Full opinion text
MEMORANDUM AND ORDER 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. I. FACTS 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). II. LAW 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 ease 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. 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 [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. Id. at 265. The lengthening of delays in the 1960’s is also a consequence of 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 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 rule-making 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 a. ABA Standards 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) (3V3 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.[5] 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[6], 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 this exception in Rule 5(d), which reads as follows: 5. In computing the time within which the government should be ready for trial under rules 3 [incarcerated defendants] and 4, the following periods should be excluded: . (d) The period of delay resulting from the absence or unavailability of the defendant. A defendant should be considered absent whenever his location is unknown and in addition he is attempting to avoid apprehension or prosecution or his location cannot be determined by due diligence. A defendant should be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence. . The 50(b) Plan and the Interim Speedy Trial Act Plan have an almost identical exception in Rules 5(d) and 6(d), respectively. The only major variation is the shortening of the definition of an absentee to read: A defendant should be considered absent whenever his location is unknown. In short, the rules define an absent defendant as one whose location is unknown to the government. Since Salzmann diligently kept his draft board and then the United States Attorney informed of his address in Israel, the Plans’ definitions prevent him from being numbered among absent defendants. The other provision of 5(d) [6(d)] pertains to defendants whose location is known by the government and yet whose presence the government is unable to obtain by due diligence. Such defendants are labelled unavailable. The Transitional Speedy Trial Act Plan effective from July 1, 1976, adds a further elaboration to the definition of unavailability. It reads A defendant . . . shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial. Rule 10(a)(3)(B). There is no indication in the record that Salzmann has resisted any attempts the government has made to produce him for trial. There is no record that the government has made any effort, beyond indicting the defendant, to procure Salzmann’s presence. The crucial phrase in the definition of unavailability remains, therefore, the due diligence clause of the predecessor Plans. Because the government has not demonstrated that it could not have obtained Salzmann’s presence in the United States, both before and after indictment, the government’s failure to do so amounts to a failure to exercise due diligence. As a result, this exception cannot be relied upon by the government to toll the requirement that it be ready for trial within six months of indictment. In almost every piece of the correspondence that Salzmann had with the government following the scheduling of a pre-induction physical, he alluded to his financial inability to travel abroad. In his letter of December 17, 1970, for example, he explained his inability to show up at the physical was . due to the shortage on my part of the necessary Dollars required to undertake such a trip. This is also the reason for my continuing failure to appear at said physical examination. Although I work at present I get paid only in local currency and a trip abroad must be paid for in Dollars or else an exorbitant tax is levied. The money that I make is barely enough to support my wife and me and we find it quite impossible to save enough money in the immediate future for such a large expense. He concluded the letter with the plea, futile as it turned out, that the government “take my situation into account.” On January 6, 1971, Salzmann answered his notification to report for induction with the following explanation: I wish to inform the Board that since I am in Israel I have no means at my disposal to appear at the Examination and Entrance Station at fort [sic] Hamilton at the time and date specified. And again, he wrote on February 13, 1971: Please be advised that at no time did I assert that I have no intention of complying with my obligation to report for induction. I did, however, mention that my financial situation does not at this time allow me a trip to the United States. Despite Salzmann’s repeated explanations that finances prevented him from leaving Israel for either his military obligations or court proceedings, the government neglected to inform him of the travel assistance it had at its disposal. On June 14, 1971, approximately a year before the indictment, the rules for processing overseas registrants were significantly liberalized by a revision of Local Board Memorandum No. 73. 4 Sel.Serv.L.Rep. 2190. The 1971 revision required that overseas registrants be provided with a Transmittal Letter for Delivery for Induction informing them of the assistance available to transport them between their overseas residence and the overseas preliminary processing point, and between the preliminary processing point and the continental United States Examining and Entrance Stations. The Memorandum instituted a flexible system of aid combining military and commercial transportation. It ordered the Army Area Commander in whose jurisdiction the overseas registrant resided to (2) Authorize transportation of registrant from United States military air base closest to his place of overseas residence to collection point if required. (3) Advise registrant of the name and location of the military air base and flight information for his transportation to the collection point and furnish him necessary travel authorization. Local Bd. Memo. No. 73, ¶ 7(b), 4 Sel.Serv.L. Rep. 2190:2. If the registrants [were] not found acceptable for induction into the Armed Forces during processing at the collection point [, then] registrants who were delivered to the collection point shall be authorized return air transportation when requested. Id. ¶ 7(b)(7). Those registrants found acceptable for induction, however, would be provided with necessary Travel Orders or MAC Transportation Requests for return to the continental United States and advice of particular flight arrangements. Id. ¶ 7(b)(8). Once in the United States the registrants were to report to their appropriate local board, which would provide Transportation by commercial or other expeditious means . to . Armed Forces Examining and Entrance Station. Id. ¶ 7(c)(2), (3). If the registrant failed to qualify for induction into the Armed Forces [, then he] may elect to (1) be released from Armed Forces Examining and Entrance Stations or (2) request air transportation back to initial place of reporting for delivery or collection point established by the Army Commander of the area of jurisdiction. . When the registrant elects to be returned overseas, the AFEES Commander will prepare Military Travel Authorization for return from Port of Aerial Embarkation to overseas point at which registrant reported to Army Area Commander for delivery for induction. AFEES Commander will also provide registrant with commercial transportation ticket or travel authorization furnished by aligned local board for his return to local board. Id. ¶10. In summary, the Memorandum provided a comprehensive, intricate system of transportation for overseas registrants like Salzmann to and from processing points. It is true that the Memorandum went into effect after the initial dates for Salzmann’s physical examination and induction, but the Memorandum was nevertheless highly pertinent to him because of his continuing duty to report for pre-induction. 32 CFR 1628.-10(b) (1972) provides in part: Regardless of the time when or the circumstances under which a registrant fails to report for armed forces examination when it is his duty to do so, it shall thereafter be his continuing duty from day to day to report for armed forces examination to his local board and to each local board whose area he enters or in whose area he remains. Even if the Memorandum had never existed, the government was probably under an obligation to provide travel assistance for needy Americans it ordered to return from residence abroad. A failure to do what is impossible negates mens rea. Cf. A.L.I. Model Penal Code § 2.01. Admittedly, it was Salzmann’s duty to fulfill his military obligations. But it is very harsh not to give him necessary assistance in the performance of his duty, especially when he was not actively avoiding his obligations and when travel assistance in the form of free space on a military flight would have been relatively easy to provide. It is in the interests of both the country and the individual citizen that the government lighten the burdens it imposes on its citizenry whenever possible. In another situation in which Americans have an obligation to their country, that is, appearance pursuant to subpoena, the government has taken pains to provide assistance to those living abroad. There is a statute ensuring that travel expenses will be tendered to Americans living abroad who are subpoenaed to appear as witnesses in the United States. 28 U.S.C. § 1783. In United States v. Danenza, 528 F.2d 390 (2d Cir. 1975), tender of such expenses was a necessary predicate to a finding that a grand jury witness was in civil contempt for failure to comply with the subpoena. How much more important to tender travel expenses when it will allow the recipient to fulfill his military obligations or when it will ensure his constitutional right to a speedy trial. The phrase “due diligence,” if it is to have any meaningful content must at the very least embody the responsibility of the government to read its mail and respond intelligently. If the government has at its disposal a means of procuring a defendant’s presence with a minimum expenditure of effort, and here the effort may only have entailed informing the defendant of an existing government program of travel assistance, then due diligence must require the government to make this effort. The government cannot complain of the defendant’s continued unavailability when the government chooses not to employ means readily at its disposal to procure his presence. See United States v. Estremera, 531 F.2d 1103 (2d Cir. 1976) (government’s mistaken reliance on deportation rather than extradition did not negate good faith). Cf United States v. Knight, 529 F.2d 594 (2d Cir. 1975) (period after defendant’s location in Canada from disappearance to arrest in Florida excluded). Instead of acknowledging its dereliction, the government has responded to Salzmann’s speedy trial rule claim as follows: We . . .do not believe that a fugitive defendant may assert a claim that he has been deprived of his right to a speedy trial. Letter of Assistant United States Attorney Thomas Maher, United States v. Sidney Salzmann (Jan. 16, 1975). The government’s response disregards the Rules’ directive that the government use due diligence to try to obtain the defendant’s presence. By stressing that the defendant is a fugitive, the government seeks to absolve itself from making any effort to procure his presence for trial. Rule 5(d) is specifically addressed to those situations in which the accused is a fugitive and places the burden of due diligence on the government nonetheless. In cases preceding speedy trial plans, and even in cases preceding modern Supreme Court Sixth Amendment decisions, courts have held that circumstances did not justify delay when the accused was “unavailable” only because of the negligence of authorities in failing to pursue him, and not because of any deliberate evasion on the part of the accused. See, e. g., People v. Serio, 13 Misc.2d 973, 181 N.Y.S.2d 340 (1958) (“mere failure of defendant to take affirmative action to prevent delay may not . . . be construed as a waiver . . . ”). The government’s failure to respond to Salzmann in any meaningful way may be particularly egregious since this is a draft case. In a long line of cases covering diverse areas of the intricate draft laws and accompanying regulations, courts have required the government to inform draft registrants of their options and rights because counsel is almost never available prior to indictment. This has not only been true in instances of fairly esoteric provisions, e. g., Chernekoff v. United States, 219 F.2d 721, 723 (9th Cir. 1955) (government notice to registrant must inform him of his statutory right to summary of information in his selective service file which might tend to defeat his request for a classification change); United States v. Dix, 4 Sel.Serv.L.Rep. 3051 (S.D. Ohio 1971) (requirement that Selective Service System must notify registrant if the job which he is performing is unacceptable for alternative service), but also when well-known, basic privileges are at stake, e. g., United States v. Turner, 421 F.2d 1251, 1255 (3d Cir. 1970) (local board must supply registrant with appropriate form or otherwise inform him of needed procedures when he makes known to local board desire to claim conscientious objector status); United States v. Moyer, 307 F.Supp. 613, 615 (S.D.N.Y.1969) (requirement of 32 C.F.R. § 1621.11 imposing duty on local board to provide conscientious objector Form 150 interpreted as mandatory and fatal to indictment if not fulfilled); United States v. Sobczak, 264 F.Supp. 752 (N.D.Cal.1966) (in ascertaining a conscientious objector claim local board may not limit it to specific, formalized claims). While the regulations and cases just referred to relate, in the main, to preindictment obligations of the government, a fortiori they apply to the post-indictment period. The government has an obligation, at the very least, to inform a defendant claiming lack of sufficient funds to travel to the place of trial, that the United States will advance his costs of transportation. When the government’s action in the Salzmann case is compared to its handling of selective service prosecutions generally, its unresponsiveness to Salzmann seems part of a pattern, rather than aberrational. Selective Service cases are unique in the percentage of long-term indictments pending due to the defendants’ fugitive status. The table below shows a dramatic difference between Selective Service cases and other cases in terms of the number of defendants in fugitive status. Administrative Office of the United States Court, 1974 Semi-Annual Report of the Director 53. Over 90% of the selective service defendants in cases pending a year or more were fugitives as of the end of 1973, as opposed to 64% of the narcotics defendants, the next highest category reported. The great disparity between selective service cases and others suggests that delays in enforcement of the selective service laws may have had a disproportionately unfair impact on this category of defendants. See generally National Advisory Commission on Selective Service, In Pursuit of Equity: Who Serves When Not All Serve? 19 (1967); Tigar & Zweben, Selective Service: Some Certain Problems and Some Tentative Answers, 37 Geo.Wash.L.Rev. 510 (1969). The high number of fugitives, and as a result, the long trial delays in selective service cases, are due in part to the government’s systematic failure to exert the same amount of effort to procure the appearance of Selective Service indictees for trial as it exerts to procure the appearance for trial of persons charged with other federal felonies such as bank robbery, interstate kidnapping, and skyjacking. The court knows, both from its own records and from other judicially noticeable facts, that the government does make the most strenuous efforts to procure the appearance for trial of persons charged with non-Selective Service felonies of the types mentioned, and does not hesitate to seek the return of such persons through diplomatic efforts. This is true even when an extradition treaty does not cover the offense. See, e. g., Fiocconi v. Attorney General, 462 F.2d 475 (2d Cir. 1972), cert. denied, 409 U.S. 1059, 93 S.Ct. 552, 34 L.Ed.2d 511 (1972). Professor Evans has described the numerous practical alternatives to extradition to which this country resorts in “Acquisition of Custody Over the International Fugitive Offender— Alternatives to Extradition: A Survey of United States Practice,” 1964 British Yearbook Int’l L. 77 (issued 1966). She concludes that use of these informal measures to obtain fugitives from other nations is inevitable since the bilateral formal agreements upon which extradition is based cannot be expected to “meet all contingencies arising out of a fugitive’s taking asylum abroad.” Id. at 103. In contrast, no serious effort has been made to locate and apprehend any of the allegedly fugitive Selective Service defendants who are on this court’s docket or to procure their extradition by foreign nations. As recently as 1972, it was reported, and not denied, the government had not requested other governments to extradite or deport selective service indictees. See Note, Legal Status of American War Resisters Abroad, 5 N.Y.U.J. Int’l L. & Pol. 503, 522 (1972). The Justice Department admits that “no request has been made upon the Israeli Government for the extradition of fugitives who have been indicted for violation of our selective service statutes.” Affidavit of Murray R. Stein, Criminal Division, Dep’t of Justice, in United States v. Salzmann, 72-CR-740 (June 2, 1976). The question remains whether efforts by the government would have been so obviously futile as to excuse it from making them. The government has no .legal right under present extradition treaties to demand extradition of the defendants from the countries in which most of them reside. Extradition treaties with Canada and Sweden do not require them to honor United States requests to return our military fugitives. The extradition treaties presently in force between the United States and Canada do not include flight from military service in the list of enumerated, extraditable offenses. The only agreement between the United States and Canada regarding fugitives from military service is no longer in force. Between October 26,1945, and April 28, 1952, the executive agreement entitled “Apprehension and Return of Deserters from Armed Forces” provided for cooperation between American and Canadian military authorities in “apprehending such offenders and returning them to the custody of the appropriate authority of the government from whose military service they have deserted or are absent without leave.” Letter from Ray Atherton, Exchange of Notes at Ottawa, Canada, June 13 and October 26, 1945. [1945] A.D. No. 493, 6 Bevans 403. The current extradition treaty between the United States and Sweden specifically excludes military offenses. The Convention on Extradition with Sweden Together with Related Protocol, October 21, 1961, Article V., which enumerates those circumstances under which extradition shall not be granted, reads in part: 4. When the offense is purely military. 5. If the offense is regarded by the requested State as a political offense or as an offense connected with a political offense. [1961] 14.2 U.S.T. 1845, T.I.A.S. 5496. Our treaty with Israel does not require that country to surrender Salzmann either. Even though Israel does have a draft, its extradition treaty with us does not explicitly cover this offense. See Convention on Extradition Between the Government of the United States of America and the Government of the State of Israel, December 5,1963,14 UST 1707. Article 21 of the Israeli Extradition Act prohibits surrender for offenses other than those specified if a treaty requires enumeration, as does the Extradition Convention Between Israel and the United States. Even if the federal government lacks the legal right to demand extradition, it may be required by the due diligence clause to request surrender of the defendants. Unless the asylum country has explicitly denied a request for extradition as a matter of comity (or a request for deportation, which would ordinarily have the same effect), it cannot be assumed that such a request would be denied—so that failure to make the request is failure to act with due diligence. United States v. McConahy, 505 F.2d 770 (7th Cir. 1974). Every nation has the sovereign power, under international law, to extradite fugitives if it so elects. See Fiocconi v. Attorney General, 462 F.2d 475, 478 (2d Cir. 1972), cert. denied, 409 U.S. 1059, 93 S.Ct. 552, 34 L.Ed.2d 511 (1972); Chandler v. United States, 171 F.2d 921, 935 (1st Cir. 1948), cert. denied, 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081 (1949); United States v. Sobell, 142 F.Supp. 515, 524 (S.D.N.Y.1956), aff’d, 244 F.2d 520 (2d Cir.), cert. denied, 355 U.S. 873, 78 S.Ct. 120, 2 L.Ed.2d 77 (1957). See also Mancusi v. Stubbs, 408 U.S. 204, 222-24, 92 S.Ct. 2308, 2317-18, 33 L.Ed.2d 293 (1972) (Marshall, J., dissenting). 6 Whiteman, Digest of International Law 727-28 (1968); Tate, Draft Evasion and the Problem of Extradition, 32 Albany L.Rev. 337, 355-57 (1968). The most widely recognized ground for refusing to cooperate with another country’s attempts to obtain an accused is the recently developed political offense exception. See Note, The Status of Political Fugitives and Refugees under United States Law, 2 B’klyn J.Int’l L. 264, 269 (1976). See generally 2 A Treatise on International Criminal Law 362 (M. C. Bassiouni & V. Nanda eds. 1973) (military and political offenses generally not extraditable); Tate, Draft Evasion and the Problem of Extradition, 32 Albany L.Rev. 337, 355-57 (1968) (political offenses not extraditable). There is no reason to believe, however, that Israel would invoke this doctrine. From the record available so far, Salzmann’s refusal to appear for induction was not politically motivated, but rather the result of financial constraint. At no point did he state that he was protesting any policy of the government. The Supreme Court has not ruled on the precise questions here involved—whether the federal government is obligated to seek, through diplomatic channels, the return of the felony defendant who has fled to another country. It has held, though, in a speedy trial case, that when “two separate sovereignties” were involved, the former “had a constitutional duty to make a diligent, good-faith effort” to obtain the defendant who was incarcerated in the latter in order to bring the defendant to trial promptl