Toussie v. United States
Opinion of the Court
delivered the opinion of the Court.
Petitioner Robert Toussie was convicted, after a jury-trial, of failing to register for the draft. His conviction was affirmed by the Court of Appeals, 410 F. 2d 1156
Section 3 of the Universal Military Training and Service Act, 65 Stat. 76, provides that:
“Except as otherwise provided in this title, it shall be the duty of every male citizen . . . who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder.”1
The applicable presidential proclamation provides that “[p]ersons who were born on or after September 19, 1930, shall be registered on the day they attain the eighteenth anniversary of the day of their birth, or within five days thereafter.”
In deciding when the statute of limitations begins to run in a given case several considerations guide our decision. The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment
The statute in this case provides that all young men, with certain exceptions, between the ages of 18 and 26 shall register “at such time or times and place or places” as the President may prescribe. The Government refers to a regulation promulgated under the Act which pro
The statute admittedly might be construed as the Government urges, but in light of the history of the draft laws and the principle that continuing offenses are not to be too readily found, we do not feel this particular Act incorporates such a doctrine. The draft law of 1917 provided in § 5 that certain persons were subject to registration and that “upon proclamation by the President . . . stating the time and place of such registration it shall be the duty of all [such] persons ... to present themselves for and submit to registration.” 40 Stat. 80. Pursuant to that authority the President proclaimed June 5, 1917, as the first registration day,
As events developed prior to what became World War II, Congress again decided to draft young men for service in the Armed Forces. In the Selective Training and Service Act of 1940 it was provided that men subject to registration were to register “at such time or times and place or places, and in such manner and in such age group or groups, as shall be determined by rules and regulations prescribed hereunder.” 54 Stat. 885. While this language would again have authorized registration on different days for different men, the first proclamation under the new Act set a uniform date, October 16, 1940, for the registration of all men.
The Government points out that the “continuing duty” regulation has been in existence since before the passage of the 1948 Act,
Unlike other instances in which this Court has held that a particular statute describes a continuing offense, there is no language in this Act that clearly contemplates a prolonged course of conduct.
We do not mean that the argument in support of implying a continuing offense in this case is insubstantial, but it is at best highly equivocal. Basically we are faced with the task of construing a somewhat ambiguous statute in one of two ways. One way would limit institution of prosecution to a period of five years following the initial violation, while the other could effectively extend the final date for prosecution until as late as 13 years after the crime is first complete. As we have said before:
“when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.” United States v. Universal Corp., 344 U. S. 218, 221-222 (1952).
Not insignificantly those remarks were also made in the context of considering the continuing-offense doctrine. In light of all these considerations we conclude that the
It should be emphasized that this conclusion does not mean that the gravity of this offense is in any way diminished. Failure to register is subject to heavy criminal penalties. The only question is whether those penalties must result from a prosecution begun within five years or whether they can be delayed for a longer period. We are not convinced that limiting prosecution to a period of five years following the initial failure to register will significantly impair either the essential function of raising an army or the prosecution of those who fail to register. We do feel that the threat of criminal punishment and the five-year statute of limitations is a sufficient incentive to encourage compliance with the registration requirements. If Congress had felt otherwise it could easily have provided for a longer period of limitations. It has not yet done so.
There is no doubt that the jury found that Toussie willfully failed to register and thereby subject himself to the same possibility of military service that faces other young men who fully comply with their legal obligations. There is some cause to feel that dismissal of the indictment in such a case is an injustice in a society based on full and equal application of the laws. But while Congress has said that failure to register is a crime, it has also made prosecution subject to the statute of limitations. “Every statute of limitations, of course, may permit a rogue to escape,” Pendergast v. United States,
Reversed.
50 U. S. C. App. § 453. This Act was amended by the Military Selective Service Act of 1967, 81 Stat. 100, but those amendments did not change this provision. Failure to perform this duty is punishable by fine, imprisonment, or both. 50 U. S. C. App. § 462 (a) (1964 ed., Supp. IV).
Proclamation No. 2799, July 20, 1948, 62 Stat. 1531. The Proclamation was first issued under the authority of the Selective Service Act of 1948, 62 Stat. 604, but it was continued after the passage of the Universal Military Training and Service Act by Proclamation No. 2942, August 30, 1951, 65 Stat. c35.
Proclamation of May 18, 1917, 40 Stat. 1664.
U. S. Selective Service System, Registration and Selective Service 11 (1946).
Proclamation of August 13, 1918, 40 Stat. 1834.
The first registration was of all men between the ages of 21 and 30. 40 Stat. 80. In 1918 Congress expanded the group to all those between the ages of 18 and 45. 40 Stat. 955.
Proclamation of August 31, 1918, 40 Stat. 1840.
Proclamation No. 2425, September 16, 1940, 54 Stat. 2739.
Proclamation No. 2572, November 17, 1942, 56 Stat. 1982.
See supra, at 113.
See supra, at 113, and Proclamation No. 2799, July 20, 1948, 62 Stat. 1531.
For example, students at certain military colleges are exempted from registration. 50 U. S. C. App. § 456 (a) (1) (1964 ed., Supp. IV). If a student in such an institution withdraws, he would presumably be required to register since the Act specifically states that “[n]o exemption from registration . . . shall continue after the cause therefor ceases to exist.” 50 U. S. C. App. § 456 (k). Thus such a student may not be required to register until some time after his 18th birthday.
The regulation was first promulgated under the 1940 Act on June 4, 1941. Selective Service System Regulations Vol. 2, § IX, 205 (d), 6 Fed. Reg. 2747.
See Fogel v. United States, 162 F. 2d 54 (C. A. 5th Cir.), cert. denied, 332 U. S. 791 (1947); Gara v. United States, 178 F. 2d 38, 40 (C. A. 6th Cir. 1949), aff’d by an equally divided Court,
Congress has provided that concealment of a bankrupt’s assets shall “be deemed to be a continuing offense . . . and the period of limitations shall not begin to run until . . . final discharge or denial of discharge.” 18 U. S. C. § 3284.
Cf. United States v. Cores, 356 U. S. 405 (1958), in which the Court held, for venue purposes, that the statute prohibiting alien crewmen from remaining in the United States after their permits expired contemplated that the offense would continue as long as the crewman remained in this country and the statute of limitations did not start to run when he first overstayed his permit. In that case we stated that “[s]ection 252 (c) punishes '[a]ny alien crewman who willfully remains in the United States in excess of the number of days allowed.’ The conduct proscribed is the affirmative act of willfully remaining, and the crucial word 'remains’ permits no connotation other than continuing presence.” Id., at 408. See also Armour
It is significant that the courts that have concluded that failure to register is a continuing offense have done so by relying explicitly on the regulation. See Fogel v. United States, supra, at 55; McGregor v. United States, supra, at 584; Gara v. United States, supra, at 39; and the opinions below in this case, 280 F. Supp., at 474, 410 F. 2d, at 1157. It is equally significant that the only court that concluded that the offense was not a continuing one did so at a time when there was no “continuing-duty” regulation issued to implement the registration provisions. United States v. Salberg, supra, interpreting the 1917 Draft Act, held that failure to register was not a continuing offense. The first continuing-duty regulation was promulgated in 1941. See n. 13, supra. These decisions support our conclusion that the statute itself, apart from any reliance on the administrative regulation, does not require that it be construed to incorporate a continuing-offense theory. We do not hold, as the dissent seems to imply, post, at 127, that the continuing-duty regulation is unauthorized by the Act. All we hold is that neither the regulation nor the Act itself requires that failure to register be treated as the type of offense that effectively extends the statute of limitations.
Dissenting Opinion
dissenting.
The general statute of limitations provides in pertinent part that “[ejxcept as otherwise expressly provided by law, no person shall be prosecuted . . . unless the indictment is found . . . within five years next after such offense shall have been committed.” 18 U. S. C. § 3282. The majority holds that this statute bars petitioner’s prosecution, shortly before his 26th birthday, for failing ever to have registered for the draft. That conclusion, I submit, is supported by neither the language, the purpose, nor the history of the applicable Selective Service Acts.
It is at once clear that nothing is gained by stressing that the general statute of limitations applies “[ejxcept as otherwise expressly provided by law.” The question in this case is not whether the five-year statute applies, but when it begins to run. That question in turn depends on what the “offense” is for which petitioner is being tried, and when it was that he committed that offense. In the typical case, an offense is complete as soon as every element in the crime occurs, and the statute of limitations begins to run from that date. But in the case of a “continuing offense,” the crime is not exhausted for purposes of the statute of limitations as long as the proscribed course of conduct continues. United States v. Cores, 356 U. S. 405, 409 (1958); United States v. Kissel, 218 U. S. 601, 607 (1910); see Model Penal Code
In this case, the offense derives from 50 U. S. C. App. §§ 453 and 462 (a) (1964 ed. and Supp. IV). The latter section makes it a crime to evade registration or to “neglect or refuse to perform any duty” required by the Selective Service laws. The former section — 453 — spells out the “duty” that petitioner is charged with failing to perform here:
“[I]t shall be the duty of every male citizen of the United States, and every other male person now or hereafter in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder.”
By any natural reading of this language, at least where the President has established “times” and “places” for continually accepting registrations, the “offense” created is the offense of being at one and the same time, unregistered after having been required to register, and being between the ages of 18 and 26. Indeed, coupled with § 462’s provision for punishment of anyone who “evades” registration, this crime is very similar to the crime committed by an alien who unlawfully “remains” in the country. See United States v. Cores, supra; majority
The majority concludes, however, that the only duty prescribed by § 453 is a duty to register on those specific days — and those days only — declared by the President for initial registrations. In this case, by presidential proclamation, persons not yet 18 in 1948 were to “be registered on the day they attain the eighteenth anniversary of the day of their birth, or within five days thereafter.” According to the majority, once the fifth day has passed, the unregistered 18-year-old, although he has indeed committed an offense, is no longer under any further obligation to register. That conclusion is wholly at odds with the purposes of the Selective Service Act as a whole and this section in particular, as well as with the regulations, longstanding administrative interpretation, and the presidential proclamation itself.
Since 1941, Selective Service regulations, issued under authority explicitly granted the President, 50 U. S. C. App. § 460 (1964 ed. and Supp. IV); 32 CFR pt. 1611 (invoking authority under § 460), have provided that:
“The duty of every person subject to registration to present himself for and submit to registration shall continue at all times, and if for any reason any such person is not registered on the day or one of the days fixed for his registration, he shall immediately present himself for and submit to registration before the local board in the area where he happens to be.” 32 CFR § 1611.7 (c).
If there was any doubt as to whether the duty imposed by § 453 extends beyond the fifth day after petitioner’s
Despite the majority’s implication to the contrary, ante, at 120, there is specific evidence that Congress actually was aware of this question when it acted, and that Congress did not expect that the duty to register would cease merely because the times set for initial registration had passed. During the hearings on the 1940 Act, Senator Reynolds asked then-Major Hershey whether a person could avoid his duty to register altogether by, for example, joining the National Guard — which would give him an exemption — and then getting out as soon as registration day had passed. Major Hershey replied that such persons would have to register as soon as they lost their exempt status, and he persisted in that answer
The “continuing-duty” view of § 453 receives support from an appraisal of the section’s purpose in the context
The Court does not even have the excuse that its construction is required in order to avoid a serious constitutional problem. Petitioner has argued that if his duty to register continues, he cannot be punished for failing to comply since late registration would necessarily be incriminating. See Leary v. United States, 395 U. S. 6 (1969); Marchetti v. United States, 390 U. S. 39 (1968); Grosso v. United States, 390 U. S. 62 (1968). But the Court of Appeals below drew dead aim on the defect in this argument, and the Court’s opinion wisely refrains from relying on the suggested Fifth Amendment problem. For if this is a continuing offense, petitioner— as the Government concedes — is subject to only one prosecution based on his single uninterrupted course of conduct. See Model Penal Code, § 1.08, Comment 33-34 (Tent. Draft No. 5, 1956). Petitioner was subject to that prosecution six days after his 18th birthday; his continued failure to register did not subject him to any additional penalty beyond what he had already risked. Thus, though it may be conceded that late registration would have been incriminating, the statute here, unlike the statutes in Marchetti, Grosso, and Leary does not compel incrimination. Petitioner had nothing to gain in the form of avoiding an addi
The “continuing offense” is hardly a stranger to American jurisprudence. The concept has been extended to embrace such crimes as embezzlement,
Despite the majority’s assertion to the contrary, the quoted regulation is neither the first nor the only regulation reflecting the expectation that registration was to occur, even though it was “late” registration. Even under the 1917 Act, the regulations “prescribed by the President under the authority vested in him by the terms of the Selective Service Law,” U. S. War Dept., Selective Service Regulations, p. i (2d ed. 1918), provided for registration “other than on Registration Day . . . irrespective of the date on which [the applicant] was required to register.” Id., § 54; see U. S. War Dept., Selective Service Regulations § 54 (1917) (“Local Boards will accomplish the registration of persons subject to registration who, for any reason, have not been registered on or since [Registration Day]”) (emphasis added). Similarly, under the 1940 Act, procedures were described for registering “[a] 11 persons who present themselves for registration, including persons who should have registered on a previous registration day . . . .” 32 CFR § 613.11 (b) (Cum. Supp. 1944) (emphasis added). And the current regulations provide that “[t]he Director of Selective Service shall also arrange for and supervise the registration of persons who present themselves for registration at times other than on the day or days fixed for any registration.” 32 CFR § 1612.1.
It is incongruous, to say the least, to admit that local boards have a duty and responsibility to register late applicants, see also 32 CFR § 1611.6, but that such applicants have no corresponding duty to cooperate with the board. Presumably under the majority’s view, an unregistered male, discovered by the local board after the time for his initial registration had passed, could not be punished if he “refuses to cooperate or is inclined to evade, refuses to answer, or answers falsely . . . ." See 32 CFR § 1613.16 (provision for dealing with “recalcitrants”).
The majority seems concerned to distinguish the “limitations question,” ante, at 120, from the question of whether the duty in this case is continuing, ante, at 121 n. 17. But the Court cannot have it both ways. If the duty continues, as the regulation prescribes, the limitations question has been settled: the definition of the “offense” was not yet exhausted when this indictment was brought. United States v. Cores, 356 U. S. 405, 409 (1958); United States v. Kissel, 218 U. S. 601, 607 (1910). If, on the other hand, the
The first registration is described in U. S. Selective Service System, Registration and Selective Service 10-11 (1946):
“The basic idea was to follow the general organization and the administrative units of the election machinery. The Governors in the States, the County Clerks, or other designated persons in the county and in registration precincts were selected or appointed registrars. The ordinary place of registration was the ordinary place for voting. Thus the normal processes of Government were utilized for this extraordinary activity.”
Although it appears that late registration by local boards after Registration Day was authorized by the President, see n. 1, supra, until World War II and the 1940 Act, the local boards’ “primary functions [were] not registration but classification and induction.” Id., at 23. Once Registration Day had passed, and the emergency machinery had been dismantled, special procedures were required for accomplishing late registration, see U. S. War Dept., Selective Service Regulations § 54 (b) (2d ed. 1918), and "local boards had difficulty with the proper entry or handling of registrations which, too often
See, for example, in addition to the “eontinuing-duty” regulation, the following regulation designating the “Place and time of registration”:
“Any person required to be registered may present himself for and submit to registration at any designated place of registration or at the office of any local board during the hours for registration specified in the Presidential proclamation or during the usual business hours.” 32 CFR § 1613.1 (a) (emphasis added).
Hearings on S. 4164 before the Senate Committee on Military Affairs, 76th Cong., 3d Sess., 385 (1940). See also the exchange between Senator Reynolds — by then Chairman of the Committee— and General Hershey during hearings a year later on an amendment to the 1940 Act, pointing out that the Act “gives a broad discretion to call these men in as the Army sees fit . . . [a]nd to register them as they see fit.” Hearings on S. 2126 before the Senate Committee on Military Affairs, 77th Cong., 1st Sess., 34 (1941).
Proclamation No. 2799, July 20, 1948, 62 Stat. 1531, 13 Fed. Reg. 4173. Similar language is contained in the Supplementing Proclamation, No. 2942, August 30, 1951, 65 Stat. c36.
This view of the registration provisions, relating them to the induction provisions as a reservoir to a pipeline, was repeatedly emphasized in the hearings on the 1940 Act and amendments thereto. See, e. g., Hearings on H. R. 10132 before the House Committee on Military Affairs, 76th Cong., 3d Sess., 10-11, 15, 116 (1940); Hearings on S. 2126 before the Senate Committee on Military Affairs, 77th Cong., 1st Sess., 83 (1941) (“if you do not coordinate registration and induction, you are going to run into embarrassment”); U. S. Selective Service System, supra, n. 3, at 1-2 (“[t]he object ... of registration is ... to know where available manpower is and to be able to reach it . . .”).
See 32 CFR §§ 1617.1, 1623.5 (registration and classification certificates must be kept in one’s personal possession “at all times"); 32 CFR § 1641.7 (duty to keep local board informed of current status); 32 CFR § 1641.3 (duty “to keep [the registrant’s] local board advised at all times of the address where mail will reach him”). The latter regulation was long ago interpreted as imposing a continuing duty to advise the local board of a change of address in a decision that rejected a claim similar to petitioner’s that the then three-year statute of limitations barred prosecution, because the address was changed more than three years before the indictment was brought. United States v. Guertler, 147 F. 2d 796 (C. A. 2d Cir. 1945). Presumably under the majority’s theory that “continuing duties’’ can only be created by express provision in the statute, this decision is overruled, and the continuing duty imposed by this regulation is brushed aside — all in the face of a statute that Congress knew "wouldn’t be worth a dime to us in 2 years” if registration information and lists were not “kept up to date.” Hearings on S. 2126 before the Senate Committee on Military Affairs, 77th Cong., 1st Sess., 37, 38 (1941).
In the Military Selective Service Act of 1967, enacted June 30, 1967, 81 Stat. 100, Congress added to § 454 (a) a provision that registrants who failed or refused to report for induction were “to remain liable for induction and when available shall be immediately inducted.” 50 U. S. C. App. § 454 (1964 ed., Supp. IV). Petitioner relies on this provision as an indication that Congress did not intend to impose continuing duties except where, as here, it used express language to that effect. The legislative history shows just the opposite to be the case. Congress assumed that, even without express language, liability for induction would continue until age 26; the amendment was prompted solely in order to “insure that a registrant who prolongs litigation of his draft classification beyond age 26” (when he would “no longer [be] liable for military service”) “would nonetheless remain liable for induction, regardless of age . . . .” H. R. Rep. No. 267, 90th Cong., 1st Sess., 30 (1967). There is not
Petitioner has suggested that if the duty to register is continuing, there is no logical stopping place for bounding the duty, so that “a person seventy years old can be prosecuted for having failed to register fifty-two years before at the age of eighteen.” Brief for Petitioner 17. But the paraded horrible overlooks the fact that the same provisions that create the dutsq also indicate that the duty ends at age 26 — the age beyond which no one was ever required to register under this Act and this proclamation, and beyond which no one would normally have been liable for induction. See nn. 6, 8, supra; S. Rep. No. 1268, 80th Cong., 2d Sess., 6 (1948) (“[Registration is not required of persons who have reached the age of 26”).
See State v. Thang, 188 Minn. 224, 246 N. W. 891 (1933).
See Grunewald v. United States, 353 U. S. 391 (1957); United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 253 (1940); United States v. Kissel, 218 U. S. 601 (1910).
See Cox v. State, 117 Ala. 103, 23 So. 806 (1898); compare People v. Brady, 257 App. Div. 1000, 13 N. Y. S. 2d 789 (1939), with Commonwealth v. Ross, 248 Mass. 15, 142 N. E. 791 (1924). S. E. 447
E. g., State v. Dry Fork R. Co., 50 W. Va. 235, 40 S. E. 447 (1901). A. 124
Richardson v. State, 30 Del. (7 Boyce) 534, 109 A. 124 (Ct. Gen. Sess. 1920); Towns v. State, 24 Ga. App. 265, 100 S. E. 575 (1919).
See Hanf v. United States, 235 F. 2d 710 (C. A. 8th Cir.), cert. denied, 352 U. S. 880 (1956).
United States v. Franklin, 188 F. 2d 182 (C. A. 7th Cir. 1951).
United States v. Guertler, 147 F. 2d 796 (C. A. 2d Cir. 1945); see n. 8, supra.
See Fogel v. United States, 162 F. 2d 54 (C. A. 5th Cir.), cert. denied, 332 U. S. 791 (1947); Gara v. United States, 178 F. 2d 38, 40 (C. A. 6th Cir. 1949), aff’d by an equally divided Court, 340 U. S. 857 (1950); McGregor v. United States, 206 F. 2d 583 (C. A. 4th Cir. 1953). But cf. United States v. Salberg, 287 F. 208 (D. C. N. D. Ohio 1923) (holding the duty under the 1917 Act not to be continuing).
Similarly, the requirement that criminal statutes be strictly construed in determining the substantive offense in order to prevent problems of fair warning, cf. United States v. Universal Corp., 344 U. S. 218 (holding that defendant’s acts constituted a continuing course of conduct, subject only to one prosecution), does not lead to the majority’s per se rule in deciding what type of offense is
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