The opinion of the court was delivered by: MOTLEY
On July 3, 1969, defendants were observed at an outdoor rally at Rockefeller Plaza throwing alleged records of the Selective Service System in the air. A complaint was filed on that day before the United States Commissioner for the Southern District of New York, charging all six defendants with a very serious offense, in that they
"unlawfully, wilfully and knowingly did receive, conceal and retain without authority records of a department and agency of the United States, to wit, Local Boards 5 through 17 of the Selective Service System located at 321 West 44th Street, New York knowing the said records to be stolen, with intent to convert them to their own use,"
in violation of 18 U.S.C.A. §§ 2, 641. [Complaint of Thomas J. O'Toole, Special Agent, Federal Bureau of Investigation]. If convicted of this offense, the defendants may possibly be fined $10,000 or be imprisoned for ten years. 18 U.S.C.A. § 641.
Each was held in custody on $2,500 bail. Defendants Forest and Webster posted bail and were released on July 5, 1969, and the others similarly were set free on July 7, 1969. At that time, the government consented to extensions of bail limits with respect to all defendants, including, severally, extensions from New Jersey to California. The Commissioner cancelled all bail on September 9, 1969; he ordered defendants Forest and Webster continued in their own recognizance, and permitted them to travel throughout the continental United States.
The Commissioner scheduled a preliminary examination for all defendants to be held on July 8, 1969. This was adjourned by agreement of all counsel until July 22, 1969. Subsequently, the government requested, and was granted, postponements on four occasions: July 22, August 7, August 19, and September 9, 1969. The final adjournment secured by the government was until September 30, 1969, the day after the government's proposed grand jury investigation of the defendants.
Counsel for defendants Forest and Webster opposed all adjournments of the preliminary examination subsequent to July 22, 1969. Counsel for defendants Green, Czarnik, Kennedy, and Boskey consented to all adjournments up until September 9, 1969.
Only defendants Czarnik, Boskey, Forest, and Webster appeared in person at the scheduled preliminary examination on September 9, 1969. Defendants Kennedy and Green were represented by counsel. The four defendants who appeared in person on September 9, 1969 were there served with subpoenas ordering them to appear before a grand jury of the Southern District of New York, in regard to an alleged violation of 50 App. U.S.C.A. § 462, on September 29, 1969.
Service of the subpoenas occurred "immediately prior to the beginning of the soon aborted proceeding," [Defs' Memorandum In Support of Application That Subpoenas Be Quashed, p. 1], apparently "outside the courtroom, presided over by the United States Commissioner." [Government's Affidavit in Opposition, p. 5].
All six defendants moved by order to show cause dated September 12, 1969 and signed by Hon. Marvin E. Frankel, United States District Judge, to dismiss the complaints against them because of unreasonable delay in affording them an opportunity for a preliminary examination pursuant to Rule 5(c) Federal Rules of Criminal Procedure, or, in the alternative, 18 U.S.C.A. § 3060 (1969). Defendants Czarnik, Boskey, Forest, and Webster also moved by the same order to show cause to quash the grand jury subpoenas, on several grounds: that they were immune to service of the subpoenas under the rule of Lamb v. Schmitt, 285 U.S. 222, 52 S. Ct. 317, 76 L. Ed. 720 (1932); that the service of the subpoenas placed an intolerable burden on their "privilege" of having a preliminary examination; and that the government has used the subpoenas to harass the defendants and that the subpoenas have consequently had a "chilling" effect on their exercise of First Amendment rights of political expression, as discussed in Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965).
We turn first to the question of the validity of the service of the grand jury subpoenas upon four of the defendants.
The Service of the Subpoenas
In Lamb, an attorney who was a resident of Illinois, was served with process in Mississippi in a related civil suit to the one in which he was initially appearing. The Court denied him immunity from service of process because the second suit was intimately connected with the first, at the same time endorsing:
"[the] general rule that witnesses, suitors, and their attorneys, while in attendance in connection with the conduct of one suit are immune from service of process in ...