United States v. Duane Nishiie
996 F.3d 1013
9th Cir.2021Background
- Duane Nishiie, a former DOD contracting officer in Korea, was indicted in 2017 on nine counts (including bribery, honest-services wire fraud, money laundering, and false statements) based on alleged conduct from 2008–2015. Seven non‑conspiracy counts involve conduct before September 21, 2012, and would be time‑barred absent tolling.
- The Wartime Suspension of Limitations Act (WSLA), 18 U.S.C. § 3287, suspends statutes of limitations during war or when Congress authorizes use of the Armed Forces for three/five years after termination of hostilities and enumerates three offense categories: (1) fraud against the U.S., (2) offenses involving U.S. property, and (3) contract‑related offenses followed by a limiting "which" clause tying those offenses to wartime prosecution or authorized use of the Armed Forces.
- Nishiie argued the WSLA requires a war nexus for the fraud and property categories, so his seven counts were time‑barred. The United States argued the limiting "which" clause applies only to the contract category, so fraud/property counts are tolled.
- The district court held the "which" clause modified all three categories and dismissed the seven counts as untimely. The government appealed.
- The Ninth Circuit reversed: it concluded, based on text, punctuation, canons (last antecedent), legislative history, codification, and the near‑identical UCMJ provision, that the limiting clause modifies only the contract category, so the fraud and property categories are tolled and Nishiie’s dismissed counts are timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the WSLA’s postpositive limiting "which" clause require a war/force‑authorization nexus for the fraud and property categories? | Nishiie: yes — nexus required; otherwise counts are time‑barred. | U.S.: no — clause modifies only the contract category; fraud/property toll automatically during war/AUMF. | The clause modifies only the contract category; fraud and property categories are not subject to the war nexus requirement. |
| Which canons govern the clause’s scope (last antecedent vs series‑qualifier)? | Nishiie/district court: series‑qualifier supports applying modifier to all items. | U.S./majority: last antecedent and punctuation favor modifier applying only to immediate antecedent. | Last antecedent and punctuation control; modifier applies to the immediately preceding (contract) category. |
| Does statutory history/codification support the limiting‑clause scope? | Nishiie: proponents’ remarks about 2008 amendment imply wartime nexus intent. | U.S.: 1944–1948 amendment history and the identical UCMJ provision show clause was tied to contract offenses when enacted and remained so. | Historical amendments and the UCMJ mirror strongly support limiting clause applying only to contract offenses. |
| Does any ambiguity trigger the rule of lenity? | Nishiie: any ambiguity favors defendant. | U.S.: the WSLA is unambiguous after textual and historical analysis, so lenity does not apply. | No lenity: court found the statute unambiguous and resolved in government’s favor. |
Key Cases Cited
- Kellogg Brown & Root Servs., Inc. v. United States, 575 U.S. 650 (2015) (WSLA applies only to criminal offenses)
- Bridges v. United States, 346 U.S. 209 (1953) (WSLA limited to offenses involving defrauding the United States)
- Grainger v. United States, 346 U.S. 235 (1953) (WSLA tolled prosecutions under False Claims Act)
- Smith v. United States, 342 U.S. 225 (1952) (WSLA inapplicable after termination of hostilities)
- Lockhart v. United States, 577 U.S. 347 (2016) (discussion of last antecedent canon)
- Barnhart v. Thomas, 540 U.S. 20 (2003) (interpretive principles concerning modifiers in lists)
- Reiter v. Sonotone Corp., 442 U.S. 330 (1979) (disjunctive "or" suggests separate alternatives)
- United States v. Lurie, 222 F.2d 11 (7th Cir. 1955) (earlier circuit discussion of WSLA wording)