United States v. Hitt, Robert

77 L.Ed.2d 43, 103 S.Ct. being used nation in the stations in the at all (1983). is no sense There at J.A. use. See for noncommercial here is action the Commission’s claim that acknowledged Commission The re Dele in In with its decision inconsistent spe not Bureau did Media the Mass Reservation Noncommercial tion of but said proposal first cifically address MHz, Pittsburgh, *16, Channel 482-488 for several harmless any error was 11,700, 1996 11 F.C.C.R. Pennsylvania, ¶ 11, at 191. J.A. Order reasons. (1996). there proposal WL 434603 opening brief the Coalition’s appeal, On two reserved one of a deletion involved point only the Commission’s challenges reduction; here net channels, effecting a petition may not party third that “a reduction. no such there was authorization, station’s in another change disavowed licensee has petition if the particularly The Coalition’s proposed particular in the interest an Denied. cites no the Coalition But Id. change.” sug would rule that or Commission case cases, Reply see except

gest otherwise — n.31, a licensee or where at 16-17 Brief channel nearby of a licensee potential would, in existing license an claimed America, UNITED STATES modification, inter create the absence Appellant, exclusivity within ference, mutual and thus v. v. Corp. Radio meaning of Ashbacker L.Ed. FCC, HITT, Appellee. Robert not con did (1945). Yet Coalition No. 00-3083. of Ashback reading Commission’s test the Appeals, until its States Court proposal to its inapplicable er as that, have said Brief, as Circuit. we of Columbia District Reply argu a new times, late for many is too 22, 2001. Argued Feb. Wilson, 240 v. States See United ment. 8,May Decided (D.C.Cir.2001). 39, 45 F.3d second dismissed The Bureau on status all reserved impose

proposal—to use— in noncommercial that are stations mutually exclusive not stating that “is therefore and is proposal Buffalo with the proceeding.” filed this appropriately not 11,856 n. 2. Order, F.C.C.R. at Bureau the issue observed that The Commission rulemaking, general “raised as should adjudi in an an be resolved issue to as this.” Order such catory proceeding ¶ 12, at 191. J.A. these two dismissal Commission’s and ade- reasonable

counterproposals Vehicle See Motor explained. quately the United Ass’n of Manufacturers Co., Ins. Auto. Mutual Farm State

ROGERS, Judge: Circuit Jury the Grand

On October al- indictment for a sixteen-count returned made misrepresentations fraudulent leged of Com- Department United States sale by with the in connection merce Corporation Douglas McDonnell Republic of China People’s export controls. Count subject to that was Robert charged the indictment One Program of the China Hitt, Director a Company, Aircraft Douglas Office McDonnell subsidiary of wholly-owned defendants, with along with Douglas, other laws of the United conspiring to violate § 371 of 18 U.S.C. in violation gov- States (2000), deceiving United by completing process in the ernment court The district equipment. sale of the ruled that the 14, 1994, when September on ended One issued Department Commerce to sell the machin- required export licenses Kolb, Attor- R. Assistant of Hitt prosecution U.S. ery, Chrisellen five-year With appellant. by the cause for statute ney, argued barred therefore Lewis, Hitt, were A. Wilma States her on briefs See United of limitations. (D.D.C.2000); the brief was see Attorney, at the time F.Supp.2d U.S. McLeese, (2000). Fisher, filed, govern- Roy R. W. John also 18 U.S.C. Durham, III and J. Assistant We affirm. appeals. Steven ment Attorneys. I. argued the cause Frey L. Andrew early in the indictment states Dan brief were Marmalef-

appellee. On the a 1990s, Douglas closed manu- McDonnell M. Acker. sky and Eric Columbus, Ohio located facturing plant ROGERS, Before: WILLIAMS for the military aircraft produced that had SILBERMAN, ¶¶ Senior Judges, and Circuit 18-19. See Count States. ' Judge. Circuit facility, McDonnell this closing After Company Douglas Aircraft Douglas and filed Opinion for the Court Circuit “MDC”) negotiations (jointly, began Judge ROGERS. Im- Aero-Technology National the China (“CATIC”) Corporation Export port filed Circuit Dissenting opinion for the sale and some of its subsidiaries1 Judge WILLIAMS. Inc., subsidiary of lo- wholly-owned CATIC indict- named 1. The CATICsubsidiaries California; Monte, In- and TAL in El cated National Aero-Technolo- ment are the China dustries, Inc., subsidiary of wholly-owned ("CAT- Company gy Supply International Monte, (USA) El California. located in Beijing; IC/Supply”), CATIC CATIC/US located pieces various of equipment from the tions with CATIC being were conducted ¶¶ plant. See 21-39. Among due to the pending billion $1 trunkliner in which expressed program. trunkliner, If not for the an interest were several “machining slow paced negotiations ... would be bro- “large sophisticated pieces of tools”— ken inoff favor of auctioning equipment.” equipment used in the production of air- ¶ Count One 38. parts.” craft Count One 19. These tools On February MDC and CATIC subject to export controls and re- entered into a Agreement, Purchase under quired export licenses from the United which MDC would sell to CATIC various Department of Commerce. Ex- pieces of equipment from the Columbus port Administration Act of 50 U.S.C. plant, including the machine tools that §§ app. (1991); Export 2401-2420 Admin- subject controls, to export for $5.4 Regulations, istration §§ 15 C.F.R. 768-99 ¶ million. See Count One 39. Under the (2001).2 Upon learning that the Depart- Agreement, MDC was responsible for ap- ment of strongly Commerce discouraged plying for and obtaining export MDC’s sale licenses of the equipment, see Count ¶ 26, MDC, where necessary, One and through legal respon- CATIC depart- ment, informed sible for requisite shipping CATIC exporting and all ma- export licenses “would be obtainable.” chine required tools that an export license. ¶ CATIC, turn, Count One 28. in ¶ sought See addition, Count One 39. In the con- from assistance Robert “in Hitt resolving specified tract that title to the equipment problem license related to the pass would from MDC to July CATIC sale of the [machine tools].” Count One 5, 1994, “[u]pon completion of removal ¶ 29. As Director of China Program Columbus, from the Ohio facility, and re- Office, Hitt was responsible for implement- ceipt by MDC of the thirty-five final per- ing the program,”3 “trunkline billion $1 (35%) payment cent required.” The con- contract between MDC and CATIC for the provided tract also the equipment manufacture of aircraft in commercial Chi- must be removed from the plant Columbus ¶ na. See Count One 35. This contract 5, 1994, July required MDC was gave MDC and Hitt a vested financial pay for storage of the equipment at anoth- in interest maintaining a favorable busi- ¶ 39(2). er location. See Count One relationship ness with CATIC and the Chi- 26, 1994, On or May about MDC and ¶¶ See government. nese One Count 35- CATIC representatives submitted ten ex- 36. When CATIC encountered difficulties port applications license to the Depart- negotiations in its with MDC for the Co- ¶ ment of Commerce. Count One equipment, lumbus 41. CATIC alluded to the (1) ¶ application trunkline Each See Count One contract. included applica- an form, pressure MDC reacted to this tion from in which represented CAT- MDC IC, at one point admitting “that negotia- the end-user for the equipment was the People's Republic CATIC is a gov- of China series of Executive Orders. Because the in- corporation ernment-formed located Beij- in appeal solely addresses stant Hitt's statute of ing. See Count One 8. We refer to these challenge, limitations the court has no occa- defendants,”

defendants as "the CATIC and to sion to address this matter. People’s Republic of China as "China.” 3. The project indictment refers to the as both Although Export Administration Act ex- See, and e.g., “trunkline" “trunkliner.” pired August on ¶ 35, 38, 40, Count One V 41. We refer to the maintains controls mandated program as “trunkline.” by the Act pursuant remained in force to a on October returned the indictment Beijing; Company in Machining statement, in- 1999. (2) “Export Justification” an would machine tools dicating charged one conjunc- program trunkline in the “used Counts.4 fifteen substantive and Count 40of commercial production

tion with One, which only in Count charged Hitt was ¶ 41(b); [China],” aircraft CATIC, him, MDC, two CAT- and charged and end-use state- an “end-user violate conspiring to with employees IC representa- ment,” by CATIC prepared States, in violation of the United the laws would be tives, stating that aiding 18 U.S.C. trunkline parts produce used violation conspiracy, abetting such 1141(d). Based on Count One program. Fif- through Two § 2. Counts U.S.C. by MDC submitted the information corporate defendants— charged the teen CATIC, of Commerce Department CATIC, MDC, affiliates —with and their about licenses on or granted with the statutory violations connection ¶ 42. 1994. See September of the ex- acquisition fraudulent allegedly authorized the false charged Two port licenses: Count (cid:127) defendants; Machin- at the CATIC equipment use for by the CATIC statements the of Beijing purposes Fourteen, for ing Three, in and Fifteen Center Counts licenses also re- The in con- program. by trunkline MDC false statements charged export lo- verify equipment’s to the for the quired applications MDC the with nection by quarterly Thir- usage performing licenses; through and Four cation and Counts sub- facility and with corporate of the CATIC all defendants inspections charged teen reports to the United of various mitting quarterly and statements violations false two-year period. charged a for Sixteen States Government statutes. Count false making with defendants the CATIC the CATIC obtained After MDC and Depart- to the misleading statements licenses, arranged, on or about CATIC licens- after ment of Commerce 7, 1994, machine ship to November es issued. (con- points separate tools to two China license), trary charges to the terms moved to dismiss Hitt ato con- ultimately ship that the grounds him on the against alleged- Nanchang, China that extended factory in Count One spiracy alleged 14, military September the manufacture ly involved in the United States’ only 47(1)- ¶¶ 44, at 1994, equipment. See Count issuance 51(21)-(24). 4, 1995, 49, (n), April govern- The On time barred. was therefore motion, arguing in- required quarterly shortly opposed after MDC’s ment re- the machine facility, MDC until continued spection in or about Department shipped of Commerce tools were China ported to the ruled as court had diverted 1995. The district tools been March machine conspiracy alleged locations, law that the including the matter to four different when United initi- indictment ended facility. government Nanchang licenses, and that issued the States which culminated investigation, ated an Eco- charged International violation charged violations of and Three Counts Two 1705(b) Act, Act, § Emergency § 1001 U.S.C. the False nomic 18 U.S.C. Statements addition, charged (2000); through (1991) § all Four Fifteen In Counts and 15 C.F.R. 787.5. Act, Export Administration § violations of of 18 U.S.C. charged a violation Counts 2410(a) C.F.R. app. § and of 15 50 U.S.C. (2000) abetting. aiding and for 87.5; Sixteen §§ and Count 787.5 and of Hitt prosecution was therefore barred For the indictment to be timely Hitt, five-year respect statute of limitations must show that no Hitt, 30; more than conspiracy. F.Supp.2d years prior See five filing (i.e., § at a point 18 U.S.C. 3282. The no ap- earlier 1994) (1) than (2000). October § peals pursuant conspiracy, to 18 U.S.C. contemplated agreement, still existed, (2) at least one overt act in II. furtherance of occurred. “A conspiracy is a partnership in crimi Grünewald, 77 S.Ct. Kissel, purposes.” nal United States v. In examining whether these condi 601, 608, 218 U.S. 31 S.Ct. 54 L.Ed. fulfilled, tions are “the question crucial ... (1910). general conspira federal is the scope of conspiratorial agree cy prohibits conspiracies statute ment, “to com for it is that which determines both mit any against offense the United States” the duration of conspiracy, and wheth “to defraud the United ... States in er the act relied on as an may overt act any any properly regarded manner or for purpose.”5 18 as in furtherance of § the conspiracy.” U.S.C. 371. To Id. at prosecute defendant 77 S.Ct. see also Bayer, under “the must prove (1) beyond a 91 L.Ed. reasonable doubt that: two or (1947). Key to determining the persons more agreement formed an either the conspiracy dispositive in the in to commit an offense against or defraud —and appeal stant the extent to which there States; the United the defendant —is “meeting of concerning minds” the knowingly participated in the conspiracy object of conspiracy. United States v. with the intent to commit at least one of Rosenblatt, (2d 36, Cir.1977) 554 F.2d 38 charged the offenses or to defraud the (quoting States, Krulewitch v. United 336 (3) States; United at least one overt 440, 448, 716, U.S. 69 S.Ct. 93 L.Ed. 790 act was committed furtherance of the (1949) (Jackson, J., concurring)); see also common scheme.” United v. States Tread Treadwell, 760 F.2d at 336. “This does well, 327, (D.C.Cir.1985); 760 F.2d 333 see not mean conspirators must be Wilson, also 732, United States v. 160 F.3d shown agreed to have on the details (D.C.Cir.1998); 737 United States v. Ga their enterprise, criminal but it mean does 1511, (D.C.Cir.1996). tling, 96 F.3d 1518 that the ‘essential nature plan’ of the must The five-year statute of limitations for a Rosenblatt, be shown.” 554 F.2d at 38 3282, § prosecution, § 371 see 18 U.S.C. States, (quoting Blumenthal v. United 332 begins running “from the last overt act 539, 557, 248, 68 S.Ct. 92 L.Ed. 154 during the existence of the conspiracy.” (1947)). States, 211, Fiswick v. United 329 U.S. 216, 224, (1946); 67 S.Ct. 91 L.Ed. 196 see To determine the of the States, also Grunewald v. United 353 U.S. alleged conspiratorial agreement, the court 391, 397, 963, 77 S.Ct. 1 L.Ed.2d 931 is language bound of the indict (1957). Grunewald, ment. See generally 353 U.S. provides: 5. The statute any object do act to effect the of the con- persons spiracy If conspire two or more each shall be fined either under this title any against commit offense imprisoned the United or years, five more than or States, States, or to defraud the United both. any agency any thereof manner or for 18 U.S.C. any purpose, persons and one or more such 1016 of the the true contends that ernment States 397, see also United 77 S.Ct. (6th actual 1123, 1127-29 Cir. extended F.3d Craft, 105

v. Roshko, F.2d v. 969 to unautho- 1997); States of the United Cir.1992). (2d Adherence to 1, 6-9 in China. rized locations be essential failed to court that the district maintains requires Fifth Amendment see, cause whole, aas the indictment construe limited to prosecutions criminal Inc., F.2d Inryco, 642 v. e.g., United States indictments re allegations unique (9th Cir.1981), incorrectly regard- 290, 294 v. jury. Russell grand by the turned surplus- of the indictment portions ed 749, 768-71, States, 369 U.S. United see, Rezaq, v. e.g., United States age, (1962); 1038, Stirone 8 L.Ed.2d S.Ct. (D.C.Cir.1998), 1121, and invad- F.3d States, 361 U.S. v. United determining jury by province ed the (1960); 270, United 4 L.Ed.2d S.Ct. statutory acts within the overt that certain 290, Lawton, 292-93 995 F.2d v. States goal of the not further did period (D.C.Cir.1993). Court Supreme As Wilson, v. United States conspiracy. See pur main an indictment’s explained, has (D.C.Cir.1994). 142, Specifi- 26 F.3d the defendant inform pose is “to cally, maintains him.” against accusation nature key por- disregarded several court district 767, To Russell, 82 S.Ct. 1038. 369 U.S. indicating that the indictment tions of “first, con end, must this an indictment was to ex- all goal of defendants common charged of the offense tain[] elements (1) portion latter machinery: port the a defendant fairly inform[] Paragraph sentence of the first defend, and, which he must charge against conspir- “[a] which acquittal second, plead him an enable[] allowing obtain acy was to prosecutions future bar of or conviction in machine tools exportation the sale Hamling v. United for the same offense.” (2) added); (emphasis States, to [China]” 94 S.Ct. 418 U.S. (1974) In- (citing heading 43—“Scheme L.Ed.2d 590 Contract”; Debrow, Completion sure (1953); Hagner v. United L.Ed. 92 and Means” of “Manners statements 417, 427, 76 L.Ed. 861 51(21)-(25)) 52 (¶ 285 U.S. S.Ct. (¶¶ 47-50) Acts” and “Overt (1932)). that a well-established It is hence and refer to the to answer a be held “cannot defendant China, late which occurred as to tools in the indictment charge not contained within the 1995 and thus were as March v. him.” United brought against Schmuck and period; of limitations statute 1443, 717, States, 705, 109 S.Ct. to 43 explicit reference Stirone, (1989); see also L.Ed.2d 734 103 1995. March 215-17, 80 S.Ct. United 361 U.S. at de novo the district We review Krasovich, 254-55 v. 819 States F.2d concerning the legal conclusion (9th Cir.1987). court’s conspiracy. scope of text of indict- examining the Upon (8th Dolan, 120 F.3d 864 ment, court concluded the district Cir.1997); Med. & v. United United States single jury believed grand “the Corp., 989 F.2d Surgical Supply conspiracy was Cir.1993). (4th with our 1398 Consistent from the export acquisition of the to obligation to adhere Commerce, goal was which Department of indictment, primary and an indictment’s Hitt, September 1994.” achieved on specific providing notice gov- purpose appeal, at 32. On F.Supp.2d defendant, charges to the we hold that taining relationship favorable alleged conspiracy charged Count One in light billion trunkline $1 li ended with the issuance of the program; and MDC’s and CATIC’s sub- September censes on 1994. The indict mission of the materials necessary for ob- ment’s subsequent references to events do taining requisite export licenses. See point to acts in furtherance of the id. background discussion ends with alleged conspirators’ common and the United States’ issuance of may upon therefore not be relied to extend licenses on or September about 1994. the conspiracy period to a within stat See Count Grunewald, ute of limitations. See key Two paragraphs follow. Paragraph 405-06, 963; Fiswick, CONSPIRACY,” 43 describes “THE U.S. at S.Ct. is subtitled “Scheme to Insure Completion A. Structure Count One. Count of the Contract.” Paragraph 43 states: One of the indictment begins with an “IN- From in or about February, ... TRODUCTION” that states in relevant until in or about March 1995 ... part: ... defendants did unlawfully, willfully On or about September combine, and knowingly conspire, con- Department United States of Commerce federate agree together to commit granted [MDC] licenses to against offenses the United permitting large [MDC] to is: pieces machinery ... to for [China] willfully a. and knowingly make ... use [CATIC]. defendants materially false and fraudulent state- false, ... made material fraudulent and representations ments and and to fal- misleading statements and material sify, conceal coverup [sic] applications, omissions on the the end trick, scheme and device material user certificates and in additional oral jurisdiction facts matters within the and written upon submissions which the of the executive branch of the Govern- Department of Commerce based its de- ment of the United States ... in viola- cision to issue the 10 licenses. 1001]; tion [18 of U.S.C. corporate [The Chinese defendants] willfully b. knowingly make pieces caused 6 of the false and misleading statements and

be diverted to an factory unauthorized to conceal material facts from the [China], Nanchang, known to be used Departments United States of Com- military production. merce and Defense in the course of ¶ 1. proceeds Count One obtaining export licenses violation review the regulatory framework for the 2410(a) app. § of [50 U.S.C. and 15 transaction, MDC-CATIC see Count One 787.5]; § C.F.R. ¶¶ 2-6; equipment subject describe the to c. to use interstate ¶ wire communica- controls, export see Count One and tions, the mail and interstate carriers defendants, identify the see Count One ¶¶ in furtherance of a scheme to defraud context, 8-17. providing After this the property, and to obtain export indictment sets “Background forth the to ¶¶ licenses and machine tools for Transactions.” See Count One 18- [China], by to “Background” means of false and details MDC’s ne- gotiations pretenses, representations with for fraudulent CATIC the sale of the from the plant; promises Columbus and in violation of [18 U.S.C. 1341]; §§ MDC’s vested financial interest in main- 1343 and par- between ture business contracts or about Au- before on possess, d. to (b) ties; approval tools with the to obtain swift and machine gust having reason to Department them export to intent from exported in they would applications believe license Commerce imposed control of an violation and seemingly credible by presenting conspiracy: Count One Paragraph A bus use at undisclosed na] exportation among [The ject Administration under August Administration to know violation of U.S.C. e. C.F.R. Regulations and 15 C.F.R. cur exported .... plant to others, to buy [MDC] ¶¶ 43.6 Section § machine tools that a violation app. regard 787.1(a)(ii)(C)]; and from the United of machine and [50 with was states Export and Robert Hitt’s allowing the sale and defendants’] sell, § 5 or Act, Act is intended U.S.C. 787.4(a)]. facilities knowledge or reason 2410(b)(3) machine before on the “Goal” obtain in violation of 6 of tools to for unrestricted Administration app. transaction, was to obtain of the within [Chi- States sub- tools to be § purpose, and 15 or about [China], Export 2410(a) Export Colum- to oc- pur- [50 the false mation ing to achieve the regarding the machine information merce spiracy Means” thereof.” These Hitt certified alleged “Overt Acts” defendants end use. truthful, user back tions, non-controversial sales storage Finally, Count describe the false Department One 45. information supplied by contract between provision of that the defendants even and to One then information to which MDC Paragraphs costs Paragraph so that “[i]n if in the such provisions furtherance of the con- accomplish include Paragraphs lists the officials. [MDC] the CATIC in the license justification and concealed from Com- applications information was 51 lists 49 and 50 tools’ end user committed misleading Columbus (1) Hitt, MDC, could “Manners and used and parties. conspiracy.”8 twenty-five defendants avoid and “in describe through applica- objects ^[7] infor- seek- asset buy- end- and misleading state- and CATIC’s false (a) others, to main- among were: poses, apply- while ments to officials relationship ongoing commercial tain licenses; ing for the MDC’s pro- and to and CATIC [MDC] between fraudulent filing allegedly fu- existing and prospects mote V40. After the noted August Paragraph 43 refers government's al- only brought the outset of the appeal, to indicate that at Export leged conspiracy Administration that the memoran- and the court's attention yet had not been re- in effect and Act was govern- Hitt. The dum was not authored by Congress. pealed Paragraph longer ment no relies on evidence, if it is unclear the Grand absent this Hitt’s) (and actions 7. As evidence that MDC's Jury purposes would to Hitt all listed attribute to avoid by desire these part were in fueled 44(b). purposes For of this costs, January aon Count One relies Jury appeal, we assume that the Grand will memorandum, 1994, by allegedly written would. Hitt, export "if an license which states that would have not ... [were] [MDC] obtained goal," 8.Although Paragraph refers to "[a] any potential $3.2 [and] ... loss of [million] appears only goal in Count One May described past 1 to store the assets costs Paragraph [MDC].’’ have be assumed would to also (3) applications; plain license CATIC’s ef- From the language and structure One, forts to divert the to unautho- of Count it would follow that “The alleged Conspiracy” rized locations. Five of these envisioned Jury the Grand export overt acts occurred after the licens- was confined to the defendants’ false state- es were issued: ments and concealment of information

(21) from Commerce Department officials 2, 1994, while On November [MDC] applying for the export licenses. The two signed separate delivery sheets au- “Goal” of conspiracy, as described in thorizing the removal of [some licensable 44, Paragraph did encompass any machine to tools] destination “red” and event occurring after the export licenses’ licensable [some machine to desti- tools] September issuance on 1994. Because nation “black.”[9] allege One did not that MDC and (22) In or about November CAT- Hitt shared the separate purpose of the cargo IC caused that had been licensed CATIC defendants to divert the machine Beijing to to be shipped [to licenses, tools in violation and unloaded at separate two locations]. was, as the district court con- (23) In or about November CAT- cluded, completed once the IC caused another of cargo Hitt, were issued. See F.Supp.2d had been licensed for 30; Krasovich, see also 819 F.2d at 255-56. Beijing shipped to be to and unloaded at separate ports.... two Notwithstanding Jury’s the Grand (24) On or about February plain statement of the one common goal of ... CATIC caused a machine li- tool in Paragraph and its censed for to Beijing[] to be ... statement of the separate purposes of the location], [shipped] to [an unauthorized defendants, MDC and the gov (25) Between or about November ernment maintains that alleged con 1994 and or about March CAT- spiracy continued until the machine tools IC caused six machines licensed for ex- shipped and delivered to China in port Beijing to be delivered to Nan- contention, March support 1995. In of this chang. (1) the government points to Count One’s discussion of the 51(21)-(25). Agreement, Purchase Only Overt Act which, maintains, contem No. 25 refers to a date as late as March plates occurring events after the export Only Overt Act No. 21 refers to (2) issuance; licenses’ references to “Man “delivery MDC. The sheets” that Overt ners and Means” and “Overt Acts” that alleges Act No. 21 signed MDC are not extended statutory period; alleged to be shipping authorization docu- ments; rather, in Paragraph references 48 to March 1995. they are internal MDC rec- Although gov ords of on which the CATIC’s contractually-obligated ernment may point possible removal of certain relies ambi machine tools from the indictment, guities in the plant. remaining Columbus four the court must light overt acts within the construe the indictment in statutory period, prin 22 through solely cipal purposes Overt Acts No. of clarity relate and notice. See Russell, 769-71, 1038; ship CATIC’s efforts to the machine 369 U.S. at 82 S.Ct. Stirone, tools to unauthorized locations after MDC Lawton, requisite export

obtained the Consequent- licenses. 995 F.2d at 292-93. that, china, 9. We assume and destination "black” referred to 47(b), Shanghai, Xinyang, destination "red” referred to China. subheading, The the transaction.11 plain pleting the indictment’s adhere to

ly, we maintains, directly relates government the language.10 the Pur- discussion of background Agree- the Purchase B. Nature through Agreement Paragraphs chase to two fac- points government ment. The indictment, where the Grand 42 of the Purchase that the demonstrate tors to to maintain MDC’s desire Jury described the broader reflected Agreement ' gov- good relations with its customer. First, it con- machinery. the exporting Pur- ernment further maintains subheading of the the title tends the contemplated itself Agreement chase of the Con- Completion to Insure “Scheme machinery: Agreement export of 43 indicates a “scheme tract” the [ex- that MDC would “obtain provided shipment in the culminate that would and, in the event failed port] licenses selected CATIC the tools to locations [them], required was [MDC] to obtain require- license regard for the without the tools.” Count One buyback [sic] Br. at 13. In- Appellant’s Reply ments.” ¶ 39(1). Moreover, contin- government objective get the sale was to sofar as ues, Agreement contemplat- the Purchase China, govern- tools to the machine that arose obligations parties for the ed maintains, the contract would not be ment were issued: after licenses received the ma- until completed CATIC, ship- was to assume example, for therefore received chinery parties and all costs, responsible ping party and each was Second, of the transaction. the benefits respective coun- paying for the taxes in the points language try. that, in to indicate ac- paragraph “Goal” Agreement,

cord with the Purchase are obstacles to There insurmountable machinery’s ex- contemplated the parties on the back- government’s reliance convincing. contention is port. Neither Paragraphs through ground discussion with an “INTRO- view, begins the subhead- government’s In the DUCTION,” Sep- or about stating, “On Completion Insure ing “Scheme to 14, 1994, the De- tember United States a Agreement refers to Purchase Contract” granted partment ma- Commerce contemplated delivery ¶ 1. licenses....” Count One After dis- regarded chine tools to China and regulatory com- cussion of the framework simply as a means for dissenting colleague interpret not from this clear statement would arise Our goal, but rather from Count One’s ref- language on which the relies occurring charged conspiracy to events after the licenses that "the erences as an indication Although relies on of ma- were issued. the dissent included the Dissenting Op. the indictment’s inclusion of these events to at 1026. The chine tools.” existed, indictment, however, argue that a broader plain points no action or event within the support a conclusion. Unlike dissent does not such period agreed upon by statutory that was both Forman v. United (1960), parties. where the S.Ct. L.Ed.2d interpreted specific language Supreme Court government’s conten- charge continuing 11. We do not reach the in an indictment to con- taxation, incorrectly treated spiracy that the district court to evade see id. at tion 1031-32, surplusage. subheading Dissenting Op. the text of this S.Ct. Hitt, explicitly F.Supp.2d at 32 3. Even if this Jury in the instant case con- n. Grand error, "obtaining] conspiracy's goal to we are unconvinced fined the phrase Contrary refers contem- Count One 44. "scheme” to which licenses.” dissent, occurring Dissenting Op. plates actions after issuance to the view of the see ambiguities possible in the licenses. ¶¶ controls, 2-6, licenses, export export buy-back provi- see Count One (which description equipment of the sensitive contingency sion was the last to the ¶ 7, issue, sale) parties see and the to Hence, would be eliminated. even if ¶¶ 8-17, transaction, see Count One Jury the Grand had all incorporated provi- “Background” narration of events in the Agreement sions of the Purchase into ¶¶ 18^42, section, ends with see Count One One, sup- could not These export the issuance of the licenses. port its view that “issuance of the licenses temporal limitations indicate the Grand complete did not the commercial transac- Jury’s licensing process, focus on the not Moreover, tion.” Appellant’s Br. at 18. subsequent on to the licenses’ issu events brief, Hitt observes his the Purchase events, subsequent including ance. Such Agreement required CATIC to taxes and re payment inspections of machine “in tools accordance the ex- licenses, quired by the were collateral ac port licenses.” A “scheme to insure com- part that were not of the shared tions pletion of the contract” would therefore to threatening scheme nor the success government’s contradict “essential Schmuck, that scheme. See 489 U.S. at conspired claim—that the defendants 711-14, 109 S.Ct. 1443. assist CATIC’s effort to violate the licens- Agreement, to the As Purchase Appellee’s es.” Br. at 48. Jury Grand found it relevant to refer Second, the government contends that (1) only provisions: three of its the sale language paragraph the “Goal” (2) million; price obligation MDC’s $5.4 parties’ Count One clarifies the intention required to obtain licenses where to export machinery. The and, ...[,] buy- “in the event failed points to Paragraph the first sentence of tools;” obli- [sic] back and MDC’s 44, which “[a] states of the con- gation pay storage any if machine spiracy was to obtain licenses al- tools had not received an license lowing exportation the sale and ma- July the deadline for CATIC’s added) chine tools to (emphasis [China]." removal of the from the Colum- whole, An analysis Paragraph as a plant. bus The Count One 39. Grand however, indicates that the government’s Jury provision alluded to no contractual reliance emphasized phrase on the is mis- involving the machine placed.12 phrase govern- on which the tools once the licenses were issued. “licenses,” ment relies modifies the word Indeed, under terms of the Purchase “goal”; again not the word this indicates Agreement, complet- the contract would be charge focus of the issued, ed once the licenses were not when licensing process. significant, More was delivered. Title would however, language is the follows obtained, after pass the licenses were Paragraph para- first sentence of payment (by after the final MDC received 1994), graph proceeds to describe the different July upon equipment’s not arriv- Furthermore, upon al in issuance of the American and the Chinese purposes China. plausibility interpreta- 12. The of the dissent’s stanüates that intuitive belief because none of meaning” occurring statutory peri- assigning tion a “broader the events within the Dissenting implies agreed upon by stated in see od actions that were Thus, Op. language parties. broader inter- arises not from the the dissent's indictment, pretation conspiratorial "goal” but rather from an intuitive belief would conspirators satisfy key purposes of that all must have been aware of fail to the indictment’s Russell, purpose. clarity U.S. at CATIC’s ultimate The dissent can- and notice. See point in Count One that sub- 82 S.Ct. 1038. and Means” and “Overt C. “Manners defendants’] CATIC “[The defendants: looks to the government Acts.” The also others, was to obtain the among purpose, Acts” “Manners and Means” and “Overt at for unrestricted use ... machine tools of its support of Count One for paragraphs facilities within [China].” undisclosed scope of the of the con- ¶ broad definition 44. The MDC defendants’ One introductory paragraph The un- spiracy. Hitt’s) others, among (including purposes, that all der “Manners and Means” states (1) positive commercial to maintain were Hitt) (including “would and did defendants and to obtain relationship with CATIC means, and following use the manner See id. licenses. others, among seeking in to achieve the key pur In view of the indictment’s ¶ conspiracy.” goal Count One of Hitt provide notice to of the pose added). (emphasis The con- —to pre charges against which he should be that all of the manners and means tends trial, himself at see Rus pared to defend Paragraphs through listed in includ- sell, 769-71, 1038; U.S. at ing actions taken and information con- Stirone, at S.Ct. February, in cealed “from or about Lawton, 1995,” F.2d at 292-93 —the district ... into or about March Count One ¶ 46, placed great importance goal court on in furtherance “the” of properly ¶¶ Jury’s separate conspiracy. statement of the See Count One 47-50. the Grand addition, defendants, In government points five group of each and purposes Paragraph overt acts listed in 51 that oc- in 44 that Paragraph its clear statement statutory period. curred within the goal of the was to obtain ¶ 51(21)-(25). unper- We are Hitt, licenses.13 See under either of suaded purposes of the F.Supp.2d 32-33. headings expands scope these of the coincided with those of MDC defendants conspiracy. only with respect defendants CATIC licensing process, which was government’s reliance on the “Man- in which only aspect of the transaction paragraphs misplaced. ners and Means” involved. The First, the MDC defendants were introductory sentence refers to which ex purposes, CATIC defendants’ goal conspiracy. “the” See Count ¶ beyond goal tended the common only goal 45. The defined conspiracy, therefore cannot serve to Jury appears Paragraph Grand in 44: “to conspiratorial broaden the definition of the obtain licenses.” Count One in agreement. Jury As this court observed Wil in goal The Grand did not state son, the motivation of Pur- ensuring completion 160 F.3d terms of single conspirator necessarily Agreement does not chase or diversion of machin- Hence, ery once it arrived in this goal conspiracy. define the common China. separate ing applying 13. The contends that the the machine tools to CATIC necessary complete “purposes” simply set for the listed in parties’ for the sale. The dissent would hold that forth the distinct motivations en- agreement documenting tering ultimate divert the CATIC’sremoval of the machine —to plant, the Columbus MDC “con- machine tools for use at unauthorized loca- tools from however, cretely actively helped goal, CATICrealize the tions in China. This broader Jury's descrip- goal Dissenting shared to China.” is inconsistent with the Grand helped Op. tion MDC would satis- at 1029. That MDC later CATIC of MDC’s motivation. fy purpose maintaining its a favorable rela- realize its ultimate is distinct from indi- performing cating purposes tionship only by with CATIC that MDC shared this control, Jury. namely by the Grand acts that were under sell- defined introductory sentence cannot redefine or for the ten export licenses [MDC] certified ... the end expand conspiracy. user[] Sec- to be the Ma- ond, chining Company ... paragraph, Beijing, the “Goal” the “Man- when fact, knew, truth paragraphs ners and Means” distinguish had reason to know and acted with willful between activities of the blindness to MDC ¶¶ fact that this end designation CATIC defendants. 47- user was See Count ¶ 49; false and misleading,” 50. From Count One repeated Count One’s distinc- second, and that export justifica- MDC’s goals tion between the actions and of each tion statement defendants, group “identified] trunkline reasonably follows use, program as the end when in truth the manners and means attributed to fact, knew, in [MDC] had reason to know CATIC were not in furtherance of the and acted with willful blindness to the fact alleged conspirators’ goal. common Final- designation that this end use false ly, the structure of the “Manners and misleading.” Count One 50. paragraphs Means” indicates that the in- occurring clusion of events after Septem- government further relies on ber and of the parties’ alleged the indictment’s inclusion of Overt Acts information, shipping concealment of 21 through No. which occurred within intended to illustrate the defendants’ false statutory period. See Count One misrepresentations statements and “[o]n ¶ 51(21)-(25); supra Part II.A. five These applications for the ten licens- acts, however, overt do in themselves ¶ 49; es.” Count One see also Count One extend the of the conspiracy into the ¶¶ 47-48. 47 Paragraphs and 48—entitled statutory period unless the acts were com Regarding “False Statements End mitted in alleged furtherance of the con User” and “False Regarding Statements Grunewald, spirators’ common goal. See the End Use”—include references to ac- 963; Fiswick, 353 at 77 U.S. S.Ct. occurring tions CATIC within the stat- Craft, S.Ct. utory period and as late as March 1995. 1128-29; Roshko, 6-9; F.3d at 969 F.2d at ¶¶ See, 47©-(n). e.g., Count One These Davis, United States 533 F.2d 926- however, events, in support are submitted (5th Cir.1976). Only jury then could a of the contention that “well knew properly be allowed to determine whether to be false misleading [its statements] in question actually the overt acts fur applications the time the were filed.” thered goal conspiracy. the common ¶ 47. Similarly, Paragraphs Count One Wilson, cases). (citing See 26 F.3d at 159 and 50—entitled “False Statements 21 through Overt Acts No. 25 do not satis [Ojmissions [R]egarding the [E]nd [U]ser” Rather, fy requirement. this threshold and “False Statements and Omissions Re- only are consistent with the purpose garding End Use”—refer to MDC’s al- that the indictment attributed to the CAT- leged shipping concealment of information delivery IC defendants: to divert of ma indicating an delivery alternative site for chinery to pre unauthorized locations. As See, the machine e.g., tools. discussed, viously Overt Acts No. 22 ¶¶ 49(b), (d). Contrary govern- through 25 relate to CATIC’s diversion of contentions, ment’s this does not indicate locations; equipment to unauthorized CATIC’s and diversion of only Overt Act No. overt act within conspira- machine tools furthered the statutory period that refers to atMDC Rather, goal. torial all, MDC’s acts of merely discusses MDC’s internal docu concealment support the conclusions set contractually-obli mentation of CATIC’s beginning forth at the of Paragraphs gated removal from the first, Hence, and 50: applications plant. “[o]n the Columbus none of these five supra Part only of 18 U.S.C. 371. See furtherance of the tion overt acts was contends in the indictment: the II.A. common stated result, statutory viola- underlying As a “[e]ach licenses. issuance of conspiratorial through No. 25 tions subsumed within of Overt Acts inclusion extend en- conspirators’ is insufficient to reflects the agreement in the indictment stated of the tools conspiracy beyond to secure the deavor Craft, 105 F.3d at Paragraph with CATIC’s to China accordance This Appellant’s Br. at 30. wishes.” maintains, scheme, contin- Paragraph 43 to D. Reference derive long parties [its] “as as the ues final con- government’s 1995. The March benefits.” Id. anticipated economic introductory focuses on the sen- tention under “Scheme tence reading plain A the Contract,” Completion of the which Insure support govern- the indictment does spanned from the states First, paragraphs ment’s contentions. ... February, “in 1993 until or or about 43(d) (e) expressly limited to acts are ¶ March 1995.” Count One 43. Be- about place August “on or before that took in- provide 43 does not Paragraph cause 1994,” occur- and therefore refer to events sight conspirators’ goal, as to the common ring period.14 outside the limitations Sec- however, expand it itself cannot 43(b) ond, charges the defen- Paragraph statutory period. to reach the concerning with fraudulent actions dants licenses, and thus cannot be

Paragraph only paragraph 43 is the beyond point construed to extend when the indictment that seeks to describe Third, Para- the licenses were issued. Indeed, it among parties. agreement 43(c), although worded more broad- graph indict- only paragraph which the is to ly, focuses on the defendants’ efforts “agree.” uses the word See Count ment States, that, “defraud” the United an act to paragraph proceeds 43. The concluded, only as the district court could among the charge agreement a criminal occur in reference to the alleged conspirators to commit five of- granted.15 against the United viola- the United States See fenses (e) 43(d) government Paragraphs guage Paragraphs thus indi- 14. The contends that 43(d) (e) August charged Jury should not be limited to cates that Grand offenses Paragraph 3 because states expira- that occurred on or before the EAA's system "the controls established tion. Export pursuant Administration Act implemented Export by the Administra- defendants, 43(c) Paragraph states that the Regulations pur- was continued in effect tion Hitt, including conspired Orders,” namely to a series of Executive suant communications, to use interstate wire Reg. Executive Order 59 Fed. in furtherance mail and interstate carriers (1994). Again, obligation the court’s prop- obtain of a scheme to defraud and to plain language adhere to the of the indictment erty, that is licenses and machine defendant has received to ensure [China], delivery tools for means of adequate charges brought notice of the representations ... ... Russell, false and fraudulent against U.S. at him. See § 1343 and 43(d) [18 1341]. in violation of U.S.C. 82 S.Ct. 1038. Neither (e) that MDC and Hitt concedes charges a violation of E.O. 12924 or of logically conspired could not have to obtain Emergency Section International [China],” (“IEEPA”), “machine tools for be- Act 50 U.S.C. Economic Powers (1991), already provides statutory § cause MDC owned tools. See which Appellant’s Br. at 26 n.8. The authority for the continued enforcement however, contends, plain lan- that MDC and CATIC the EAA’s restrictions. The Hitt, case, F.Supp.2d only at 35-36. This instant anticipated economic ben- boilerplate language leaves the of Para efits of the “scheme” would extend the 43(a), graph language which tracks the of duration of the conspiracy only if all defen- Hitt, 18 U.S.C. 107 F.Supp.2d dants contemplated those benefits and at 35. Absent specific allegations in the agreed Girard, to receive them. See concerning discussed, broader of F.2d at 1171-74. As the plain conspiracy, this cannot serve as a of the indictment indicates that catch-all, umbrella govern only section for the the CATIC defendants intended to government, ment. The has been divert to an unauthorized warned, simply charge “cannot an offense location in indictment, China. Under the by using general language of the stat this economic reward of the transaction law, ute or the common but accompa must not agreed upon by all defendants and ny the generic language ‘with such a state therefore may not be used as a basis ment of the facts and circumstances as will extend the scope of the conspiracy. offense, inform the specific accused reasons, For these we conclude coming general under the description, with that a common-sense reading of the indict 16 Treadwell, charged.’” which he is ment indicates that Jury Grand de F.2d at (quoting Hamling, 418 U.S. at fined a conspiracy that ended with the 117-18, 2887). 94 S.Ct. Department of Commerce’s issuance of the may government Nor the rely export on licenses. It is clear from the indict theory, the “economic benefits” under ment why and Hitt participated MDC in which the “scheme” is deemed to extend the fraudulent scheme to obtain export the conspirators until the receive the economic They licenses: sought to maintain good See, rewards of the agreement. e.g., Unit relations with government, the Chinese es Co., ed States v. Improvement Northern pecially light in of the substantial financial (8th 540, Cir.1987); 814 F.2d 542 gain represented by United the MDC-CATIC Mennuti, (2d 1032, States v. joint 679 F.2d venture. MDC would satisfy this Cir.1982); Walker, v. objective by selling to equip CATIC the (9th Cir.1981). F.2d 1347-48 desired, In the ment that it by and the obtaining conspired “deprive to the United licensing States of its material fact to officials even after ability export to control export the of these the tools ... licenses issued. As discussed II.C, by submitting applications.” false license Part Jury Id. in Count One the Grand infra alleged responds government's Hitt independent not claim concealment acts §§ conspiracy, under 18 U.S.C. and in 1341 is foreclos- furtherance of the but rather in support ed Cleveland v. United of its conclusion 531 U.S. that MDC and Hitt (2000), provided misleading 121 S.Ct. 148 L.Ed.2d 221 false and which information in Furthermore, applications. states that licenses not license proper- “do[] create a ty obligations imposed by § interest.” See id. at 372. Because Hitt 15 C.F.R. 787.5 sought triggered upon "change are dismissal of Count One on a statute of material fact grounds, occurring limitations we or intention” have no occasion to after MDC submitted applications. decide whether the mail and wire fraud license 15 C.F.R. stat- 787.5(a)(3). apply § change utes or whether licenses No such is consti- Gne; rather, property tute under Cleveland. the false information that conspiracy is the charge basis of the was government 16. The further contends that known to the defendants before submit- 43(a) (b) Paragraphs Thus, term “conceal” in applications. ted the license charged 43(b)’s and the violation of 15 C.F.R. Paragraph reference to 15 C.F.R. 43(b) § scope 787.5 in broaden the expand conspiracy 787.5 does not conspiracy they charge of the occurring because MDC actions after the licenses were is- failing changes Hitt with to disclose sued. od, modify its expand conspiracy allow that would CATIC

export licenses Grunewald, 406, 77 353 U.S. at goal.17 to China. Under transport the Fiswick, 216-17, 963; that would com- Agreement, at the Purchase 329 U.S. S.Ct. transaction, was re- 1123; as CATIC at Rosh plete Craft, 105 F.3d S.Ct. machinery’s removal Davis, for the sponsible ko, 6-8; at at 533 F.2d 969 F.2d Although consequence transportation. conspiracy Defining goal of the acquisition of alleged fraudulent of MDC’s government manner that the broad un- might be CATIC’s only the in would frustrate not proposes machinery, this does authorized use of to a purpose giving notice dictment’s upon actions indicate that CATIC’s defendant, having a purpose but also the part machine tools would be acquiring the Grunewald, 353 of limitations. See statute As the agreement. conspiratorial 401-02, Kru (citing at S.Ct. Fiswick, explained Supreme Court lewitch, 69 S.Ct. 716 336 U.S. may of a “[tjhough the result (Jackson, J., concurring)); Doherty, 867 does not continuing, allege does not F.2d at 61-62. Count One ... continuing one thereby become pur had the common that the defendants conspira- co-operation ‘[CJontinuous machinery to unau pose diverting necessary.” it is keep up’ tors to en thorized locations. If the (citations omitted); see common for the visioned broader Doherty, F.2d also United States namely “shipment of the conspirators, (1st Cir.1989). 61-62 with tools to locations selected hardly unaware of requirements,” the license regard out attempt expand inconsistency obligat Br. at Appellant’s Reply conspiratorial agreement Jury ed to ensure that the stated Grand indict- plain language beyond certainty thereby con response questioning during In ment. principles to the “basic of funda formed government the claimed argument, oral key the underlying mental fairness” two charge would remain purposes of an indictment —notice to the as intervening valid even if an event—such against double protection defendant and sinking ship transported the of the Russell, 763, jeopardy. 369 U.S. at 765- change or a of heart equipment 66, 82 S.Ct. 1038. government impeded the actual Chinese — Accordingly, we affirm the order of the delivery machinery to the unautho- dismissing court One of the district shipment If rized locations. Hitt. against indictment unnecessary was to the conspirators, then common WILLIAMS, F. Circuit STEPHEN cannot extend government definition Judge, dissenting: conspiracy past issuance fairly The indictment —read as Thus, licenses. whole— charged informs the defendant rely through Acts No. 21 may not on Overt de- 25, included the sporadic and on Count One’s refer- and thus included statutory peri- livery within the of machine tools ences to events charges....” Hitt “March 1995” in Count One criminal or administrative 17. Insertion of although govern- five-year in apparently an effort to avoid the states his brief was limita- waiv- ment obtained waivers of the statute of limitations deadline. MDC executed six limitations, tions from MDC and all but one of the CATIC of the statute of consider- "[i]n ers defendants, government delaying any sought it never a waiver federal such ation of the Appellee's respect filing from him. See Br. at 9. final decision with committed within had setting overt acts been violated — five-year period. limitations I would off a Department Commerce investigation court’s dismissal of reverse district that ultimately led to the October Count One. indictment before us. See United States Hitt, (D.D.C.2000). v. 107 F.Supp.2d long, gist is

Though the indictment story to be true for of its these —assumed key issue here is whether Count re- purposes simple enough. Facing —is alleges the indictment a conspiracy business, duced McDonnell continuing beyond October 1994 and is contractor, Douglas Corporation, a defense properly chargeable thus under the five- military decided to shut down its aircraft year statute of limitations. See Fiswick Columbus, in plant Ohio. After considera- States, v. United 329 U.S. negotiation, Douglas agreed ble McDonnell (statute S.Ct. 91 L.Ed. 196 to sell for million various machine $5.4 “runs from the last overt act during the plant tools from the to China National existence of the conspiracy.”). Count One Aero-Technology Export Cor- Import explicitly alleges five overt actions taken (“CATIC”), in an poration partner on- ¶ (21- date, after that see Count One 51 Indictment, joint going billion venture. $1 25), but these five acts would not count ¶ ¶ 18, 21-39. Some of for our purposes performed pursu unless legally shipped could be to Chi- ant to the conspiracy. crucial “[T]he only na licenses from the Com- question determining whether the stat Department; merce the contract stated ute of limitations has run the scope if they could not be obtained McDon- conspiratorial agreement, for is that Douglas buy nell would have to equip- ¶ which determines both the duration of the ment back. Id. at 39. Before the deal conspiracy, and whether the act relied on made, Hitt, Robert the Director then as an act may properly regarded overt Program Douglas China Office at (a -wholly-owned Aircraft division of conspiracy.” furtherance of the Douglas), help McDonnell was called Grunewald United any problems obtaining resolve the li- 397, (1957). S.Ct. L.Ed.2d 931 Id. at In censes. submissions to the provides In fact ample Department, contracting Commerce both signs that the claimed conspiracy extend parties falsely stated that the tools would not merely securing ed to the of only Beijing facility in a used dedicated (issued 1994) 14, September licenses but development to the of civilian aircraft as equipment also to the of the to ¶ ¶ 41, joint part of the venture. Id. at through bring China actions that the con 14, September On 1994 the De- Commerce spiracy five-year well within the .window. ¶ partment granted the licenses. Id. at 42. 1994, arranged, In November An perfectly indictment need not be the help Douglas, ship of McDonnell to judicial scrutiny. crafted to survive “The (some ports to two different sufficiency true of an indictment test ¶ ¶ 51(21)- apart) miles China. Id. at it is not whether could have been made (23). During approximately the next four certain, more definite and but whether it (li- months, CATIC diverted six machines in contains the elements of the offense Beijing) factory censed for to to a charged, sufficiently ap tended to be 51(25). in Nanchang. Id. at At the re- what must be prises the defendant of he quest Department, of the Commerce to meet.” v. De prepared United States Douglas inspected McDonnell the machine brow, reported tools in that the China terms S.Ct. U.S. (1953) (internal starting place A is the quotations omit- natural L.Ed. 92 added). addressing of con- ted) explicitly “fairly It must (emphasis allow- obtain spiracy charge, the defendant —“to inform^” machine ing exportation sale v. Hamling United ¶ 44 (empha- [China].” tools (1974), 2887, 41 L.Ed.2d 590 added). alone, passage this is sis Taken nature “with reasonable him of its and tell susceptible reading assigned of the narrow Simmons, certainty,” United majority only was (1877). 24 L.Ed. 819 We —that licenses, parties with the lack- secure entirety,” “in its read the any as to actual ing purpose shared “according to common sense construe delivery. meaning But the broader as- existing realities.” appreciation with an quite is plausi- serted Inc., F.2d Inryco, States v. he wants to person says ble. When Cir.1981). (9th allowing Beijing,” “a visa travel to obtain determine wheth- task is to specific Our reading the literal he is indifferent —that years actions within five er the possible use of the visa—is but not object promoted the indictment necessarily likely. depends That on con- query is similar alleged conspiracy. indictment, text. The remainder trial court’s resolving per- claims that a see, grand jury that the we shall shows in- rulings missive evidence broadened asserting parties’ jointly in- cannot be indictments dictment. While get tended to the tools to China. The outside of the “constructively amended” written contract between McDonnell (to jury permit introduction of evi- grand obtaining on Douglas and CATIC focused dence), reasonably: interpreted are licenses, sure, but parties to be claim con- prevail In on his order to (and are) accused of having can be often amendment, [a defendant] structive conspiratorial agreement beyond that me- proof trial “so must show that legitimate morialized in a sales deal. altered an element of the essential pre- There no rule that parol is evidence that, review, it uncertain charge upon agreement being vents a criminal from whether the defendant was convicted of which it is broader than a contract subject conduct that was the related. grand jury’s indictment.” No construc- Having reading chosen the narrow gener- “where a tive amendment occurs conspiratorial “goal,” the statement of ally encompasses framed indictment in the majority everything then discounts used at specific legal theory or evidence reading. indictment inconsistent with have “consis- Accordingly,

trial.” we Maj. Op. (saying at 1022 that CATIC tently significant flexibility permitted alleged purposes defendants’ “extended defendant proof, provided that the was beyond goal” conspira- the common criminality given notice of the core of to cy and thus cannot “broaden” its defini- proven at trial.” tion); (saying that “Manner and 1023 224 Berger, F.3d 117 “expand” United States cannot or paragraphs Means” (2d omitted). Cir.2000)(internal citations conspiracy “redefine” because whole, Taken as a this indictment ade- grand jury did not state broad terms); quately apprises conspiracy Hitt that the that overt acts (saying 1023-24 beyond receipt as stated because this accepted extended cannot be scope beyond stated encompassed shipment licenses and of would “extend” that stated duration goal); (saying equipment to China. meaning, only to March 1995 cannot be fits the broader conflict with accepted because would meaning, goal. broader of the stated alleged goal “expand” conspir- and would majority asserts that McDonnell 43(a) that acy); (saying Douglas satisfy purpose “would its ... “catch-all, cannot function as a umbrella only by performing the acts that were section” for the because of control, under its namely selling the ma- “generic language”); (saying applying chine tools to CATIC and for the Douglas economic benefit to McDonnell necessary complete completing shipment from must be disre- Maj. sale.” Op. (emphasis n.13 garded only because CATIC was interest- added). This reflects a mistaken idea of in delivery equipment). ed The what Douglas’s was under McDonnell con- approach, more conventional when con- trol. In fact the explicitly al- ambiguity, fronted with an is to assume leges an post-October affirmative provisions that other of the document as act that ivas under McDonnell Douglas’s may light a whole shed on the meaning control, namely filling out forms coded to ambiguous passage. do Here get to the two intended purposes, indeed —the statements ¶ sites China. See Count One 51 manner, means and of duration of the (November 2, act); see also id. at conspiracy, point and of overt acts all ¶ 47(b) (explaining coding system). Thus meaning. the broader One Douglas concretely actively McDonnell ¶ ¶ 51(21)-(25). 1, 43-50, helped realize the shared says The indictment the CATIC delivery to China. unsurprisingly—cared about defendants — Moreover, at least until the licenses They shipment: get equip- wanted to used, Douglas McDonnell could ad- ment for “unrestricted use at undisclosed joint vance the interests of the [China], within including facilities Nan- conspirators by keeping quiet. The in- chang, factory military known for its allegation dictment includes an of “con- ¶ Id. at 44. production.” And McDonnell trick, cealfing]” by scheme or device Douglas explicitly and Hitt are said to jurisdiction material facts in the purposes beyond have that would extend (Count 43(a)) executive branch One the issuance of the They licenses: wanted § violation of 18 U.S.C. 1001 and asserts to “maintain ongoing commercial rela- until went on March tionship between Douglas McDonnell (Count (25)), § when the promote prospects CATIC and to Nanchang.1 tools were delivered to existing and future business contacts be- majority pe- throws out the nonetheless parties.” Obviously tween the Id. riod of on the Douglas’s purpose McDonnell of maintain- ground period inclusion of ing relationship a favorable commercial conspirators reap needed for the if CATIC would have been thwarted used; properly full benefits could “extend the the licenses were never obtained but if Douglas’s alleged purpose conspiracy only thus McDonnell duration of the all de- stated, explicitly alleges previously represented, 1. The indictment also viola- from that 787.5, imposes § 787.5(a)(3); tion of 15 CFR which certified.” 15 CFR see also 55 continuing obligation “Every per- to disclose: 31,176 (1990). Reg. Because this Fed. refer- any representation, son who has made ment, state- appears ence is located in a subsection that notify, writing, certification in must licenses, "obtaining” the be focused on Export the Bureau of Administration ... of 43(b), rely §One I do not on it. change any any of fact or material intention 1030 simply reads out of the indictment jority benefits and those contemplated

fendants Maj. Op. at them.” overt acts. post-October to receive five 1994 agreed all Douglas’s benefits 1025. But McDonnell say did not that Id. But the enhancement relationship included unnecessary to achieve shipment was bring, would completed shipment only that the goal; it said conspiracy’s inclu the cases allow any in event ship- if the would still be valid indictment for each con needed period sion Argu- See Oral ment were not successful. her share of his or to receive spirator reflects a standard ment Tr. at 10. This v. Men States the benefits. See United law: can be con- conspiracy truth of (2d Cir.1982) nuti, F.2d if the not conspiracy even is victed objective of if the main (“Similarly, even realized, an overt act long so as there is was to de in this case conspiracy goal. See United furtherance the con company], fraud insurance [the Treadwell, F.2d objec until its other spiracy continued Wayne (D.C.Cir.1985); LaFave, R. Modern tives, co-conspirator’s] including [one (2d 1988). Law ed. The sunk Criminal achieved.”). And, giv payoff, own only in that hypothetical is relevant ship and con the scheme of deceit en would, likelihood, sinking in all have such to have culminated cealment conclusively parties’ thwarted the shared (i.e., oc specific in a event If that goal, ending conspiracy. thus 1995), in March there is no risk curring years prior than five had occurred more being charged with an of defendants’ indictment, for understood, conspiracy. Properly eternal sank, ship be time But no would barred. easily falls on the the indictment thus equipment and indeed the didn’t even line drawn permissible side of the key date leave Ohio until after the of Octo- States v. then-Judge Breyer 19,1994. (1st Cir.1989), ber dis Doherty, 867 F.2d receiving the fruits tinguishing between telling Most is the indictment’s list action, or a enterprise of an “one acts, by the indict- expressly overt stated actions, over a taking place handful of ment the con- to be “[i]n furtherance of time,” id. at period limited spiracy accomplish objects and to form of a receiving them in the (emphasis add- thereof.” ordinary, “lengthy, indefinite series ed). including the Five of the listed acts— noncriminal, actions, unilateral typically shipment plain- and diversion tools— salary payments,” id. receiving such as ly occurred after within the October the latter of permissible, The former is conspiracy. statute of limitations for ten not. the indictment is of the Here ¶ ¶ 51(21)-(25). Though majority id. type. former otherwise, suggests Maj. Op. see acknowledgment government’s From the (1) n.10, that Hitt did it is irrelevant argument at oral the indictment acts, personally perform any of these ship would remain valid even if the con- (2) Act that the records executed Overt taining the sank before Douglas rec- are internal McDonnell China, concludes that majority reached (3) ords, five relate that four out of acts delivery or “[i]f efforts, shipping CATIC’s the common unnecessary each parties agree specifically did not as to definition the conspirators, then scheme, join a parties of the acts. When cannot extend entirety responsible become past the issuance of the licenses.” execution, basis, by their Maj. “joined together the ma- Op. at 1026. On this

1031 goal conspiracy” ship of its essential features and of the CATIC “did knowledge v. scope,” Blumenthal United broad to locations not in reflected States, 539, 558, 248, 92 68 S.Ct. U.S. export applications,” such and McDonnell (1947), party’s igno- L.Ed. 154 and either Douglas and Hitt from gov- concealed com- rance of the details of the overt acts separate ernment “that packing instruc- consequence. mitted the other is of no tions, designating ports delivery, two States, v. Id. See also Pinkerton United being employed for all of the licensa- 1180, 640, 66 S.Ct. 328 U.S. ¶ ¶ 45, 47, ble machine tools.” Count One (1946); Curry, L.Ed. 1489 States v. United 49(b)(2). majority The alleg- discards the (7th Cir.1992) (“The 1042, 977 F.2d edly false statements made to the Com- required prove any government is not Department merce and other af- activities particular to a de- regard overt acts with issued, ter the licenses were using the now period; in- fendant within the limitations argument familiar that these couldn’t have stead, required prove is been in fulfillment of the conspiracy’s goal, the limita- conspiracy that the existed into narrowly construed majority. did period tions and that the defendants Maj. Op. at 1022-23. But See the indict- period.”). not withdraw before that specifies ment that the conduct described majority refuses to read the indict- under Manners and Means was to “achieve argues ment as a whole when it that these conspiracy.” The neces- in conspira- acts are not furtherance of the sary implication reading is that the better cy because do not relate to the re- “goal” statement is the broader one ceipt Maj. Op. licenses. encompassing goods. efforts deliver the Although at 1024. overt acts cannot ex- conspiracy tend the unless Finally, the indictment states in at least they were committed furtherance of a places three that the ended id., an indictment’s alle- goal, common see ¶ ¶ 43, or around March 1995. Count One help of overt can gations interpret acts 51(25). 47(n), States, In Forman v. United v. language. other Accord Williamson 416, 481, 4 361 U.S. 80 S.Ct. L.Ed.2d States, 28 S.Ct. (1960), grounds, overruled on other Burks (using 52 L.Ed. limited v. United alleged support character of overt acts to (1978), 57 L.Ed.2d 1 the Supreme reading narrow of remainder indict- similarly confronted with an Court ment). only single conspiracy Since is ambiguous indictment its du- charged, majority’s reasoning implies years ration in and asserted some overt grand jury’s inclusion of these year even in the It acts indictment. unnecessary But acts was or mistaken. the overt explicitly relied on acts to resolve part we should not excise of the indictment ambiguity. See 361 U.S. lightly. Rezaq, See United States S.Ct. 481. (D.C.Cir.1998) (“[A] F.3d mo- surplusage

tion to strike the indict- [from if it granted only ment] should be is clear ”; may entirely Robert Hitt innocent of allegations are not relevant ... 7(d) strictly “Rule has been construed charges. government may Or the (internal against striking surplusage.”) joinder in the prove fact be unable to his omitted). quotations and citations broader and thus his in the activities after issuance of complicity Manner and Means section of But un- the licenses. indictment’s grand full accord. The Doug- jury alleged seeking equivocal that “in to achieve the assertions of McDonnell conspiracy’s dura- purposes, las’s

tion, of execution manner and means shipment, completion involve looking to that com- the overt acts

and of am- the indictment’s plainly resolve pletion goal, conspiracy’s biguous statement charges that it making clear five-year window. Since reaching into Hitt of adequately apprised the indictment charged conspiracy, prop- limitations defense cannot statute of erly language. rest on its COMPANY,

APPALACHIAN POWER al., Petitioners, et PROTECTION ENVIRONMENTAL AGENCY, Respondent. Pennsylvania, Commonwealth Department Environmental

Protection, al., et Intervenors. 99-1200, 99-1205, 99-1206, 99-1246, Nos. 99-1266, 99-1285, 99-1289, 99-1291-99- 99-1299-99-1301,

1293, 99-1295, 99- 99-1306, 99-1307, 1303, 99-1304, 00- 00-1022, 00-1024, 00-1021, 00- 1038, 00-1042, 00-1050, 00-1071, 00- 00-1087,

1074, 00-1077, 00-1083, 00- 00-1102, 1088, 00-1096-00-1099, 00- 1103, 00-1105-00-1110, 00-1113, 00- 00-1122, 00-1123, 00-

1125 & 00-1128. Appeals,

United States Court of District of Columbia Circuit.

Argued Dec. May Decided

Case Details

Case Name: United States v. Hitt, Robert

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 8, 2001

Citation: 249 F.3d 1010

Docket Number: 00-3083

Court Abbreviation: D.C. Cir.