*1
STATES
UNITED
TOUSSIE
2, 1970
March
14, 1970 Decided
January
Argued
No.
petitioner.
cause
argued
I.
Murray
Gurfein
Heller.
W.
Jacob
was
briefs
on
him
With
cause
Jr., argued
Beytagh,
X.
Francis
Solicitor
brief
him
With
States.
Wilson,
General
Attorney
Griswold, Assistant
General
Fenig.
Edward
Feit, and
M.
Jerome
Court.
of the
opinion
delivered
Mr.
Black
Justice
jury-
convicted,
Toussie
Robert
Petitioner
conviction
His
draft.
failing
trial,
2dF.
Appeals,
Court
affirmed
(C. A. 2d Cir.), and we granted certiorari,
Section 3 of the Universal Military Training and Service Act, 65 Stat. 76, provides that: “Except as provided otherwise 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 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 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 eight- eenth anniversary of the day of their birth, or within five days thereafter.”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 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. 1 50 U. S. C. App. 453. § This Act was by amended the Military Selective Service Act of 1967, 81 Stat. 100, but those amendments did not change provision. Failure perform this duty is punishable by fine, imprisоnment, or both. 50 U. S. C. App. (a) (1964 § 462 ed., Supp. IV). 2Proclamation 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 passage of the Universal Military Training and Service Act by Proclamation No. 2942, August 30, 1951, 65 Stat. c35. indictment, dismiss moved Toussie trial Before by barred prosecution arguing otherwise “[ejxcept provides which prosecuted, shall person no law, provided expressly unless capital, offense, any punished or tried, next within ... found indictment C. U. S. committed.” been have shall offense con- provision express no there Since § crime his argued Act, Toussie Draft trary aof subject could complete 1967— returned *3 indictment an based prosecution agreed Government The thereafter. years eight con- argued 1959, but in complete crime the did Toussie day each committed to tinued imрoses Act held Court District The register. age lasts which to duty continuing a perform to failing prosecution indictment if timely is26 becomes man before old— becomes defendant before returned F. June to prior time any case of Court 1967). The Y.N.D.E. (D. C. Supp. offense If 1157-1158. 2d, at F. agreed. Appeals but, timely, prosecution one continuing ais dismissing erred Court District not, if indictment. begins limitations statute when deciding our guide considerations several case given a run tois of a purpose decision. fixed a certain prosecution criminal exposure limit acts those occurrence following time period sanctions. criminal punish decided legislature individuals protect designed limitation Such when charges against themselves to defend having passage by the obscured become may have facts basic punishment official danger minimize time
becausе 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 stat
utes are 'to be liberally interpreted in favor of repose,'
United States v. Scharton,
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 President may prescribe. The Government refers to a regulation рromulgated under the Act which pro- 116 reg- to subject every person duty that “[t]he
vides any if for and times, all continue shall . . . istration or day on registered not is person any such reason imme- shall he registration, his fixed days one registra- to submit and himself diately present that urged It (c). 1611.7 § CFR ... tion im- Congress what explicit makes only regulation this registration that that itself, Act said plicitly to failure and age until continues that duty ais be can that offense criminal ais then before birthday. 26th as late as punished as construed be might admittedly The of the history light but urges, Government offenses continuing that principle and laws draft par- feel do found, we readily too to are law draft doctrine. incorporates Act ticular subject were persons certain 5§in provided Presi- by the proclamation “upon and registration registration of such place and time stating . . . dent present ... persons all [such] shall Stat. registration.” submit themselves pro- President authority Pursuant 80. day,3 and registration first 1917, 5, June claimed were men young 10,000,000 day approximately registra- draft general more no There registered.4 required President 1918, when 24, August tions subject become had who men those all Later register.5 come 1917, to 5, June since age expanded statute, amended Congress year “upon provided registration,6 subject group Stat. May Proclamation Service and Selective Registration System, Selective U. S. *5 11 1834. Stat. 40 5 August Proclamation ages of between men all first group expanded Congress 80. 40 Stat. 30. 955. Stat. ages between all those proclamation by , President . . stating the time or times and place or places of . . . registration, it shall be duty of all persons of the designated ages ...
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 proclamation designating a single day, September 12, 1918, as registration day for all those so subject.7 That registration was the last under the World War 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 reg- ister 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 sub ject 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 regis tration on different days for different men, the proc first lamation under the new Act set a uniform date, October 16, 1940, for the registration of all men.8 It was not until two years later that the President first issued a proclama tion 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.9 7 Proclamation of August 31, 1918, 40 Stat. 1840.
8 Proclamation No. 2425, September 16, 1940, 54 Stat. 2739. Proclamation No. 2572, November 17, 1942, 56 Stat. 1982. *6 118 Con- 1947, 31, March on expired Act 1940 the After and draft the men register to decided again gress would 26 and 18 of ages the between men declared of Act Selective registration. to subject register to authority the Since 604. Stat. 62 1948, to necessary it was exрired, had Act 1940 the under group entire of the registration initial the provide to identical language 26. and 18 between men of Con- case,10 this in involved statute the in found Presi- the to details administrative left again gress times or time “at registration authorized and dent not doWe designate. might he places” or place and be- men on register to duty of the imposition think dif- at registration provision 26 18 and tween of indicate intended was times ferent crime when run begin did regis- initial of the time at Since complete. first of various men were there Act under tration phrased Act registered, had who ages entire on imposed of a terms generally re- fact President authority Under group. dur- between men all registration quired different 1948, Persons September month ing days, different register required were ages required 1930, 19, September after born those all anni- eighteenth they attain day “on the there- days or birth, within their day of versary have Act provisions registration after.” been thus there 1948, and since force remained their shortly 18-year-olds registration continual are who men fewaof exception birthday. With may become but they are when subject supra, 113. at See 1948, July No. Proclamation 113, and supra,
62 Stat.
T—i *7 so later on,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 Act intended to treat continued failure to register as a renewal of the original crime or the repeated com- mission of new offenses, but rather perpetuated the con- ception of the first registration that a man must register 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 process of registration is a “con- tinuing” one. But from the registrant’s viewpoint 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,13 and that most lower federal courts have held that failing to register is a continuing offense for purposes of applying the statute of limita- tions.14 It is suggested that since Congress has legislated
12For example, students at certain military colleges are exempted
registration.
from
50 U. S. C. App.
456 (a) (1) (1964
§
ed., Supp.
IV).
If a student
in such an institution withdraws, he
pre
would
sumably
required
since the Act specifically stаtes that
exemption
“[n]o
. . . shall continue after the cause
therefor ceases to exist.” 50 U. S. C. App.
(k).
456§
Thus such
a
may
student
required
not be
to register until some time after
his 18th birthday.
regulation
was first promulgated under the 1940 Act on
4,
June
1941. Selective
System
Regulations
Vol.
IX,§
205 (d), 6 Fed. Reg. Fogel
v. United States, 162 F. 2d
(C.
A. 5th Cir.),
cert. denied,
Failing in engage conspirators as long as continues held has United plot. their of furtherance in acts overt v. Grunewald (1910), S.U. Kissel, 218 v. States nature inis It U. S. States, 353 United renewed a bring acts day’s each that conspiracy aof prevent. sought Congress evil substantive threat clearly registrations draft first fact continuing a not events instantaneous as viewed in inherent nothing is there indicates process continuing ait makes failing nature offense. support in argument mean doWe insubstan- is case offense continuing a implying we Basically equivocal. highly best is it but tial, am- somewhat a construing task with faced are would way One ways. of two one biguous years period ato prosecution institution limit could other while violation, initial following prosecution date final extend effectively As complete. first is crime as late before: said have we readings two between made has choice “when crime, made Congress conduct of what alterna- harsher choose we before appropriate, spoken have should Congress require tive, should We definite. clear language ambiguous some outlawry criminal derive Corp., Universal States implication.” *10 221-222 S.U. made also remarks those insignificantly Not doctrine. continuing-offense considering context conclude we considerations these all light draft law does not intend permit criminal prosecution for failing to register as late as 13 years after initial failure. Consequently the statute of begins to run at the initial failure to register as required by law. Since facts 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 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 dimin- ished. 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 following the initial failure to register will significantly impair either the essential function of rais- ing an army or the prosecution of those who fail to register. We do feel that the threat of criminal punish- ment 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 eаsily have provided for a longer period of limitations. It has not yet done so.
There is no doubt 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 indict- ment 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 prosecution made subject to statute of limi- tations. “Every statute of limitations, of course, may permit a rogue to escape,” Pendergast v. United States, *11 concludes court a when but (1943), 412, U. S. must it prosecution, given a bar does statute that will congressional of expression clear effect give tried, prosecuted, be shall person “no casе in such that case in this conviction of judgment The punished.” or therefore must Reversed. Justice Chief The whom with White, Justice Mr. dissenting. join, Harlan Justice Mr. pertinent in provides limitations statute general The by provided expressly otherwise as “[ejxcept that part indict- unless ... prosecuted shall law, person no next within . . . found is ment §C.S. 18 U. committed.” been have shall offense petitioner’s bars statute this holds majority The failing birthday, 26th his shortly before prosecution, conclusion, That draft. for the registered have ever pur- language, neither by supported submit, is I Selective applicable history nor the pose, Acts. stressing by gained is nothing clear once is at It “[ejxcept applies limitations statute general question law.” provided expressly otherwise as applies, statute five-year whether is case de- turn question That run. begins it when but is petitioner which is “offense” whаt pends committed he when tried, being as complete case, offense an typical offense. occurs, crime element every as soon in the But date. run begins limitations exhausted crime offense,” the “continuing aof case as long the statute purposes States United continues. of conduct course proscribed v. States (1958); S. Cores, U. Code Penal Model see (1910); U. S. Kissel, 218 *12 § 1.07, (Tent. Comment Draft 5, No. 1956). The ques
tion into which category a given offense falls has long
been held to be entirely a matter of statutory interpre
tation. See, e. g., United States v. Cores, supra; Pender
gast v. United States, 317 U. S. 412, 419-421 (1943);
Bramblett v. United States, 97 U. S. App. D. C. 330,
332,
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 spells sectiоn —453— 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 any or subsequent registra- tion, is between the ages of eighteen and twenty- six, to present himself for and submit to registra- tion at such time or times and place or places, and in such manner, as shall be determined by procla- mation of 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, unreg- istered 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 com- mitted by an alien who unlawfully “remains” in the country. See United States v. Cores, supra; majority view this Under n. 16. ante, opinion, only question Act, the preced- within time any whether, at raises being characteristics — two those indictment, ing limits —ac- age specified between unregistered accused. described curately duty only however, concludes, majority specific those ais by § prescribed President by only days those —declared days —and procla- presidential case, registrations. initial *13 registered “be to in 1948 yet persons mation, of the anniversary eighteenth the attain they day the on Ac- thereafter.” days or within birth, of their day the passed, has day fifth the once majority, to cording commit- indeed he although 18-year-old, unregistered obligation furthеr any under longer no offense, is an ted with odds wholly at conclusion That register. and whole as a Act Service the Selective purposes regulations, with as well particular, section pres- and interpretation, administrative longstanding itself. proclamation idential under issued regulations, Service 1941, Selective Since C. U. S. President, 50 granted explicitly authority pt. CFR IV); Supp. ed. (1964 460§ App. that: provided § 460), have under authority (invoking registration subject person every “The registration submit for himself present any reason if times, all continue shall one day or on registered person any imme- shall he registration, for his days fixed registra- submit for and himself diately present he where area board local before tion (c). 1611.7 § CFR be.” happens duty imposed whether toas any doubt there If petitioner’s day after fifth beyond extends 453§by birthday, this regulation surely sets that issue at rest.1 Indeеd, the Court apparently concedes as much since it decides to fall back on the theory that regulation is not authorized by the Act.2 1Despite the majority’s assertion to the contrary, quoted regulation is neither the first nor only regulation reflecting the expectation registration was to occur, even though it was “late” registration. Even under the 1917 Act, 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. (2d i ed. 1918), provided “other than Registration Day . . . irrespective of the date on which [the applicant] required to register.” Id., 54; see § U. S. War Dept., Selective Regulations 54 (1917) § (“Local Boards will accomplish the registration of persons subject to registration who, any reason, have not registered been on or since [Registra tion Day]”) (emphasis added). Similarly, under the 1940 Act, procedures were described for registering persons “[a] present who themselves for registration, including persons who should have regis tered previous on a registration day . . . .” 32 CFR (b) 613.11 § (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 persons present who themselves *14 for registration at times other than on the day days or fixed for any registration.” 32 CFR § 1612.1. It is incongruous, say to least, the 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 punished be 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”). 2The majority seems concerned to distinguish the “limitations question,” ante, 120, question the of whether the duty in this case is continuing, ante, at 121 n. 17. But the Court cannot have it ways. both If the continues, as the regulation prescribes, the question has been settled: the definition of the “offense” was yet exhausted when this indictment was brought. United States v. Cores, 356 U. 405, S. 409 (1958); United States v. Kissel, 218 U. 601, S. 607 (1910). If, on the other hand, the untenable. simply however, position, That President the authorization general the addition and rules necessary the prescribe “to (b) 460§ in title,” this provisions the out carry regulations such “at registration requires expressly itself 453§ manner, in and places, or place and times or time Presi- of the proclamation by determined shall as here- prescribed regulations and rules by and dent Act, the reference majority’s The under.” the opposite the just proves anything, proves it if pre- President the Act, Under conclusion. Court’s place, take towas registration when day one scribed sys- registration precincts election local utilizing registrations take adapted well were tem been had system By day.3 other any must regulation “continuing-duty” run, then over discomfort Court's with sympathize I can While invalid. unease assume, view I forced is thus position in involved regulations indication additional simply an President given powers of the scope fully within are case Act. under Sys Service Selective S. in U. described registration first The (1946): 10-11 Selective tem, Registration organization general to follow idea basic “The machinery. The Governors election of the units administrative persons designated Clerks, other or County States, the appointed or selected were precincts registration county and ordinary registration ordinary place registrars. of Government processes normal voting. Thus place activity.” extraordinary for this utilized boards local late appears Although it supra, n. President, see by the authorized Day was Registration “primary boards’ local Act, the and the IIWar World *15 induction.” classification but [were] functions emergency passed, Day had Registration Once Id., at 23. required procedures dismantled, special machinery been had Selective Dept., S.U. War see registration, late accomplishing difficulty had boards "local 1918), and (2d (b) ed. Regulations § often which, too registrations handling of entry or proper with streamlined to the point where local boards were oрen every day for the purpose of accepting new registra- tions. The current regulations are nothing more or less than a setting of “times” and “places” (your nearest local board during the usual business hours)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 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 actu- ally 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 registra- tion 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 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 special machinery, tens of thousands of tardy registrations were effected. Id., at By 1941, the boards were equipped to handle late registrations as a matter of course, resulting in the issuance of the “continuing-duty” regulation. id., 91-92 44See, for example, in addition to the “eontinuing-duty” regula tion, the following regulation designating the “Place and time оf 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 busi
ness hours.” 32 CFR
(a)
§ 1613.1
(emphasis added).
*16
majority’s)
the
(like
puzzlement
Senator’s
the
despite
to
seem
would
period
registration
the
that
fact
the
over
Major
accepted
finally
Senator
The
expired.
have
“your
himself
assuring
after
explanation
Hershey’s
. .
[a]nd
.
in session
times
all
at
are
boards
registration
register.”5
to
opportunity
the
given
they would
wholly
proclamation,
presidential
relevant
the
Even
accords
regulation,
“continuing-duty”
the
from
apart
defined
is
register
to
the
view
with
day
the
on
sun
the
of
setting
the
terms
solely
de-
proclamation
The
registration.
for
fixеd
originally
day fixed
the
on
register
to
unable
person
a
clares
his
beyond
circumstances
“because
registration
his
the
possible
as
soon
as
so
do
shall
...
control
6 Apparently,
exist.”
to
ceases
inability
cause
few
these
calls
in what
concedes
majority
the
register
duty to
valid
a
impose
does
Act
“exceptions,”
being
That
date.
initial
than
other
day
aon
said
can
Congress
me
to
inconceivable
case, it
registra-
late
require
to
President
authorized
have
tardiness, but
their
excuse
good
awith
those
tion
late
require
him
similarly authorized
have
excuse
no
or
excuse
bad
with
those
all.
support
receives
453§of
view
“continuing-duty”
context
purpose
section’s
appraisal
an
Military
on
Committee
Senate
before
S. 4164
Hearings on
exchange
also
(1940).
Sess., 385
3d
Cong.,
Affairs, 76th
Committee—
Chairman
then
Reynolds by
Senatоr
—
between
amendment
an
on
later
year
hearings a
during
Hershey
General
discretion
broad
“gives a
Act
out
pointing
Act,
them
..
[a]nd
.
fit
Army sees
in as
men
these
call
Committee
Senate
before
S.
on
Hearings
fit.”
they see
Sess., 34
1st
Cong.,
Affairs, 77th
Military
Fed.
1531, 13
Stat.
1948, 62
20,
July
2799,
No.
Proclamation
Supplementing
contained
language
Similar
Reg.
c36.
65 Stat.
1951,
August
Proclamation, No.
*17
of the statute considered as a whole.
Immediately fol
lowing the registration requirement, § 454 declares that
“every male citizen . . . who is between the ages 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 per
son “required to register,” this section, by its literal
terms, made him still liable for induсtion at the time
this indictment was brought. But
if he still had a
duty to serve, then it
is completely illogical to con
clude that he did not also still have a duty to register.
The whole purpose of the registration section is to pro
vide 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
training.7 See States v. O’Brien,
7This 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, n. 3, at 1-2 (“[t]he object ... of registration is ... to know where avail able manpower is and to be able to reach it . . .”). “in- rule settled apart Even place.8 those by placed expressly terpretation weight given must administration its with charged statute,” construing task with faced courts it seems (1965), 11 1, S.U. Rusk, 381 Zemel g., e. an out spells merely regulation me clear Yet statutory scheme.9 inherent already intent cer classification (registration 1617.1, 1623.5 CFR §§ times"); “at all possession personal in one’s kept must tificates *18 current informed board local keep to (duty 1641.7 CFR § 32 local registrant’s] keep [the “to (duty 1641.3 CFR § status); 32 reach will mail where address times all advised board imposing interpreted ago long was regulation latter him”). The of address change aof board local advise duty to continuing a that petitioner’s to similar claim a rejected decision ain because prosecution, barred of limitations statute three-year then indictment before three than more changed was address 2dA. (C. 2d 147 F. Guertler, States brought. “con theory that majority’s under Presumably 1945). Cir. in the provision express created only be can tinuing duties’’ imposed continuing overruled, and is decision statute, this aof face aside—all brushed regulation by this years” 2inus dime a be worth "wouldn’t knew Congress date.” up to “kept not were lists information if Military on Committee Senate before S. Hearings (1941). 37, 38 1st Sess., Cong., Affairs, 77th 30, June 1967, enacted ofAct Military Selective provision (a) а to § added Congress Stat. 1967, 81 “to induction for report refused or failed who registrants immediately shall available when induction liable remain IV). Petitioner Supp. ed., (1964 App. § C. U. S. inducted.” intend did Congress indication anas provision on this relies express here, it used where, as except continuing duties impose oppo just history shows legislative effect. language express without that, even assumed Congress case. site 26; the age continue would induction liability for language, registrant “insure order solely in prompted amendment age 26” beyond classification draft his litigation prolongs who service”) “would military liable longer [be] “no would he (when .”.. age . regardless induction, liable remain nonetheless There Sess., 30 1st Cong., 90th No. Rep. R.H. majority holds that when dawn breaks on the un- registered male, six days after his 18th birthday, his crime is complete and ended; though the Act specifi- cаlly declares that he is still liable for induction, he 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 con-
stitutional problem. Petitioner has argued that
if his
duty to register continues, he cannot be punished for
failing to comply since late registration would neces-
sarily 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,
tional this “incentive” possible only The late. tration petitioner registering, that fact stems case com- to of statute caused have would only Government giving thus running, mence prosecu- leaving instead prosecute to which years possibility this suggest To 31.10 age open tion “attractive” sufficiently is running starting Fifth purposes for “compulsion” to amount fancy. purest is Amendment Ameri- stranger hardly is offense” “continuing The extended been has concept jurisprudence. can conspiracy,12 embezzlement,11 crimes embrace re- support,15 provide failure nuisance,14 bigamy,13 contin register duty to if suggested 10 Petitioner duty, so bounding for place stopping logical nois there uing, failed having prosecuted can old years seventy person “a Brief eighteen.” age at before fifty-two register fact overlooks horrible paraded But Petitioner indicate also dutsq create provisions same ever one no which beyond age 26—the age duty ends prоclamation, this Act under required induc liable been have normally would one no which beyond Sess., 2d Cong., 80th No. Rep. S. supra; 8,6, nn. See tion. have who persons required (“[Registration (1948) 6 26”). age reached (1933). 891W.N. 224, 246 Minn. Thang, 188 11 v. State See United (1957); 391 S.U. States, 353 United 12 v. Grunewald See (1940); 150, 253 S.U. Co., 310 Oil Socony-Vacuum v. States S.U. Kissel, v. States compare (1898); So. Ala. State, Cox (1939), 2dS.Y.N. 1000, 13 *20 Div. App. Brady, 257 People v. (1924). 791 E.N. 15, 142 Mass. Ross, 248 v. Commonwealth with 447447 E.E.S.S. 235, 40 Va.W. Co., 50 R. Fork Dry 14 v. g., State E. (1901). (Ct. 124124 A.A. 109 Boyce) (7 Del. State, 30 15 v. Richardson 575 E.S. 100 App. Ga. State, 24 v. Towns 1920); Sess. Gen.
135
peated failure to file reports,16 failure to register under
Alien Registration Act,17 failure to notify the local
board of a change in address,18 and, today, failure
to the draft.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 interpretа-
tion with “a presumption against a finding that an offense
is a continuing one . . . Model Penal Code § 1.07,
(Tent.
Comment
Draft
5,No.
1956). But the presump-
tion 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 con-
trary 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
judicial
our
responsibility
interpreting Acts of
Congress as they come to us, without insisting that Con-
gress make our task easier by using some particular form
of words to express its intent.20 Our own cases dis-
v. United States,
See Hanf
235 F. 2d
(C.
A. 8th Cir.), cert.
denied,