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November 26, 1974


Weinstein, District Judge.

The opinion of the court was delivered by: WEINSTEIN


WEINSTEIN, District Judge.

 Counsel for twenty-six defendants accused of violating the selective service law moves to dismiss the indictments on the ground that all the defendants have been denied their right to a speedy trial. Amicus suggests that there is a strong likelihood that some or all of the indictments are not well founded under the selective service law. Until each defendant's situation has been examined separately, dismissal on these grounds will not lie. As indicated below, the government has been directed to supply counsel with copies of the selective service file in each case to facilitate the necessary individual determination.

 As additional grounds for dismissal of the indictments defendants claim that the Selective Service Act and regulations are unconstitutional as applied to these cases, in that they (1) provide for military conscription for service in wars not declared by Congress pursuant to Article I, Section 8, Clause 11 of the United States Constitution, and (2) provide for such conscription in the absence of either a declaration of war by Congress or a national emergency so grave and imminent as to justify peacetime conscription without such a declaration of war. While these claims have not yet been passed upon by the United States Supreme Court, similar claims have been rejected by the Second Circuit Court of Appeals in Orlando v. Laird, 443 F.2d 1039 (1971), cert. denied, 404 U.S. 869, 92 S. Ct. 94, 30 L. Ed. 2d 113 (1971) (Douglas and Brennan, JJ., dissenting), and in Da Costa v. Laird, 448 F.2d 1368 (1971), cert. denied, 405 U.S. 979, 92 S. Ct. 1193, 31 L. Ed. 2d 255 (1972) (Douglas and Brennan, JJ., dissenting). Being controlled by the decisions of the Second Circuit, these additional claims must be denied by this court without an independent consideration of their merit.



 One of the indictments in these cases has been pending since 1954; the others were handed up at various times between 1966 and 1973, the most recent having been filed with the clerk on February 6, 1973. During this period the government has made desultory efforts to apprehend the defendants by mailing notices to addresses once listed in selective service records and by occasional inquiries through the Federal Bureau of Investigation.



 No claim has been made of a violation of the Eastern District of New York's Plan for Achieving Prompt Disposition of Criminal Cases. Effective April 1, 1973, it was designed "to further the prompt disposition of criminal cases." According to this Plan the government must be ready for trial within six months, excluding delay resulting from the absence or unavailability of the defendant. On the basis of information now available it cannot be said that the defendants were available for trial. Cf. United States v. Rollins, 487 F.2d 409 (2d Cir. 1973); United States v. Flores, 501 F.2d 1356 (2d Cir. 1974). Counsel instead relies upon defendants' constitutional right to a speedy trial as guaranteed by the Sixth Amendment.



 The right to a speedy trial has long been considered fundamental. See the dissertation of Chief Justice Warren in Klopfer v. North Carolina, 386 U.S. 213, 224, 87 S. Ct. 988, 994, 18 L. Ed. 2d 1 (1967).

 Recognizing that a time within which a trial must be had cannot be fixed for all cases with uniformity and precision, Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), mandates an analysis of the practical and theoretical aspects of the right to a speedy trial in the context of each individual case. Laid down was a balancing test requiring a weighing of the conduct of both the prosecution and the defendant on scales calibrated to reflect the interests of defendants, society and the Constitution.

 Four factors must be assessed in determining whether a particular defendant has been deprived of his right: the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant. 407 U.S. at 530, 92 S. Ct. at 2187. The Supreme Court regarded none of these factors as decisive.

"Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and ...

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