The opinion of the court was delivered by: FULLAM
On April 21, 1971, an indictment was returned against the defendant charging him with failing to submit to induction into the Armed Forces, a duty required of him by the Military Selective Service Act of 1967. 50 App. U.S.C. § 462(a) (1967). The violation is alleged to have occurred on June 12, 1967. Defendant has moved to dismiss the indictment on the ground that the government's delay in bringing him to trial has resulted in deprivation of his statutory and constitutional rights.
Defendant registered with the Selective Service System on July 30, 1962. On November 18, 1964, after he had completed and returned a classification questionnaire he was classified II-S on the basis of his attendance at Duquesne University. On December 8, 1965, he was reclassified I-A. On January 14, 1966, defendant's local board received notification that defendant had been admitted to the freshman class at Cheyney State College and that defendant would begin a full-time course of instruction on January 27, 1966. Also, on January 14, the local board was notified that defendant had been found medically acceptable for induction and on February 17, defendant was ordered to report for induction on March 2, 1966.
In a letter dated February 23, 1966, defendant's local board informed him that he would not be required to report for induction and that his "case [would] be considered for reclassification" at the local board's March meeting. On March 10, 1966, defendant was classified I-S(C) until May 27, 1966. On June 16, 1966, defendant informed the local board he was an advanced sophomore at Cheyney, and requested a personal appearance. On June 30, 1966, the local board received a letter from Cheyney which stated that defendant was a sophomore whose graduation could not be expected-prior to January 1970.
Defendant appeared before the local board on July 15, 1966. The minutes of the meeting reflect that defendant had withdrawn from Duquesne University in order to help support his mother who was ill at the time, and that he then enrolled at Cheyney. The Clerk was instructed to write to Cheyney to ascertain the reason defendant would not graduate until 1970.
On August 3, 1966, the local board received SSS Form 109-A (Student Certificate) from Cheyney which indicated that Cheyney could not accept all the credits defendant had earned at Duquesne, that defendant was a student in good standing, and that he was scheduled to be graduated in May 1970. On September 15, defendant was again classified I-A.
On October 3, 1966, the local board received another SSS Form 109-A from Cheyney. The numbers on this form are almost illegible; however, it appears to indicate a date of expected graduation in 1968 or 1969.
On May 31, 1967, defendant's local board sent him notice that he was to report for induction on June 12, 1967. On June 7, 1967, after receiving a letter asking him to telephone the local board, defendant was told that there was a possibility that headquarters might postpone his induction. Later that day he was informed he would have to report as originally scheduled. On June 12, defendant did report to the induction station but declined to be inducted.
On June 14, 1967, the adjutant officer of the induction center, in a letter to the United States Attorney, reported defendant's refusal to submit to induction. The letter set forth that at the induction center defendant stated in writing that he was refusing induction because submitting to induction would violate his religious and moral standards. He also requested an appearance before his local board to explain his position. A note in defendant's file signed by the Clerk of the local board indicated that defendant appeared at the local board on June 14, 1967, asked to see his file and stated, inter alia, that he was a conscientious objector.
On July 6, 1967, defendant's file was sent to state headquarters and on July 12, state headquarters returned the file to the local board with a letter stating that the defendant should be reported to the United States Attorney and directing the local board to prepare Form 301 ("Delinquent Registrant Report") and to return it and the file to state headquarters. Apparently this was done, and on August 21, 1967, state headquarters returned the file to the local board with the advice that defendant had been reported to the United States Attorney.
A memorandum dated November 20, 1967, prepared by the clerk of the local board, stated that an Assistant United States Attorney telephoned the local board and informed the clerk that defendant appeared to be a "hard-working student" and requested the clerk to inquire of Cheyney College concerning his academic status. The local board received a Form 109-A from Cheyney on November 22, 1967, which indicated that defendant was enrolled as a full-time student, was a junior, and would receive his degree in May 1969. This information was then given to the United States Attorney.
On August 13, 1968, the United States Attorney suggested to state headquarters that in view of United States v. Stafford, 389 F.2d 215 (2nd Cir. 1968), it would be necessary to have the local board ...