged with crime. Our law, based upon centuries of tragic human experience, requires that before a man can be sent to a penitentiary, he is entitled to a speedy trial, to be present in court at every step of the proceedings, at all times to be represented by counsel or to speak in his own behalf, and to be informed in open court of every action taken against him until he is lawfully sentenced. These are not mere ceremonials to be neglected at will in the interests of a crowded calendar or other expediencies. They are basic rights. They bulk large in the totality of procedural rights guaranteed to a person accused of crime. Here, in the case of an impecunious defendant, who was summarily rushed through the court mill without benefit of counsel, all of them, in some degree, were denied him. The petitioner was not a dangerous criminal. His trouble, as the court recognized, was intemperance. During the course of a long drinking spree, he became involved with both the state and federal authorities. As soon as he became sober enough to realize the consequences of his actions, he made a full disclosure to one of the officers of Alcoholics Anonymous and to the Federal Bureau of Investigation. He was sentenced to a state penitentiary. He was also charged by the Federal Government with unlawfully opening a letter and extracting a check which he cashed. The case was not pressed until petitioner was about to be discharged from the state penitentiary. Without counsel he pleaded guilty. He was then brought into court to receive sentence. The colloquy between him and the court concluded as follows: "The Court: You ought to know the misery and the grief and the sorrow and the horror of what continued drinking on your part will bring to you. "If I might suggest to you, and I am giving you gratuitous advice but it is the result of observation and experience—it is my view that when you get out you should immediately join the Alcoholics Anonymous organization—not wait a week or two weeks or three weeks-but have that your first mission after you contact your family, and do what they tell you to do and do it immediately and do it diligently and faithfully, carry out every obligation that they impose upon you. With your background and with your ability I think that you can win this fight. "If you don't do those things, and if you want to revert to drinking, you will be back here again because you will commit some federal offense, and I won't be talking to you this way if you are ever before me again. "So, good luck to you and I hope the parole board will give you an opportunity. "That is all. "The Defendant: Thank you very much, sir." Petitioner's wife, a close personal friend and the two state custodial officers who were present at the hearing concluded, as would anyone, that the kindly and understanding language of the judge ended the matter and that additional punishment was not to be imposed. Petitioner was returned to the state penitentiary. Later in the day, after an inquiry by the prosecuting attorney as to the disposition of the case, the judge casually said, "Three years [probation].” 2 Petitioner was absent when this occurred. Notice of this action was not even communicated to him. A month or so later, as he was being released from the state prison, the officials advised him that he must report to the federal proba 1 The alleged offense occurred on or about May 21, 1951. A complaint was signed the following July. Nothing further ensued in the case until September 8, 1952. On that date the United States Attorney filed an information and petitioner entered his please of guilty. 2 "The Court: Is there anything else. Mr. Machey [Prosecuting Attorney]? "Mr. Hachey: Going back to the matter of Thomas E. Pollard who appeared this morning I didn't quite understand that clearly-is there to be a probationary period after his release from Stillwater, or any type of sentencing? "The Court: It is to commence at the expiration of sentencing at Stillwater. "Mr. Hachey: Probation to commence after expiration of his sentencing at Stillwaterfor how long? "The Court: Three years." The Government concedes that the probation sentence was completely invalid because it was imposed in petitioner's absence. Fed Rules Crim. Proc., 43. tion officer. Naturally, he complied. But he immediately tried to discover, through the probation officer, how and why he was subject to probation. The officer succeeded in convincing him that the "sentence" was legal. Again, a year later, petitioner requested his probation officer to investigate. The officer discovered the truth of petitioner's assertions. Though he recognized the irregularity of the proceedings, he suggested to petitioner that it would not be wise to pursue the matter-that further complications might develop. In September 1954, nearly two years after his first appearance before the court for sentencing, petitioner lapsed in the fight against excessive drinking. Reported as a probation violator, he was again brought into federal court. His case was disposed of in the most summary style. The Assistant United States Attorney first obtained the defendant's statement waiving right to counsel. He was not advised by the court, as required by law, of his right to counsel and to the appointment of counsel if desired. Fed. Rules Crim. Proc., 44. The judge, but not petitioner, had apparently been apprised beforehand of the illegality of the October 3, 1952, sentence. "The Court: What I am going to do in your case, because of the record, is to sentence you in the first instance: It's the judgment of the Court that you be confined in an institution to be selected by the Attorney General of the United States for a period of two years. That's all. "Mr. Evarts [Prosecuting Attorney]: Now, Your Honor, as you recall, the record shows that he was, sentence was imposed on October 3, 1952, and I would suggest to the Court that an Order be made setting aside the judgment and commitment that was entered at that time so that the record will now truly reflect the status of the events. "The Court: All right." In this Court the Government concedes the total invalidity of the "sentence" of October 3, 1952, and contends that these events of September 21, 1954, are to be treated as the first and only sentence imposed on the defendant for the crime of which he had pleaded guilty in 1952. But it too has infirmities. It cannot be said that this long delayed sentencing hearing comports with the requirements of the Federal Rules of Criminal Procedure. As already stated, petitioner was not represented by counsel. There was no attempt to comply with Rule 37(a) (2), which provides that: "When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal...." Furthermore, Rule 32(a) contains a mandatory requirement: "Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment." No opportunity was afforded the defendant to say a word in mitigation or extenuation of his offense.* Petitioner also questions the power of the trial court to sentence him so long after arraignment. The Sixth Amendment guarantees to persons accused of crimes in a federal court that they shall receive a "speedy and public trial." It has never been held that the sentence is not part of the "trial." But it is not necessary to decide this issue on constitutional grounds. The principle has been implemented by the Federal Rules of Criminal Procedure. Rule 32(a) declares unequivocally that: "Sentence shall be imposed without unreasonable delay." The majority holds that this two-year delay is not unreasonable because it was "accidental" and was "promptly remedied when discovered." There is nothing in the record to warrant either of these conclusions. Both the court and the prosecuting attorney were put on notice of the fatal defect of the abortive sentence on the day it was imposed. No steps were taken to remedy the defect. Petitioner declared that he twice initiated investigation of the legality of his sentence. The probation officer obviously checked with someone long before petitioner was brought to court for what is now called his "first" sentence. We cannot simply assume that the facts did not come to the attention of any responsible person. This proceeding was initiated as a motion to vacate sentence under 28 U.S.C. § 2255. The district judge refused to accord petitioner a hearing and, considering only the motion and the files and records in the court, denied relief. Then, in spite of the infirmities in the case revealed by these documents, leave to appeal The stereotyped recitals in the commitment papers, referred to by the majority, are wholly inconsistent with the .batim transcript of the proceedings, which is clearly a complete record of all that actually occurred while petitioner was before the court. in forma pauperis was denied. The Court of Appeals for the Eighth Circuit affirmed this action, but we granted centiorari and appointed counsel to represent petitioner. The conclusion that the condonation of this succession of procedural shortcomings represents a restriction of petitioner's rights is inescapable. This Court has often said that such departures from accepted standards should not be permitted that to do so encourages looseness in many ways. Petitioner has served the two years of imprisonment while pursuing his remedy to this Court. We cannot "unring" the bell that so casually sent him to prison, but we can and should make the record show that he was not committed to a federal prison in accordance with the accepted standard of criminal procedure. UNITED STATES OF AMERICA JOHN DAVID PROVOO, 17 F.R.D., 183 (1955) Civ. A. No. 8025 Crim. A. No. 23076 UNITED STATES DISTRICT COURT, D. MARYLAND March 14, 1955 Prosecution for treason. On defendant's petition for writ of habeas corpus and motions to dismiss indictment on ground that defendant had been denied a speedy trial and that further prosecution of charge would deprive him of rights under the Fifth Amendment, the District Court, Thomsen, J., held that where delay in bringing case to trial was caused by deliberate act of government in bringing action in New York when government knew that venue in New York was doubtful but took chance for supposed advantage to government of proceeding in New York, delay of trial until 1955 on charges formally made in 1949 against the defendant, who had been in prison more than five years awaiting trial during which time he had no opportunity to locate and interview possible witnesses, many of whom had died or had been lost track of, constituted denial of constitutional right of speedy trial. Motion to dismiss granted. 1. ESTOPPEL 6 Where defendant, in motion to vacate conviction in New York for treason, contended that he was not "found" in New York but that he was "found” in Maryland, defendant was thereafter estopped to deny that he was "found" in Maryland. 18 U.S.C. § 3238. 2. INDICTMENT AND INFORMATION 144 In proceeding on motion to dismiss indictment on ground that defendant was not "found" within district of the court, evidence established that defendant had not been arrested for the offense charged in New Jersey and he was not "found" there within meaning of venue statute. 18 U.S.C.A. § 3238. See publication Words and Phrases, for other judicial constructions and definition of "Found". 3. CRIMINAL LAW 113 Where accused, who had been held as military prisoner in Maryland on a sodomy charge, was brought to New York by army for purpose of effectuating his dishonorable discharge in Southern District of New York so that he could be arrested, indicted and tried for treason in Southern District of New York, accused was "found" in Maryland within meaning of venue statute. 18 U.S.C.A. $ 3238. 41-05 0-74-34 4. CRIMINAL LAW 576 (5) The right to a speedy trial may be waived, and is waived unless it is demanded by the accused. U.S.C.A.Const. Amend. 6. 5. CRIMINAL LAW 106 Questions of venue in criminal cases raise deep issues of public policy in light of which legislation must be construed, and are not merely matters of formal legal procedure. U.S.C.A.Const. Amend. 6. 6. CRIMINAL LAW 113 Although government may, when it has a choice of venues, elect to prosecute in district of its choice almost for any reason, where government chooses to proceed in certain district in a doubtful case of venue, when venue in another district is clear, government must be held responsible for effects of its election. 18 U.S.C.A. § 3238; Fed.Rules Crim.Proc. rule 48(b), 18 U.S.C.A. 7. CRIMINAL LAW 573 Where delay in bringing case to trial was caused by deliberate act of government in bringing action in New York when government knew that venue in New York was doubtful, delay of trial until 1955 on charges formally made in 1949 against defendant, who had been in prison more than five years awaiting trial, during which time he had no opportunity to locate and interview possible witnesses, many of whom had died or had been lost track of, constituted a denial of constitutional right of speedy trial. Fed. Rules Crim. Proc. rules 12, 48 (b), 18 U.S.C.A.; U.S.C.A.Const. Amends, 5, 6; Uniform Code of Military Justice, arts. 125, 134, 50 U.S.C.A. §§ 719, 728; 18 U.S.C.A. § 3238. George Cochran Doub, U. S. Atty., and Herbert F. Murray, Asst. U. S. Atty.. Baltimore, and Ernest McRae, Sp. Asst. to the Atty. Gen., for the United States. Frederick J. Green, Jr., Theodore C. Waters, Jr., John Martin Jones, Jr., and David Ross, Baltimore, Md., for petitioner and defendant. Thomsen, District Judge. John David Provoo, indicted for treason, has filed a petition for a writ of habeas corpus and motions to dismiss the indictment under Rules 12 and 48(b), Fed. Rules Crim.Proc. 18 U.S.C.A., claiming that he has been denied a speedy trial, as guaranteed by the Sixth Amendment, and that further prosecution of the charge would deprive him of rights under the Fifth Amendment. He has also filed a motion questioning venue. The indictment charges continuous treasonable conduct from May 6, 1942, to August 14, 1945, in the Philippine Islands, Formosa and Japan. Provoo, who was a prisoner of war during that period, is charged with having adhered to the enemy by offering his services to and working for the Japanese as an interpreter, guide, adviser, radio speaker, etc., by persuading other to give restricted information to the Japanese, and by spying and reporting on the activities of other prisoners. Five of the overt acts are alleged to have occurred on Corregidor: (1) The offer of services; (2) An attempt to persuade a POW to give the Japanese information about secret American codes and ciphers; (3) Ordering a POW to give his boots to a Japanese officer and striking and beating the POW; (4) Advising a POW to give the Japanese information about certain hidden silver money; and (5) Reporting to the Japanese that a POW, Captain Thomson, was uncooperative, anti-Japanese and a threat to the internal security of the military occupation of Corregidor by Japan, which report resulted in the execution of Captain Thomson by the Japanese forces. Two of the overt acts deal with broadcasting over Radio Tokyo in Japan. An indictment for treason charging these and other overt acts was filed in the Southern District of New York in 1949. Trial was held in 1952-3; Provoo was found guilty of four of the overt acts alleged, and sentenced to life imprisonment. The Court of Appeals for the Second Circuit, in August 1954, reversed the conviction because of the admission of certain improper evidence, and ruled that the District Court should have granted a post-sentence motion filed by defendant on the ground that venue is in the District of Maryland and not in the Southern District of New York. 124 F.Supp. 185. United States v. Provoo, 215 F.2d 531. The grand jury for the District of Maryland filed the present indictment on October 27, 1954. The pending motions, together with the petition for a writ of habeas corpus ad subjiciendum, raise the following points: (1) that the defandant has been denied a speedy trial, as guaranteed by the Sixth Amendment; (2) that trial at this time would deny him due process of law as guaranteed by the Fifth Amendment, in view of the alleged prejudicial and oppressive delays and resultant loss of evidence material to the defense; (3) that such trial would deny him his right to procure witnesses, as guaranteed by the Sixth Amendment; (4) that such trial would deny him his right to a fair trial within the spirit and meaning of the Fifth and Sixth Amendments; and (5) that under all the circumstances, a trial at this time could not be had in accordance with the civilized standards of criminal justice established for criminal trials by the Supreme Court of the United States. Provoo has also filed a motion challenging venue in this district, on the ground of an alleged arrest at Fort Dix, New Jersey, in 1946. Findings of Fact The facts as I have found them from testimony and exhibits offered in support of and in opposition to said petition and motions, will be stated chronologically. Provoo was born in San Francisco, California, in 1917, and was reared and educated there. He had the equivalent of a high school education and two further years of study. He worked several years for a bank, for the Matson Line, for a radio station, and for his father, who was a painting and decorating contractor. He became interested in Buddhism in early adolescence, was converted to that faith, and in 1940 went to Japan, where he lived in a Buddhist monastery, taught school, and studied Buddhist philosophy. While in Japan he developed his ability to speak Japanese. Early in 1941 the State Department recommended that all Americans leave Japan. Provoo returned to the United States and enlisted in the United States Army on May 14, 1941. He was sent to the Philippines in June, 1941, was promoted to corporal in January, 1942, and to sergeant in March, 1942, on Bataan. He was captured by the Japanese at the fall of Corregidor on May 6, 1942, and was held as a POW on Corregidor, on Formosa, and in Japan. It was on Corregidor that several overt acts, including the overt act leading to Captain Thomson's death, are alleged to have occurred. No overt act is alleged to have occurred on Formosa. In 1943 Provoo was transferred to Japan, and was taken by the Kempei-Tai, the Japanese thought police, to Camp Omori, a POW and punishment camp, and later to Camp Bunka, where most of the allied prisoners who were broadcasting over Radio Tokyo were confined. Two of the overt acts deals with Provoo's broadcasting. He denies he was guilty of any treasonable acts. The records of the Army show that Provoo was placed under arrest in quarters by the senior American Army Officers at Camp Bunka on or about August 14, 1945, that this state of verbal arrest continued when he was moved to Camp Omori on August 24, 1945, and that on the latter date he was placed in the custody of Captain Ince, an American officer at Camp Omori, by verbal order of Commander Mahrer, USN, to whom command of that camp had been turned over by the Japanese. Provoo testified that he was arrested by Captain Ince and an Australian officer, Major Cousins, that on the day when the prisoners were liberated Captain Ince requested the Commanding Officer of the liberating forces to arrest Provoo, but that officer refused, and that Captain Ince thereupon rearrested him. In 1945-6 the CIC investigated the participation of Provoo, Ince and others in the broadcasting; in 1948-9 the FBI made a similar investigation, and took long statements from Provoo in connection therewith, which the government offered in evidence in this proceeding; Ince was not called by the government at the New York trial; he was subpoenaed by the defendant there but did not appear. On August 29, 1945, Provoo was evacuated from Camp Omori to the hospital ship Benevolence and remained in custody on that ship and elsewhere until September 12, 1945. He was then arrested by an Army CIC Unit, under an order issued pursuant to authority contained in a radio message from GHQ, AFPAC (General MacArthur's headquarters), dated September 11, 1945, subject "Apprehension and Detention of Certain Individuals", addressed to the |