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United States v. Russell James Martin, A/K/A Rusty Martin
Citations: 733 F.2d 1309; 1984 U.S. App. LEXIS 22816Docket: 82-2425
Court: Court of Appeals for the Eighth Circuit; May 4, 1984; Federal Appellate Court
Russell James Martin was indicted for failing to register with the Selective Service System, with the indictment alleging his actions from July 27, 1980, to August 20, 1982. Martin moved to dismiss the indictment, arguing that failing to register was not a continuing offense, a claim the district court accepted, leading to the removal of the continuing language from the indictment. The government appealed this decision, asserting jurisdiction under 18 U.S.C. Sec. 3731, which allows appeals from dismissals of indictments. Martin countered that the district court's order did not dismiss any counts but merely struck surplus language, thus questioning the court's jurisdiction over the appeal. The court's interpretation of "count" in section 3731 refers to any discrete basis for criminal liability in the indictment. The government argued that failing to register is a continuing offense, creating a new basis for liability each day it persists. Martin distinguished his case from precedents cited by the government, asserting that those involved multiple offenses, while his failure to register constitutes a single offense with no discrete bases for liability. The portion of the indictment struck by the district court represents a distinct basis for criminal liability, as the government argues that failure to register is a continuing offense. This allows for prosecution of Martin for his failure to register during the initial six-day period and for his ongoing failure to register thereafter. Although separate convictions for the violation are not permissible, Martin's conduct post the six-day period supports prosecution under the continuing offense theory. The district court's dismissal significantly undermines the single count of the indictment, justifying the appeal. The interpretation aligns with section 3731's intent for liberal construction to advance its objectives, as established by the Supreme Court, which emphasized the removal of barriers to government appeals. Martin does not contest the constitutional basis for this appeal. The district court previously ruled that failing to register is not a continuing offense and removed corresponding language from the indictment. However, a companion case, United States v. Eklund, determined that failing to register is indeed a continuing offense. Consequently, the decision is reversed, and the stricken language from the indictment is to be reinstated. Martin's assertion that a continuing duty to register would infringe upon his Fifth Amendment rights has been dismissed, referencing precedents that support the continuation of registration offenses. The opinion concludes with a directive for further proceedings consistent with this ruling. A dissenting opinion from Chief Judge Lay and other Circuit Judges expresses disagreement with the majority conclusion, although they concur with part one of the majority opinion.