United States v. Nishiie, 421 F.Supp.3d 958

Background

Defendant Duane Nishiie, a former U.S. Army Corps of Engineers contracting officer in Seoul, is indicted (Sept. 21, 2017) on multiple counts (conspiracy, bribery, wire fraud, money laundering, false statements) alleging steering of military contracts (2008–2015) in exchange for bribes.
Most charged offenses carry five-year criminal statutes of limitations; Nishiie moved to dismiss as time‑barred; Government contends the Wartime Suspension of Limitations Act (WSLA), 18 U.S.C. § 3287, tolled the limitations periods.
Central statutory question: whether the WSLA’s post‑enumeration “which” clause (requiring connection to war or an authorization for use of the Armed Forces) modifies only category (3) (contract‑related offenses) or all three enumerated offense categories (fraud against the U.S.; offenses involving U.S. property; contract‑related offenses).
The court parsed the WSLA text, considered competing canons (series‑qualifier vs. last‑antecedent), reviewed Supreme Court and lower‑court precedent, and examined the WSLA’s legislative history, including the 2008 amendment extending coverage to authorizations for the use of force.
Ruling: the court concluded the statute is ambiguous; applying legislative history and the rule of lenity (and avoiding surplusage) the court read the “which” clause to apply to all three categories and therefore held the WSLA does not toll the limitations periods for the crimes charged here; the court ordered supplemental briefing on which counts, if any, must be dismissed or narrowed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of WSLA’s post‑enumeration "which" clause	Applies only to category (3) (contracts); categories (1) and (2) need no nexus to war/AUMF	"Which" modifies all three enumerated offense types; nexus required for all	Ambiguity exists; court reads clause as applying to all three categories
Timeliness of Nishiie’s charges under WSLA	Offenses are frauds against the U.S. and therefore tolled by WSLA (charges timely)	Charges are time‑barred because WSLA does not suspend limitations for these offenses	WSLA does not toll the indicted crimes here; some counts may be time‑barred; supplemental briefs ordered
Effect of 2008 WSLA amendment and legislative history	2008 amendment merely extended WSLA to AUMFs, supporting broad tolling	Legislative history shows focus on war/war‑contract fraud (Iraq/Afghanistan); Congress intended nexus requirement	Legislative history supports reading the nexus requirement broadly; favors applying "which" clause to all categories
Canons of construction and lenity	Government favors nearest‑antecedent canon to avoid nexus requirement for fraud category	Defendant invokes series‑qualifier canon, surplusage canon, and rule of lenity to require nexus for all categories	Because ambiguity remains, court applies rule of lenity and surplusage canon to construe "which" clause as applying to all three categories

Key Cases Cited

Bridges v. United States, 346 U.S. 209 (1953) (WSLA should be narrowly construed; legislative history focused on war‑contract/pecuniary frauds)
Grainger v. United States, 346 U.S. 235 (1953) (applied WSLA to False Claims Act prosecutions arising in WWII era)
Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter, 135 S. Ct. 1970 (2015) (WSLA does not toll civil FCA claims)
Barnhart v. Thomas, 540 U.S. 20 (2003) (use of last‑antecedent canon, but not absolute; other indicia can overcome it)
Lockhart v. United States, 136 S. Ct. 958 (2016) (applied last‑antecedent canon in criminal statute parsing)
Paroline v. United States, 134 S. Ct. 1710 (2014) (when modifier equally applicable, natural construction may apply modifier to all)
Toussie v. United States, 397 U.S. 112 (1970) (statutes of limitations interpreted in favor of repose)
Stogner v. California, 539 U.S. 607 (2003) (limits on retroactive revival of criminal exposure)
Santos v. United States, 553 U.S. 507 (2008) (rule of lenity applies where statutory ambiguity remains after other aids)