Adams, Gibbons and Hunter, Circuit Judges.
In April of 1971, an indictment was returned against Anthony Lewis Jasper, charging him with refusing to submit to induction, in violation of the Selective Service Act of 1967, 50 App. U.S.C. § 462(a). The indictment was returned three years and ten months after the violation is alleged to have occurred and was dismissed by the District Court, 331 F. Supp. 814, on the ground that the delay in bringing Jasper to trial resulted in the deprivation of his constitutional and statutory rights. The government appeals.*fn1
Subsequent to the District Court's order, the Supreme Court in United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), considering, inter alia, the application of the Sixth Amendment to pre-indictment delay, stated "that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engages the particular protections of speedy-trial provision of the Sixth Amendment." United States v. Marion, supra, 404 U.S. at 320, 92 S. Ct. at 463. Jasper's Sixth Amendment argument is, therefore, precluded.
In addition to dismissing the indictment on speedy trial grounds, however, the District Court also cited Fifth Amendment due process violations. Jasper argues that he in fact suffered the necessary "actual prejudice," see, e. g., United States v. Marion, supra, 404 U.S. at 324, 92 S. Ct. 455; United States v. Feldman, 425 F.2d 688 (3d Cir. 1971), since a "defense" to the very validity of the induction order was lost by the subsequent Supreme Court decision in Ehlert v. United States, 402 U.S. 99, 91 S. Ct. 1319, 28 L. Ed. 2d 625 (1971). He argues that this change in the law with respect to the processing of post induction order conscientious objector claims operates to his detriment and amounts to "prejudice" of due process proportions.*fn2
Jasper does not question the constitutionality of the retroactive application of Ehlert. See United States v. El, 443 F.2d 925 (3d Cir. 1971). Rather, he argues that the Ehlert interpretation of 32 C.F.R. § 1625.2, which will be applicable to him only because of alleged "impermissible government delay," would result in "actual prejudice" within the parameters of the Due Process Clause.*fn3 The Government, while arguing that "actual prejudice" sufficient to violate due process, is limited to "evidentiary prejudice," also contends that Jasper never in fact had such a "pre-Ehlert" defense. It argues that his conscientious objector views crystallized prior to the mailing of the induction order, that the Board was therefore precluded from reopening his classification by 32 C.F.R. § 1625.2, and that for these reasons he would have had no defense even under the cases decided prior to Ehlert.
Although there is some indication on the record that Jasper's views crystallized prior to the mailing, we nevertheless conclude that a proper decision by this Court requires additional findings of fact concerning this sequence of events. As it is, of course, preferable to disposed of cases on statutory rather than constitutional grounds, See e. g., Clay v. Sun Ins. Office Limited, 363 U.S. 207, 80 S. Ct. 1222, 4 L. Ed. 2d 1170 (1960); Harmon v. Brucker, 355 U.S. 579, 78 S. Ct. 433, 2 L. Ed. 2d 503 (1956); we believe that further consideration by the District Court on this sequence is appropriate.
The order dismissing the indictment will be vacated and the cause remanded for ...