United States v. Toussie, No. 67 Cr. 183

CourtU.S. District Court — Eastern District of New York
Writing for the CourtMichael Rosen, Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty., of counsel) for the Government
Citation280 F. Supp. 473
PartiesUNITED STATES of America, v. Robert I. TOUSSIE. UNITED STATES of America, v. Samuel R. TOUSSIE, Defendant.
Docket Number67 Cr. 184.,No. 67 Cr. 183
Decision Date30 August 1967

280 F. Supp. 473

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

UNITED STATES of America,
v.
Samuel R. TOUSSIE, Defendant.

Nos. 67 Cr. 183, 67 Cr. 184.

United States District Court E. D. New York.

August 30, 1967.


Michael Rosen, Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty., of counsel) for the Government.

Jacob Heller, New York City (Henry G. Singer, Brooklyn, N. Y., of counsel) for defendants.

280 F. Supp. 474

MEMORANDUM and ORDER

DOOLING, District Judge.

Each of the defendants has been indicted for wilfully failing to perform a duty required of him by The Universal Military Training and Service Act of 1948 by wilfully evading and refusing registration by the Selective Service System. Robert Toussie is charged with doing so from June 23, 1959, until February 3, 1967; Samuel Toussie is charged with doing so from May 9, 1952 until February 3, 1967. The indictments were returned on May 4, 1967.

Defendants move to dismiss the indictments on various grounds the most substantial of which is that they are barred by the five year statute of limitations of 18 U.S.C. Sec. 3282; it is argued also that if the statute requiring registration (50 U.S.C. App. Sec. 453) is construed as imposing a continuing duty to register, it is invalid under the Fifth Amendment; * * *

1. The motion to dismiss the indictments as barred by the five year statute of limitations is granted as to the defendant Samuel R. Toussie and denied as to the defendant Robert I. Toussie.

The offense is a continuing one; the man between eighteen and twenty-six does not discharge his duty by failing to register on the day he attains his eighteenth birthday or within five days thereafter; he continues under a duty to present himself for registration as long as he is liable for service in the armed forces (cf. 32 C.F.R. Sec. 1611.7 (c)) and he is liable from eighteen years, six months, until the twenty-sixth anniversary of his birth (50 U.S.C. App. Sec. 454(a)) Hence, it can not be doubted since Fogel v. United States, 5th Cir. 1947, 162 F.2d 54, and United States v. Guertler, 2d Cir. 1945, 147 F.2d 796, 797, that an indictment is timely if found within five years after the last day on which there was a duty to register. The indictment against Robert Toussie is therefore timely if he had not passed the twenty-sixth anniversary of his birth more than five years before the indictment was filed on May 4, 1967. It is inferred that the Government's case is that Robert Toussie was born on...

To continue reading

Request your trial
4 practice notes
  • Toussie v. United States, No. 441
    • United States
    • United States Supreme Court
    • March 2, 1970
    ...26 is timely if the indictment is returned before the defendant becomes 31 years old in this case any time prior to June 23, 1972. 280 F.Supp. 473, 474 (D.C.E.D.N.Y.1967). The Court of Appeals agreed. 410 F.2d, at 1157 1158. If the offense is a continuing one the prosecution was timely, but......
  • United States v. Toussie, No. 518
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 14, 1969
    ...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 Surprisingly, the issue has not been litigated frequently, although the few decisions favor the Government. In Fogel v. United States, 162 F......
  • State v. Morse
    • United States
    • United States State Supreme Court (New Jersey)
    • May 5, 1969
    ...though only one conviction may be had with respect to one continuous failure to comply with that section. Cf. United States v. Toussie, 280 F.Supp. 473 Thus the offense was a continuing one at the time of the arrest. That the officer was physically at the scene of the offense may not, howev......
  • Perryman v. Fields, No. 68-238.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 4, 1968
    ..."is in State custody in violation of the Constitution or laws or treaties of the United States." (28 U.S.C. § 2241(c) (3)). 280 F. Supp. 473 It follows that there are no grounds or reasons of any kind set forth or shown for the issuance of a writ of habeas Therefore, it is hereby ......
4 cases
  • Toussie v. United States, No. 441
    • United States
    • United States Supreme Court
    • March 2, 1970
    ...26 is timely if the indictment is returned before the defendant becomes 31 years old in this case any time prior to June 23, 1972. 280 F.Supp. 473, 474 (D.C.E.D.N.Y.1967). The Court of Appeals agreed. 410 F.2d, at 1157 1158. If the offense is a continuing one the prosecution was timely, but......
  • United States v. Toussie, No. 518
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 14, 1969
    ...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 Surprisingly, the issue has not been litigated frequently, although the few decisions favor the Government. In Fogel v. United States, 162 F......
  • State v. Morse
    • United States
    • United States State Supreme Court (New Jersey)
    • May 5, 1969
    ...though only one conviction may be had with respect to one continuous failure to comply with that section. Cf. United States v. Toussie, 280 F.Supp. 473 Thus the offense was a continuing one at the time of the arrest. That the officer was physically at the scene of the offense may not, howev......
  • Perryman v. Fields, No. 68-238.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 4, 1968
    ..."is in State custody in violation of the Constitution or laws or treaties of the United States." (28 U.S.C. § 2241(c) (3)). 280 F. Supp. 473 It follows that there are no grounds or reasons of any kind set forth or shown for the issuance of a writ of habeas Therefore, it is hereby ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT