United States v. Martin, CR 82-2005.
| Decision Date | 23 November 1982 |
| Docket Number | No. CR 82-2005.,CR 82-2005. |
| Citation | 557 F. Supp. 681 |
| Parties | UNITED STATES of America, Plaintiff, v. Russell James MARTIN, a/k/a Rusty Martin, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Robert L. Teig, Asst. U.S. Atty., Cedar Rapids, Iowa, for plaintiff.
Mark Bennett, Don Nickerson, Des Moines, Iowa, for defendant.
ORDER OF NOVEMBER 19, 1982 AS AMENDED
On the court's own motion, for the convenience of the parties and simplification of the record,
That this court's order of November 19, 1982 as amended by its Order Nunc Pro Tunc of November 22, 1982 shall constitute the order as amended and read as follows:
This matter is before the court on defendant's six resisted motions to dismiss, filed October 29, 1982. Order in accordance herewith.
On October 5, 1982, defendant was indicted by the Grand Jury for the Northern District of Iowa charging:
Beginning on or about July 27, 1980, and continuing until on or about August 20, 1982, within the Northern District of Iowa, RUSSELL JAMES MARTIN, a male person required to present himself for and submit to registration pursuant to the Military Selective Service Act, rules and regulations duly made pursuant thereto and Presidential Proclamation No. 4771 of July 2, 1980, did knowingly and wilfully fail, evade and refuse to present himself for and submit to registration in violation of 50 U.S.C.App. §§ 453 and 462(a).1
In his "Motion to Dismiss Indictment for Alleging a Crime Which Does Not Exist or in the Alternative to Strike Surplusage," defendant argues that the indictment is defective because it charges him with failing to fulfill his continuing duty to register, where no such duty or offense exists under the law. In the alternative he seeks to strike the continuing allegations as surplusage. The government's resistance maintains that failure to register is a continuing offense, i.e., one that continues to be committed each day that the defendant remains unregistered, but neither urges a variance nor resists the motion to strike.
An early history of the Military Selective Service Act and the draft laws is provided in Toussie v. United States, 397 U.S. 112, 116, 90 S.Ct. 858, 860-61, 25 L.Ed.2d 156 (1970). As can be gleaned from the discussion therein, originally, there was no continuing duty to register because the Selective Service Act of 1917 provided that failure to register at the designated time was a completed criminal offense. See, United States v. Salberg, 287 F. 208 (N.D.Ohio 1923). It wasn't until rules and regulations were promulgated under the Selective Service Act of 1940 that there arguably arose a continuing duty to register.2 The regulation which created the continuing duty to register was later made part of the 1948 Military Selective Service Act. That regulation provided:
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)
However, on September 2, 1972 the "continuing duty regulation" was rescinded and on March 29, 1975 President Ford discontinued the procedures for registration under the Military Selective Service Act. Presidential Proclamation No. 4360, 40 F.R. 14567 (1975). In early 1980, President Carter determined that it was necessary to reactivate the draft registration process, See, Rostker v. Goldberg, 453 U.S. 57, 60, 101 S.Ct. 2646, 2649, 69 L.Ed.2d 478 (1980), and on July 2, 1980, he issued Proclamation No. 4771 (FN 1 above) ordering registration of certain young men.
On July 18, 1980, three days before registration was to begin, regulations were published governing the administration of registration. 45 F.R. 48130 (1980), codified in 32 CFR Part 1615. Noticeably absent from said regulations was any "continuing duty" regulation. 32 CFR § 1611.7(c).
In 1970, the United States Supreme Court decided a statute of limitations question arising under 50 U.S.C.App. §§ 453 and 462(a) of the Universal Military Training and Service Act. Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). In order to decide at what point the statute of limitations began to run, the court determined that it was necessary to initially ascertain whether or not the offense involved was a continuing one. The court noted that the doctrine of continuing offenses should be applied only in limited circumstances. Id. at 115, 90 S.Ct. at 860. Significantly, a particular offense should not be construed as a continuing one, "unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one." Id. at 115, 90 S.Ct. at 860.
In an effort to ascertain the nature of the crime and the Congressional intent, the court examined the substantive statute, the regulations and the history of the draft laws. The conclusion reached was that "there is nothing inherent in the nature of failing to register that makes it a continuing offense." Id. at 122, 90 S.Ct. at 864. "While it is true that the regulation3 does in explicit terms refer to registration as a continuing duty, we cannot give it the effect of making this criminal offense a continuing one." Id. at 121, 90 S.Ct. at 863. The law requires that a man register within a specified period of time and if he does not register within that time, he then and there has committed the offense of failing to register. Id. at 119, 90 S.Ct. at 862.
In United States v. Owens, 431 F.2d 349 (5th Cir.1970) defendant was required to register within five days of his eighteenth birthday. Defendant failed to register and was indicted. The indictment charged defendant with failing to register on a date approximately fourteen months after the five day registration period had passed. Defendant alleged that the indictment was insufficient because it did not state a crime. The court disagreed, finding that 32 CFR § 1611.7(c) imposed upon defendant the continuing duty to register and that failure to so register was a crime. United States v. Owens, 431 F.2d at 351. The court based its decision on the "continuing duty regulation" which it claimed had not been outlawed by Toussie. Id. at 351.
Similarly, in cases decided prior to Toussie, courts that have concluded that failure to register is a continuing offense have done so by relying explicitly on the regulation. See, Gara v. United States, 178 F.2d 38, 39 (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, 584 (4th Cir.1953); Fogel v. United States, 162 F.2d 54, 55 (5th Cir.1947), cert. denied, 332 U.S. 791, 68 S.Ct. 101, 92 L.Ed. 373 (1947). As noted above, 32 CFR § 1611.7(c) was repealed in 1972 and no similar regulation has taken its place. Thus, if a continuing duty to register is to be found it must have its basis elsewhere.
In 1971, in direct response to Toussie, Congress enacted Public Law 92-129 (50 U.S.C.App. § 462(d)) providing:
(d) No person shall be prosecuted, tried, or punished for evading, neglecting, or refusing to perform the duty of registering imposed by section 3 of this title section 453 of this Appendix unless the indictment is found within five years next after the last day before such person attains the age of twenty-six, or within five years next after the last day before such person does perform his duty to register, whichever shall first occur.
This section extends the statute of limitations for prosecution of non-registrants from age 23 to age 31. However, the government maintains that it is clear from reading the legislative history of the statute and the subsequent case law that Congress, by enacting 50 U.S.C.App. § 462(d), intended to impose a continuing duty to register. The court cannot agree.
While it is evident that Congress intended to extend the statute of limitations by passing 50 U.S.C.App. § 462(d), it is far from evident that Congress intended to impose a continuing duty to register. The legislative history is brief, vague, incomplete and contains only one reference to a continuing requirement to register.4 S.R. No. 92-93, 92d Cong. 1st Sess. (1971), in U.S.Code Cong. & Admin.News 1439, 1455-6, 1458 and H.R. No. 92-82, 92d Cong. 1st Sess. 17 (1971). The court is not convinced that Congress "assuredly" intended that the duty to register be treated as a continuing one. Toussie, 397 U.S. at 115, 90 S.Ct. at 860. Had it so intended, Congress could have explicitly provided for the continuing duty as it did in 50 U.S.C.App. § 454.5
Moreover, the cases cited by the government do not support finding a continued duty. In United States v. Richardson, 512 F.2d 105 (3rd Cir.1975), contrary to the government's assertion, the court made no comment regarding the intent of Congress to impose a continuing duty to register by enacting 50 U.S.C.App. § 462(d). In referring to § 462(d) the court simply stated, "The legislative history of the statute indicates that Congress wished to overcome the decision in Toussie ..." Id. at 106. Although Congress did overcome the result in Toussie, it did so by extending the statute of limitations, not by altering the nature of the offense so as to create a continuing duty to register.
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U.S. v. Martin
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