(concurring):
While I agree with the holding of Chief Judge Kaufman’s thoughtful opinion, I would not rest decision here merely on the Government’s concession that it should have notified Salzmann that it would provide him transportation home. Even if Salzmann had never mentioned his financial problem, I would hold that because the Government did nothing to bring him to trial, it did not exercise due diligence under the speedy trial rules then in effect.1 The following is a brief explanation of these views.
Allowing a defendant who is out of the jurisdiction to take advantage of its speedy trial rules may seem incongruous at first. We do not allow a fugitive to prosecute an appeal. Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970) (per curiam); United States v. Sperling, 506 F.2d 1323, 1345 n. 33 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975). Why should we allow a fugitive or others beyond the court’s jurisdiction to rely upon the speedy trial rules and secure dismissal of an indictment at the trial level?2 There are several answers. *404Most important, the public interest in prompt trials, which Chief Judge Kaufman’s opinion emphasizes, is strong enough to suggest that the Government attempt to secure a defendant’s presence for trial even if he is outside the jurisdiction. Also, and for this reason, the speedy trial rules place the burden on the Government to be ready for trial and specifically require diligent efforts to obtain the presence of an absent defendant like Salzmann. In addition, our prior ruling in United States v. Weinstein, 511 F.2d 622, 629 (2d Cir.), cert. denied, 422 U.S. 1042 (1975), which is the law of the case, made clear “that we do not intend to preclude Judge Weinstein from entertaining motions on behalf of fugitive defendants who have agreed that Professor Lusky or any other attorney represent them.” While this is general language and the panel may have had other types of motions in mind, the language obviously includes speedy trial motions on behalf of absent defendants. In short, an absent defendant may invoke the speedy trial rules.
The rules, however, provide that the six-month period in which the Government has to be ready for trial may be tolled if the defendant is “unavailable” and
A defendant should be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence.3
Thus, if the Government exercises “due diligence” to obtain a defendant’s presence but is unsuccessful in doing so, it is not prejudiced! To answer the question posed above, then: A true fugitive, whose location is unknown, or who is successfully resisting government efforts to bring him into the jurisdiction, will not be able to obtain dismissal of an indictment.4 This is as it should be. Otherwise, the courts would be sanctioning the playing of games by fugitives.
For the Government to protect itself here, however, it must show that it has exercised “due diligence.” Yet, it made no effort to obtain Salzmann’s presence. The Government tells us that after it notified Salzmann that he had been indicted and then replied to Salzmann’s letter, dated September 25, 1972, by advising him that the charges would not be dropped, the prosecutors did nothing further. How can we say that this inaction amounted to “due diligence”? Cf. United States v. McConahy, 505 F.2d 770 (7th Cir. 1974). See also United States v. Estremera, 531 F.2d 1103, 1107-08 (2d Cir. 1976), where the panel assumed that had deportation proceedings not been pending in Canada, the Government would have had to request extradition to qualify as diligent.
The question immediately arises: What should the Government have done? Judge Weinstein found that it should have requested Israel’s cooperation even though the extradition treaty does not cover Salzmann’s alleged offense. The judge made this finding after taking judicial notice of “a reasonable possibility that Israel would have cooperated in obtaining Salzmann’s return had it been asked to do so.” Salzmann’s counsel at oral argument stated that we need not go that far. Counsel’s position is that the prosecuting arm of the Government at least had to ask the State Department in 1972 to inform Israel that Salzmann, a United States citizen, resided there and was wanted for trial in this country.5 This seems a reasonable position *405to me, although it is not necessary to decide whether such action alone would amount to due diligence, because the Department of Justice failed to take even that limited step. The Government argues that a request to Israel would have been fruitless and embarrassing, relying on an affidavit to that effect by Murray A. Stein, an employee of the Department of Justice.6 But the affidavit was given in June 1976, and a request would have to have been made in the fall of 1972 to show due diligence. Also, I doubt that the prosecutor, who has the burden of showing due diligence, can rest only upon an affidavit of another Justice Department attorney to establish that a request to Israel by the Department of State would have been fruitless or embarrassing.7 In addition, Judge Weinstein found that there was a reasonable possibility of Israel’s cooperation. While I share the reluctance of my brothers to speculate on how to resolve such an issue in another case, on this record the Government simply has not met its burden.
In sum, since the Government did nothing here to obtain Salzmann’s presence for trial, it failed to demonstrate the “due diligence” required to toll the six-month period under the speedy trial rules. The indictment, therefore, was properly dismissed.
. The rules are identified in footnote 3 of Chief Judge Kaufman’s opinion.
. I doubt whether Salzmann is, in fact, a fugitive, although he is in a foreign country. His residence is known, he has made no attempt to hide it, and he has been in communication first with the local draft board and then with the United States Attorney.
. Rule 5(d), E.D.N.Y. Plan for Achieving Prompt Disposition of Criminal Cases (1973). Rule 5(d) of the Second Circuit’s Rules Regarding Prompt Disposition of Criminal Cases contained identical language.
. Cf. Speedy Trial Act of 1974 § 101, 18 U.S.C. § 3161(h)(3)(B) (Supp. V, 1975), which provides, in part:
. a defendant . . . shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.
. If the State Department had responded that it felt a request to Israel would be unavailing or undesirable, that representation could, of course, have been presented in opposition to Salzmann’s speedy trial motion.
. See footnote 10 of Chief Judge Kaufman’s opinion for a fuller identification.
. Even if the Government had sufficiently proved that failure to seek return of selective service violators was a conscious policy to avoid embarrassment, the question would still remain whether its own considered choice of inaction insulates it under the speedy trial rules. See Alderman v. United States, 394 U.S. 165, 183-84, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Reynolds, 345 U.S. 1, 12, 73 S.Ct. 528, 97 L.Ed. 727 (1953).