board received another Form 109-A. This one indicated defendant would be graduated in May 1968.
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 consider defendant's claim for I-O classification.
On August 21, state headquarters returned defendant's file to the local board along with a letter which incorporated the suggestion of the United States Attorney.
On June 24, 1968, the local board received another Form 109 from Cheyney which indicated that defendant continued to be enrolled as a full-time student, was attending summer school and was expected to be graduated in May 1969.
On October 9, 1968, a memorandum in defendant's file indicates defendant telephoned the local board and stated that he had had difficulty in receiving his mail and had only the day before received SSS Form 150 (Special Form for Conscientious Objectors). He was told he should submit it immediately.
On October 11, 1968, the local board requested defendant to appear before it on October 18 to discuss his classification. On December 11, the local board forwarded defendant's file to state headquarters along with a letter stating that defendant had failed to return the Form 150 and had failed to appear before the board.
On December 16, 1968, state headquarters informed the United States Attorney of these facts and stated that it appeared that the defendant had been afforded all applicable procedural rights.
A year later, on December 23, 1969, the United States Attorney requested state headquarters to send an up-to-date Selective Service file in order that the file could be given "a proper review." Nothing had been added to the file since December 11, 1968.
Fourteen months after that the United States Attorney again requested state headquarters to furnish copies of any documents added to defendant's file since December 11, 1968. No new documents had been added.
Defendant contends that dismissal of the indictment is required under Federal Rule of Criminal Procedure 48(b) because there has been unnecessary delay in bringing the defendant to trial, and under the Sixth Amendment because the defendant has been denied his right to a speedy trial.
The government responds, citing Kroll v. United States, 433 F.2d 1282 (5th Cir. 1971), that the rights conferred by Rule 48(b) and the Sixth Amendment do not accrue to a defendant until he is indicted and, therefore, that an indictment returned within the period provided by the applicable statute of limitations may not be challenged on Sixth Amendment or Rule 48(b) grounds. The government also argues that, in any event, the defendant, to justify dismissal, must demonstrate that he was prejudiced by the delay and that the defendant has not done so here.
The government's first argument must be rejected in the face of the language of Rule 48(b):
"If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer in the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint."
The construction the government suggests does violence to the clear language of the Rule, which obviously contemplates the dismissal, in certain situations, of indictments valid under the statute of limitations. See 3 C. Wright, Federal Practice and Procedure, § 815 at 321-22 (1969).
There appear to be three related theories upon which dismissal for pre-indictment delay can be based. The first two, the right to a speedy trial and the inherent power of the court to dismiss a case for lack of prosecution, are implemented by Rule 48(b). Pollard v. United States, 352 U.S. 354, 361, n. 7, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957); Mann v. United States, 113 U.S. App. D.C. 27, 304 F.2d 394, 398, cert. denied 371 U.S. 896, 83 S. Ct. 194, 9 L. Ed. 2d 127 (1962); C. Wright, supra, § 814; 8A J. Moore, Federal Practice 48.03. The third is the Fifth Amendment due process right of a defendant not to be deprived of the ability to defend himself by unnecessary delays caused by the government. Ross v. United States, 121 U.S. App. D.C. 233, 349 F.2d 210, 216 (1969).
This latter theory has been utilized in the Third Circuit in two recent cases dealing with pre-prosecution delay. United States v. Childs, 415 F.2d 535 (3rd Cir. 1969); United States v. Feldman, 425 F.2d 688 (3rd Cir. 1970). Under this analysis a defendant's
"rights under the due process clause must be determined by a balance between the need of law enforcement officials to delay prosecution and the prejudice to the defendant caused by the delay." United States v. Feldman, supra, at 691.