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Toussie v. United States

Supreme Court of the United States

January 14, 1970, Argued ; March 2, 1970, Decided

No. 441

Opinion

 [*112]  [***160]  [**859]    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  [*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 [****3]  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." 1 [****4] 

The applicable presidential proclamation provides that "persons 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." 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.

 [*114]  Before trial Toussie moved to dismiss the indictment, arguing that prosecution was barred by the statute of limitations which provides ] that "except as otherwise  [**860]  expressly provided by law, no person shall be  [***161]  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 [****5]  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.

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397 U.S. 112 *; 90 S. Ct. 858 **; 25 L. Ed. 2d 156 ***; 1970 U.S. LEXIS 96 ****

TOUSSIE v. UNITED STATES

Prior History:  [****1]  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

Disposition:  410 F.2d 1156, reversed.

CORE TERMS

registration, register, proclamation, regulation, statute of limitations, fail to register, continuing offense, indictment, limitations, five year, prescribed, places, time and place, birthday, rules and regulations, required to register, young man, punished, attain, course of conduct, unregistered, induction

Governments, Legislation, Statute of Limitations, General Overview, Time Limitations, Criminal Law & Procedure, Criminal Offenses, Military & Veterans Law, US Selective Service System, Interpretation, Contracts Law, Discharge & Payment, Defenses, Statute of Limitations, Immigration Law, Duties & Rights of Noncitizens, Military Service