The opinion of the court was delivered by: MCCUNE
The defendant has been indicted for failure to register with the Selective Service System, a violation of 50 U.S.C. App. § 462(a). He has filed a motion to dismiss the indictment on the ground that the prosecution is barred by the statute of limitations.
The defendant became 18 years of age on September 7, 1968. Under § 13 of the Military Selective Service Act, 50 U.S.C. App. § 463, and the applicable Presidential Proclamation the defendant was required to register with the Selective Service System within five days of his birthday. He did not do so.
The defendant argues that his crime of failure to register was complete six days after his 18th birthday, Toussie v. United States, 397 U.S. 112, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970). The 5-year statute of limitations, 18 U.S.C. § 3282, began to run at that point, he argues, and an indictment, in order to be timely, should have been returned by September 13, 1973. Since the indictment was returned on March 7, 1974, his argument concludes, it is barred by the statute of limitations.
The government responds that this indictment is timely because it was returned within the time of the amended statute of limitations on prosecutions for failure to register enacted by the Congress on September 28, 1971, 50 U.S.C. App. § 462(d).
The new statute of limitations was passed, obviously, before the old 5-year statute had run on the defendant's violation. The government contends that the new statute of limitations applies to the defendant even though his failure to register occurred before it was enacted. The government relies solely on United States of America 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
The House version included a provision recommended by the Administration by adding a new subsection 5(d) which will overcome the result of Toussie v. United States, [397 U.S. 112, 90 S. Ct. 858, 25 L. Ed. 2d 156] (1970). That opinion interpreted the Act to limit the time for prosecuting men who fail to register to five years and five days after a man's 18th birthday. The Committee language will allow the prosecution of a nonregistrant up to five years after his 26th birthday. It does not change the statute of limitations for any other violation of Selective Service law. This change is deemed appropriate not only as a deterrent to nonregistration but also as a reflection of equity to those men who comply with the Act's registration requirements and remain liable at least to age 26." 1971 U.S.Code Cong. and Admin.News, p. 1455-6.
The issue before the Court is whether the new statute of limitations applies to offenses committed before its enactment.
Hackley, supra, is apparently the only case which has decided the question. The facts in Hackley are almost identical to the facts here. There, the defendant was required to register by July 17, 1967, and he did not do so. He was not indicted, however, until December 12, 1973. The court held that although the indictment was returned beyond the expiration of the 5-year statute it was within the period specified in the amended statute and therefore timely. The court relied on a case decided by Judge Learned Hand, Falter v. United States, 23 F.2d 420 (2nd Cir. 1928), and its progeny, for the indisputable proposition that Congress may extend a statute of ...