United States v. Toussie

• Citation: 410 F.2d 1156
• Decision Date: 14 May 1969
• Docket Number: Docket 33106.,No. 518,518
• Parties: UNITED STATES of America, Appellee, v. Robert I. TOUSSIE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

410 F.2d 1156 (1969)

UNITED STATES of America, Appellee, v. Robert I. TOUSSIE, Appellant.

No. 518, Docket 33106.

United States Court of Appeals Second Circuit.

Argued April 17, 1969.

Decided May 14, 1969.

Henry G. Singer, Brooklyn, N. Y. (Jacob W. Heller, New York City, on the brief), for appellant.

Jerome C. Ditore, Asst. U. S. Atty. (Vincent T. McCarthy, U. S. Atty. for the Eastern District of New York, on the brief), for appellee.

Before WATERMAN, SMITH and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

After a jury trial before Jacob Mishler, J., in the United States District Court for the Eastern District of New York, appellant Robert I. Toussie was convicted of having failed to register for the draft in violation of 50 U.S.C. App. § 462(a). Appellant was sentenced under 18 U.S.C. § 4208(b), which commits him to the custody of the Attorney General for study and report, but sentence was stayed and appellant released on his own recognizance pending appeal. Although appellant raises a number of substantial questions, we conclude that his conviction should be affirmed.

Appellant never registered for selective service from June 23, 1959, when he became 18, to the time of his arrest and indictment in 1967. He claims that his sincerely held conscientious beliefs against war prevented him from doing so, that his prosecution was barred by the general five-year statute of limitations, 18 U.S.C. § 3282, that his conviction violated his fifth amendment right against self-incrimination, that there was insufficient proof of his mental capacity, and that there were errors in the charge of the trial judge. We turn first to the claim based on the statute of limitations.

I.

The command of 18 U.S.C. § 3282 is that:

Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.

Appellant's claim is that his offense, if any, was committed in June 1959 on his 18th birthday or a few days thereafter so that his indictment in 1967, almost eight years later, was barred by the statute. The Government replies that the offense of failing to register is a continuing one; hence the prosecution was timely. This position is based upon a regulation issued by the President, 32 C.F.R. § 1611.7(c), which states:

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. Emphasis added.

See also 32 C.F.R. § 1642.2. Appellant rejoins that the regulation cannot change a single statutory offense to a continuing crime. The issue was raised in the trial court before John F. Dooling, Jr., J., on a motion to dismiss the indictment, and Judge Dooling rejected appellant's contention. 280 F.Supp. 473 (E.D.N.Y.1967).

Surprisingly, the issue has not been litigated frequently, although the few decisions favor the Government. In Fogel v. United States, 162 F.2d 54 (5th Cir.), cert. denied, 332 U.S. 791, 68 S.Ct. 99, 92 L.Ed. 373 (1947), the continuing crime theory was applied to failure to register for the draft. Although the decision has been criticized,¹ the only other court of appeals that has considered the question has reached the same result, expressly citing Fogel with approval. McGregor v. United States, 206 F.2d 583 (4th Cir. 1953); cf. Gara v. United States, 178 F.2d 38, 40 (6th Cir. 1949), aff'd on another point by an equally divided court, 340 U.S. 857, 71 S.Ct. 87, 95 L.Ed. 628 (1950). In addition, this court used a continuing duty theory in affirming a conviction for the analogous crime of failing to advise the local draft board of a change of address, United States v. Guertler, 147 F.2d 796 (2d Cir. 1945). The only apparent contrary authority is a district court decision in United States v. Salberg, 287 F. 208 (N.D. Ohio 1923), involving World War I registration, but it is unclear whether any regulation then clearly made the duty to register a continuing one.

The tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent; the latter, for all practical purposes, extends the statute beyond its stated term. On the other hand, we are faced with a regulation that clearly establishes a continuing duty and that has long been construed as creating a continuing offense. Appellant argues that the regulation is unconstitutional or unauthorized, but we do not think that is so. The statutory duty to register is set forth in 50 U.S. C. App. § 453 as follows:

Except as otherwise provided in this title * * *, it shall be the duty of every male citizen of 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.

The regulation here involved was promulgated by the President through an Executive Order and does deal with the days and times for registration. Moreover, the President is authorized by 50 U.S.C.App. § 460 to prescribe rules and regulations necessary for the operation of the selective service system. We could not fairly say that the regulation is outside the congressional grant of power unless it were construed to create an unending duty because of the phrase "shall continue at all times." That is the meaning appellant ascribes to it, envisioning a prosecution at age 70 for failure to register 52 years before at age 18. This contention is understandable in view of the simultaneous indictment of appellant's brother Samuel, who was then almost 33.² Were that reading of the regulation correct, we agree that the result would be unfair and absurd. But Judge Dooling found that construction unwarranted and construed the continuing duty to end at age 26, a ruling with which we agree. The power to compel registration flows from the statute which, by its terms, applies only to males between the ages of 18 and 26; the regulation can do no more and should not be construed to attempt to do so. Cf. 32 C.F.R. § 1642.12.

Appellant also argues that the general five-year statute of limitations must apply "Except as otherwise expressly provided by law," and that Congress has made no such plain exception for the crime charged here. It might be enough to point out in response that the five-year statute is being applied; the issue is when it starts to run. But, more fundamentally, even if construed as an extension or a tolling of the statute of limitations to five years after age 26, the continuing duty regulation is an express provision of "law."

We are aware of other problems lurking in the background, some of which appellant has called to our attention. For example, is each day of failure to register a separate offense, for which a prosecution can be brought? Cf. Gara v. United States, supra. Can the knowing and wilful failure to register when the duty first attaches be legally cured by a subsequent tardy registration? The Government, in its brief, flatly answered the first question no; an affirmative answer to the second would be questionable at best. However, since the indictment here charged only one offense — wilful failure to register over a lengthy period of time — and appellant never did register, neither issue is squarely raised, except in connection with the fifth amendment argument discussed below. Moreover, are there other continuing duties under the selective service system that are not cut off at age 26, and if so, when, if ever, does the statute of limitations run as to them? It may be that application of the statute of limitations to this area deserves particularized congressional attention, with a statute, rather than regulations, stating the applicable limitation periods. But the only question before us on this phase of the case is whether the five-year statute of limitations had run on appellant's offense of failing to register up to age 26. We conclude that on this record that defense was properly rejected by Judge Dooling.

II.

Appellant's second claim is that if the statute of limitations did not bar prosecution more than five years after his initial failure to register then the fifth amendment does. The claim is a novel one in the draft registration area, although in United States v. Olson, 253 F. 233 (W.D.Wash.1917), a different type of self-incrimination claim involving World War I registration was made and rejected. See generally Mansfield, The Albertson Case: Conflict Between the Privilege Against Self-Incrimination and the Government's Need for Information, 1966 Sup.Ct.Rev. 103, 125-58. However, appellant draws heavily on recent decisions of the Supreme Court, reversing convictions for failure to comply with other registration statutes on the ground that compliance would have required the registrant to incriminate himself. See Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965) (failure to register as member of the Communist Party); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed. 2d 889 (1968) (failure to register as gambler); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) (failure to pay gambling tax); Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968) (possession of unregistered firearm). Appellant's attack is focused solely on the continuing duty regulation. That regulation, it is argued, could not legally be applied to appellant because compliance would...