Harvey Robert Brough, Petitioner-appellant, v. United States of America, Respondent-appellee, 454 F.2d 370 (7th Cir. 1971)

The district court granted respondent's motion to dismiss petitioner's motion to vacate judgment and set aside sentence pursuant to 28 U.S.C.A. Sec. 2255.¹  Petitioner appealed. We reverse.

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Petitioner Harvey Robert Brough was adjudged guilty on May 22, 1968, of violating 50 U.S.C.A. App. Sec. 462²  by failing to register for the draft as required in 50 U.S.C.A. App. Sec. 453.³  The record reveals petitioner was born March 5, 1944, and failed to register within five days of his eighteenth birthday as required by law.⁴  He was indicted on August 18, 1967, approximately five years and five months after his eighteenth birthday. An appeal to this court was dismissed on petitioner's motion and final judgment was entered on July 11, 1968.

In Toussie v. United States, 397 U.S. 112, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970), the Supreme Court held that the applicable statute of limitations contained in 18 U.S.C.A. Sec. 3282⁵  prohibits the indictment of a person for failure to register for the draft unless the indictment was brought within five years and five days of that person's eighteenth birthday. The Court held that failure to comply with Sec. 453, supra n. 3, is not a continuing offense and the five year statute of limitations begins to run when the offender fails to register as required by law. Toussie thus invalidated Selective Service Regulation 32 C.F.R. Sec. 1611.7(c) which provided that failure to register for the draft was a "continuing offense", against which the statute of limitations did not begin to run until a person's twenty-sixth birthday.

The district court stated in its memorandum decision in this case:

"It is clear that if Toussie had been the law at the time petitioner was tried he would have had a sound statute of limitations defense. Petitioner's motion rests squarely on the premise that Toussie should be applied now to his case. Thus, the sole issue presented is whether this 1970 decision should be applied retroactively to upset petitioner's 1968 conviction."

The Government, relying on Williams v. United States, 401 U.S. 646, 91 S. Ct. 1148, 28 L. Ed. 2d 388 (1971), contends that where there is no serious question raised about the accuracy of the guilty verdict in a past trial, prospective application of a new Supreme Court rule is appropriate.

Not until 1965, in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), did the Supreme Court hold that one of its constitutionally based decisions should not be given full retroactive effect. At no time has it denied retroactive application to a statutory interpretation which would invalidate a prior conviction. The Government has cited no case, and we find none, where a statutory interpretation by the Supreme Court was denied retroactive application in a criminal conviction.

To apply Toussie prospectively only would indicate that a federal statute duly enacted by Congress could mean one thing prior to the Supreme Court's interpretation and something entirely different afterwards. Here the relationship of Sec. 3282 to Secs. 462 and 453 had never been considered by the Supreme Court prior to Toussie. Nevertheless, a statute, under our system of separate powers of government, can have only one meaning. An interpretive rule, such as 32 C.F.R. Sec. 1611.7(c), concerning that statute is either consistent with the statute or inconsistent. If inconsistent, as the Supreme Court found in Toussie, then the prior interpretation is, and always was, invalid. It necessarily follows that Toussie should have retroactive application in the case at bar.

Petitioner failed to register as required between March 5 and 10, 1962, and was indicted August 18, 1967, while in Toussie the defendant failed to register between June 23 and 28, 1959, and was indicted May 3, 1967. In spite of the fact that the Toussie offense occurred three years prior to petitioner's and his indictment was three months prior thereto, the Government urges us to apply the same statute involved in Toussie and uphold petitioner's conviction. We find no authority for such a result.

A case completely in point with the one before us, Scudder v. United States, 6 Cir., No. 20,585 (Feb. 11, 1971), in an unreported per curiam order, the court affirmed the district court and held that Toussie was to be applied retroactively.

Our decision is consistent with other cases which have applied retroactively Supreme Court decisions⁶  overturning or construing certain Selective Service regulations and procedures. E. g., United States v. Jones, 7 Cir., 447 F.2d 589 (1971); Wright v. Ingold, 7 Cir., 445 F.2d 109 (1971); United States v. Stolberg, 7 Cir., 346 F.2d 363 (1965); Foster v. United States, D. Conn., 320 F. Supp. 646 (1970); United States v. Rumon, W.D. Pa., 315 F. Supp. 1126 (1970); United States v. Kelly, E.D.N.Y., 314 F. Supp. 500 (1970); and Andre v. Resor, N.D. Cal., 313 F. Supp. 957 (1970), aff'd 9 Cir., 443 F.2d 921 (1971).

In sum, the doctrine of retroactivity has been developed in cases dealing with criminal proceedings where new constitutional procedural protections had been announced. E. g., United States v. United States Coin & Currency, 401 U.S. 715, 91 S. Ct. 1041, 28 L. Ed. 2d 434 (1971); Mackey v. United States, 401 U.S. 667, 91 S. Ct. 1160, 28 L. Ed. 2d 404 (1971); Williams v. United States, 401 U.S. 646, 91 S. Ct. 1148, 28 L. Ed. 2d 388 (1971); Desist v. United States, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969); Arsenault v. Massachusetts, 393 U.S. 5, 89 S. Ct. 35, 21 L. Ed. 2d 5 (1968); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); and Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965).

We conclude that the standards thus far developed for applying new constitutional protections prospectively only have no application in the instant appeal to the statutory interpretation by the Supreme Court. Since we find Toussie applicable, the prosecution of petitioner for violation of Sec. 462 was barred by the relevant statute of limitations, 18 U.S.C.A. Sec. 3282.

We are advised that petitioner has been released from custody following the expiration of his sentence. However, his case is not moot and he should not be required to bear the consequences of his unlawful conviction "simply because the path has been so long that he has served his sentence." Carafas v. LaVallee, 391 U.S. 234, 237-240, 88 S. Ct. 1556, 1561, 20 L. Ed. 2d 554 (1968).

The order denying petitioner's motion to vacate his judgment of conviction and to set aside his sentence pursuant to 28 U.S.C.A. Sec. 2255 is reversed. This cause is remanded to the district court with directions to grant the relief prayed for.

Reversed and remanded with directions.