Petitioner, who was required to register for the draft between
June 23 (his 18th birthday) and June 28, 1959, in accordance with a
presidential proclamation issued pursuant to § 3 of the Universal
Military Training and Service Act, did not register at. any time.
Section 3 make it
"the duty of every male citizen . . . 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 the time and place and in such manner "as shall be determined
by proclamation of the President and by rules and regulations
prescribed thereunder." Petitioner was indicted in May, 1967, for
failing to register, and was convicted. The District Court held
that the Act imposes a continuing duty to register which lasts
until age 26, and thus the prosecution was not barred by the
five-year statute of limitations in 18 U.S.C. § 3282. The Court of
Appeals affirmed.
Held: The offense is not a continuing one, but was
committed by petitioner's failure to register in 1959, when the
statute of limitations began to run. P.
397 U. S.
114-124.
410 F.2d 1156, reversed.
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioner Robert Toussie was convicted, after a jury trial, of
failing to register for the draft. His conviction was affirmed by
the Court of Appeals, 410 F.2d 1156
Page 397 U. S. 113
(C.A.2d Cir.), and we granted certiorari, 396 U.S. 875 (1969).
For the reasons hereafter set forth, we conclude that this
prosecution was barred by the statute of limitations, and therefore
reverse the conviction.
Section 3 of the Universal Military Training and Service Act, 65
Stat. 76, provides that:
"Except as otherwise provided in this title, it shall be the
duty of every male citizen . . . 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. [
Footnote 1]"
The applicable presidential proclamation provides that
"[p]ersons who were born on or after September 19, 1930, shall
be registered on the day they attain the eighteenth anniversary of
the day of their birth, or within five days thereafter. [
Footnote 2]"
Since Toussie, an American citizen, was born on June 23, 1941,
he was required to register sometime between June 23 and June 28,
1959. He did not do so during that period or at any time
thereafter. On May 3, 1967, he was indicted for failing to
register, and that indictment led to the conviction under
review.
Page 397 U. S. 114
Before trial Toussie moved to dismiss the indictment, arguing
that prosecution was barred by the statute of limitations, which
provides that,
"[e]xcept as otherwise expressly provided by law, no person
shall be prosecuted, tried, or punished for any offense, not
capital, unless the indictment is found . . . within five years
next after such offense shall have been committed."
18 U.S.C. § 3282. Since there is no express provision to the
contrary in the Draft Act, Toussie argued that his crime was
complete in 1959, and it could not be the subject of a prosecution
based on an indictment returned in 1967 -- eight years thereafter.
The Government agreed that the crime was complete in 1959, but
argued that it continued to be committed each day that Toussie did
not register. The District Court held that the Act imposes a
continuing duty to register which lasts until age 26, and that
prosecution for failing to perform that duty before the man becomes
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, if not, the
District Court erred in not dismissing the indictment.
In deciding when the statute of limitations begins to run in a
given case, several considerations guide our decision. The purpose
of a statute of limitations is to limit exposure to criminal
prosecution to a certain fixed period of time following the
occurrence of those acts the legislature has decided to punish by
criminal sanctions. Such a limitation is designed to protect
individuals from having to defend themselves against charges when
the basic facts may have become obscured by the passage of time,
and to minimize the danger of official punishment
Page 397 U. S. 115
because of acts in the far-distant past. Such a time limit may
also have the salutary effect of encouraging law enforcement
officials promptly to investigate suspected criminal activity. For
these reasons and others, we have stated before
"the principle that criminal limitations statutes are 'to be
liberally interpreted in favor of repose,'
United States v.
Scharton, 285 U. S. 518,
285 U. S.
522 (1932)."
United States v. Habig, 390 U.
S. 222,
390 U. S. 227
(1968). We have also said that "[s]tatutes of limitations normally
begin to run when the crime is complete."
Pendergast v. United
States, 317 U. S. 412,
317 U. S. 418
(1943);
see United States v. Irvine, 98 U. S.
450,
98 U. S. 452
(1879). And Congress has declared a policy that the statute of
limitations should not be extended "[e]xcept as otherwise expressly
provided by law." 18 U.S.C. § 3282. These principles indicate that
the doctrine of continuing offenses should be applied in only
limited circumstances, since, as the Court of Appeals correctly
observed in this case,
"[t]he 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."
410 F.2d at 1158. These considerations do not mean that a
particular offense should never be construed as a continuing one.
They do, however, require that such a result should not be reached
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.
The statute in this case provides that all young men, with
certain exceptions, between the ages of 18 and 26 shall register
"at such time or times and place or places" as the President may
prescribe. The Government refers to a regulation promulgated under
the Act which provides
Page 397 U. S. 116
that
"[t]he duty of every person subject to registration . . . shall
continue at all times, and if for any reason any such person is not
registered on he day or one of the days fixed for his registration,
he shall immediately present himself for and submit to
registration. . . ."
32 CFR § 1611.7(c). It is urged that this regulation only makes
explicit what Congress implicitly said in the Act itself, that is
that registration is a duty that continues until age 26, and
failure to register before then is a criminal offense that can be
punished as late as five years after the 26th birthday.
The statute admittedly might be construed as the Government
urges, but, in light of the history of the draft laws and the
principle that continuing offenses are not to be too readily found,
we do not feel this particular Act incorporates such a doctrine.
The draft law of 1917 provided in § 5 that certain persons were
subject to registration and that,
"upon proclamation by the President . . . stating the time and
place of such registration, it shall be the duty of all [such]
persons . . . to present themselves for and submit to
registration."
40 Stat. 80. Pursuant to that authority, the President
proclaimed June 5, 1917, as the first registration day, [
Footnote 3] and, on that day,
approximately 10,000,000 young men were registered. [
Footnote 4] There were no more general draft
registrations until August 24, 1918, when the President required
all those men who had become subject to registration since June 5,
1917, to come in and register. [
Footnote 5] Later that year, Congress amended the statute,
expanded the age group subject to registration, [
Footnote 6] and provided that,
"upon
Page 397 U. S. 117
proclamation by the President . . . stating the time or times
and place or places of . . . registration, it shall be the duty of
all persons of the designated ages . . . to present themselves for
and submit to registration. . . ."
40 Stat. 955-956. Although this provision seemingly would have
authorized registrations on different days, the President again
issued a proclamation designating a single day, September 12, 1918,
as registration day for all those so subject. [
Footnote 7] That registration was the last under
the World W&r I draft. It is thus clear that, throughout the
administration of the first draft law, registration was thought of
as a single, instantaneous act to be performed at a given time, and
failure to register at that time was a completed criminal
offense.
As events developed prior to what became World War II, Congress
again decided to draft young men for service in the Armed Forces.
In the Selective Training and Service Act of 1940, it was provided
that men subject to registration were to register
"at such time or times and place or places, and in such manner
and in such age group or groups, as shall be determined by rules
and regulations prescribed hereunder."
54 Stat. 885. While this language would again have authorized
registration on different days for different men, the first
proclamation under the new Act set a uniform date, October 16,
1940, for the registration of all men. [
Footnote 8] It was not until two years later that the
President first issued a proclamation setting forth different dates
for the registration of different groups of men, and, in that same
proclamation, the President established the basic registration
procedure of the present system, that all young men shall register
on their 18th birthday. [
Footnote
9]
Page 397 U. S. 118
After the 1940 Act expired on March 31, 1947, Congress again
decided to register men for the draft, and declared that men
between the ages of 18 and 26 would be subject to registration.
Selective Service Act of 1948, 62 Stat. 604. Since the authority to
register under the 940 Act had expired, it was necessary to provide
for the initial registration of the entire group of men between 18
and 26. In language identical to that found in the statute involved
in this case, [
Footnote 10]
Congress again left the administrative details to the President,
and authorized registration "at such time or times and place or
places" as he might designate. We do not think the imposition of
the duty to register on men between 18 and 26 and the provision for
registration at different times were intended to indicate that the
statute of limitations did not begin to run when the crime was
first complete. Since, at the time of the initial registration
under the 1948 Act, there were men of various ages who had to be
registered, the Act was phrased generally in terms of a duty
imposed on the entire group. Under this authority, the President,
in fact, required registration of all men between 18 and 26 during
the month of September, 1948. Persons of different ages were
required to register on different days, and all those born after
September 19, 1930, were required to register "on the day they
attain the eighteenth anniversary of the day of their birth, or
within five days thereafter." [
Footnote 11] The registration provisions of that Act have
remained in force since 1948, and there has thus been a continual
registration of 18-year-olds shortly after their birthday. With the
exception of a few men who are not subject to registration when
they are 18, but may become
Page 397 U. S. 119
so later on, [
Footnote
12] the effect of these provisions has been to eliminate the
necessity for registrations of men older than 18. Viewed in the
light of history, we do not think the Act intended to treat
continued failure to register as a renewal of the original crime or
the repeated commission of new offenses, but, rather, perpetuated
the conception of the first registration that a man must register
at a particular time, and his failure to do so at that time is a
single offense. That time will not be the same day for all, as it
was in 1917, and, from the Selective Service System's viewpoint,
the process of registration is a "continuing" one. But, from the
registrant's viewpoint, the obligation arises at a specific time.
In Toussie's case it arose when he turned 18. He was allowed a
five-day period in which to fulfill the duty, but, when he did not
do so, he then and there committed the crime of failing to
register.
The Government points out that the "continuing duty" regulation
has been in existence since before the passage of the 1948 Act,
[
Footnote 13] and that most
lower federal courts have held that failing to register is a
continuing offense for purposes of applying the statute of
limitations. [
Footnote 14]
It is suggested that, since Congress has legislated
Page 397 U. S. 120
several times in this field, its failure to indicate that the
crime should not be treated as a continuing offense supports the
Government's argument that it is. Petitioner, on the other hand,
suggests that Congress has, on occasion, explicitly stated that a
certain offense will be deemed a continuing one, [
Footnote 15] and its failure to do so in
this statute indicates that it did not intend to adopt that theory.
Since there is no specific evidence that Congress actually was
aware of this limitations question when it acted -- whatever weight
such evidence might deserve -- and since we are reluctant to imply
a continuing offense except in limited circumstances, we conclude
that any argument based on congressional silence is stronger in
favor of not construing this Act as incorporating a continuing
offense theory.
Unlike other instances in which this Court has held that a
particular statute describes a continuing offense, there is no
language in this Act that clearly contemplates a prolonged course
of conduct. [
Footnote 16]
While it is true that
Page 397 U. S. 121
the regulation 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. Since such offenses are not to
be implied except in limited circumstances, and since questions of
limitations are fundamentally matters of legislative, not
administrative, decision, we think this regulation should not be
relied upon effectively to stretch a five-year statute of
limitations into a 13-year one unless the statute itself, apart
from the regulation, justifies that conclusion. [
Footnote 17]
Page 397 U. S. 122
There is also nothing inherent in the act of registration itself
which makes failure to do so a continuing crime. Failing to
register is not like a conspiracy, which the Court has held
continues as long as the conspirators engage in overt acts in
furtherance of their plot.
See United States v. Kissel,
218 U. S. 601
(1910),
Grunewald v. United States, 353 U.
S. 391 (1957). It is in the nature of a conspiracy that
each day's acts bring a renewed threat of the substantive evil
Congress sought to prevent. The fact that the first draft
registrations clearly were viewed as instantaneous events, and not
a continuing process, indicates that there is nothing inherent in
the nature of failing to register that makes it a continuing
offense.
We do not mean that the argument in support of implying a
continuing offense in this case is insubstantial, but it is, at
best, highly equivocal. Basically, we are faced with the task of
construing a somewhat ambiguous statute in one of two ways. One way
would limit institution of prosecution to a period of five years
following the initial violation, while the other could effectively
extend the final date for prosecution until as late as 13 years
after the crime is first complete. As we have said before:
"when choice has to be made between two readings of what conduct
Congress has made a crime, it is appropriate, before we choose the
harsher alternative, to require that Congress should have spoken in
language that is clear and definite. We should not derive criminal
outlawry from some ambiguous implication."
United States v. Universal Corp., 344 U.
S. 218,
344 U. S.
221-222 (1952). Not insignificantly, those remarks were
also made in the context of considering the continuing offense
doctrine. In light of all these considerations, we conclude that
the
Page 397 U. S. 123
draft law does not intend to permit criminal prosecution for
failing to register as late as 13 years after the initial failure.
Consequently, the statute of limitations begins to run at the
initial failure to register as required by law. Since the facts in
this case clearly show that Toussie failed in his legal obligation
when he did not register prior to June 28, 1959, the statute began
to run at that time, and prosecution based on an indictment
returned almost eight years later was barred.
It should be emphasized that this conclusion does not mean that
the gravity of this offense is in any way diminished. Failure to
register is subject to heavy criminal penalties. The only question
is whether those penalties must result from a prosecution begun
within five years, or whether they can be delayed for a longer
period. We are not convinced that limiting prosecution to a period
of five years following the initial failure to register will
significantly impair either the essential function of raising an
army or the prosecution of those who fail to register. We do feel
that the threat of criminal punishment and the five-year statute of
limitations is a sufficient incentive to encourage compliance with
the registration requirements. If Congress had felt otherwise, it
could easily have provided for a longer period of limitations. It
has not yet done so.
There is no doubt that the jury found that Toussie willfully
failed to register and thereby subject himself to the same
possibility of military service that faces other young men who
fully comply with their legal obligations. There is some cause to
feel that dismissal of the indictment in such a case is an
injustice in a society based on full and equal application of the
laws. But while Congress has said that failure to register is a
crime, it has also made prosecution subject to the statute of
limitations. "Every statute of limitations, of course, may permit a
rogue to escape,"
Pendergast v. United
States,
Page 397 U. S. 124
317 U. S. 412,
317 U. S. 418
(1943), but when a court concludes that the statute does bar a
given prosecution, it must give effect to the clear expression of
congressional will that, in such a case "no person shall be
prosecuted, tried, or punished." The judgment of conviction in this
case must therefore be
Reversed.
[
Footnote 1]
150 U.S.C.App. § 453. This Act was amended by the Military
Selective Service Act of 1967, 81 Stat. 100, but those amendments
did not change this provision. Failure to perform this duty is
punishable by fine, imprisonment, or both. 50 U.S.C.App. § 462(a)
(1964 ed., Supp. IV).
[
Footnote 2]
Proclamation No. 2799, July 20, 1948, 62 Stat. 1531. The
Proclamation was first issued under the authority of the Selective
Service Act of 1948, 62 Stat. 604, but it was continued after the
passage of the Universal Military Training and Service Act by
Proclamation No. 2942, August 30, 1951, 65 Stat. c35.
[
Footnote 3]
Proclamation of May 18, 1917, 40 Stat. 1664.
[
Footnote 4]
U.S. Selective Service System, Registration and Selective
Service 11 (1946).
[
Footnote 5]
Proclamation of August 13, 1918, 40 Stat. 1834.
[
Footnote 6]
The first registration was of all men between the ages of 21 and
30. 40 Stat. 80. In 1918, Congress expanded the group to all those
between the ages of 18 and 45. 40 Stat. 955.
[
Footnote 7]
Proclamation of August 31, 1918, 40 Stat. 1840.
[
Footnote 8]
Proclamation No. 2425, September 16, 1940, 54 Stat. 2739.
[
Footnote 9]
Proclamation No. 2572, November 17, 1942, 56 Stat. 1982.
[
Footnote 10]
See supra at
397 U. S.
113.
[
Footnote 11]
See supra at
397 U. S. 113,
and Proclamation No. 2799, July 20, 1948, 62 Stat. 1531.
[
Footnote 12]
For example, students at certain military colleges are exempted
from registration. 50 U.S.C.App. § 456(a)(1) (1964 ed., Supp. IV).
If a student in such an institution withdraws, he would presumably
be required to register, since the Act specifically states that
"[n]o exemption from registration . . . shall continue after the
cause therefor ceases to exist." 50 U.S.C.App. § 456(k). Thus, such
a student may not be required to register until some time after his
18th birthday.
[
Footnote 13]
The regulation was first promulgated under the 1940 Act on June
4, 1041. Selective Service System Regulations Vol. 2, § IX, 205(d),
6 Fed.Reg. 2747.
[
Footnote 14]
See Fogel v. United States, 162 F.2d 54 (C.A. 5th
Cir.),
cert. denied, 332 U.S. 791 (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 (1950);
McGregor
v. United States, 206 F.2d 583 (C.A.4th Cir.1953);
cf.
United States v. Guertler, 147 F.2d 796 (C.A.2d Cir.1945).
But cf. United States v. Salberg, 287 F. 208 (D.C.N.D.
Ohio 1923).
[
Footnote 15]
Congress has provided that concealment of a bankrupt's assets
shall "be deemed to be a continuing offense . . . and the period of
limitations shall not begin to run until . . . final discharge or
denial of discharge." 18 U.S.C. § 3284.
[
Footnote 16]
Cf. United States v. Cores, 356 U.
S. 405 (1958), in which the Court held, for venue
purposes, that the statute prohibiting alien crewmen from remaining
in the United States after their permits expired contemplated that
the offense would continue as long as the crewman remained in this
country, and the statute of limitations did not start to run when
he first overstayed his permit. In that case, we stated that
"[s]ection 252(c) punishes '[a]ny alien crewman who willfully
remains in the United States in excess of the number of days
allowed.' The conduct proscribed is the affirmative act of
willfully remaining, and the crucial word 'remains' permits no
connotation other than continuing presence."
Id. at
356 U. S. 408.
See also Armour Packing Co. v. United States, 209 U. S.
56 (1908), in which we held that, for venue purposes,
violations of the Elkins Act, 32 Stat. 847, were continuing
offenses. In that case, the statute specifically provided that
"[e]very violation . . . shall be prosecuted in any court of the
United States having jurisdiction of crimes within the district in
which such violation was committed or through which the
transportation may have been conducted. . . ."
Id. at
209 U. S. 73.
Both of these cases dealt with venue, and did not involve the
statute of limitations question presented in this case.
[
Footnote 17]
It is significant that the courts that have concluded that
failure to register is a continuing offense have done so by relying
explicitly on the regulation.
See Fogel v. United States,
supra, at 55;
McGregor v. United States, supra, at
584;
Gara v. United States, supra, at 39, and the opinions
below in this case, 280 F. Supp. at 474, 410 F.2d at 1157. It is
equally significant that the only court that concluded that the
offense was not a continuing one did so at a time when there was no
"continuing duty" regulation issued to implement the registration
provisions.
United States v. Salberg, supra, interpreting
the 1917 Draft Act, held that failure to register was not a
continuing offense. The first continuing duty regulation was
promulgated in 1941.
See n 13,
supra. These decisions support our
conclusion that the statute itself, apart from any reliance on the
administrative regulation, does not require that it be construed to
incorporate a continuing offense theory. We do not hold, as the
dissent seems to imply,
post at
397 U. S. 127,
that the continuing duty regulation is unauthorized by the Act. All
we hold is that neither the regulation nor the Act itself requires
that failure to register be treated as the type of offense that
effectively extends the statute of limitations.
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE
HARLAN join, dissenting.
The general statute of limitations provides, in pertinent part,
that,
"except 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 is 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,
356 U. S. 409
(1958);
United States v. Kissel, 218 U.
S. 601,
218 U. S. 607
(1910);
see Model Penal Code
Page 397 U. S. 125
§ 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,
317 U. S.
419-421 (1943);
Bramblett v. United States, 97
U.S.App.D.C. 330, 332, 231 F.2d 489, 491,
cert. denied,
350 U.S. 1015 (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
Page 397 U. S. 126
opinion,
ante at
397 U. S. 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
Page 397 U. S. 127
birthday, this regulation surely sets that issue at rest.
[
Footnote 2/1] 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. [
Footnote 2/2]
Page 397 U. S. 128
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.
[
Footnote 2/3] By 1942, the system
had been
Page 397 U. S. 129
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)
[
Footnote 2/4] 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
397 U. S. 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
Page 397 U. S. 130
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."
[
Footnote 2/5] 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." [
Footnote 2/6] 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
Page 397 U. S. 131
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. [
Footnote
2/7]
See United States v. O'Brien, 391 U.
S. 367,
391 U. S. 377
(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
Page 397 U. S. 132
place. [
Footnote 2/8] 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,
381 U. S. 11
(1965), it seems clear to me that the regulation merely spells out
an intent already inherent in the statutory scheme. [
Footnote 2/9] Yet
Page 397 U. S. 133
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 (1969);
Marchetti v. United States, 390 U. S.
39 (1968);
Grosso v. United States,
390 U. S. 62
(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
Page 397 U. S. 134
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. [
Footnote
2/10] 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, [
Footnote 2/11]
conspiracy, [
Footnote 2/12]
bigamy, [
Footnote 2/13] nuisance,
[
Footnote 2/14] failure to
provide support, [
Footnote 2/15]
repeated
Page 397 U. S. 135
failure to file reports, [
Footnote
2/16] failure to register under the Alien Registration Act,
[
Footnote 2/17] failure to notify
the local board of a change in address, [
Footnote 2/18] and, until today, failure to register
for the draft. [
Footnote 2/19]
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. [
Footnote 2/20] Our own cases distinguish
Page 397 U. S. 136
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,
306 U. S. 166
(1939);
see also United States v. Universal Corp.,
344 U. S. 218,
344 U. S. 224
(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.
[
Footnote 2/1]
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.
It is incongruous, to say the least, to admit that local boards
have a duty and responsibility to register late applicants,
see
also 32 CFR § 1611.6, but that such applicants have no
corresponding duty to cooperate with the board. Presumably, under
the majority's view, an unregistered male, discovered by the local
board after the time for his initial registration had passed, could
not be punished if he "refuses to cooperate or is inclined to
evade, refuses to answer, or answers falsely. . . ."
See
32 CFR § 1613.16 (provision for dealing with "recalcitrants").
[
Footnote 2/2]
The majority seems concerned to distinguish the "limitations
question,"
ante at
397 U. S. 120,
from the question of whether the duty in this case is continuing,
ante at
397 U. S. 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,
356 U. S. 409
(1958);
United States v. Kissel, 218 U.
S. 601,
218 U. S. 607
(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.
[
Footnote 2/3]
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."
Although it appears that late registration by local boards after
Registration Day was authorized by the President,
see
397
U.S. 112fn2/1|>n. 1,
supra, until World War II and
the 1940 Act, the local boards' "primary functions [were] not
registration, but classification and induction."
Id. at
23. Once Registration Day had passed, and the emergency machinery
had been dismantled, special procedures were required for
accomplishing late registration,
see U.S. War Dept.,
Selective Service Regulations § 54(b) (2d ed.1918), and "local
boards had difficulty with the proper entry or handling of
registrations which, too often for insufficient reason, were
received late." U.S. Selective Service System,
supra, at
91. Significantly, during subsequent registration days under the
1917 Act, when the boards once again had the help of special
machinery, tens of thousands of tardy registrations were effected.
Id. at 15. By 1941, the boards were equipped to handle
late registrations as a matter of course, resulting in the issuance
of the "continuing duty" regulation.
See id. at 42,
91-92.
[
Footnote 2/4]
See, for example, in addition to the "continuing duty"
regulation, the following regulation designating the "Place and
time of registration":
"Any person required to be registered may present himself for
and submit to registration at any designated place of registration
or at the office of any local board during the hours for
registration specified in the Presidential proclamation
or
during the usual business hours."
32 CFR § 1613.1(a) (emphasis added).
[
Footnote 2/5]
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 in 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).
[
Footnote 2/6]
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.
[
Footnote 2/7]
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,
397
U.S. 112fn2/3|>n. 3, at 1-2 ("[t]he object . . . of
registration is . . . to know where available manpower is and to be
able to reach it . . .").
[
Footnote 2/8]
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
(191).
[
Footnote 2/9]
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.
[
Footnote 2/10]
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.
397
U.S. 112fn2/6|>6,
397
U.S. 112fn2/8|>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").
[
Footnote 2/11]
See State v. Thang, 188 Minn. 224, 246 N.W. 891
(1933).
[
Footnote 2/12]
See Grunewald v. United States, 353 U.
S. 391 (1957);
United States v. Socony-Vacuum Oil
Co., 310 U. S. 150,
310 U. S. 253
(1940);
United States v. Kissel, 218 U.
S. 601 (1910).
[
Footnote 2/13]
See Cox v. State, 117 Ala. 103, 23 So. 806 (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).
[
Footnote 2/14]
E.g., State v. Dry Fork R. Co., 50 W.Va. 235, 40 S.E.
447 (1901).
[
Footnote 2/15]
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).
[
Footnote 2/16]
See Hanf v. United States, 235 F.2d 710 (C.A. 8th
Cir.),
cert. denied, 352 U.S. 880 (1956).
[
Footnote 2/17]
United States v. Franklin, 188 F.2d 182 (C.A. 7th
Cir.1951).
[
Footnote 2/18]
United States v. Guertler, 147 F.2d 796 (C.A.2d
Cir.1945);
see 397
U.S. 112fn2/8|>n. 8,
supra.
[
Footnote 2/19]
See Fogel v. United States, 162 F.2d 54 (C.A. 5th
Cir.),
cert. denied, 332 U.S. 791 (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 (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).
[
Footnote 2/20]
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 Corp., 344 U. S. 218
(holding that defendant's acts constituted a continuing course of
conduct, subject only to one prosecution), 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.