Toussie v. United States/Dissent White

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. 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.

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. 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) 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.' 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.' 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. 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. 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. 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. 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, conspiracy, bigamy, nuisance, failure to provide support, repeated failure to file reports, failure to register under the Alien Registration Act, failure to notify the local board of a change in address, and, until today, failure to register for the draft. 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. 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.