United States v. Salzmann

• Decision Date: 16 July 1976
• Docket Number: No. 72-CR-740.,72-CR-740.
• Citation: 417 F. Supp. 1139
• Parties: UNITED STATES of America v. Sidney SALZMANN, Defendant.
• Court: U.S. District Court — Eastern District of New York

417 F. Supp. 1139

UNITED STATES of America v. Sidney SALZMANN, Defendant.

No. 72-CR-740.

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

July 16, 1976.

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David G. Trager, U. S. Atty., E. D. of N. Y., Thomas R. Maher, Asst. U. S. Atty., Brooklyn, N. Y., for the United States.

Louis Lusky, New York City, for defendant.

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 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...