Toussie v. United States

RESPONDENT: United States
LOCATION: Riverbed of the Arkansas River

DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 397 US 112 (1970)
ARGUED: Jan 14, 1970
DECIDED: Mar 02, 1970

Facts of the case


Media for Toussie v. United States

Audio Transcription for Oral Argument - January 14, 1970 in Toussie v. United States

Warren E. Burger:

Number 441, Toussie against the United States.

Mr. Gurfein.

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.

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?

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.

Warren E. Burger:

Very well.

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.