The opinion of the court was delivered by: WEINSTEIN
WEINSTEIN, District Judge.
This is but one of tens of thousands of cases carried in the limbo of federal courts' fugitive files. Young men indicted for failure to carry out their obligations under the Selective Service Laws during the Vietnam Conflict are scattered across the face of the earth -- like abandoned weapons corroding and useless to this country. The defendants refuse to cooperate with the government by returning to be tried. The prosecution does nothing to compel their presence. The government, like so many of us, would prefer to forget Vietnam and its legacy. Since, however, the cases on this court's docket represent real people whose present lives are vitally affected by these pending criminal cases, courts may not indulge in the luxury of disregarding the issue when it is properly raised by motion, as it now has been.
The question before us is whether, as to this defendant in this case, the rules respecting speedy trials have been violated. For the reasons indicated below we hold that a speedy trial for this defendant is no longer possible and that, accordingly, the indictment must be dismissed.
In 1972, the government indicted Sidney Salzmann for failure to appear for a pre-induction physical and for induction. 50 U.S.C. App. 462(a). Salzmann, a resident of Israel, had conducted a substantial correspondence with the government prior to the indictment in an effort to avoid just such an event. He had informed the government repeatedly that financial constraints prevented him from making the journeys for the physical or for induction. Instead of informing him of travel assistance available to him, the government treated him as a draft evader, indicted him, and allowed the indictment to lie fallow for four years.
The passivity that has characterized treatment of Salzmann requires analysis of whether the government has failed to make the effort to procure his presence for trial required by the various Speedy Trial Plans in effect since 1971 and by the Speedy Trial Clause of the Sixth Amendment. This inquiry has become crucial since, due to the delay in bringing Mr. Salzmann to trial, the United States Attorney's Office is no longer able to afford him two alternatives to prosecution that it has offered many others accused of draft evasion: the institution of an all-volunteer army has made submission to induction impossible and the termination of the amnesty program has removed community service work as an alternative.
Sidney Salzmann faithfully kept the draft board informed of his status and residence from the time he registered by mail for the draft in 1964 while he was temporarily residing in Israel. He advised the board of his return to the United States in 1965, his enrollment at Queens College in New York, his marriage, and his entry into rabbinical studies in 1969. Accordingly, in 1969 he was classified IV-D as a divinity student, a deferment that would have ripened into a draft exemption had he completed his studies. In December of 1969 he advised the local draft board that he had moved to Jerusalem, Israel. As a result, he was classified I-A, and ordered to report for a physical examination on May 3, 1970, in Jamaica, New York, or at an army facility outside the United States. In response to an inquiry by Mr. Salzmann, the board gave him the option of reporting to Livorno, Italy on May 27, 1970, for pre-induction processing. On April 30, 1970, Mr. Salzmann wrote the Local Board to explain why he had discontinued his rabbinical work and to inquire whether he would still be eligible for a IV-D classification if he resumed his studies. He requested a speedy reply before his scheduled physical in Italy. He was advised to have a school submit verification of his student status and to report for the physical examination as scheduled.
Mr. Salzmann did not report for the physical examination in Italy and he informed the local board that his failure "to show up at the physical was . . . due to the shortage on my part of the necessary Dollars required to undertake such a trip." His letter elaborated on his financial inability in some detail. Nevertheless, the board ordered him to report for induction at Fort Hamilton, New York on January 18, 1971. In early January Mr. Salzmann informed the board that he still did not have adequate means to travel abroad. He also explained that his departure from the United States and residence in Israel was not a means of avoiding military service. He told the board that he expected to be required to serve in the Israeli Army in the near future and expressed the hope that such service would eradicate any legal difficulties arising from his draft status in the United States. His letter read in part as follows:
Furthermore, I wish to bring to the attention of the Board that my wife and I upon coming to Israel, have decided to make our permanent home here. This decision was the culmination of many years of education and training in this direction and was, I believe, a perfectly natural and legitimate one on our part. We came here not with the desire to escape our former obligations and ties, but, rather, to enter into new ones, closer to our hearts, here in our ancient homeland, Israel.
Having made the decision to remain here I will be required in the near future to serve in the Israel Defence Forces, an act which I concider [sic] to be my personal duty as a Jew.
I therefore appeal to the Board to reconsider my case and grant me an extension until such time as I will be inducted into the Israel Defence Forces, at which time I hope my case can be closed legally.
He wrote again in 1971, to remind the board that he had never asserted an intention not to comply with his obligation to report for induction, but had instead informed the board of his financial inability to make an overseas trip. Despite his repeated explanations that finances prevented him from traveling to either the point of physical examination or induction, the government never tendered any travel assistance, even though there was a regulation formalizing the existence of such assistance from June 14, 1971, approximately a year before Mr. Salzmann was indicted. Local Board Memorandum No. 73, Par. 7(a)(1) (1971), 4 Sel.Serv.L.Rep. 2190:2, stated that the military may provide transportation from the United States air base closest to the overseas residence to the processing center.
On February 3, 1971, the local board filed a delinquent registrant report referring Salzmann for prosecution. Nearly seventeen months later, in June of 1972, Mr. Salzmann was indicted for his failure to report for a physical examination and induction.
Defendant wrote the Assistant United States Attorney to explain once again that lack of money prevented him from appearing. He had not run away from his American military responsibilities, he said, but to the contrary, had always kept his board informed of his whereabouts. He further explained that his actions were a result not of a flight from responsibility but
the culmination of many years of Zionist training. . . . I therefore consider it an insult to treat my case as if it were of one who ran away at the last moment to a neighboring country or one who deserted the Army. On the contrary, I did not run away from America but went to Israel for possitive [sic] reasons.
He stated again that he expected to serve in the Israeli Army and hoped that that would change his eligibility for service in the American Army. As he anticipated, Mr. Salzmann did serve in the Israel Defense Forces.
Under a procedure approved by the Second Circuit in United States v. Weinstein, 511 F.2d 622, 629 (2d Cir. 1975), Mr. Salzmann, although still residing abroad, asked Professor Louis Lusky to represent him. A motion to dismiss was then heard. Evidence, including the full selective service file was introduced. Briefs and affidavits filed in related selective service cases were deemed before the court. See United States v. Lockwood, 386 F. Supp. 734 (E.D.N.Y.1975).
Before analyzing the Sixth Amendment right to a speedy trial, it is appropriate to first discuss the rights attaching to defendants under the series of Speedy Trial Plans that have been in effect while Salzmann has been under indictment. In some ways the Plans have expanded the constitutional guarantees and they provide an independent basis for decision permitting avoidance of the constitutional issue. Ashwander v. TVA, 297 U.S. 288, 346-48, 56 S. Ct. 466, 482-84, 80 L. Ed. 688 (1936) (Brandeis, J., concurring). Neither party has raised the issue of whether the various Speedy Trial Plans were validly adopted. Their validity, therefore, will be assumed for the purpose of examining Salzmann's claims. Following analysis of the Speedy Trial Rule issues we turn to a discussion of the Sixth Amendment right. We then consider whether this is an appropriate case to invoke the Federal Rules of Criminal Procedure Rule 48(b) power to dismiss for unnecessary delay by the government. Finally, we briefly consider the special speedy trial statutory requirements applicable to selective service cases.
A. Speedy Trial Rules
Enthusiasm for Speedy Trial Plans that would define with some precision the outer limits of permissible delay grew in the sixties as trial delays, attributable to many factors, were increasing dramatically. The Administrative Office of the United States Courts began, in 1963, to keep statistics on the time that elapsed between the filing of the criminal information or indictment and the final disposition at the district court level. The chart below indicates that the length of the median time interval from filing to disposition climbed fairly steadily from 1963 to 1972, more than doubling during that period.
TABLE 54 -- United States District
Courts criminal defendants
disposed of showing median
time interval from filing to
disposition fiscal years
1963 and 1967-1975
Type of disposition
and median time
interval 1963 1967 1968 1969 1970
Total 34,403 31,535 31,843 32,796 36,356
(months) 1.6 2.5 2.9 2.5 3.2
TABLE 54 -- United States District
Courts criminal defendants
disposed of showing median
time interval from filing to
disposition fiscal years
1963 and 1967-1975
Type of disposition
and median time
interval 1971 1972 1973 1974 1975
Total 44,615 49,516 46,724 46,543 48,244
(months) 2.9 3.4 3.9 3.8 3.6
NOTE. Excludes District of Columbia and the territories of Canal Zone, Guam and Virgin Islands.
1975 Annual Report of the Director of the Administrative Office of the United States Courts 264, Table 54. They are median figures; delay in thousands of cases was and is many months greater.
Part of the slight decrease in delay in the last few years has been attributed to the various Speedy Trial Plans in effect. Id. at 265-66. But part is also due to the decrease in selective service prosecutions. As the Director of the Administrative Office noted:
The number of months from filing to disposition of a defendant has been decreasing, primarily as a result of the decline in the number of Selective Service Act cases, which have a high number of fugitive defendants. These cases when disposed of generally have a large span of time from filing to disposition.
The lengthening of delays in the 1960's is also a continued and substantial rise in the number of cases, both criminal and civil, filed in the district courts. It is noteworthy that between 1960 and 1970, the number of criminal cases filed rose by approximately one-third. Id. at 189, Table 13. Courts were ill-equipped to deal with the delay this burgeoning caseload entailed, particularly since there has been no equivalent increase in judgeships. Id. at 188.
The Supreme Court had dealt with the Speedy Trial Clause of the Sixth Amendment only infrequently, most of the decisions having been handed down in the last two decades. Lower courts were frustrated in applying the Clause not only because of the paucity of appellate rulings but also because of the nature of the guidance. Until the watershed decision in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Court dealt with the cases on an ad hoc basis, making no attempt to lay down detailed guidelines. In Barker the Court announced various balancing factors that must be weighed in deciding whether the right has been violated. Valuable as such a sophisticated test is, however, it reduces predictability and increases problems in decision making for the government, defendants and courts.
The House Report on the Speedy Trial Act of 1974 noted the need for legislation in order to enforce the Sixth Amendment.
The [Judiciary] Committee finds that the adoption of speedy trial legislation is necessary in order to give real meaning to that Sixth Amendment right. Thus far, . . . the decisions of the Supreme Court [have not provided] the courts with adequate guidance on this question.
The Supreme Court has held that the right to a speedy trial is relative and depends upon a number of factors. A delay of one year in some instances has been interpreted as prima facie evidence of a denial of the right. However, in others, a delay of up to eighteen years has been held not to violate the Sixth Amendment. In its 1972 decision, Barker v. Wingo, 407 U.S. 514, [92 S. Ct. 2182, 33 L. Ed. 2d 101] the Court stressed four factors in determining whether the right to a speedy trial had been denied to a defendant: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. The task of balancing these factors and arriving at a conclusion which is fair in all cases is difficult. The case provides no guidance to either the defendant or the criminal justice system. It is, in effect, a neutral test which reinforces the legitimacy of delay.
With respect to providing specified time periods in which a defendant must be brought to trial, the Court in Barker admitted that such a ruling would have the virtue of clarifying when the right is infringed and of simplifying the courts' application of it. However, the Court said:
But such a result would require this Court to engage in legislative or rulemaking activity, rather than in the adjudicative process to which we should confine our efforts. Id. at 523.
H.R.Rep.No.1508, 93d Cong., 2d Sess., 1974 U.S.Code Cong. & Admin.News, pp. 7401, 7404-05.
Despite the Supreme Court's hesitancy to lay down detailed rules, lower courts have not felt so constrained. During the entire time Salzmann has been under indictment, the Eastern District of New York has operated under court-promulgated speedy trial rules. The Second Circuit Rules Regarding Prompt Disposition of Criminal Cases were effective as of July 5, 1971. Mr. Salzmann was indicted almost a year after, in June of 1972. Since his indictment two other sets of rules have been in force. On April 1, 1973, the Plan for Achieving Prompt Disposition of Criminal Cases, which was passed pursuant to the requirement of Rule 50(b) of the Federal Rules of Criminal Procedure, went into effect. And from September 29, 1975, the Interim Plan of the United States District Court for the Eastern District of New York Under the Speedy Trial Act of 1974, has governed court practice in criminal cases. As of July 1, 1976, a Transitional Plan was effective.
Each of these sets of rules contains a series of similarly worded relevant provisions. Each requires the government to be ready for trial by six months or less after indictment unless an enumerated exception applies. All sets of rules also permit an exception for delay due to a defendant's unavailability. Before singling out these and other pertinent provisions and analyzing them, it will be helpful to review the history of these sets of speedy trial rules. An understanding of their genesis and of the goals of the courts and judicial bodies that approved them assists in the application of the specific rules.
1. History of Speedy Trial Rules
The texts of the four sets of rules that have been in effect in the Eastern District since 1971 share a common origin. The basic structure of the plans and much of the language was first available in the "Standards Relating to Speedy Trial," a report of the ABA Advisory Committee on Criminal Trial. The tentative draft of the Standards, which was published in May of 1967, was approved by the ABA House of Delegates in February of 1968.
The drafters of the Standards, like those of all subsequent Plans, recognized that dual interests are at stake in speedy trial rules. A speedy trial is not only in the interest of the defendant, but also in the interest of the public. The Standards "effectuate the right of the accused to a speedy trial and the interest of the public in prompt disposition of criminal cases. . ." A.B.A. Standards Relating to Speedy Trial 1.1 (Approved Draft 1968).
Apart from the express recognition of the benefits of a speedy trial to the public and defendant, the ABA committee left a legacy in the formulation of rules far stricter than the constitutional requirements as defined by the then current case law. It recommended that courts adopt a maximum delay period, even for cases of non-incarceration, and rejected suggestions that the defendant show the government's delay had been purposeful or oppressive, Pollard v. United States, 352 U.S. 354, 361-62, 77 S. Ct. 481, 486, 1 L. Ed. 2d 393 (1957), or that it have prejudiced the defendant, United States ex rel. Solomon v. Mancusi, 412 F.2d 88, 90-91 (2d Cir.), cert. denied, 396 U.S. 936, 90 S. Ct. 269, 24 L. Ed. 2d 236 (1969).
This ABA approach relied upon an assumption not previously recognized that any delay is prejudicial to a defendant and that a delay of a specified period is so manifestly prejudicial as to require dismissal of the indictment with prejudice absent an acceptable excuse. The Committee's adoption of absolute discharge of the defendant barring any future prosecution for the offense charged was a fairly radical proposal, but "the only effective remedy" in the view of the Committee. A.B.A. Standards Relating to Speedy Trial, Commentary to 4.1 (Approved Draft 1968). See United States v. Furey, 514 F.2d 1098, 1105 (2d Cir. 1975). But cf. Amsterdam, Speedy Criminal Trial: Rights and Remedies, 27 Stan.L.Rev. 525, 537 (1975). Furthermore, the abandonment of any requirement that the defendant demand his right to a speedy trial shifted even more of the responsibility for a prompt trial to the government. See, e.g., United States v. De Masi, 445 F.2d 251 (2d Cir.), cert. denied, 404 U.S. 882, 92 S. Ct. 211, 30 L. Ed. 2d 164 (1971) (3 1/3 year delay plus 4 year preindictment delay not improper). A defendant's silence even over a prolonged period would not bar a motion to dismiss the indictment on speedy trial grounds. The Standards permitted the government to claim that the defendant had waived the speedy trial claim only after the defendant pled guilty or proceeded to trial.
b. 1971 Second Circuit Rule
It was not long after their publication that the Standards bore fruit in the Second Circuit. The Court of Appeals in 1971, acting on its own initiative and relying on its interpretation of its own supervisory powers and 28 U.S.C. § 332, issued the Rules Regarding Prompt Disposition of Criminal Cases in federal courts at the close of an en banc decision rejecting a state prisoner's habeas corpus petition. United States ex rel. Frizer v. McMann, 437 F.2d 1312 (2d Cir. 1971). The petitioner had pressed a Sixth Amendment speedy trial claim after ten and a half months had elapsed between indictment and trial. Although the court rejected his claim, sitting as the Circuit Council it enunciated Rules for the federal district courts of the Circuit. The Rules went far beyond the constitutional right in some respects.
As suggested by the Standards, the Rules prescribe a maximum period for prosecutorial delay, and eschew any requirement that a defendant show prejudice or make a timely demand in order to invoke the protection of the Rules. The government's failure to abide by the Rules warrants dismissal of the indictment. But in two significant ways the Rules are narrower in scope than the Standards. The Rules proscribe government delay alone and they permit a six month delay.
The ABA Standards were drafted to cover trial delay generally, not just delay due to prosecutorial inaction. Thus, the Standards also gave relief to defendants whose trials were delayed by such factors as court congestion. In contrast, the Second Circuit's Rules focused primarily, if not exclusively, on delay due to the conduct of the prosecution, despite the fact that only a limited number of reasons for delay cited by the court are attributable to the prosecution. United States v. Infanti, 474 F.2d 522, 528 (2d Cir. 1973). In the course of the Frizer opinion the Second Circuit summarized eighteen major causes of delay in criminal cases in New York State, four of which were due to the prosecution. The court reported a New York Judicial Conference finding that personnel shortages in district attorneys' offices, part-time assistant district attorneys, part-time district attorneys in some counties, and adjournments sought because of non-appearance of key witnesses and police officers were the primary reasons for state court delay attributable to the prosecution. United States ex rel. Frizer v. McMann, 437 F.2d 1312, 1314-15 (2d Cir. 1971). Only the first and last of these reasons would be applicable to delays by the United States. In shifting the emphasis from trial delay to government readiness for trial, and at the same time, adopting the ABA remedy for failure to abide by the rules, i.e., dismissal, the Second Circuit placed a significant affirmative duty on the government. This duty is of particular import to Mr. Salzmann since there is no indication of any active resistance on his part to prosecution. He notified the government that financial restrictions alone made it impossible for him to appear, both for induction and for prosecution.
The other significant change from the Standards to the Rules Regarding Prompt Disposition was the choice by the Second Circuit of a six month limitation on delay. The drafters of the Standards had refrained from selecting a time frame; but six months was at the outside of the range of figures outlined in the Commentary to Rule 2.1. The President's Crime Commission proposed that the period from arrest to trial be not more than four months. President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 155 (1967). Nevertheless, the Rules are consistent with the Standards in designating a period beyond which further delay will be considered inherently prejudicial.
The Circuit Council considered the heavy burden it placed on the government necessary in light of the public interest in prompt disposition of cases.
The public interest requires disposition of criminal charges with all reasonable dispatch. The deterrence of crime by prompt prosecution of charges is frustrated whenever there is a delay in the disposition of a case which is not required for some good reason. The general observance of law rests largely upon a respect for the process of law enforcement. When the process is slowed down by repeated delays in the disposition of charges for which there is no good reason, public confidence is seriously eroded.
Statement of the Circuit Council to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, New York Federal Court Rules 4-25.
c. Federal Rules of Criminal Procedure Rule 50(b) Plan
Rule 50(b) of the Federal Rules of Criminal Procedure inaugurated the first national effort at speedy trial rulemaking. Drafted by the United States Judicial Conference, and submitted to Congress by the Supreme Court, the Rule has been in effect since January, 1973. It directs each district court to "prepare a plan for the prompt disposition of criminal cases." Pursuant to Rule 50(b), the Committee on the Administration of the Criminal Law of the United States Judicial Conference prepared a Model Plan which was submitted by the Administrative Office of the United States Courts to each district court, but each district had the option of preparing its own plan.
The Eastern District Plan, which became effective on April 1, 1973, contained only minor variations from the Second Circuit Rules then in effect. As a result, the Eastern District Plan imposed a stricter standard on the government than the Model Plan. For instance, the Model Plan contained no mandatory sanction for failure to provide a speedy trial, other than the release of incarcerated defendants from custody. Rule 50(b) Model Plan § 4, Hearings on S. 754 Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 93d Cong., 1st Sess., at 219 (1973). In contrast, the Eastern District Plan provided for dismissal with prejudice when an unexcused delay exceeded six months. While the Model Plan suggested a six months maximum delay period, it allowed the court to grant continuances whenever it was satisfied that the "interests of justice" would be served. Rule 50(b) Model Plan § 3, id. at 218-19. The Eastern District Plan contains specific exceptions to the six months rule, and thereby, severely restricts the court's discretion. All 50(b) Plans are similar, however, in "that they place an affirmative duty on the government to bring the accused to trial." United States v. Rodriguez, 497 F.2d 172, 175 (5th Cir. 1974).
The Subcommittee on Crime of the House Judiciary Committee had deferred drafting its own speedy trial rules until it could assess the implementation of the Rule 50(b) Plans. Relying heavily on a critical report prepared by Professor Daniel J. Freed and Mr. Andrew H. Cohn of Yale Law School, the Subcommittee concluded that "Rule 50(b) and the Model Plan adopted by many district courts is an inadequate response to the need for speedy trial, in that it encourages the perpetuation of the status quo." H.R.Rep.No.1508, 93d Cong., 2d Sess., 1974 U.S.Code Cong. & Admin.News, pp. 7401, 7406. The Freed report had reviewed 92 district plans. In summary it found that
. . . circuits differ in the degree of uniformity among their district plans, with most circuits not enforcing any strict uniformity; the goal of the Model Plan, that the suggested time limits be shortened by the districts is largely unrealized; the Model Plan grants broad discretion with respect to the extensions of time limits -- a pattern which is followed in most districts. The report further indicates that a comparison of actual court proceeding time and the Rule 50(b) plans for 20 districts shows that a strong correlation exists between the time limits adopted in the districts and the prevailing norm at the time of adoption.
Id. As a result of disappointment with Rule 50(b), Congress adopted the Speedy Trial Act of 1974.
d. Speedy Trial Act of 1974
In all but one respect the Speedy Trial Act of 1974 imposes a much heavier burden on the government to insure a prompt trial than any of the Plans that have been in effect in the Eastern District. The Act shortens the time span of permissible delay generally, not just prosecutorial delay. But at the same time the Act introduces remedial flexibility by allowing a court to dismiss an indictment with or without prejudice as circumstances indicate.
The limitation of the period of acceptable delay and the increased scope of the Act indicate Congress' strong bias against delay in bringing defendants to trial and its concomitant willingness to place a heavy burden on the government, both the prosecutor and the court, to insure a speedy trial. Specifically, the Act provides that an indictment must be filed within thirty days from arrest or service of summons. The arraignment must be within ten days following indictment and trial must be within sixty days thereafter. To allow the courts to fully comply with this one hundred day time period, however, the Act does not become fully operative until five years after it takes effect. As a result, the six month interval permitted under the 50(b) Plan will be only gradually reduced to one hundred days.
An even more impressive indication of the strength of Congressional disapproval of delay is the return to the broad scope of the A.B.A. Standards. The Speedy Trial Act does not merely require prosecutorial readiness like the Second Circuit Rules and the 50(b) Plan but it mandates prompt trials generally. See United States v. Furey, 514 F.2d 1098, 1101 (2d Cir. 1975). Delays due to the court and the defense are dealt with legislatively, along with prosecutorial delay. In fact, the Act explicitly forbids a judge from granting a continuance due to court calendar congestion. 18 U.S.C.A. § 3161 (D)(8)(c). The Act also takes a much firmer line against the prosecution than previous plans by, for example, removing failure to obtain available witnesses as an excuse for delay. Id. These two provisions are examples of the Congressional decision to restrict the excuses for what may be termed neutral factors like court congestion; they are no longer acceptable. In its discussion of its rejection of calendar congestion and unobtained witnesses as excuses for delay, the House Report on the bill eventually passed as the Speedy Trial Act noted the hard line it was taking against what it termed "institutional delay." It reasoned that
. . . the nature of the concept of speedy trial is one which recognizes that institutional delays occasioned by poor administration and management can work to the detriment of the accused. Placing a prohibition on the granting of continuances for these reasons serves as an incentive to the courts and the Government to effectively utilize manpower and resources so that defendants may be tried within the time limits provided by the bill.
H.R.Rep.No.1508, 93d Cong., 2d Sess., 1974 U.S.Code Cong. & Admin.News pp. 7401, 7426. See Steinberg, Right to Speedy Trial: The Constitutional Right and Its Applicability to the Speedy Trial Act of 1974, 66 J.Crim.L. & Criminology 229, 235 (1975).
To balance the breadth of the Act's prohibition against delay, the remedial section of the Act explicitly provides courts with greater flexibility than any of the predecessor Plans and perhaps even greater flexibility than is allowed by the Constitution. See Strunk v. United States, 412 U.S. 434, 440, 93 S. Ct. 2260, 2263, 37 L. Ed. 2d 56 (1973); H.R.Rep.No.1508, 93d Cong., 2d Sess., 1974 U.S.Code Cong. & Admin.News pp. 7401, 7430. But see Amsterdam, Speedy Criminal Trial: Rights and Remedies, 27 Stan.L.Rev. 525, 535-37 (1975). The Act requires a court to dismiss an indictment after a defendant fails to be indicted or tried within the time set by the Act. But the dismissal may be either with or without prejudice. In making the determination as to which sanction is appropriate, a court is required to consider "the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of [the Act] and on the administration of justice." 18 U.S.C.A. § 3162(a)(1), (2).
Although the Act does not become fully effective until 1979, it requires the adoption of Interim Plans. The Interim Plan for the Eastern District of New York was effective September 29, 1975. With the exception of some areas that were not covered in previous plans, such as sentencing and juvenile proceedings, the Interim Plan is virtually identical to the 50(b) Plan in effect in the Eastern District since 1973.
A Transitional Plan, effective July 1, 1976, has also been adopted pursuant to the Act. It grants a certain degree of discretion to accept waivers, but its details are of no pertinence since the court has, under the terms of the 1976 Plan, found no waiver by Salzmann and no valid legal reason for prosecutorial delay. Since so little time has elapsed under the Transitional Plan we treat it, for the purposes of this discussion, as if it were identical with the Interim Plan.
2. Application of Speedy Trial Rules to Defendant
All applicable Plans that have been in effect since Salzmann was indicted contain similarly worded provisions that pertain to the circumstances surrounding the delay in the adjudication of his case. The Second Circuit Rules, the 50(b) Plan, and the Interim Speedy Trial Plan contain (1) the basic standard that an indictment must be dismissed if the government is not ready for trial within six months following indictment, (2) an exception to the basic standard when the government cannot obtain the presence of an unavailable defendant by due diligence, (3) a description of the efforts the government must make to obtain a defendant's presence in a situation that is somewhat analogous to that of the unavailable defendant, i.e., when the defendant is imprisoned elsewhere, and (4) an exception to the basic standard when there are exceptional circumstances or excusable neglect.
a. Government Readiness Requirement
Any analysis of whether or not Salzmann has been deprived of his right to a speedy trial as defined by our local Plans must begin with the rule which sets down the basic proposition that unless there is an applicable enumerated exception elsewhere in the rules, the indictment must be dismissed with prejudice if the government is not ready for trial within six months from the start of criminal proceedings. The Second Circuit Rules, which were in effect when Salzmann was indicted, embody this standard in Rule 4. It reads as follows:
4. In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. If the government is not ready for trial within such time, or within the periods as extended by the district court for good cause under rule 5, and if the defendant is charged only with non-capital offenses, then, upon application of the defendant or upon motion of the district court, after opportunity for argument, the charge shall be dismissed.
This basic government readiness rule is contained in Rule 4 of the 50(b) Plan and Rule 5 of the Interim Speedy Trial Plan, which are identical to each other. They read as follows (numbers in brackets refer to Interim Speedy Trial Plan):
4. All Cases: Trial Readiness and Effect of Non-Compliance.
In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. If the government is not ready for trial within such time, and if the defendant is charged only with non-capital offenses, the defendant may move in writing, on at least ten days' notice to the government, for dismissal of the indictment. Any such motion shall be decided with utmost promptness. If it should appear that sufficient grounds existed for tolling any portion of the six-months period under one or more of the exceptions in Rule 5, the motion shall be denied, whether or not the government has previously requested a continuance. Otherwise the court shall enter an order dismissing the indictment with prejudice unless the court finds that the government's neglect is excusable, in which event the dismissal shall not be effective if the government is ready to proceed to trial within ten days.
These Plans would appear on their face to differ from the Second Circuit Rules in two noteworthy respects. First, they state that the dismissal of an indictment for unexcused government delay shall be with prejudice. But, court interpretation of the Second Circuit Rules had established that dismissal under the Rules was also with prejudice. Hilbert v. Dooling, 476 F.2d 355 (2d Cir.) (en banc), cert. denied, 414 U.S. 878, 94 S. Ct. 56, 38 L. Ed. 2d 123 (1973). Second, the two more recent Plans contain an excusable neglect provision that permits a court to allow the government to proceed to trial immediately despite the fact that no enumerated exception can be cited to toll the six-month time limit on delay. This escape hatch will be discussed in more detail later, along with similar provisions in the Plans. See II A 2 d, infra.
Since Salzmann was indicted in June of 1972, the Second Circuit Rules required the government to be ready for trial by December of 1972. When the United States Attorney in the Eastern District of New York is ready for trial it is the United States Attorney's practice to communicate that readiness by issuing a written notice of readiness. This practice was made mandatory by the Second Circuit in United States v. Pierro, 478 F.2d 386 (2d Cir. 1973). The court in Pierro stated it would be
inconsistent with the intent of the Circuit Council . . . and with sound public policy, to free the Government from the responsibility of communicating its readiness for trial to the court.
478 F.2d at 388. Government issuance of a notice of readiness eliminates the necessity for an evidentiary hearing to determine whether in fact the government was ready for trial within the six-month period in those cases which go to trial after the period has run. The notice also assists district courts in control of their calendars. And, ultimately, it is the district courts' ability to control their calendars efficiently that will determine if the objectives of the Rules can be achieved. The government has yet to file a notice of readiness in the Salzmann case. As a result, unless the six-month period is tolled by one of enumerated exceptions or the government's neglect is excusable, the indictment must be dismissed. See, e.g., United States v. Flores, 501 F.2d 1356, 1358-59 (2d Cir. 1974); United States v. Favaloro, 493 F.2d 623, 624 (2d Cir. 1974); United States v. Scafo, 480 F.2d 1312, 1318 (2d Cir.), cert. denied, 414 U.S. 1012, 94 S. Ct. 378, 38 L. Ed. 2d 250 (1973).
b. Requirement that Government Exert Due Diligence to Obtain Unavailable Defendants
All three Plans toll the six-month period in which the government must be ready for trial when the delay is occasioned by the unavailability or absence of the defendant. The Second Circuit Rules embody ...