UNITED STATES OF AMERICA, Plaintiff-Appellant, v. DUANE NISHIIE, AKA Suh Jae Hon, Defendant-Appellee.
No. 19-10405
United States Court of Appeals, Ninth Circuit
May 12, 2021
D.C. No. 1:17-cr-00550-SOM-1
Appeal from the United States District Court for the District of Hawaii
Susan O. Mollway, District Judge, Presiding
Argued and Submitted January 15, 2021
San Francisco, California
Filed May 12, 2021
Before: Mary M. Schroeder, Jay S. Bybee, and Ryan D. Nelson, Circuit Judges.
Opinion by Judge R. Nelson;
Concurrence by Judge Schroeder
Criminal Law
The panel reversed the district court‘s order dismissing as time barred seven non-conspiracy criminal counts, and remanded for further proceedings, in a case in which the indictment alleges that Duane Nishiie engaged in a scheme seeking payments in exchange for steering the award of Department of Defense contracts for infrastructure, engineering, and construction projects in Korea.
The seven non-conspiracy counts, which were based on alleged activity that occurred prior to September 21, 2012, would be time barred absent a suspension pursuant to Wartime Suspension of Limitations Act (WSLA),
The appeal raised a question of first impression: which of the three categories of offenses under the WSLA—fraud, property, or contract—is modified by a clause requiring a nexus between the charged criminal conduct and a specific, ongoing war or congressional authorization of military force.
After considering the WSLA‘s plain language and structure, well-established canons of statutory construction, and the WSLA‘s amendment history and context, the panel concluded that the WSLA‘s restrictive-relative clause does not modify the first offense category “involving fraud or attempted fraud” or the second offense category involving
Concurring, Judge Schroeder agreed that the district court‘s judgment must be reversed, but disagreed with the majority that any canon of statutory construction aids this court‘s decision. What persuaded Judge Schroeder that the suspension restriction applies only to crimes related to contracts (and not to fraud and property crimes) is that the contract category and the restrictive clause were enacted together in July 1944 and have stayed together despite subsequent amendments reordering the list of crimes within the WSLA.
COUNSEL
Francesco Valentini (argued), Trial Attorney, Appellate Section; Robert A. Zink, Acting Deputy Assistant Attorney General; Brian C. Rabbit, Acting Assistant Attorney General; Richard B. Evans, Peter M. Nothstein, and Erica O‘Brien Waymack, Trial Attorneys, Public Integrity Section; Criminal Division, United States Department of Justice, Washington, D.C.; for Plaintiff-Appellant.
De Anna S. Dotson (argued), Dana Point, California, for Defendant-Appellee.
R. NELSON, Circuit Judge:
This appeal raises a question of first impression: which of the three categories of offenses under the Wartime Suspension of Limitations Act (“WSLA“),
I
Beginning around 2005, the governments of the United States and the Republic of Korea (“Korea“) commenced a joint program to relocate and consolidate military bases and installations located in Korea. Between approximately 2006 and 2012, Duane Nishiie is alleged to have worked as a contracting officer in Korea for the United States Department of Defense (“DOD“).
On September 21, 2017, a federal grand jury charged Nishiie in a nine-count indictment based on alleged conduct
Nishiie was charged with conspiracy to commit bribery and honest-services frаud (
Nishiie moved to dismiss the indictment on the ground that the charges were barred by the applicable statute of
“involving fraud or attempted fraud against the United States . . . whether by conspiracy or not” (fraud offense); or “committed in connection with the acquisition, care, handling, custody, control or disрosition of any real or personal property of the United States” (property offense); or “committed in connection with the negotiation, procurement, award . . . of 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” (contract offense).
18 U.S.C. § 3287 .
This restrictive relative clause (also called the limiting “which” clause)—“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“—follows a series of three enumerated offense categories. The “which” clause undisputedly modifies the third category for contract offenses. Whether the “which” clause also modifies the remote fraud and property offense categories ultimately is dispositive of the question here. In short, if the limiting “which” clause modifies the fraud аnd property offense categories, the seven non-conspiracy counts against Nishiie are time barred. If the “which” clause does not modify the fraud and property offense categories, the running of any applicable statute of limitations has been suspended and the
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, of 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.
The United States argues the indictment is timely because the “WSLA has never contained a requirement that offenses falling under its first two categories be substantively related to the hostilities.” It reads the WSLA‘s limiting “which” clause to only modify the contract offense category, and not the fraud and property offense categories. Under this interpretation, to trigger suspension of the running of any applicable statute of limitations, no substantive nexus is required between either fraud or property offense categories and the prosecution of war or authorizatiоn of military force.
The district court summarized the issue: if the limiting “which” clause “applies to all three categories” of offenses—fraud, property, and contract—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 district court held that the “which” clause is a “modifier [that] applies to all three categories” based on the language of the statute, its legislative history, and the rule of lenity. Therefore, the district court held that the statute of limitations was not tolled as to the seven non-conspiracy criminal counts alleged in the indictment, as there was not a nexus between the war and the alleged crimes. On this basis, the district court dismissed Counts Two, Three, Four, Five, Seven, Eight, and Nine as untimely.2 The district court noted the United States‘s “conten[tion] that Nishiie‘s alleged fraud with respect to steering military base contracts in Korea falls under the first offense category, which involves fraud-based crimes, rather than the more specific contract-based crimes in the third category.” Consequently, according to the district court, the United States “will likely never characterize any offense it charges as falling under” the third offense category to “avoid the impact of the ‘which’ clause.”
The United States appealed the district court‘s order dismissing the seven non-conspiracy criminal counts, arguing the exclusive application of the limiting “which” clause to the WSLA‘s third offense category or “offenses that involve wartime contracts” is the correct reading. We
II
We review the district court‘s dismissal of Nishiie‘s seven counts on statute-of-limitations grounds de novo. See Mills v. City of Covina, 921 F.3d 1161, 1165 (9th Cir. 2019).
III
The WSLA‘s plain language and structure, well-established canons of statutory construction, and the WSLA‘s amendment history and context, show the limiting “which” clause at issue does not modify either the fraud or property offense categories.
The Supreme Court has not squarely confronted this question in its few cases interpreting the WSLA. Because both parties claim favorable precedent from the Court‘s WSLA jurisprudence, we briefly summarize those cases. In Kellogg Brown & Root Servs., Inc. v. United States, 575 U.S. 650, 655–62 (2015), the Court held that the “text, structure, and history of the WSLA show that the Act applies only to criminal offenses.” Notably, the Court omitted inclusion of the limiting “which” clause when it quoted the statutory text.3
In Grainger, a case involving fraudulent attempts to obtain payments from the Commodity Credit Corporation, the Court considered whether the WSLA “suspended the
Finally, in United States v. Smith, 342 U.S. 225, 228 (1952), the Court held the WSLA “inapplicable to crimes committed aftеr the date of termination of hostilities.” Prosecution for the crimes charged—forgery and knowingly making a false statement—were barred because the charges were committed after the “date of the proclamation of termination of hostilities.” Id. at 227. The Court again omitted inclusion of the restrictive relative clause when it quoted the relevant provisions of the WSLA.5
A
“Statutory construction ‘is a holistic endeavor,’ and, at a minimum, must account for a statute‘s full text, language as well as punctuation, structure, and subject matter.” U.S. Nat‘l Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993) (quoting United Sav. Assn. of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)). “We begin, as we must, with the text” of
As amended, and relevant to the charges against Nishiie, the WSLA provides:
When the United States is at war or Congress has enacted а 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, of 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 thetermination of hostilities as proclaimed by a Presidential proclamation, with notice to Congress, or by a concurrent resolution of Congress.
We recognize the plain language of the WSLA without resort to canons of construction does not necessarily convey a clear reading of whether the fraud and property offense categories are modified by the limiting “which” clause. But “[a]mbiguity is a creature not of definitional possibilities but of statutory context.” Brown v. Gardner, 513 U.S. 115, 118 (1994). Therefore, we resolve any potential ambiguity using all available tools in a judge‘s interpretive toolbox.
B
Ordinary canons of statutory construction support an unambiguous reading of the WSLA‘s limiting “which” clause. See Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1063 (9th Cir. 2020). Two syntactic canons are specifically raised here: the last antecedent canon and the series-qualifier canon. These canons ostensibly conflict in reaching the correct interpretation. The last antecedent canon, however, is most aligned with the WSLA‘s language and context.
1
The last antecedent canon applies in the interpretation of “statutes that include a list of terms or phrases followed by a limiting clause.” Lockhart v. United States, 577 U.S. 347, 351 (2016); see A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 144 (2012) (“Scalia & Garner“). “The rule reflects the basic intuition that when a modifier appears at the end of a list, it is easier to apply that
Accordingly, as a corollary, neither the fraud nor property offense categories—under which Nishiie was charged—are similarly constrained. See Lockhart, 577 U.S. at 351. While it is grammatically possible to read the limiting “which” clause to modify the fraud and property offense categories, the restrictive relative clause is thus best read consistent with the last antecedent canon to only modify the immediately preceding contract offense category. See Hall v. U.S. Dep‘t of Agric., 984 F.3d 825, 838 (9th Cir. 2020). This is “particularly true where it takes more than a littlе mental energy to process the individual entries in the list, making it a heavy lift to carry the modifier across them all.” Lockhart, 577 U.S. at 351. The varied syntax and distinct elements within each category of offense “makes it hard for the reader to carry” the limiting clause across the two remote offense categories. See id.
Punctuation also supports the last antecedent canon as the most relevant canon for the WSLA. “The doctrine of the last antecedent, including its observation about the placement of commas, is consistent with general grammatical rules, found outside the legal context, governing restrictive and nonrestrictive (also called ‘essential’ and ‘nonessential‘) clauses.” State v. Webb, 927 P.2d 79, 83 (Or. 1996) (Graber, J.) (en banc). As noted by the Webb Court, the Chicago Manual of Style contains a reflection of this rule. See id. According to The Chicago Manual of Style § 6.27 (17th ed. 2017) (ebook):
A clause is said to be restrictive (or defining) if it provides information that is essential to understanding the intended meaning of the rest of the sentence. Restriсtive relative clauses are usually introduced by that (or by who/whom/whose) and are never set off by commas from the rest of the sentence. . . . A clause is said to be nonrestrictive (or nondefining or parenthetical) if it could be omitted without obscuring the identity of the noun to which it refers or otherwise changing the intended meaning of the rest of the sentence. Nonrestrictive relative clauses are usually introduced by which (or who/whom/whose) and are set off from the rest of the sentence by commas.
No comma separates the limiting “which” clause from the third offense category in the current version of the WSLA: “committed in connection with the negotiation . . . of 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.”
2
On the other hand, application of the series-qualifier canon is inappropriate given the WSLA‘s first paragraph contains just a single 187-word sentence. The series-qualifier canon intuitively comports with casual, spoken English, but not with complex criminal legislation. Under
Some examples underscore the general primacy of the last antecedent canon for a multi-pronged disjunctive statute, like the WSLA, over the series-qualifier canon. Spoken or written statements presenting an uncomplicated and short series of nouns or phrases are more readily interpreted using the series-qualifier canon. Consider the following examples. In the “phrase ‘no person shall be deprived of life, liberty, or the pursuit of happiness, without due process of law,’ the phrase ‘without due process of law’ modifies all three terms.” Enron Creditors Recovery Corp. v. Alfa, S.A.B. de C.V., 651 F.3d 329, 335 (2d Cir. 2011). As another example: “Imagine a friend told you that she hoped to meet ‘an actor, director, or producer involved with the new Star Wars movie.’ You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander.” Lockhart, 577 U.S. at 362 (Kagan, J., dissenting). Likewise, “[s]uppose a real estate agent promised to find a client ‘a house, condo, or apartment in New York.’ Wouldn‘t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?” Id. These straightforward and conversational statements require no mental gymnastics. In such plain and
3
The disjunctive “or” as used in the WSLA is also instructive. “Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise; here it does not.” Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). “As a general rule, the use of a disjunctive in a statute indicates alternatives and requires that they be treated separately.” Azure v. Morton, 514 F.2d 897, 900 (9th Cir. 1975). Use of the disjunctive form here—“or” after the first and second offense categories—“tends to cut off” the “which” clause so that its “backward reach is limited.” See Scalia & Garner at 149. While “statutory context can overcome the ordinary, disjunctive meaning of ‘or,‘” the WSLA‘s context—using the “or” twiсe—“favors the ordinary disjunctive meaning of ‘or.‘” See Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018).6 The relevant text—a single 187-word sentence—simply does not favor carryover modification given the repetitive use of a determiner—“or“—before the third offense category. See Scalia & Garner at 148.7
Ultimately, “statutory language must be construed as a whole.” Shaw v. Bank of Am. Corp., 946 F.3d 533, 539 (9th Cir. 2019) (citation omitted). To apply the contested limiting “which” clause to modify the first and second offense categories would contravene not only ordinary canons of construction but also the WSLA‘s structure. The location of both the fraud and property offense categories structurally precede the contract offense category. Consider, arguendo, Nishiie‘s proposed interpretation. His reading would invite additional interpretative conundrums than presently exist. We would construe, for example, the first offense category as the following: “involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not, which is cоnnected with or related to the prosecution of the war or directly connected with or related to the authorized use of the Armed Forces.” See
D
“In addition to exploring the text of the statute itself, we examine the relevant statutory context.” Cnty. of Amador v. U.S. Dep‘t of the Interior, 872 F.3d 1012, 1022 (9th Cir. 2017). The statutory context and history of the WSLA provide equally strong support for the conclusion, see Kellogg Brown, 575 U.S. at 659, that no nexus is required between either the fraud or property offense categories and the limiting “which” clause. Statutory history, particularly from 1944, “conclusively refutes” the interpretation advanced by Nishiie.8 See Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 231 (2007).
“The WSLA‘s roots extend back to the time after the end of World War I. Concerned about war-related frauds, Congress in 1921 enacted a statute that extended the statute of limitations for such offenses.” Kellogg Brown, 575 U.S.
“In 1942, after the United States entered World War II, Congress enacted a similar suspension statute. This law, like its predecessor, applied to fraud ‘offenses . . . now indictable under any existing statutes,’ but this time the law suspended ‘any’ ‘existing statute of limitations’ until the fixed date of June 30, 1945.” Id. at 1975 (citation and internal quotation marks omitted). The predecessor statute from 1942 read in relevant part:
That the running of any existing statute of limitations applicable to offenses involving the defrauding or attempts to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner and now indictable under any existing statutes, shall be suspended until June 30, 1945, or until such earlier time as the Congress by concurrent resolution, or the President, may designate.
Act of Aug. 24, 1942, ch. 555, 56 Stat. 747-48. Only one offense category was identified in the 1942 version: “defrauding or attempts to defraud the United States.” Absent from the 1942 statute was a comparable “which” clause concerning the “prosecution of the wаr” or “authorized use of the Armed Forces.”
The running of any existing statute of limitations applicable to any offense against the laws of the United States . . . (2) committed in connection with the negotiation, procurement, award, performance, payment for, interim financing, cancelation or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the present war, or with any disposition of termination inventory by any war contractor or Government agency, shall be suspended . . . .
Act of July 1, 1944, ch. 358, § 19(b), 58 Stat. 667. This July 1944 amendment introduced a limiting “which” clause nearly identical with the modern statute—“which is connected with or related to the prosecution of the present war“—along with a new contract offense category. Another limiting clause—“or with any disposition of termination inventory by any war contractor or Government agency“—was nestled within the contract offense category.
A subsequent October 1944 amendment read in relevant part:
The running of any existing statute of limitations applicable to any offense . . . (2) committed in connection with the negotiation, procurement, award, performance, payment for, interim financing, cancelation or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the present war, or with any disposition of termination inventory by any war contractor or Government agency, or (3) committed in connection with the care аnd handling and disposal of property under the Surplus Property Act of 1944 . . . .
Act of Oct. 3, 1944, ch. 479, 58 Stat. 781. Because sequential changes in predecessor statutes best reflect congressional intent, the cumulative effect of these 1942 and 1944 amendments resolve any ambiguity about the reach of the restrictive relative clause with respect to the fraud and property offense categories in the current version of the WSLA. That the contested “which” clause immediately and consistently follows one offense category—namely contract offenses—across predecessor versions of the WSLA is a strong indication of its plain meaning.
Placement of the limiting “which” clause in the October 1944 Act is the historical lynchpin that resolves any ambiguity about whether the “which” clause only modifies the contract offense category. Indeed, the textual assignment in the October 1944 Act of the clause—“which is connected with or related to the prosecution of the present war“—to immediately follow thе contract category (then the second offense category) makes it impossible to read the clause as
In 1948, Congress made additional changes and codified the WSLA in Title 18 of the United States Code. This 1948 codification, part of a broader codification of the Criminal Code generally, was titled the “Wartime Suspension of Limitations.” It read in relevant part:
When the United States is at war the running of any statute of limitations applicable to any offense . . . (3) committed in connection with the negotiation, procurement, award, performance, payment for, interim financing, cancelation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or Government agency, shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress.
WSLA, Pub. L. No. 80-772, § 3287, 62 Stat. 683, 828 (1948). Of importance to our analysis, during the codification process Congress reordered the offense categories as fraud, property, and then contract. While the codification process placed contract offenses as the third category, it also confined the limiting “which” clause only to the contract offense. If Congress intended the scope of the limiting “which” clause, post-codification, to deviate from apparent meaning accrued over time, it would have had to clearly express so. Congress did not do that.
E
Our reading of the WSLA is also consistent with a nearly identical statute of limitations enacted in 1950 and codified in 1956 as part of the Uniform Code of Military Justice
Unamended since its 1950 enactment, Article 43(f) of the UCMJ reads in full:
When the United States is at war, the running of any statute of limitations applicable to any offense under this chapter—
(1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not;
(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, perfоrmance, payment, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or Government agency;
is suspended until three years after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress.
* * *
Given this statutory history and context, complemented by canons of construction consistent with the WSLA‘s plain text and structure, we have little trouble concluding that the WSLA‘s “which” clause unambiguously modifies the third
IV
We recognize the WSLA “creates an exception to a longstanding congressional ‘policy of repose’ that is fundamental to our society and our criminal law.” Bridges, 346 U.S. at 215–16. The WSLA suspends already-running statutes of limitation when its conditions are met. As we detail, the WSLA unambiguously tolls the statute of limitations during any period of war or authorization of the use of the Armed Forces. We are acutely aware—and somewhat concerned—that this interpretatiоn, while legally correct, may effectively toll the statute of limitations for offenses under the WSLA for 20, 30, even 40 plus years. In large part that results from the expansion of war powers far beyond what they were when the WSLA was codified in 1948. Any policy concern for subjecting defendants to
“We sit as judges, not as legislators . . .” California v. Ramos, 463 U.S. 992, 1014 (1983). “It is hardly this Court‘s place to pick and choose among competing policy arguments . . . selecting whatever outcome seems to us most congenial, efficient, or fair. Our license to interpret statutes does not include the power to engage in . . . judicial policymaking.” Pereida v. Wilkinson, 141 S. Ct. 754, 766–67 (2021). Inducing perpetual limbo for potential criminal defendants under the WSLA is presumably not what Congress had contemplated. Nor did the 1940s era Congress likely anticipate the transformation of warfare. Our interpretation may seem like a gratuitous reading in light of modern criminal justice reform. “But our public policy is fixed by Congress, not the courts.” Bridges, 346 U.S. at 231 (Reed, J., dissenting). Readily apparent from the WSLA‘s amendment history is that Congress is fully capable of changing course and cabining the reach of any statute of limitations if it decides public policy warrants such a change. See Ramos v. Wolf, 975 F.3d 872, 900 (9th Cir. 2020) (R. Nelson, J., concurring) (“Our sole responsibility as Article III judges is narrow—‘to say what the law is.‘“) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803)); id. (“By constitutional design, the branch that is qualified to establish . . . policy and check any excesses in the implementation of that policy is Congress.“) (citing City & Cnty. of San Francisco v. U.S. Citizenship & Immigr. Servs., 944 F.3d 773, 809 (9th Cir. 2019) (Bybee, J., concurring)).
Indeed, Congress has seemingly blessed this lengthy tolling even given the modern expansion of the WSLA‘s war powers. When Congress amended the WSLA in 2008,
We conclude the WSLA‘s restrictive relative clause—“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“—does not modify the first offense category “involving fraud or attempted fraud” or the second offense category involving “any real or personal property of the United States.”
REVERSED AND REMANDED.
SCHROEDER, Circuit Judge, concurring:
I agree with the majority‘s conclusion that we must reverse the district court. This is because the legislative history and the subsequent codification of a similar provision in the Uniform Code of Military Justice,
I do not agree with the majority, however, that any canon of statutory construction aids our decision. The majority relies on the “last antecedent” canon, counting the syllables and dissecting the arrangement of the words of the series to conclude, apparently because of the series’ complexity, that
The question before us is whether a clause, restricting the suspension of the statute of limitations to those crimes connected to ongoing military operations, applies to all three categories of crimes in the WSLA or just to the third category, contract crimes, that immediately precedes the clause. What persuades me that the restriction applies only to the last, contract, category is this: the restrictive clause was part of the same July 1944 amendment that added the contract category of crimes. When that category, with the limitation, was originally added, it was the second item in the provision. When subsequent amendments re-ordered the list of crimes within the statute, the restrictive clause went with the contract category to become number three within the list. WSLA, Pub. L. No. 80-772, § 3287, 62 Stat. 683, 828 (1948). The important point to me is that the contract category and the limitation were enacted together, and they have stayed together despite reordering of the WSLA; they should therefore be applied together. The “which” clause is a limitation that should not be applied to the types of crimes Congress identified separately, and without such limitation.
The majority correctly concludes that this reading is further supported by the subsequent codification of a nearly
The district court relied on expressions of intent by the proponents of a 2008 amendment. Nishiie, 421 F. Supp. 3d at 980. Congress there amended the WSLA to apply during “the authorized use of Armed Forces” as well as during officially declared wars. As the district court observed, the amendment‘s proponents intended to broaden the WSLA to apply to crimes related to military activities in Afghanistan and Iraq. See id. at 968–71. Yet the proponents did not express any intent to limit the WSLA to those particular military activities, and the amendment itself did not contain any such locational limitation.
We are thus now left with a statute that requires a connection to military activities only with respect to crimes related to contracts, and that suspends the statute of limitations for fraud and property crimes so long as the United States is engaged in authorized military activities anywhere.
The result is odd in today‘s world where we speak of “forever wars,” but it was understandable in 1944 when the United States was engaged in a worldwide conflagration with a perceptible end. That is when Congress enacted the proviso with which we are concerned and which Congress has not changed.
For these reasons, I agree with the majority that the district court‘s judgment must be reversed.
Notes
‘When the United States is at war 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 . . . shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress.‘“).
This is not the first instance the Court has recited the WSLA in this manner.
‘When the United States is at war 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 * * * shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress.‘”
Grainger, 346 U.S. at 242.
“At the time of the alleged offenses the Act read in relevant part: ‘The running of any existing statute of limitations applicable to any offense against the laws of the United States (1) involving defrauding or attempts to defraud the United States or any agency thereof whether by conspiracy or not, and in any manner, * * * shall be suspended until three years after the termination of hostilities in the present war as proclaimed by the President or by a concurrent resolution of the two Houses of Congress.‘”
Smith, 342 U.S. at 226–27 (footnote omitted). Two 1950s era circuit-court opinions omit the limiting “which” clause: “‘When the United States is at war 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, [. . .] (3) * * *, shall be suspended. . . .‘” See United States v. Lurie, 222 F.2d 11, 13 (7th Cir. 1955); see also United States v. Witherspoon, 211 F.2d 858, 861-62 (6th Cir. 1954) (“Title 18 U.S.C. § 3287, in part, provides: ‘When the United States is at war the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States * * * shall be suspended . . .‘“).