accomplish precisely what the literal words of Section 10 provide, that is, to increase the statute of limitations to five years for all non-capital offenses except those as to which a special limitation period is provided. Nothing shows that the House of Representatives acted favorably on the amendment with a different intent.
The defendant's second contention is that even if Section 10 increased the statute of limitations for non-capital offenses from three to five years, this in no way changed the period applicable to the defendant's alleged offense since it was committed prior to September 1, 1954, the effective date of Public Law 769.
The argument runs squarely against the language of subdivision (b) of Section 10, which reads in part:
'The amendment made by subsection (a) shall be effective with respect to offenses * * * committed prior to such date (September 1, 1954), if on such date prosecution therefor is not barred by provisions of law in effect prior to such date.'
The defendant, pointing out that Congress did not set forth subdivision (b) as an amendment to Title 18, urges that subdivision (b) be disregarded. His theory is that if subdivision (b) be disregarded, then subdivision (a) cannot be applied to the particular offense charged against the defendant, since such application would give the enlargement of the statute of limitations a 'retroactive' effect which would be unconstitutional as an ex post facto law.
There is nothing 'retroactive' about the application of an extension of a statute of limitations, so long as the original statutory period has not yet expired. Such application does not offend the prohibition in Article 1, § 9, Clause 3 of the Constitution against ex post facto laws. United States v. Powers, 1939, 307 U.S. 214, 59 S. Ct. 805, 83 L. Ed. 1245, rehearing denied, 1939, 308 U.S. 631, 60 S. Ct. 66, 84 L. Ed. 526; United States v. Ganaposki, D.C.M.D.Pa.1947, 72 F.Supp. 982. An excellent discussion of this point by Judge Learned Hand appears in Falter v. United States, 2 Cir., 1928, 23 F.2d 420, 425-426.
In any case, the defendant's argument ignores two important matters. One is that the failure of Congress to include subdivision (b) in its amendment of Title 18, Section 3282 does not make subdivision (b) any less the law of the United States. As said in Stephan v. United States, 319 U.S. 423, 426, 63 S. Ct. 1135, 1137, 87 L. Ed. 1490:
'The fact that the words of 18 U.S.C. § 681 have lingered on in the successive editions of the United States Code is immaterial. By 1 U.S.C. § 54(a), 1 U.S.C.A. § 54(a), the Code establishes 'prima facie' the laws of the United States. But the very meaning of 'prima facie' is that the Code cannot prevail over the Statutes at Large when the two are inconsistent.'
And even if this were not so, nothing could constitute a clearer expression of the intent of Congress with respect to the application of subdivision (a) than the language of subdivision (b). In applying subdivision (a) this expression of intent could not be disregarded.
The only conclusion that can be reached is that Congress has increased from three to five years the statute of limitations for all non-capital offenses as to which no special period of limitation is expressly provided. This enlargement became effective on September 1, 1954 and applies to those offenses committed prior to that date as to which the statute of limitations had not already run.
The defendant's motion to dismiss the indictment as to him is denied. An appropriate order may be submitted.
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