TOUSSIE v. UNITED STATES
Legal provision: Selective Service, Military Selective Service, or Universal Military Service and Training Acts
Argument of Murray I. Gurfein
Chief Justice Warren E. Burger: Number 441, Toussie against the United States.
Mr. Murray I. Gurfein: Mr. Chief Justice and may it please the Court.
The petitioner in this case was born in 1941 in June.
He became 18 on June 23, 1959.
He failed to register for the draft, the reasons of conscience and was indicted after an arrest in February of 1967, almost eight years after his initial failure to register.
Chief Justice Warren E. Burger: Now Mr. Gurfein, when you say he failed to register for reasons of conscience, he did not make any record or take any step or did he at that time to record that fact?
Mr. Murray I. Gurfein: He took no steps but if I may, Your Honor in connection with my argument on the First Amendment, I shall try to expand that a little further.
I'm trying to make a summary statement of facts now so that I can indicate to the Court the three points we should like to argue within the short space of time allotted.
Chief Justice Warren E. Burger: Very well.
Mr. Murray I. Gurfein: The first statement I want to make on that is that I will not get involve at this time in the reasons why the record indicates that there was a sincerity of belief on the part of the petitioner that he could not take part in the registration process itself because his was a pristine religious view that the registration process itself was merely an extension of the war making in which he was against.
It should be recalled that in 1959 when the petitioner willfully failed to register, there was no war going on.
The Korean War had been finished.
There was no Vietnam War at that time.
As I say, he was arrested eight years after the event.
The general statute of limitations as we know is a five-year statute and in the words of that statute except as otherwise provided by law.
Adequate and proper motion was made to dismiss prior to the trial on the basis of the statute of limitations having run which was denied.
The trial was held and at the trial counsel for petitioner requested a jury charge to the effect that if the jury believe in the sincerity of the religious beliefs of the petitioner and that his failure to register was due to his religious conscience that they should acquit.
This request to charge was denied by the trial Court and a conviction by the jury and suit.
In this Court as we did below, we make three points.
First, that the statute of limitations is a five-year statute and that any extension beyond it is beyond the legislative intention, the congressional intention and indeed the prerogative of the executive.
Secondly, we say that if the statute of limitations point to save.
It is only save thus the court below indicated by holding that a regulation and not a statute created a continuing duty to register and that by just the possession of the words, the continuing duty even though Congress said nothing about a continuing offense, ipso facto made a continuous offense as if Congress had specifically mandated it.
And if that be the construction of the statute, then it is violative of the Fifth Amendment privilege of the petitioner.
The last point which I hope we shall have some time to discuss is that we believe that under the First Amendment, the minimum that we are asking here is covered by that Amendment and that is, that when a religious principle objector, objects the registration as part of the process.
While it is true, he must subject himself to the criminal process at the same time he has a right when he is tried to a jury to have an instruction that if the jury believes he is religiously sincere that they should recognize in the context of this whole problem, his religious conscience under the First Amendment.
Now, if I may turn first to the statute of limitations, if Your Honors please.
As a result of the decision below by the distinguished Second Court of Appeals, Second Circuit Court of Appeals as well as other Circuits, we are now in the state of law that a narcotics peddler is subject to a statute of limitations of five years.
A man who sells defense secrets to a foreign government is subject to a statute of limitations of ten years.
The boy of 18 who fails to register for Selective Service is subject to a statute of limitations of 13 years and the questions is, how did this come about and is this harsh result sound.
Justice Hugo L. Black: Are you raising a constitutional question on that fact?
Mr. Murray I. Gurfein: In this face, I'm not raising a constitutional question, Your Honor, except --
Justice Hugo L. Black: The questions.
Mr. Murray I. Gurfein: I beg your pardon, Justice Black?
Justice Hugo L. Black: Are you raising any question about the government’s policy to have different statute of limitation?
Mr. Murray I. Gurfein: No.
I'm raising the question (a) as to the intention of Congress which is not expressed and (b) that without the intention of Congress, if Your Honor please, if the regulation is construed as I have indicated it was below, it is a non-constitutional delegation of legislative power by the Congress to the President and that hence, under the doctrine of separation of powers, it is unconstitutional, yes, Your Honor.
Justice Potter Stewart: And your 13 years is, you get by adding five years after his 26th birthday?
Mr. Murray I. Gurfein: That is correct.
I need to spell it out because I thought it was obvious but what the court did below in order to get around this problem was to say although the regulation which I shall read in a minute, perhaps I’ll read it now.
Although the regulation says that the duty the register shall be continuous at all times, two circuits have construed at all times to mean for life apparently because there are two circuits that seem to upheld that even if the man is over 26, rather is the statute goes beyond age 26, he can still be prosecuted which would make a man of 70 subject to prosecution and this Court had a collateral problem like that Gara which was affirmed by a divided court four to four in 1950.
But it was a collateral case so we really don’t know what the court held.
Now in the Second Circuit, they held that the regulation merely limited to 26 and therefore it’s obvious that a boy of 18 must wait till 26 which is eight years and then five years thereafter.
It’s five and that’s where I get my 13 years which is exactly what was done below in this case.
Now, the regulation, I don’t think means, I say this with most respect designation, what it has been construed to me and I don’t think it needs much of a gloss as to what was intended.
At page 813 of our brief in the appendix, the regulation says, 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 his registration.
He should immediately present himself for and submit to registration before the local board in the area where you have to submit.
And the word immediately, the very peculiar word, if you’re talking about a continuing duty.
It seems to me that the fair entrance of this is that in issuing the regulations under the statute which permitted the President to fix the time with times and place of place of registration which naturally Congress had to do, they could not watch everyday the registration.
But all these means is that if a man was sick or absent from the country or out of town or something else happened which was not willful that he should not believe that he was thereafter forever discharged from his duty because at age 18 he could not register.
Otherwise, the word immediately makes very little sense.
And I say, if we can take it in this context, Your Honors, you have a very simple administrative regulation here that there’s not in its face before to create a real continuing duty and certainly on its face, there’s nothing about a continuing effects.
Chief Justice Warren E. Burger: What would be the impact of that regulation if you omitted the word immediately in your view?
Mr. Murray I. Gurfein: Well, I think immediately if just to gloss and I can’t read the mind of Congress not of the drafters of the regulation, Mr. the Chief Justice.
Chief Justice Warren E. Burger: But suppose we took it out now.
Would it mean anything different?
Mr. Murray I. Gurfein: Well, I think the purpose of it is not to catch willful offender to violate the law that beyond the pale.
I think this is for the purpose of notifying people for a perfectly ready, willing, and able to register under the draft law to a simple point that if they are not available on the day when they are suppose to register, that they’re suppose to register thereafter.
Now when it says immediately Mr. Chief Justice, I think the same result should follow but I think the word immediately does tend to help us in construing it merely as an administrative regulation and not as the courts below did as an effect and substitution for a statute extending the general statute of limitations beyond five years.
Now, the process by which the court below arrived at extending statute was by acknowledging very frankly and the opinion of the Second Circuit certainly is a distinguished opinion in terms of facing the problems that arose and let me decided against this, we said we cannot complain about the fairness of the judicial reasoning that led to the result and they recognize all the problems there.
That Court did not as the Government now contends say that you can read anything into that statute.
They honestly said, we cannot read it into the statute.
There isn’t any such thing because the statute of limitation.
The general statute just accept according as otherwise provided according to law.
Assume the Congress can make a 13 years statute of limitations and none of the your question Mr. Justice Black if it chose to but the question is, did it choose to?
What is there in this statute which simply says that the President may say when a boy shall come in and register?
What is there in that statute?
It gives the Executive power to promulgate what the Court of Appeals for the Second Circuit recognize as in practical effect and extension of the statute of limitation.
Now, we think that this Court over the years and misquote way back as always lean over backwards if I may use the colloquial phrase with respect to statutes of limitations.
It runs against the grain of lawyers and judges, generally, the whole system of criminal justice to permit by extensions by back way or back doors methods by ambiguities the creation of extensions of statutes of limitation and this Court has so held many time.
Now, the reason for it is perfectly obvious and I go beyond that.
It seems to us that in the historical material that we put into the brief.
Your Honors, we’ll see that going back to England and going back to the colonies and certainly to the beginning of the Republic, there has not have been any question but that a statute of limitations must be created by the legislature and not by the Executive.
And it’s one of those fundamental things in the separation of powers that it sees to me has gone through all the vicissitudes of various attempts to try to change by indirection generally at the instance of the Government the normal rules applicable to the meaning of English words and so.
Justice William J. Brennan: What do you say Mr. Gurfein, if the Court of Appeals view that these whole things are to be determined on the basis of the statute itself applies only between age of 18 and 26.
The regulation can’t do anymore.
Mr. Murray I. Gurfein: Cannot do more.
Justice William J. Brennan: Well, it can’t do anymore but at least it goes five years.
I gather the Court of Appeals rejected the interpretation when you suggested that someone might be prosecuted at age 70 for failing to register 52 two years notice.
Mr. Murray I. Gurfein: Late year and yet on --
Justice William J. Brennan: But in fact as to this fellow’s brother --
Mr. Murray I. Gurfein: That’s right.
Justice William J. Brennan: -- dismissed an indictment that rather be --
Mr. Murray I. Gurfein: Judge (Inaudible) did.
Yes Your Honor.
Mr. Justice Brennan, the point I’m making is a very simple one that there is an ambiguity that you can have the rulings of the two circuits which have said it goes for all time as against the ruling of the Second Circuit --
Justice William J. Brennan: I appreciate that --
Mr. Murray I. Gurfein: And we say they’re both wrong.
Justice William J. Brennan: No, but I was interested in your answer to the what the Court of Appeals said and saying, now you have to read this really as -- since the statute applies only between ages 18 and 26.
Well then, the terminal date for the beginning of the running of the statute on occasions which we concede is five years --
Justice William J. Brennan: Correct.
Mr. Murray I. Gurfein: -- is age 26.
And then where it goes to age 31.
Now that was the --
Justice William J. Brennan: Rational.
Mr. Murray I. Gurfein: -- as I understand the gist of the view of the Court of Appeals.
Justice William J. Brennan: Correct.
Mr. Murray I. Gurfein: And that is what I am addressing myself to now, Your Honor.
Justice William J. Brennan: Oh!
Mr. Murray I. Gurfein: No, it’s right on line with my thinking if I may suggest.
Justice William J. Brennan: Yes.
Mr. Murray I. Gurfein: When you have a continuing duty statute, that does not mean that you have a continuing offense by legislative enactment.
I go back to an old case in this Court, United States against Derwine (ph) which goes back to 1870 or something of that kind.
In that case, the question came up where is somebody embezzled funds when did the statute begin to run.
It had been held below that since he had a duty to return the funds, the statute had not run.
This Court held that once an act is done which makes it a completed crime then the statute begins to run.
Now, Congress itself knows how to create continuous offenses as is evidenced for example by the bankruptcy statute.
The bankruptcy statute says very clearly the concealment of assets of a bankrupt or other debtor shall be deemed to be not a continuing duty.
A continuing offense until the debtor shall have been finally discharged or discharged denied and the period of limitation shall not begin to run until such final discharge or denial of discharge.
He will find nothing, Your Honors.
In the Selective Service Act, which remotely relates to the statute of limitations or even to the creation of a continuous offense and so we say analytically as well as historically what makes it necessary to say if we are to adopt the liberal construction of statutes of limitations that just because we have a duty that that necessarily means that we have a continuous offense.
Justice William J. Brennan: Well, you don’t think Mr. Gurfein that the statute being applicable from ages 18 to 26?
The statute itself requires one to register at some time between 18 and 26?
Mr. Murray I. Gurfein: Oh!
There maybe a duty to register but we should not take it of the normal concept of statutes of limitations if I steal.
Justice William J. Brennan: Well I know.
No but if the statute is to be read that way, then why up to age 26 isn’t very duty to register and not having registered?
Why wouldn’t this five-year period begin to run at age 26?
Mr. Murray I. Gurfein: Because under normal rules of statute of limitations and of continuous offenses, I believe the rule is and should be that once the crime is completed.
Justice William J. Brennan: Well when is that completed?
When it applies from 18 to 20?
Is it completed on the 18th birthday?
Mr. Murray I. Gurfein: I’ll put it to you this way.
It is completed in this sense that if the defendant were apprehended, let us say in his 19th birthday, he couldn’t say to the prosecutor, now wait a minute, I still have time till I’m 26.
He is in the toils.
He has committed a completed crime and I say, Your Honors, that if he has committed a completed crime, what is there to say by virtue of legislative mandate that that is to be treated differently from any other (Voice Overlap).
Justice William J. Brennan: Well, this then is an argument Mr. Gurfein that the --
Mr. Murray I. Gurfein: I beg your pardon?
Justice William J. Brennan: This is -- your argument then is that the crime for purposes of the statute of limitation, it was completed on his 18th birthday when he failed that day to register.
Mr. Murray I. Gurfein: That’s correct.
Justice Potter Stewart: Five days.
You’re given five days.
Mr. Murray I. Gurfein: In five days.
Justice Potter Stewart: Right, whatever that is.
And that’s what your -- that’s your statutory obligation.
Mr. Murray I. Gurfein: That’s the statutory obligation.
That’s what I think it means.
Justice Potter Stewart: Or you’re guilty of an offense?
Mr. Murray I. Gurfein: Yes.
Justice Potter Stewart: On the sixth day, you’re guilty of an offense.
Mr. Murray I. Gurfein: And I can’t defend myself by saying no, I have seven more years or five years, I’m through.
I’m a criminal and I think it’s right to the second point because of the time and let’s take it --
Justice William J. Brennan: So you would say I gather that when he came -- he'd be 23, he could not be prosecuted?
Mr. Murray I. Gurfein: I would say that when he became to be 23 he could not.
Justice William J. Brennan: And further more he had no duty to register between 23 and 25.
Mr. Murray I. Gurfein: No, I say he may have a duty to register but that doesn’t have to be a criminal sanction.
There are many duties in life and in statutes but we don’t have criminal in sanctions that happens everyday.
Now if I steal you prize, I certainly have a duty to return it to you, I have a duty for life.
But as far as statute limitations is concerned, you cannot apprehend me more than five years after I still stole the prize, but I still owe you the prize and that’s the role I say is that there's been a gloss upon a gloss here.
In the first place, Congress never said so and Congress is the only one to say so.
Second place, the regulation itself is an ambiguous and in the third place by every rule of liberal construction and criminal cases, the rule ought to be and we think is that the statute begin to run when the crime was complete and the test of when the crime is complete this could the man have been apprehended at that time or would still have an offense and that’s our position on that.
Chief Justice Warren E. Burger: Mr. Gurfein, are there any analogies with respect to registration of securities that shed any light on this?
Mr. Murray I. Gurfein: None that I know of, Your Honor.
The only analogy is in the Alien Registration Acts which raise the same problem in the sense and where there has been some different view.
I believe that they’ve also held there that there’s a continuous offense but I think the policy with respect to aliens is a separate policy.
It will take too long that it went to here but I think there is reserve part of the brilliant and which make it different.
Chief Justice Warren E. Burger: Is it not exactly parallel in terms of a government’s resources to go out and find the people who are directed by statute to register?
Mr. Murray I. Gurfein: You mean that it in fact everything?
Chief Justice Warren E. Burger: The difficulty of a system?
Mr. Murray I. Gurfein: Oh!
There is a difficulty but so is there a difficulty in apprehending a thief or any common criminal.
And I don’t think that these lads are in any different position in any other criminals and that’s why I use that analogy, may have seen startling or perhaps traumatic but the fact that it does appeal to me as anomaly that a narcotics peddler should have -- should be subject to five-year term of limitations and I believe 18 should be subject to 13 years.
But that I leave because my time is running on that.
Chief Justice Warren E. Burger: But there you have in as in most statutes of limitation, you have a problem of the handicaps of defense after a long lapse of time.
You don’t have that here.
Mr. Murray I. Gurfein: That is true.
Chief Justice Warren E. Burger: This is a mathematical equation you’re dealing with here.
Mr. Murray I. Gurfein: That is true.
But I don’t believe that the limitation is only for that reason but also for reasons of repose as the courts have often said.
Now, coming to the second point and I’m sure I won't have time for the third, I merely downgrade it, Your Honor, I'm saving five minutes for the rebuttal.
The -- once you say that the only reason to see the petitioner here is in trouble is because you extended that statute of limitations because he had a compulsory duty to register.
Then it is if you are creating two statutes.
You have first the statute which makes him a criminal because of I think we all concede, he certainly could have been arrested shortly after his 18th birthday if he willfully fail to register.
And then you say to him, now you are compelled to register and by registering, identify yourself with your name and age and birthday and by that very identification, you are submitting yourself to prosecution in a sense of whether this is an all force with even Albertson and Marchetti in spirit and theory.
It is an even more pristine violation of the statute of limitations because here you do have an act which can't be equivocal really, the act itself of registering and giving your name and birthday is enough to convict you so we don’t have talk here about change and links and evidence and substantial danger of incrimination.
Now, and we suggest that in that context and I must say the Third Circuit by the way if it 1955 before this whole series of cases indicated that there was a Fifth Amendment problem in alien registration cases and we’ve cited it in our brief there might be of some interest, they didn’t have to decide it for other reasons.
And so we say that in this context, the draft resister and the other class, there’s no use denying the fact that there have been number of willful resisters that these people are in a select class of the kind that this Court has spoken of who are asked to come forward, give the names on the compulsion and hence be subject to prosecution under the statute.
Justice Thurgood Marshall: Mr. Gurfein, now that --
Mr. Murray I. Gurfein: Yes, Mr. Justice Marshall?
Justice Thurgood Marshall: Now, that it’s particularly involved in this case but suppose they just ask, let me see your draft card, what will happen?
Mr. Murray I. Gurfein: Who asked them?
If the police asked them?
If the question is that the police asked them of the draft code, if he was under a compulsory duty to register and he came in pursuant to that compulsion.
Justice Thurgood Marshall: No, no.
I mean they stopped him on the street.
Mr. Murray I. Gurfein: Yes.
Justice Thurgood Marshall: And for some reason asking for identification and say, I want to see your draft card, and he says I don’t have one.
He could be prosecuted, could he?
Mr. Murray I. Gurfein: That’s a violation of law and if its 25 years, he’d be arrested.
Justice Thurgood Marshall: They’d be prosecuted?
Mr. Murray I. Gurfein: Jointly be prosecuted.
Justice Thurgood Marshall: Within five years?
Mr. Murray I. Gurfein: Oh!
At anytime after he registers --
Justice Thurgood Marshall: That’s what the --
Mr. Murray I. Gurfein: Ay anytime they asked him.
Justice Thurgood Marshall: But it would be yours if that would still be a five-year limit?
Mr. Murray I. Gurfein: That’s right.
If Your Honor please, I think there’s a difference between the registration and the registrant.
The non-registrant has already committed the crime.
Now, coming to the third point and I wish I had more time to explain this self-incrimination argument but I think its obvious and it’s either accepted or not based on this conception as I say if Congress had passed the statute which said, let us call in all those who fail to register in the draft the last couple of years, now please register.
That clearly wouldn’t be against the Fifth Amendment, under the amendment itself and under the case and so we say this is analogous.
Now, on the First Amendment, the court itself below, the Second Circuit said that in theory, it is true that a conscientious objected to the process of registration or to have a right, to have the jury pay us on the sincerity of this belief.
But unfortunately they said, I don’t say unfortunate I hated that.
Under present doctrine, we can't allow that stand and we query what and present doctrine should support that result.
We think that there is no doubt that Toussie stands convicted here because of his religious beliefs.
I don’t think the Government says that he doesn’t stand convicted because of religious beliefs, if so he is convicted for the exercise of a First Amendment right directly.
Now, if he exercise that First Amendment right directly, should he not have the opportunity to have a jury pass on the sincerity of his beliefs.
In other words, under Sherbert against Verner and they way the Court has been determining this First Amendment questions lately, it’s no longer a question as I see it if whether there is a vague constitutional exemption for conscientious objectors generally, that is not the issue.
The issue is if a man in the exercise of his First Amendment rights, honestly and conscientiously believes that registration is part of the process of killing and will not register.
Is he then to be sent to jail without any defense or whatever?
And the question of course is one of balancing when the Sherbert against Verner and Shapiro and other cases.
This Court has now said that in the balancing of this interest, we do not look to see whether it’s a reasonable regulation but whether there is a compelling reason as to why the Government must have this and we vent you to say with the utmost respect that in this context, the Government doesn’t need to send people to jail.
Not one more boy is going to be brought into the army no matter which way this goes.
Chief Justice Warren E. Burger: Is that really the issue, Mr. Gurfein?
The compelling reason is the country like ours depending upon this kind of a system of military organization does have, does it not a compelling reason to have everyone registered?
Mr. Murray I. Gurfein: There’s no doubt that makes it easy, Mr. Chief Justice.
Chief Justice Warren E. Burger: And has it not also provided, has not Congress also provided with the conscientious objector may have another evident?
Mr. Murray I. Gurfein: But what does that do to the truly conscientious objector who believes at the process of registration itself?
If violated of his religious principles.
That is not answered.
We’re not saying that this Court should overthrow the constitutionality to selective services in which you held valid in Nugent.
We’re not asking that this man be let out.
We are not saying that he should be given a medal for not registering for religious reasons.
We are saying that there’s so few of this they’re not going to the raising of an army in the first place and on the second place if the issue is an extremely narrow one here.
Should a jury be allowed to pay us on the sincerity of disbelief?
He is going to be subjected to the crucible of the criminal process in any event.
And therefore, when people say, well this will open the floodgates, nobody will register.
I say respectfully, that can’t be true.
Nobody is going to take a chance on going to jail who isn’t a dedicated and firm believer that in his own conscience, the registration is part of his process of constriction which is part of the process of law.
If Your Honors please, I could expand on that but I do want to save five minutes rebuttal and I simply want to say at the end that the principal dissenter as it’s often been said should be the subject and he is indeed the subject of the greatest concern on this Court.
And there is no doubt that a principal dissenter in this field certainly subjects himself to the direst of punishments as a felon and therefore, it is giving away not very much to permit a First Amendment right either directly or because otherwise you were discriminating between two types of conscientious objectives, those who register on a process and those who by reason of religious belief cannot even register.
Justice John M. Harlan: I think there’s (Inaudible)?
Mr. Murray I. Gurfein: I think that under the free exercise clause on the First Amendment, Mr. Justice Harlan that there is very little history to support the idea that there is no conscientious objection.
I think Mr. Chief Justice used in his dissent in McIntosh spoke of the principles of the Constitution.
He didn’t mention any Amendment but it’s obvious, he meant the First Amendment.
We know too that there never was conscription until the Civil War in 1863.
We know that at that time, the first 10 amendments were considered to be limiting the power only of the federal government.
The federal government had no army, so that I think all the resort to history on both side is then conclusive and I do believe that when we read the content of what is free exercise of religion, we must do it in a negative way in order to avoid a constitutional right under the First Amendment by saying no.
This is like bigamy or polygamy.
This is something inimical to society which of course the Court can do.
But we submit that on the balancing of the interest where the few involved that there is a constitutional right and even if it’s within the purview of the right as distinguished from it, merely a privilege if you will.
There is still is a sort of due process within the First Amendment that we think discriminates them between two honest and principled religious people.
One who registered and the other does not.
We don’t ask you to let the second one off but we do say that if he is willing to test it in the crucible of a criminal court, the jury should be permitted to pass on the sincerity.
Chief Justice Warren E. Burger: Mr. Beytagh.
Argument of Francis X. Beytagh, Jr.
Mr. Francis X. Beytagh, Jr.: Mr. Chief Justice and may it please the Court.
As counsel has indicated, petitioner makes what is basically a three-problem attack on our views conviction for non registration with Selected Service System.
He says first that the statute of limitation is barred in the instant the prosecution.
He says second that if it did not have the privilege against self-incrimination provides a complete defense to his conviction.
And he says third, that in all events, his religious beliefs provide him defense since can tell the conviction that he should not even submit to registration or that the list, the court should have submitted that issue to the jury.
I think the central fallacy of the statute of limitations argument was alluded to by Mr. Justice White.
The result as we see it if the petitioner is correct is that at age 23, when he says the five-year statute of limitations would have run, he will no longer be subject to registration and I don’t see anything that makes him subject to registration.
Part of criminal prosecution for failure to register at the time he should have.
On our view of the statute and the regulation that we think properly implements the statute is simply this.
When the District Court, I think set it up perhaps as well as it could be.
Basically, the offense that petitioner is charged with is one of failing the register with the Selective Service System not simply upon reaching age 18 when he is required to but failing to register it all during a period of time between age 18 and age 26 during which the regulation and we think by fair application to statutes that the regulation sought to implement and effectuate require that he performs his duty.
Justice Potter Stewart: I don’t get that.
It seems to me if he hasn’t committed an offense from five days after his 18th birthday or he has committed an offense, many people do that then you say it’s a continuing offense but only for age 26 I should think we could just continue till the day he dies.
Mr. Francis X. Beytagh, Jr.: Your Honor, the --.
Justice Potter Stewart: I don’t understand that 26, there’s nothing in there saying that you have between the ages of 18 and 26 to register.
Mr. Francis X. Beytagh, Jr.: No.
I think there is, Your Honor.
The registration --
Justice Potter Stewart: You have to register within five days after your 18th birthday period.
Justice Byron R. White: But it says that all people between 18 and 26 are to register.
Mr. Francis X. Beytagh, Jr.: Registration statute itself Section 453 says that every male person now here at the United States --
Justice Byron R. White: Where are you reading?
Mr. Francis X. Beytagh, Jr.: From page 2 of our brief with subsection 3 of the statute.
Who on the day or days fix for the first or any subsequent registration is between the ages of 18 and 26 and it goes on to say shall register set up by proclamation in the rules and regulations.
Now in Section 4 --
Justice Potter Stewart: (Voice Overlap) over 18 at the time of enactment of the law, isn’t it?
Mr. Francis X. Beytagh, Jr.: That is one of the purposes of that, Your Honor but the way we read it is that reading it in pari materia with Section 4 which makes people between 18-1/2 and 26 liable for training service.
The purpose of Congress was to set out a group of people in this age group who are responsible for registration.
There are certain people who are not required to register initially at age 18.
They become responsible for registration upon the happening of certain events that no longer put them in this exempt category.
Justice John M. Harlan: This was maybe up to non residences of people, Americans who have never been in United States?
Mr. Francis X. Beytagh, Jr.: No, there’s a whole list that’s provided by Section 454 and it’s set out in the regulations that people are essentially are in the Armed Forces at that time of people will reserve components, people serving a certain government capacity things like that and aliens and certain kind.
Justice John M. Harlan: If it all becomes naturalize at age 25, I suppose you have to register.
Mr. Francis X. Beytagh, Jr.: That’s correct.
Yes, Your Honor.
If he had no --
Justice Potter Stewart: Registration applies to people other than citizens, isn’t it?
Mr. Francis X. Beytagh, Jr.: That’s correct.
Unknown Speaker: So why could he wait till he was 25, if he was here when he was 18.
Unknown Speaker: Or does that refer to male citizen?
Mr. Francis X. Beytagh, Jr.: No I don’t think it says male citizens, Your Honor.
Unknown Speaker: No, no, it does.
It says male citizen.
Mr. Francis X. Beytagh, Jr.: It says male person, now, here at the United States.
Unknown Speaker: Only under the male person?
Mr. Francis X. Beytagh, Jr.: Yes, and there’s a rather intricate provision relating to aliens basically on my understanding is the most aliens are required to register if they are determined not to register and subject themselves to service.
They still be it may be admitted in certain categories but they forfeit the right to become naturalized citizens.
Justice Thurgood Marshall: Mr. Beytagh, I could understand that this is a continuing duty.
I have a great difficulty with being the continuing effects and I’m not playing semantic.
Mr. Francis X. Beytagh, Jr.: Well, we think it’s both a continuing duty that the regulation prescribes that quite clearly.
Justice Thurgood Marshall: Well if it’s a continuing offense, does he commit it 365 times a year?
Mr. Francis X. Beytagh, Jr.: No.
That’s one offense, Your Honor.
Justice Thurgood Marshall: When was that?
Mr. Francis X. Beytagh, Jr.: The offense continued --
Justice Thurgood Marshall: The day he was 18?
Mr. Francis X. Beytagh, Jr.: Well, from five days thereafter.
Justice Thurgood Marshall: What?
That’s when the offense was committed.
Mr. Francis X. Beytagh, Jr.: But the offense continues because the statute and regulation that implement that statute requires --
Justice Thurgood Marshall: We have statutes that say, you shall not buy heroin.
Mr. Francis X. Beytagh, Jr.: That’s correct.
Justice Thurgood Marshall: But you have to buy some in order to be guilty and you’re only guilty each time you buy.
Mr. Francis X. Beytagh, Jr.: That’s correct.
Justice Thurgood Marshall: What’s the difference?
Mr. Francis X. Beytagh, Jr.: Well, the difference here is this individual had a responsibility at age 18 or five days thereafter to register.
He did not do that and he has continued thereafter not to do that.
The notion of the continuing offense is this court decisions is spelled out and because our brief develops fits with this.
Basically, the notion is that there is an ultimate objective that the individuals criminal activity seeks to achieve the ultimate objective here is evasion of military service.
There’s no question about that.
That cannot be achieved unless until he reaches the point in time at age 26 when he is no longer liable for training and service.
Justice Thurgood Marshall: I would assume that at age 25 if he enlisted, he is still could get convicted.
Mr. Francis X. Beytagh, Jr.: You mean if he came in and registered --
Justice Thurgood Marshall: No, if he enlisted.
Mr. Francis X. Beytagh, Jr.: If he enlisted in the army, just decided.
Justice Thurgood Marshall: He would still be convicted?
Mr. Francis X. Beytagh, Jr.: I think that’s correct.
I think that the chances of the Government --
Unknown Speaker: No but actually, I suppose if he came in and registered 10 days after his 18th birthday, he still be guilty of the offense of not coming in to register five days.
Mr. Francis X. Beytagh, Jr.: That’s technically correct, Your Honor but as we point out in the brief.
One element of this offense is willfulness and coming in at any time, it seems to me the more remote obviously that the less significant this is but coming in certainly 10 days after, would seem to me that to raise serious doubt about the willfulness of his earlier violation and I doubt that he would be prosecuted.
The only difficulty as we point out in our brief, we would have as was somebody who had apparently pursued a deliberate course of non-registration until he had reached that of situation, marriage-wise or otherwise where he was eligible for deferment on an exemption and then he came in and said, well, here I am and I just want to tell you, I want to register and I didn’t mean anything bad by what I did previously.
Otherwise, the government’s policy is basically to get man to serve in the military and not what people in prison.
Now petitioner first to Hawaii case on which he says it demonstrates conclusively that’s not the government’s policy.
I like simply to say that as to the Hawaii case, the individual very carefully came in only after it reach age 26 and it seems to me that’s a sufficient answer to it.
Justice John M. Harlan: There’s another decision (Inaudible).
Mr. Francis X. Beytagh, Jr.: Yes that’s correct, Your Honor.
Justice John M. Harlan: Are they split?
Mr. Francis X. Beytagh, Jr.: I don’t think there’s any split.
The Courts of Appeals have considered this regarding the requirement as a continuing duty and of regard of the offense as a continuous offense.
Now it is true that several of these cases have intimated that the duty is an open-ended one and does not terminate at age 26.
This question was raise as Mr. Justice Brennan brought up in this very case.
Just his brother was charged along with him.
His brother at the time he was charged was age 33 or two years, close to two years beyond the age of 31 when we say there’s the statue of limitations and the courts below say the statute of limitations ground as failure to register.
The Judge Dooling determined that a reasonable construction of the statute and the regulations putting all together, Section 3, Section 4 and the regulations that seek to implement them, indicate that the intended Congress was to make persons eligible for service in the Armed Forces responsible to register until they reach that age, age 26 when they were no longer liable for training and service.
Now we think that’s a reasonable reason.
Mr. Francis X. Beytagh, Jr.: The Solicitor General
Unknown Speaker: Now we think that’s reasonable.
Solicitor General question, he said there was no split.
I understood that there was that this is the view of this district court and court of Appeals and other Courts of Appeals.
I thought that instead of their being in effect of 13 years statute of limitations. There was a non-limited period of time during which person could be prosecuted.
Am I wrong about that?
Mr. Francis X. Beytagh, Jr.: No, Your Honor.
You are correct and I thought that I included that in my answer.
Unknown Speaker: Well I would consider that a difference of opinion or as Mr. Justice Harlan’s word of split of authority or split of opinion.
Chief Justice Warren E. Burger: But is there any --
Mr. Francis X. Beytagh, Jr.: I thought his question went to whether there was a split on the continuing duty question.
Unknown Speaker: (Voice Overlap) [Laughter]
Justice Potter Stewart: That was to be my question and I thought the questions were directed at the continuing duty concept not whether there was a difference or a split on perpetual duty or limited your duty.
Mr. Francis X. Beytagh, Jr.: We don’t, we don’t Mr. Justice Stewart.
We don’t and I thought I put that my answer.
We understand this case is to leave this as I said open-ended.
We think that that’s wrong in this particular case as Solicitor General determine in the case of his brother not to pursue on appeal simply because we thought that was not an appropriate or proper correct reading of the statute.
Justice Potter Stewart: And this Court if I am correct in understanding is alone.
That is this District Court and Court of Appeals.
This decision is alone and sort of creating a 13-year statute of limitations.
Mr. Francis X. Beytagh, Jr.: I think that’s correct except that I don’t agree and I don’t accept the notion of the 13-year statute of limitation.
Justice Potter Stewart: Well, --
Mr. Francis X. Beytagh, Jr.: Our notion is that a five-year statute is being applied.
Justice Potter Stewart: But there can be no prosecution after a person reaches five days after his 31st birthday?
Mr. Francis X. Beytagh, Jr.: Yes.
Yes, Your Honor.
I think that’s correct.
I think that there are some reasons for this.
It seems to me that these decisions, these earlier decisions that we are referring to were in the main decided ten or more years ago since that time there’s been a substantial development evolution in the Fifth Amendment area.
The Fifth Amendment issues in this case, it seems to me that all things considered, this was a reasonable construction and application of the statute of --
Justice Thurgood Marshall: This is then quite -- it seems to me that on this, what is it 26th birthday?
He has a choice of going in and asked him to register and expose himself to Fifth Amendment problem or the statute were right, the real statute of limitation?
Mr. Francis X. Beytagh, Jr.: That’s correct.
Justice Thurgood Marshall: Well, doesn’t that give you some Fifth Amendment problem as of that date?
Mr. Francis X. Beytagh, Jr.: Well, I think the Fifth Amendment problems before you reach that day, I think the Fifth Amendment problems throughout.
You think that they’re answers to them but yes, I agree.
Chief Justice Warren E. Burger: Now, do you see any basis for distinguishing between the obligation of an alien to register and the obligation to what’s involved here?
Mr. Francis X. Beytagh, Jr.: You mean the annual obligation in January?
I don’t see any essential difference, Your Honor.
It is more likely annual income tax return or the renewal of a driver’s license, various analogies and we suggested.
It seems to us that and this is anticipating a bit of privilege argument.
It seems to us that no matter how petitioner seeks to characterize it.
His argument ultimately leads to the conclusion that once a person violates either continuing or recurring obligation or duty imposed by the government whether it be a regulatory scheme, a tax scheme, or whatever, a scheme that requires registration reporting.
The thrust of his argument is that once he violates that, statute limitations on that offense starts to run and that thereafter he’s insolated from any further compliance because he can say at any further compliance would incriminate beyond the Fifth Amendment and I can't be required to do that.
Now, we think that none of this case is Marchetti, Grosso, or any of the others go to this extreme.
Now petitioner seek to draw some distinctions and says he doesn’t he really mean to go that far but it seems to me that it’s very difficult to say that he’s not going that far.
The central objective it seems to us of the point that he seeks to make is on the privilege question is that he could not be compelled, require or whatever to register after the initial registration period.
It seems to us that if that is so, neither could people be required to make reports, returns or whatever after they had initially fail to comply with the requirement.
Unknown Speaker: What’s the immediate of governance?
These things -- if he does come in age 19, 21, or 22, he does incriminate himself, didn’t he?
Mr. Francis X. Beytagh, Jr.: I think in some sense he incriminates himself but it seems to me that there’s a substantial --
Unknown Speaker: Well, I mean the Government never heard of him until then.
Mr. Francis X. Beytagh, Jr.: That’s correct.
Unknown Speaker: And they now discover that here he is and he didn’t come in five days after his 18th birthday.
Doesn’t it -- the Government then have a basis of prosecuting?
Mr. Francis X. Beytagh, Jr.: The Government certainly does have a basis prosecuting.
Unknown Speaker: Well, how do we get over that?
Mr. Francis X. Beytagh, Jr.: Well, it seems to me that there are several ways to getting over.
The first place as I indicated his coming in voluntary cast the question initially on the willfulness of the original offense on whether the prosecution would be successful.
And also it seems to us and this is I think the central point on which the Court of Appeals rely is that there isn’t any real compulsion that’s working on him to force him to come in after he first fail to register.
This is a continuing offense we accept that and we have to accept that proposition in order to get to the privilege question.
Therefore unlike the situations in Marchetti and Grosso, he risks no greater thread of punishment by continuing not to register during the period required.
Unknown Speaker: Well, then the answer is then there’s no violation of the proof?
Mr. Francis X. Beytagh, Jr.: And I think there’s no compulsion working on him and therefore no violation to privilege.
This is developed at considerable length in the Court of Appeals opinion.
It seems to us that there is a substantial difference between this kind of situation.
The situation in Grosso and Marchetti situation there would have required people to continue to do things and would have continued to -
Unknown Speaker: Now why is it had voluntary?
Why is he voluntary on your with theory of offense?
Why would if he comes in at 19, 21, it’s not compelled to follow --
Mr. Francis X. Beytagh, Jr.: I didn’t suggest that in the first place, this individual didn’t come in and they didn’t clear as intent that it wasn’t ever going to come.
Unknown Speaker: No, but testing whether or not which is on the American, this is a privilege on you.
So I understand you the Court of Appeals may gather the Government adopts the Court of Appeals position.
The Court of Appeals position is that there’s nothing compulsory about this.
He doesn’t register at 19 to 21 under any compulsion and neither with privilege is not violated, is that right?
Mr. Francis X. Beytagh, Jr.: Because he has already committed whatever offense he is going to commit since it’s a continuing offense, it’s a continuing crime and that he doesn’t incriminate himself to any greater extent and has already incriminate him so there’s one continuous offense.
Unknown Speaker: That doesn’t rest on any attribution of voluntary as to his coming in and --
Mr. Francis X. Beytagh, Jr.: No, it’s a question --
Unknown Speaker: But it rests on that because it’s a continuing offense.
Mr. Francis X. Beytagh, Jr.: That there’s no real compulsion working on him in the Fifth Amendment sense because he doesn’t risk anything greater by not coming in to register.
Unknown Speaker: You’re saying though that -- you do say that if he ask someone at age 21 and he not having to register before, if he ask somebody, am I under illegal duty to register now.
They should tell him yes.
Mr. Francis X. Beytagh, Jr.: Yes, that’s correct.
Unknown Speaker: And he has them well that I can't be punished any more than I already could be by not registering now.
They say yes but it’s like do you have illegal duty.
Mr. Francis X. Beytagh, Jr.: That’s correct.
Unknown Speaker: And you say that responding to that illegal duty.
He is not compulsion for Fifth Amendment purpose.
Mr. Francis X. Beytagh, Jr.: Under the circumstances presented here on --
Chief Justice Warren E. Burger: Perhaps Mr. Beytagh, this is a matter of detection and identification or that incrimination.
Mr. Francis X. Beytagh, Jr.: Well, I --
Chief Justice Warren E. Burger: He is already incriminated in the broaden sense by his violation of the statute.
His coming in maybe identifies him exposes.
Mr. Francis X. Beytagh, Jr.: Well, Mr. Justice Brennan’s suggestion was that this was incrimination and I was accepting that for purposes of the discretion.
Chief Justice Warren E. Burger: But in truth, he’s already incriminated, is he not?
Mr. Francis X. Beytagh, Jr.: Well, is he on t I think that--
Chief Justice Warren E. Burger: If in fact he has failed to register on the day when or requires it?
Mr. Francis X. Beytagh, Jr.: I think he has already committed the criminal offense and he continuous to commit one by not coming in.
Unknown Speaker: Oh!
It’s not self-incriminated by committing the offense?
Mr. Francis X. Beytagh, Jr.: No, I -- I agree with that.
Unknown Speaker: Well, when we’re talking about the privilege it’s whether there’s compulsory self-incrimination, that’s we’re talking about.
Mr. Francis X. Beytagh, Jr.: That’s correct and my submission was that the compulsion that was operating on him as the Court of Appeals suggested was not the sort of compulsion that should be given sanction by this Court.
Unknown Speaker: So when he comes in and registers at 21, he certainly is, let the Government know that he’s failed in his duty up to them.
Mr. Francis X. Beytagh, Jr.: I think that is so, Your Honor.
Unknown Speaker: But he hasn’t been upheld to do it.
Mr. Francis X. Beytagh, Jr.: I --
Unknown Speaker: Isn’t that not your point?
Mr. Francis X. Beytagh, Jr.: I think that’s essentially the point we’re making.
I don’t think that the situation is, we don’t rest simply on that point and I don’t think that we need to rest on that point.
We’ve developed in our brief, variety of other suggestions that go to that one of the question of willfulness.
Also the question of whether the Government in fact is going to prosecute.
This kind of position that we’re going to take as I indicated earlier and will take is that if this people, when they come in, they have not sought to take advantage of the fact that they are not registering at some earlier point although they may have committed the technical violation, the purpose is to get people eligible for military service and not into jail.
Unknown Speaker: Are you suggesting in fact you should be construed to bar criminal prosecution if the fellow voluntary registers?
Mr. Francis X. Beytagh, Jr.: No, Your Honor and I don’t suggest that.
I don’t think that an immunity statute this petitioner suggest is a solution to this problem would really solve but it seems to me that that would simply invite people to fail to register until they reach the point in time when they were in a better situation vis-à-vis the Selective Service System and then coming in.
Unknown Speaker: Suppose the statute of limitation does begin to run five days after the time when he fail to register?
What about this case?
Mr. Francis X. Beytagh, Jr.: If the statute of limitations begun to run at that point in time, then the statute has expired then --
Unknown Speaker: Then what?
Mr. Francis X. Beytagh, Jr.: Then the statute has run on this particular offense and he can't be prosecuted and the courts below were in --
Unknown Speaker: In fact it was a continuing offense; it wouldn’t have anything to do with it then, would it?
Mr. Francis X. Beytagh, Jr.: No but in order to get him within, the period of the statute as a matter of fact, the statute here under our view never started to run because he was indicted just prior to reaching age 26.
Unknown Speaker: Why?
Mr. Francis X. Beytagh, Jr.: The indictment was found before his 26th birthday so that under our view of the statute and regulation.
Unknown Speaker: Your view here is although he was guilty of the offense five days after he came 18, he could be indicted at any time thereafter.
Mr. Francis X. Beytagh, Jr.: He could be indicted as in any continuing offense.
I don’t think there’s anything anomalous about that counsel.
Unknown Speaker: I didn’t mean them all.
I just want to be cleared.
Mr. Francis X. Beytagh, Jr.: Yes, counsel suggested that there was something strange about the notion that at age 19 as so the Government discovered this and prosecute him, this is so with respect to conspiracy and any other continuing offense, if it continuous the Government can certainly interrupt its continuants when it discovers the offense and bring the prosecution against the individual at that time.
It doesn’t have to wait until the statute of limitations starts to run.
Unknown Speaker: Do you agree that they couldn’t prosecute him twice for failing to register.
Mr. Francis X. Beytagh, Jr.: I think that’s correct and I think any suggestion that there are any double jeopardy problems here is answered by our reference to the regulation.
These people if they’re prosecuted are involuntarily registered with the Selective Service System so there’s no question of their being subjected twice to jeopardy for non-registration.
Unknown Speaker: Does that amount to any great handicap in the Department of Justice and prosecution?
Mr. Francis X. Beytagh, Jr.: I’m not sure I understand your question at that point.
Unknown Speaker: What I mean, the man has committed an offense and you say that he continuous to commit that offense, would it amount to any great handicap to the Department of Justice to require them to prosecute them within five years from the time it was committed?
Mr. Francis X. Beytagh, Jr.: I think that the question is not simply whether it interferes with the operations to the Department of Justice.
Unknown Speaker: Well, of course not.
Mr. Francis X. Beytagh, Jr.: The question is also whether it interferes with the operations with the Selective Service System --
Unknown Speaker: Of course.
Mr. Francis X. Beytagh, Jr.: -- and Congress has made a judgment that people between ages 18-1/2 and 26 are liable for training and service.
Now, if -- as Mr. Justice White suggested, the counsel’s submission is correct, petitioner upon reaching age 23 and five days would no longer be subjected to criminal prosecution and I can't understand why that point it would be simply be scot-free although it would still be with the --
Unknown Speaker: Well, even if he hadn’t been prosecuted.
Mr. Francis X. Beytagh, Jr.: That’s correct.
Unknown Speaker: If you admit then of course it’s proper that the offense has been committed five days after he (Inaudible).
Mr. Francis X. Beytagh, Jr.: Yes.
Unknown Speaker: (Inaudible)?
Mr. Francis X. Beytagh, Jr.: Yes, then it --
Unknown Speaker: And it has run five years.
The Government hadn't prosecuted.
Mr. Francis X. Beytagh, Jr.: That’s correct.
Justice Thurgood Marshall: Mr. Beytagh, could he register on after his 26th?
Mr. Francis X. Beytagh, Jr.: I don’t know whether it could or not.
Justice Thurgood Marshall: We’ll how do you submit in defense after age 26 if he could register if it’s a continuing offense.
Mr. Francis X. Beytagh, Jr.: Well, under our submission that the responsibility to register of terminates at age 26.
I have to agree and therefore he could not commit an offense after that and the statute.
The question would be whether the statute would grant it at the time.
The several other comments on the privilege of defense that the petitioner search as I sought to allude to, there’s some question whether he even asked standing interest to assert that defense, he has made it clear indeed and his point three years made it demonstrably plain that he never intended to register at all.
Indeed he says that his religious beliefs prevented him to doing so.
So it seems to us there’s some real question about whether he is in a position to say that he was deterred from registering at some later point in time because of potential self- incrimination.
The Marchetti and Grosso line up decisions, we sought in our brief to distinguish those, it seems to us that the distinctions are rather clear.
First, they relate to initial registration and an area permeated with criminal statutes relating people inherently suspect of criminal activities.
Petitioner as counsel suggests that he’s in that same category once he has failed initially to register.
We don’t think that as long as it is indicated to Mr. Justice Stewart, there are a number of people who have responsibility to register later point in time and there are also people who for one reason or another have excusably failed to register and may come in at later point in time.
They indicated that the Chief Justice, we view the position here suggested whatever distinctions might sought to be made and basically a far reaching one as the court accepts it on the privilege question that will take it beyond anything that it’s done thus far in the Fifth Amendment area and that we think will seriously impair the ability of the Government to obtain necessary information.
This is a big country and as the court has pointed out several opinions Grosso and Marchetti, indeed also pointed this out the government’s need for people to come forward with information as in essential pre requisite to effective and orderly operation of a variety of schemes.
We can suggest the number of analogies.
I suggest that some of them to the Chief Justice.
On the last point, it seems to us that it doesn’t really require despite the rather elaborate development by petitioner very much come in.
This Court has continually recognized that Congress has preceded and a reasonable and sensible fashion in establishing procedures for determining conscientious objection and the exemption from military service on the basis of that objection.
It seems to us that all of these cases Nugent, Seeger, the case is at presently before the Court all indicate that the procedure that has been established, there’s a reasonable, sensible sound one.
We don’t know of any case that stands for the proposition, Mr. Justice Harlan raised that the First Amendment of itself requires that conscientious objectors be taken into account.
Unfortunately, the Congress has not seen fit to force this Court to that issue because Congress has taken into account conscientious objection.
It goes back as petitioner indicated historically even to colonial time.
But the question comes down simply to a very narrow one here.
Is the burden assuming that some First Amendment rights exist is the burden to come in and register and do nothing more.
Come in and register and submit to a readily available, sensible reasonable process for the determining conscientious objection.
Is that burden such a great one that it should be given constitutional protection?
We submit that it’s not that as a sensible scheme to have all people come in and identify themselves initially with the Government so that the Selective Service System can have available to read records including the entirety of the manpower pool available and then there’s a procedure going on from there to determine conscientious objection.
Unknown Speaker: How did the Government get to learn that this man has not?
Mr. Francis X. Beytagh, Jr.: My understanding, Your Honor, is that there was an anonymous tip.
That’s all that the record shows, a tip that this individual and his brother had not registered.
Now whether somebody got mad at them and called the, I don’t know.
That’s all that the record --
Unknown Speaker: And then it was presented to the grand jury.
Mr. Francis X. Beytagh, Jr.: And that was presented and indictments were found and the prosecution proceeded.
The prosecution as just his brother was dismissed because of judge doing; the reading of the statute but the prosecution has the petitioner continued.
For these reasons--
Unknown Speaker: What sentence did he get?
Mr. Francis X. Beytagh, Jr.: He has not been sentenced yet under 4208, the procedure for referral and determination by the Department of Justice as to inappropriate sentencer.
There are questions that were raised during the course of trial relating to his mental capacity and I think that’s part of the problem here that not that an insanity defense was presented as such but the question of the appropriateness of the punishment is one that is suitable for determination under the procedure of making investigation first and according to the district judge.
So there has been --
Unknown Speaker: District Court judge (Inaudible).
Mr. Francis X. Beytagh, Jr.: No, he was not, Your Honor, Judge Dooling considered the initial motion to dismiss but Judge Mishler who was the judge that try.
For all these reasons, we submit the judgment of the Court of Appeals upholding petitioner’s conviction should be upheld, we submit.
Chief Justice Warren E. Burger: Thank you, Mr. Beytagh.
Mr. Gurfein, the marshal says you’re out of time but my record show you have about a minute and half.
Mr. Francis X. Beytagh, Jr.: A minute and half, I just like to make two points.
On the statute of limitations, if you take the first stage group that registered in 1951, 18 to 26 try to apply the Court of Appeal Second Circuit reasoning to them.
The man who then was 19 years old had a statute of limitations of 11 years.
The man who is 25 years though at that time had a statute of limitations of six years and it makes no sense it seems to us to say that there is anything within the statute that makes 26 years the cut-off date.
Now, with respect to the compulsion, all I want to say is this that the petitioner in this case would not be here today, he’d be out.
If it would not for the fact that the Government held, there was a continuing duty for him to register and it is idle to say, I respectfully submit that that makes no difference.
The statute would definitely have run against them but the Government cannot have its cake and eat it as we indicate it in the brief.
If he’s under a duty to register then the Fifth Amendment problem become extremely acute.
If he was under a duty to register the statute and limitations has run.
Chief Justice Warren E. Burger: Thank you Mr. Gurfein.
The case is submitted.