U.S. v. Salzmann, 272

• Citation: 548 F.2d 395
• Decision Date: 28 September 1976
• Docket Number: No. 272,D,272
• Parties: UNITED STATES of America, Appellant, v. Sidney SALZMANN, Appellee. ocket 76-1357.
• Court: U.S. Court of Appeals — Second Circuit

Page 395

548 F.2d 395

UNITED STATES of America, Appellant, v. Sidney SALZMANN, Appellee.

No. 272, Docket 76-1357.

United States Court of Appeals Second Circuit.

Argued Sept. 2, 1976.

Decided Sept. 28, 1976.

Edward R. Korman, Chief Asst. U.S. Atty., Eastern District of New York, Brooklyn, N.Y. (David G. Trager, U.S. Atty., Eastern District of New York, Brooklyn, N.Y.), for appellant.

Louis Lusky, New York City, for appellee.

Before KAUFMAN, Chief Judge, and FEINBERG and VAN GRAAFEILAND, Circuit Judges.

IRVING R. KAUFMAN, Chief Judge:

Thousands of young men in Canada, Sweden, and elsewhere, who fled from their military obligations in the Vietnam era, are now condemned by outstanding indictments to a bitter exile. The plight of these youths is a matter of serious national concern, and we can only sympathize with those who must confront the grave moral questions raised by this living remembrance of the agony of Vietnam. But although we understand Judge Weinstein's desire to contribute to the solution of this national problem, we find it unnecessary and inappropriate to endorse fully the broad implications of all his grounds for holding that Sidney Salzmann, a selective service offender living in Israel whom the Government made no effort to have returned for trial, was denied the speedy trial vouchsafed him by this Circuit's rules and the Sixth Amendment.

The question to be decided on this complex appeal has been narrowed, for the Government has spared us the travail of deciding all the issues raised in Judge Weinstein's voluminous opinion. It has conceded it should have responded to Salzmann's intimation that a reason for his failing to return for trial was financial inability to do so by informing him he would be provided free transportation, if necessary, back to New York. The Government also agreed that the failure to do this constituted a lack of due diligence. In this case, however, it insists we should remand for a hearing on the good faith of Salzmann's assertion that he failed to appear for trial because he lacked the necessary funds. ¹ Because we believe this remand is unnecessary, we affirm on the limited ground presented by the Government's concessions.

I.

A brief summary of the relevant facts will aid in the understanding of this case. In 1969 Sidney Salzmann was a rabbinical student and enjoyed a IV-D draft deferment. During the latter part of the year, however, he moved with his wife to Israel and abandoned his studies. His draft board was duly notified of these events, and on January 20, 1970, reclassified him I-A.

In March, Salzmann was ordered to report to Jamaica, Queens, for a preinduction physical examination on May 3, 1970. Because Salzmann was abroad, however, the board rescheduled the examination for May 27 at Livorno, Italy. Salzmann failed to appear. In a letter dated June 20 the local board reminded Salzmann of his continuing obligation to report, and advised him to arrange a new date with the Army for his physical examination. Salzmann forebore responding until December 17, 1970. At that time he blamed his failure to submit to examination on "the shortage . . . of the necessary Dollars. . . ."

Salzmann's explanations apparently came too late, for on December 22, 1970, the local board ordered him to report to Fort Hamilton, New York, for induction. Several days later, in evident response to Salzmann's financial complaint, the board sent a second letter, reminding him of his obligation to report and asserting that he would have to "pay all travel expenses involved." Salzmann's reply to the induction order was immediate. On January 6, 1971, he wrote

Having just received my order to report for induction 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.

He then continued:

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 rational 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 Defense 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 can be inducted into the Israel Defense Forces, at which time I hope my case can be closed legally.

Salzmann's local board ignored both the ambiguity concerning his intention to return if funds were available and Salzmann's fuller response. It advised him that, since he had failed to report for induction and "had no intention to comply with such obligation in the immediate future," it was referring his case to the United States Attorney for prosecution. Salzmann wrote in reply "that at no time did I assert that I have no intention of complying with my obligation to report for induction." This letter, dated February 13, 1971, was forwarded to the U.S. Attorney by the local board and inserted in Salzmann's Selective Service file. By this time the file contained enough information to raise a serious question whether Salzmann was unwilling to fulfill his military obligation if his return to the United States were financed by the Government.

Nearly a year and a half later, on June 26, 1972, an indictment was filed charging Salzmann with two counts of failing to perform a duty imposed by the Selective Service Act, 50 U.S.C.App. § 462(a) refusal to appear for physical examination and failure to report for induction. The case was scheduled to be called before Judge Weinstein August 18. Salzmann, of course did not appear. On September 25, however, he addressed a letter to Assistant U.S. Attorney Thomas R. Maher, attributing his absence to receipt of the indictment on August 17, 1972, only one day before the case was called. He continued:

In addition to this I should mention that I am not financially equiped (sic) at the present moment to undertake a voyage of this nature.

Salzmann then proceeded to develop the themes adumbrated in his letter of January 6, 1971, to the local board.

"My purpose in leaving the country," he wrote, "was not evading military service . . . I had been planning to move to Israel for many years. This was the aim of all my studies and training, it was my goal and purpose in life and moving to Israel was the culmination of many years of Zionist training and upbringing . . . I believe that I have the basic right to live in the country of my choice and especially in Israel, which is the historic homeland of my people."

Salzmann indicated that, as a permanent resident of Israel, he expected to be called soon for that country's military service, and, he declared,

When called I will serve and it is my sincere hope that upon serving in the Israel Defense Forces my status will change as regards my eligibility for, and responsibility to the American Army. Since the relations between our two countries are quite friendly I am sure that my service here will in no way be looked upon as subversive but rather as an alternative.

Salzmann concluded:

It is in the light of the abovementioned facts that I come to you today with a sincere request that you do all in your power to have the charges against me dropped.

The record does not reflect any response by the Government to Salzmann's explanation or plea. ² Nor did the Government make any subsequent effort to obtain Salzmann's return for trial. The indictment languished for nearly two years, until Judge Weinstein decided to clear his docket of selective service cases. His effort has resulted in this appeal.

Initially, Judge Weinstein appointed Professor Louis Lusky counsel for all of the 26 fugitive draft evaders whose cases were on the Judge's calendar. Even then Judge Weinstein displayed a lively interest in the general problem of Vietnam era exiles, for the primary task assigned to Professor Lusky was to weed out defective indictments so that draft evaders with strong defenses would not be coerced into alternate service under President Ford's amnesty plan. See United States v. Lockwood, 382 F.Supp. 1111, 1113-15 (E.D.N.Y.1974). Accordingly, the Government was ordered to make available to Professor Lusky the fugitives' Selective Service files. United States v. Lockwood, 386 F.Supp. 734, 739-41 (E.D.N.Y.1974). We directed Judge Weinstein to vacate this order, however, because Mr. Lusky was not authorized by any of the defendants to represent him. United States v. Weinstein, 511 F.2d 622, 628-29 (2d Cir.) cert. denied, Austin v. United States, 422 U.S. 1042, 95 S.Ct. 2655, 45 L.Ed.2d 693 (1975). But we expressly stated we did "not intend to preclude Judge Weinstein from entertaining motions on behalf of fugitive defendants who have agreed that Professor Lusky or any other attorney represent them." Id. at 629.

Salzmann subsequently appointed Professor Lusky to represent him. On September 19, 1975, he moved to dismiss the indictment on the ground that he had been denied a speedy trial. Judge Weinstein reserved decision. In the ensuing months numerous letters and memoranda were filed in support of and in opposition to the motion. On July 16, 1976, Judge Weinstein dismissed the charges on the following grounds:

(1) The Government did not comply with the various speedy trial plans in effect since Salzmann's indictment ³ because it failed to exert due diligence to secure Salzmann's return for trial;

(2) The delay in bringing Salzmann to trial violated his constitutional right under the Sixth Amendment to a speedy trial;

(3) The delay both in presenting the accusation...