Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Nishiie

United States District Court, D. Hawaii

September 27, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DUANE NISHIIE, aka “Suh Jae Hon”; and SEUNG-JU LEE, Defendants.

          ORDER REJECTING ARGUMENT THAT THE WARTIME SUSPENSION OF LIMITATIONS ACT TOLLS THE STATUTES OF LIMITATIONS WITH RESPECT TO THE CRIMES ALLEGED IN THE INDICTMENT

          Susan Oki Mollway, United States District Judge.

         This court must determine whether a modifying clause in a statute applies to all three categories of crimes listed in the statute, or to just the category closest to the modifying clause. If the modifier applies to all three categories, then at least some of the charges against Defendant Duane Nishiie may be time-barred. If, on the other hand, the modifier applies only to the closest category, the limitations periods applicable to the charges in this case are tolled, and all of the charges against Nishiie are timely. Having parsed the language of the statute and having considered its legislative history, this court, guided by the “rule of lenity, ” concludes that the modifier applies to all three categories. The court orders supplemental submissions addressing the impact of this determination.

         I. THE WARTIME SUSPENSION OF LIMITATIONS ACT.

         The statute at the crux of the limitations discussion is the Wartime Suspension of Limitations Act (“WSLA”), which reads:

When the United States is at war or Congress has enacted a specific authorization for the use of the Armed Forces, as described in section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)), the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not, or (2) committed in connection with the acquisition, care, handling, custody, control or disposition of any real or personal property of the United States, or (3) committed in connection with the negotiation, procurement, award, performance, payment for, interim financing, cancelation, or other termination or settlement, or any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war or directly connected with or related to the authorized use of the Armed Forces, or with any disposition of termination inventory by any war contractor or Government agency, shall be suspended until 5 years after the termination of hostilities as proclaimed by a Presidential proclamation, with notice to Congress, or by a concurrent resolution of Congress.
Definitions of terms in sectison 103 of title 41 shall apply to similar terms used in this section. For purposes of applying such definitions in this section, the term “war” includes a specific authorization for the use of the Armed Forces, as described in section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)).

         This court’s focus is on what words are modified by the “which” clause that this court has emphasized in boldface. Do they modify (1), (2), and (3), or only (3)?

         Initially enacted in the wake of World War II, the WSLA has been construed by the Supreme Court and lower courts. It has also been amended. In making the present ruling, this court acknowledges that competing canons of construction are in play, and that there are matters of punctuation and syntax that may pull in different directions. This court attempts to address those matters. But this court recognizes that focusing only on the text of the statute does not lead to a definitive reading of the statute. For that reason, this court’s analysis includes a detailed examination of congressional purpose, not just with respect to the original statute but also with respect to the 2008 amendment.

         Nishiie has moved to dismiss the charges against him. He argues that the charges are all time-barred. The Government’s response is that any charge brought more than five years after the alleged commission of any crime charged in the Indictment is timely because, under the WSLA, the five-year statute has been suspended.

         II. CHARGES AGAINST NISHIIE.

         Defendant Duane Nishiie allegedly worked as a United States contracting officer in Seoul, Korea, for the section of the United States Army Corps of Engineers known as the Far East District. The United States proposed to relocate and consolidate some of its military installations in South Korea. Nishiie allegedly saw this as a chance to enrich himself. Among other things, in return for money, he allegedly provided advantages to a large multinational company that was bidding on a government project.

         Nishiie has been charged in an eight-count indictment filed on September 21, 2017. Some of the charges are also asserted against Co-Defendant Seung-Ju Lee.

         Count One asserts that, in violation of 18 U.S.C. § 371, [1] Defendants conspired 1) to receive something of value in return for being influenced in the performance of an official act in violation of 18 U.S.C. § 201(b)(2)[2] and 2) to defraud and deprive the public of honest services through bribery in violation of 18 U.S.C. § 1343.[3] Specifically, the Indictment alleges that, from 2008 through 2015, Defendants accepted bribes to influence the awarding of multi-million-dollar military contracts in Korea. A five-year limitations period applies to violations of § 371. See United States v. Walker, 653 F.2d 1343, 1344 (9th Cir. 1981) (applying five-year limitations period found in § 3282 to § 371 charge); United States v. Davis, 533 F.2d 921, 926 (5th Cir. 1976) (“In a conspiracy prosecution brought under § 371 the government in order to avoid the bar of the limitations period of § 3282 must show the existence of the conspiracy within the five years prior to the return of the indictment, and must allege and prove the commission of at least one overt act by one of the conspirators within that period in furtherance of the conspiratorial agreement.”); 18 U.S.C. § 3282(a) (“Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.”).

         Count Two asserts a substantive violation of 18 U.S.C. § 201(b)(2), alleging that, from 2008 through 2012, Defendants received bribes in return for which Nishiie, a public official, was influenced in the performance of his official acts with respect to awarding military contracts in Korea. The applicable limitations period for a § 201(b)(2) violation is five years. See 18 U.S.C. § 3282(a).

         Counts Three through Five allege that, in violation of 18 U.S.C. § 1343, Defendants used wire communications in interstate and foreign commerce from 2008 through 2015 to further a scheme or artifice to defraud the United States by receiving bribes and kickbacks with respect to the awarding of military contracts. Generally, the applicable limitations period for a § 1343 violation is five years. See United States v. Aubin, 87 F.3d 141, 147 (5th Cir. 1996) (stating that the five-year limitations period of 18 U.S.C. § 3282 is generally applicable to wire fraud violations, but that the ten-year limitations period of 18 U.S.C. § 3293 applies when a § 1343 offense affects a financial institution); 18 U.S.C. § 3282(a).

         Count Six alleges that, from 2008 through 2013, Defendants conspired to launder money constituting the proceeds from unlawful activity, violating 18 U.S.C. § 1956(h). “The statute of limitations for actions brought under § 1956(h) is five years.” United States v. LaSpina, 299 F.3d 165, 173 (2d Cir. 2002) (2000) (citing 18 U.S.C. § 3282).

         Counts Seven, Eight, and Nine allege that, in violation of 18 U.S.C. § 1001, Nishiie made materially false, fictitious, and fraudulent statements in 2010, 2011, and 2012, by failing to disclose all reportable assets, sources of income, and outside position on confidential financial disclosure reports. A five-year limitations period applies to violations of § 1001. See United States v. Smith, 740 F.2d 734, 736 (9th Cir. 1984) (applying five-year limitations period to § 1001).

         The Indictment also seeks forfeiture of all property involved in Counts One through Six.

         III. ANALYSIS.

         The court spends considerable time discussing the language of the WSLA, concluding that more than one reading is reasonable. It is in light of that ambiguity that the court examines the legislative history of the WSLA, focusing on what Congress intended to accomplish by passing the WSLA and its 2008 amendment.

         A. The Text of the WSLA Can Be Reasonably Read in More Than One Way.

         When the plain language of a statute is reasonably clear, courts enforce that plain language unless it leads to unreasonable or impracticable results. Caminetti v. United States, 242 U.S. 470, 485 (1917) (“Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.”); Animal Legal Def. Fund v. United States Dep't of Agric., 933 F.3d 1088 (9th Cir. 2019) (“If the language has a plain meaning or is unambiguous, the statutory interpretation inquiry ends there.” (quotation marks and citation omitted)); Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir. 2012) (stating that “statutory interpretation begins with the statutory text. If the statutory language is unambiguous and the statutory scheme is coherent and consistent, judicial inquiry must cease.” (alterations, quotation marks, and citation omitted)); United States v. Gallegos, 613 F.3d 1211, 1214 (9th Cir. 2010) (“If the plain language of a statute renders its meaning reasonably clear, we will not investigate further unless its application leads to unreasonable or impracticable results.” (alterations, quotation marks, and citations omitted)).

         When statutory language is ambiguous, courts frequently look to canons of construction, legislative history, the statute’s overall purpose, the historical context, and the specific sequence of events leading to the passage of the statute to discern Congress’s intent. See Edwards v. Aguillard, 482 U.S. 578, 595 (1987); Moran v. Screening Pros, LLC, 923 F.3d 1208, 1215 (9th Cir. 2019); Gallegos, 613 F.3d at 1214; see also BNSF Ry. Co. v. Cal. Dep’t of Tax & Fee Admin., 904 F.3d 755, 764 (9thCir. 2018) (“Where the plain language of a provision is open to more than one interpretation, we may look to legislative history to clarify its meaning”); United States v. Nader, 542 F.3d 713, 717 (9th Cir. 2008) (“If the terms are ambiguous, we may look to other sources to determine congressional intent, such as the canons of construction or the statute’s legislative history.”).

         “A statute is ambiguous if it is susceptible to more than one reasonable interpretation.” Ariz. v. Tohono O'odham Nation, 818 F.3d 549, 556 (9th Cir. 2016) (quotation marks and citation omitted). The language and syntax of the WSLA establish that the WSLA is susceptible to more than one reasonable interpretation.

         The first paragraph of the WSLA is the only paragraph in issue in the present order. That first paragraph consists of one very long sentence. This sentence can be stripped down into what every sentence requires: a subject and a verb. Then the words modifying the subject and the verb can be identified. The dispute between the parties lies in which word (“offense” vs. “contract”) one of those modifiers, the “which” clause, attaches to.

         The subject of the long sentence is, in its simplest form, a single word. But that word--“running”--is encrusted in modifiers. Some of the modifiers (e.g., the word “the”) are easily pulled away and are of no consequence to this analysis. Others are more complex.

         The first substantive modifier of the subject of the sentence is the prepositional phrase immediately following “running”--“of any statute of limitations applicable to any offense.” This prepositional phrase actually includes an ellipsis: the words “that is” have been left out but are implied. If all the implied words were expressly stated, the “of” prepositional phrase would read: “of any statute of limitations that is applicable to any offense.” The entire “of” prepositional phrase functions as an adjective; it modifies a noun (“running”), telling us what kind of “running” is being addressed. Although using more words, this prepositional phrase functions grammatically in exactly the same way as the prepositional phrase in “the taste of a lemon.”

         Then the statute moves to modifying the modifiers. That is, we are presented with a kind of third-generation modifier; the “of” prepositional phrase--itself modifying “running”--includes a clause (the elliptical “that is applicable to any offense”) containing another noun (“offense”--the object of the preposition “to”), and the statute proceeds to modify the word “offense” by telling us what kind of offense is covered. In fact, in participial phrases, the statute identifies three kinds of offenses: (1) those involving fraud, (2) those relating to real or personal property, (3) those relating to a contract.

         Some of the charges against Nishiie could easily fit into category (3), but the Government argues that they should be viewed as fitting under category (1). The reason for the Government’s preference is that the long statutory sentence includes yet another modifier, this time in the form of what I have been calling the “which” clause. “Which” is a relative pronoun that introduces a clause that clearly functions as an adjective; the big question is what noun the “which” clause modifies.

         The Government posits that the “which” clause modifies only the contracts referred to in the third enumerated kind of offense covered by the WSLA. Although, as modified above, the charges against Nishiie actually fit into category (3), in urging the court to deem them as falling instead within category (1), governing fraud, the Government seeks to avoid the impact of the “which” clause. The clause clearly requires a nexus between an offense and a war or an authorization for the use of the Armed Services. The court is concerned that the Government has not sufficiently analyzed whether the WSLA can be reasonably read as attaching the nexus requirement in the “which” clause to all three enumerated offense types.

         A schematic of the subject of the long sentence might be helpful. But before presenting such a diagram, this court completes its parsing of the long sentence. The verb in the sentence is compound: “shall be suspended.” That verb, like the subject of the sentence, has several modifiers. It is modified by the “when” clause at the very beginning of the long sentence (“When the United States is at war or Congress has enacted a specific authorization for the use of the Armed Forces, as described in section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b))”). This “when” clause, like all clauses, has a subject and a verb. In fact, it has two subjects, each with its own verb: “the United States is at war, ” and “Congress has enacted a specific authorization.” Even though the “when” clause is separated from “shall be suspended” by the subject of the sentence and its encrusting modifiers, the “when” clause functions as an adverbial modifier.

         The verb has a second adverbial modifier, this one beginning with the word “until” (“until 5 years after the termination of hostilities as proclaimed by a Presidential proclamation, with notice to Congress, or by a concurrent resolution of Congress”). Both the “when” clause and the “until” clause define the time when the running of the statutes of limitations is suspended.

         Despite its modifiers, the verb does not appear to present any dilemma in this case. This court therefore restricts its promised diagram to the subject of the long sentence. Each of the enumerated types of offenses, like the “which” clause, includes a string of verbs and a string of objects of the verbs. The court, solely to simplify the diagram, restricts itself to including in its diagram only the first verb and first object in diagraming the enumerated types of offenses, and to the reference to "war" in the "which" clause. The subject of the long sentence, as described above, can be illustrated in the following Diagram A:[4]

         Diagram A

         (Image Omitted)

         The Government's reading of the subject of the long sentence treats the "which" clause as modifying the word "contract" in the third enumerated type of offense, as shown in Diagram B.

         Diagram B

         (Image Omitted)

         It appears to the court that, from a purely syntactic point of view, it is not possible to say with absolute certainty that either Diagram A or Diagram B is the sole correct reading of the WSLA.

         Diagram A is consistent with what Bryan Garner and Antonin Scalia call the "series-qualifier canon." As noted earlier, canons of construction may help to construe an otherwise ambiguous provision. The “series-qualifier canon” provides: “When there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.” Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 147 (Thomson/West 2012). While the “which” clause comes after an enumeration of offense types that is more complicated than a list of unmodified nouns or verbs, that enumeration is easily analogized to simple nouns. Applying the principle in the “series-quantifier canon” results in treating the “which” clause as applicable to all three enumerated offense types.

         Diagram B, by contrast, relies on what Scalia and Garner call the “last antecedent canon, ” which provides, “A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.” Id. at 144. Alternatively, Diagram B rests on a variation of the “last antecedent canon, ” the “nearest-reasonable-referent-canon, ” which provides, “When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable antecedent.” Id. at 149.

         The canons of construction identified above are in conflict here. This court is not the first to see that the canons can conflict. One analyst of the canons calls them “overlapping” and notes:

And the issue is a serious one, because the conclusion reached by applying the Series-Qualifier Canon is precisely the opposite of the conclusion reached by applying the Last-Antecedent Canon: under the Series-Qualifier Canon, the modifier applies to every item in the series, while under the Last Antecedent Canon it applies only to the item immediately preceding the modifier.

         Neil Goldfarb, “Three Syntactic Canons, ” LAWnLinguistics, July 13, 2012, https://lawnlinguistics.com/2012/07/13/three-syntactic-canons (last visited September 25, 2019).

         In a number of cases, courts have tackled the dilemma of the overlap between the “last antecedent canon” and the “series-qualifier canon.” In Barnhart v. Thomas, 540 U.S. 20 (2003), the Supreme Court examined a statute addressing Social Security disability benefits. The statute referred to an impairment “of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” The individual seeking benefits argued that her previous work had been as an elevator operator, but that such work no longer existed in the national economy. The Social Security Administration denied benefits, arguing that “which exists in the national economy” applied only to “any other kind of substantial gainful work, ” not to “previous work.” The Supreme Court accepted the Social Security Administration’s reading, citing “the grammatical ‘rule of the last antecedent.’” Id. at 26.

         However, in doing that, the Court in no way suggested that the “last antecedent canon” always trumped the “series-qualifier canon.” In the first place, the Court was applying Chevron deference to the agency’s interpretation, a factor inapplicable in the present case. In the second place, although noting that application of the “last antecedent canon” is “sensible as a matter of grammar, ” the Court expressly noted that “this rule is not an absolute and can assuredly be overcome by other indicia of meaning.” Id. See also United States v. Hayes, 555 U.S. 415, 425 (2009) (quoting Barnhart, 540 U.S. at 26).

         In a more recent case, Lockhart v. United States, 136 S.Ct. 958 (2016), the Supreme Court once again applied the “last antecedent canon.” This time the Court was parsing a criminal statute that included the words “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” The Court had to determine whether “involving a minor or ward” applied to all three actions, or only to “abusive sexual conduct.” Justice Sotomayor, writing for the majority, concluded that the words applied to the nearest ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.