v. Hackley, No. 4-73-Crim. 243 (D.Minn. 4th Div., filed March 14, 1974).
Section 462(d) was enacted in response to the decision of the Supreme Court in Toussie v. United States, supra. There the defendant did not register for the draft within five days of his 18th birthday, June 28, 1959. He was indicted in May, 1967, for failure to register and subsequently was convicted. The District Court held that the Universal Military Training and Service Act
imposes a continuing duty to register which lasts until age 26 and the prosecution, therefore, was not barred by the 5-year statute of limitation since a violator could be prosecuted for 5 years after his 26th birthday. The United States Court of Appeals for the Second Circuit affirmed.
In reversing the conviction, the Supreme Court held that Toussie "was allowed a five-day period in which to fulfill the duty (to register), but when he did not do so he then and there committed the crime of failing to register." 397 U.S., at 119, 90 S. Ct., at 862. The Court, rejecting the theory advanced by the government and supported by a long string of case law, ruled that failure to register is not a continuing offense: " (There) is nothing inherent in the nature of failing to register," the Court said, "that makes it a continuing offense." 397 U.S., at 122, 90 S. Ct., at 864. The Court concluded that since the crime was complete "when dawn breaks on the unregistered male, six days after his 18th birthday," and
since the failure to register was not a continuing violation, then the statute of limitations begins to run at the end of the five-day registration period. In short, the Court held that an unregistered male could not be prosecuted for failure to register unless he was indicted within five days after his 23rd birthday.
In the aftermath of Toussie the Congress, if it wished to avoid the consequences of the decision, could have done one of two things: made failure to register a continuing offense, or extended the statute of limitations.
Congress chose the later alternative and amended the Act to permit prosecutions for failure to register for 5 years after a violator's 26th birthday.
The legislative history clearly spells out the Congressional purpose in enacting the new statute of limitations:
"Extension of Statute of Limitations on Prosecution For Non-Registration to Five Years after a Registrant's Twenty-Sixth Birthday