United States v. Lockwood

• Decision Date: 26 November 1974
• Docket Number: No. CR 43456.,CR 43456.
• Citation: 386 F. Supp. 734
• Parties: UNITED STATES v. Howard G. LOCKWOOD.
• Court: U.S. District Court — Eastern District of New York

386 F. Supp. 734

UNITED STATES v. Howard G. LOCKWOOD.

No. CR 43456.^*

United States District Court, E. D. New York.

November 26, 1974.

David G. Trager, Brooklyn, N. Y., U. S. Atty., E. D. N. Y., for plaintiff; Edward R. Korman, Thomas Maher, Brooklyn, N. Y., of counsel.

Louis Lusky, New York City, for defendants.

Michael E. Tigar, Williams, Connolly & Califano, Washington, D. C., amicus curiae.

MEMORANDUM AND ORDER

WEINSTEIN, District Judge.

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

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

I. DELAY IN BRINGING THESE CASES TO TRIAL

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

II. SPEEDY TRIAL RULES

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

III. SIXTH AMENDMENT

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

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

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

"Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." 407 U.S. at 533, 92 S.Ct. at 2193.

See also, e.g., United States v. Lasker, 481 F.2d 229, 237 (2d Cir. 1973), cert. denied, 415 U.S. 975, 94 S.Ct. 1560, 39 L.Ed.2d 871; United States v. Infanti, 474 F.2d 522, 527 (2d Cir. 1973); United States v. Counts, 471 F.2d 422, 426-427 (2d Cir.), cert. denied, 411 U.S. 935, 93 S.Ct. 1909, 36 L.Ed.2d 395 (1973): United States v. Fasanaro, 471 F.2d 717 (2d Cir. 1973); United States v. Colitto, 319 F.Supp. 1077 (E.D.N.Y.1970).

Certainly the length of delay in prosecuting these indictments is sufficient to cause us to inquire into the other factors that go into the balance. The delay, of course, is mitigated by the reason for the delay — in this case, the government's alleged inability to bring the defendants before the court.

Defense counsel argues that the government did not prosecute these defendants with due diligence in two respects. First, it contends that the return of the defendants was not sought through diplomatic channels. As recently as 1972, it was reported, and not denied, that the government did not request other governments to extradite or deport selective service indictees. See Gosfield, American War Resisters, 5 N. Y.U.J.Int'l L. & Pol. 503, 522 (1972). It is urged that the standard used by the Supreme Court in Smith v. Hooey, 393 U.S. 374, 393, 89 S.Ct. 575, 579, 21 L.Ed.2d 607 (1969), where the Court decided that it was a state's duty to bring to trial a defendant incarcerated by authorities beyond its territorial jurisdiction, should be applied here. The situations, however, are not analogous. The practical relationship between state authorities and between state and federal authorities differs from that between our government and a foreign government. Id. at 380-381, 89 S.Ct. at 578-579.

Moreover, the political climate existing at the time must be considered in judging the reasonableness of the government's efforts. We take judicial notice of the fact that the governments and populace of the countries in which many draft fugitives sought asylum had expressed antipathy toward this country's participation in the Vietnam war. See, e. g., N.Y. Times, Nov. 3, 1974, § 6 (Magazine), 51, 66. American public opinion was also divided. Pressing strenuously for extradition might have seriously exacerbated feelings of hostility both at home and abroad. Given the serious doubt about whether any extradition treaty applied to what these other countries may have considered political rather than criminal offenses, the decision not to seek extradition in all cases does not appear unreasonable. See generally 2 A Treatise on International Criminal Law 309-355 (M. C. Basiouni & V. Nanda eds. 1973) (military and political offenses generally not extradictable); Tate, Draft Evasion and the Problem of Extradition, 32 Albany L.Rev. 337, 355-57 (1968) (political offenses not extradictable). These factors, while not directly relevant to those normally associated with delays in the administration of justice — e. g., absence of witnesses and calendar congestion — do have a bearing on the bona fides of the government's action.

Nevertheless, the government's decision not to utilize legal process to attempt to return these fugitive defendants must be weighed against the importance of individual rights. The right to a speedy trial cannot be ignored merely because the government determines that extradition or other procedures are inconvenient or unavailable. In some situations, the Supreme Court has ruled that where individual rights are at stake, the government, unless it adheres to constitutionally mandated procedures, must suffer a dismissal of its indictment. Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 972, 22 L.Ed.2d 176 (1969). In other cases, such as that involving the disclosure of an informant's identity, the court has found that there is no fixed rule: "The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628-629, 1 L.Ed.2d 639 (1957). See also United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953); United States v. Fernandez, 506 F.2d 1200 at 1202 (2d Cir. 1974). Since, as we have noted, the second approach, calling for the balancing of a number of factors, is to be applied to speedy trial contentions, the government's action, or inaction, is not conclusive.

Second, defense counsel asserts that the government had a duty to seek out the defendants with all the investigative resources at its command and to summon before a grand jury parents, relatives, and friends, to testify as to the whereabouts of the accused. Courts have not, in general, recognized any privilege of a mother, father, relative or friend to refuse to testify on grounds analogous to those underlying the husband-wife privilege. Yet, the absence of any such rule of privilege should not be construed as a prosecutorial imperative to place parents and friends in such a difficult and conscience-taxing position. Cf. Branzburg v. Hayes, 408 U.S. 665, 707-708, 92 S.Ct. 2646, 2670, 33 L.Ed.2d 626 (1972...