Toussie v. United States/Dissent White

by Byron White

United States Supreme Court

397 U.S. 112

Toussie  v.  United States

 Argued: Jan. 14, 1970. --- Decided: March 2, 1970

Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice HARLAN join, dissenting.

The general statute of limitations provides in pertinent part that '(e)xcept 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 '(e)xcept 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 if 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, 78 S.Ct. 875, 878, 2 L.Ed.2d 873 (1958); United States v. Kissel, 218 U.S. 601, 607, 31 S.Ct. 124, 125, 54 L.Ed. 1168 (1910); see Model Penal Code s 1.07, Comment (Tent.Draft No. 5, 1956). The question into which category a given offense falls has long been held to be entirely a matter of statutory interpretation. See, e.g., United States v. Cores, supra; Pendergast v. United States, 317 U.S. 412, 419-421, 63 S.Ct. 268, 271, 272, 87 L.Ed. 368 (1943); Bramblett v. United States, 97 U.S.App.D.C. 330, 332, 231 F.2d 489, 492, cert. denied, 350 U.S. 1015, 76 S.Ct. 658, 100 L.Ed. 874 (1956).

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 opinion, ante, at 120 n. 16. Under this view of the Act, the only question that the statute of limitations raises is whether, at any time within five years preceding the indictment, those two characteristics-being unregistered and between the specified age limits-accurately described the accused.

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 birthday, this regulation surely sets that issue at rest. ^[1] Indeed, the Court apparently concedes as much since it decides to fall back on the theory that the regulation is not authorized by the Act. ^[2]

That position, however is simply untenable. In addition to the general authorization to the President in § 460(b) 'to prescribe the necessary rules and regulations to carry out the provisions of this title,' § 453 itself expressly requires 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.' The majority's reference to the 1917 Act, if it proves anything, proves just the opposite of the Court's conclusion. Under that Act, the President prescribed one day when registration was to take place, utilizing local election precincts and a registration system that were not well adapted to take registrations on any other day. ^[3] By 1942, the system had been streamlined to the point where local boards were open every day for the purpose of accepting new registrations. The current regulations are nothing more or less than a setting of 'times' and 'places' (your nearest local board during the usual business hours) ^[4] for late as well as timely registrations. Within five years prior to the bringing of this indictment, petitioner-in the words of the statute-had a 'time' and a 'place' to register, 'determined by proclamation of the President and by rules and regulations prescribed' by the President.

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 despite the Senator's puzzlement (like the majority's) over the fact that the registration period would seem to have expired. The Senator finally accepted Major Hershey's explanation after assuring himself that 'your registration boards are at all times in session * * * (a)nd they would be given the opportunity to register.' ^[5] Even the relevant presidential proclamation, wholly apart from the 'continuing-duty' regulation, accords with this view that the duty to register is not defined solely in terms of the setting of the sun on the day originally fixed for registration. The proclamation declares that a person unable to register on the day fixed for his registration 'because of circumstances beyond his control * * * shall do so as soon as possible after the cause for such inability ceases to exist.' ^[6] Apparently, the majority concedes that in what it calls these few 'exceptions,' the Act does impose a valid duty to register on a day other than the initial date. That being the case, it is inconceivable to me that Congress can be said to have authorized the President to require late registration of those with a good excuse for their tardiness, but not to have similarly authorized him to require late registration of those with a bad excuse or no excuse at all.

The 'continuing-duty' view of § 453 receives support from an appraisal of the section's purpose in the context of the statute considered as a whole. Immediately following the registration requirement, § 454 declares that 'every male citizen * * * who is between the ages of 18 years and 6 months and 26 years, at the time fixed for his registration, or who attains the age of 18 years and 6 months after having been required to register pursuant to (§ 453) shall be liable for training and service in the Armed Forces * * *.' Since even under the majority's view, petitioner was at one time a person 'required to register,' this section, by its literal terms, made him still liable for induction at the time this indictment was brought. But if he still had a duty to serve, then it is completely illogical to conclude that he did not also still have a duty to register. The whole purpose of the registration section is to provide a manpower pool from which inductees can be selected; registration is but the necessary first step in the congressional scheme for processing, classifying, and selecting individuals for training. ^[7] See United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). And the instant regulation, declaring that the duty to register 'shall continue at all times,' is but one of numerous provisions and regulations in the Selective Service Act that reflect the concept that continuing duties are essential if this orderly induction process is to take place. ^[8] Even apart from the settled rule that the 'interpretation expressly placed on a statute by those charged with its administration must be given weight by courts faced with the task of construing the statute,' e.g., Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965), it seems clear to me that the regulation merely spells out an intent already inherent in the statutory scheme. ^[9] Yet the majority holds that when dawn breaks on the unregistered male, six days after his 18th birthday, his crime is complete and ended; though the Act specifically declares that he is still liable for induction, he has no obligation to take the step that makes that induction possible. I for one cannot ascribe such inconsistent intent to Congress.

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, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (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 additional penalty by registering and revealing that his registration was late. The only possible 'incentive' in this case stems from the fact that by registering, petitioner would have caused the statute of limitations to commence running, thus giving the Government only five years in which to prosecute instead of leaving prosecution open until age 31. ^[10] To suggest that this possibility of starting the statute running is sufficiently 'attractive' to amount to 'compulsion' for purposes of the Fifth Amendment is purest fancy.

The 'continuing offense' is hardly a stranger to American jurisprudence. The concept has been extended to embrace such crimes as embezzlement, ^[11] conspiracy, ^[12] bigamy, ^[13] nuisance, ^[14] failure to provide support, ^[15] repeated failure to file reports, ^[16] failure to register under the Alien Registration Act, ^[17] failure to notify the local board of a change in address, ^[18] and, until today, failure to register for the draft. ^[19] Since the continuing-offense concept too freely applied can lead to tension with the purposes of a statute of limitations, we should undoubtedly approach the task of statutory interpretation with 'a presumption against a finding that an offense is a continuing one * * *.' Model Penal Code § 1.07, Comment (Tent. Draft No. 5, 1956). But the presumption is by its nature rebuttable; if it is ever to give way, it must surely do so in a case such as this where every other guide to statutory interpretation points to a contrary legislative intent. To hold otherwise-to erect as the majority does an absolute bar to finding a continuing offense in the absence of express statutory language is to shirk our judicial responsibility of interpreting Acts of Congress as they come to us, without insisting that Congress make our task easier by using some particular form of words to express its intent. ^[20] Our own cases distinguish the 'instantaneous' from the 'continuing' offense on the theory that in the former case, the illegal aim is attained as soon as every element of the crime has occurred, whereas in the latter case, the unlawful course of conduct is 'set on foot by a single impulse and operated by an unintermittent force,' until the ultimate illegal objective is finally attained. United States v. Midstate Co., 306 U.S. 161, 166, 59 S.Ct. 412, 414, 83 L.Ed. 563 (1939); see also United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 224, 73 S.Ct. 227, 230, 231, 97 L.Ed. 260 (1952). The latter definition fits this case precisely. By his own testimony, petitioner admits that he set out to evade registration and liability for the draft. That aim could only be accomplished by remaining unregistered until he was past 26-the age of prime liability. If he had succeeded in reaching 26 and escaping liability, the Government should have its five years to detect and punish his illegal course of conduct. As it is, the Court holds that petitioner not only succeeded in his aim, but was immune from prosecution for his unlawful conduct at the age of 23. While all around him, young men were being inducted, 26-year-olds first, petitioner at 18 years and 6 days is forever free of any duty-and at 23 is forever free from prosecution for his initial failure-to place himself, like them, into the pool from which inductees are selected. I cannot agree. I would affirm.

Notes

1. 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)ll 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.
2. 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, 78 S.Ct. 875, 878, 2 L.Ed.2d 873 (1958); United States v. Kissel, 218 U.S. 601, 607, 31 S.Ct. 124, 125, 54 L.Ed. 1168 (1910). If, on the other hand, the statute has run, then the 'continuing-duty' regulation must be invalid. While I can sympathize with the Court's discomfort over the position it is thus forced to assume, I view that unease as simply an additional indication that the regulations involved in this case are fully within the scope of the powers given the President under the Act.
3. 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.'
4. See, for example, in addition to the 'continuing-duty' regulation, the following regulation designating the 'Place and time of registration':
5. 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 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).
6. 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.
7. 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 * * *').
8. 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).
9. 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 the slightest suggestion that Congress suspected, that the registration and liability provisions of §§ 453 and 454 interrelated provisions which must fairly be read in pari materia ever created anything other than continuing duties until the specified 26-year age limit was reached.
10. 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 duty, 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) ('(r)egistration is not required of persons who have reached the age of 26').
11. See State v. Thang, 188 Minn. 224, 246 N.W. 891 (1933).
12. See Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253, 60 S.Ct. 811, 858, 84 L.Ed. 1129 (1940); United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168 (1910).
13. See Cox v. State, 117 Ala. 103, 23 So. 806, 41 L.R.A. 760 (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).
14. E.g., State v. Dry Fork R. Co., 50 W.Va. 235, 40 S.E. 447 (1901).
15. 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).
16. See Hanf v. United States, 235 F.2d 710 (C.A.8th Cir.), cert. denied 352 U.S. 880, 77 S.Ct. 102, 1 L.Ed.2d 81 (1956).
17. United States v. Franklin, 188 F.2d 182 (C.A.7th Cir. 1951).
18. United States v. Guertler, 147 F.2d 796 (C.A.2d Cir. 1945); see n. 8, supra.
19. See Fogel v. United States, 162 F.2d 54 (C.A.5th Cir.), cert. denied, 332 U.S. 791, 68 S.Ct. 99, 92 L.Ed. 373 (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, 71 S.Ct. 87, 95 L.Ed. 628 (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).
20. 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 C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (holding that defendant's acts constituted a continuing course of conduct, subject only to one presecution), does not lead to the majority's per se rule in deciding what type of offense is involved for purposes of the statute of limitations. Given the explicit provisions of § 453, the 'continuing-duty' regulation, and the consistent administrative interpretation of the Act, there can be no suggestion that petitioner did not have fair warning that he was required to register, or that petitioner was unfairly led into thinking that repose would be his when he reached 23.