United States v. John Peter McGoff

of Columbia Circuit. District STARR, Before BORK Circuit RE, Judges, D. and EDWARD Chief May Argued Judge,* Court United States 13, 1987. Decided Oct. International Trade.

Opinion for the Court filed Judge STARR. Circuit opinion Dissenting filed Circuit Judge BORK.

STARR, Judge: Circuit presents an of first This case issue im- precise question pression. The is whether of limitations for the offense of the statute failing the For- Registration Act of eign Agents (FARA), (1982 611-621 & U.S.C. §§ 1985), (1) Supp. begins to run on the last Ill foreign unregistered agent acts day that an foreign principal, on behalf formerly unregistered day first that a actually for- registers. Under the attempted approach, the mer Government’s case prosecution of the defendant approach, the latter time-barred. Under not yet come the statute reg- never play into since the defendant FARA. Presented with these istered under competing approaches, the District Court accordingly dis- the first and embraced information. We are missed the criminal upon determine whether the now called court erred as matter law. trial After examination of the relevant careful provisions, as well as FARA’s statutory history, legislative we find structure and District ourselves accord with judgment, In our determination. Court’s the statute of limita- trigger-point Justice, last on which the Sharp, Atty., Dept, of tions Robert D. diGenova, agent allegedly as such. Joseph Atty. acted We there- with whom E. U.S. Atty., affirm. Murtagh, Brian M. U.S. fore Asst. * Sitting by designation pursuant 28 U.S.C. panded pur-

I in 1975 to include an effort to Corp., chase in an interest UPITN an inter- began in October 1986 when This case Id. at 4, national film news distributor. Attorney filed a criminal States the United J.A. at 8. McGoff’s Mr. activities on behalf against Peter John McGoff.1 information Africa, of South the Government main- charged Mr. McGoff The information tains, 1979, 618 of FARA until sections 612 and continued June when his had violated failing Washington by willfully The acquire Star efforts to See of South Africa. Infor- Republic proposed ended in failure.3 After this ac- McGoff, States v. mation, United Cr. No. quisition through, alleged agency fell 31, 86-369, (D.D.C. 1986), 7 Oct. at filed 5, Id. at relationship J.A. terminated. at 9. (J.A.) 5, reprinted in Joint Appendix at 11. during The information asserts that was then and remains a news- Mr. McGoff five-year period from 1974 to McGoff columnist,2 and who paper publisher vir- actively relationship through concealed the belief,” “deep long-held and tue of a accounts, such clandestine devices as secret publicly Brief at Appellee’s advocat- dummy corporations, words. See and code ed close ties between the United States and id. at Despite J.A. 6-7. these ef- In Republic South Africa. Mr. forts, relationship evidently view, came to are vital McGoff’s ties to the light the United and the in 1978 defense of States free late when Id. world. judicial govern- commission that alleged The that in 1974 information Mr. ment of appointed South Africa to in- agreement into a McGoff entered secret quire alleged irregularities into in that Republic with officials South Afri- Department nation’s former of Informa- Information, ca. See United States v. had ... stated McGoff received McGoff, alleged agree- J.A. at 6. The more $11.3 than million from the South primary objective ment had as its McGoff’s government attempt African pur- Star, Washington The purchasing a now- Washington ... chase Star and a daily newspaper formerly publish- defunct controlling interest in Press Capital, pro- ed in Nation’s funds and International Television Network sub rosa vided According South Africa. [UPITN], information, hoped South Africa McGoff, SEC v. (D.C. purchase through effectively this to coun- denied, Cir.), cert. 452 U.S. perceived ter the anti-South Africa bias of (1981).4 69 L.Ed.2d 974 These disclo Washington Post. Id. check and prompted Department sures the Justice through publi- balance to be was achieved investigation launch an into McGoff’s activ relating cation “positive material to led, later, ities in years 1979 that strategic importance and economic of South filing of the information in Africa October 1986. Id. United States.” See Joint relationship between Mr. McGoff and the Statement Material Facts Not South allegedly Dispute, African Government in McGoff, United States v. ex- Cr. right 1. Mr. McGoff waived his allegedly an indictment 3. Mr. McGoff was somewhat more by grand jury. Appellant’s See Brief at 3 n. 1. purchase successful in his efforts to an interest generally McGoff, in UPITN. See SEC v. brief, According 2. to McGoffs when the (D.C.Cir.), denied, F.2d 963, cert. investigation began, Government's of him he L.Ed.2d president Corporation was the of Panax Corporation, Global Communications entities challenge SEC v. concerned McGoffs McGoff published newspapers that then eight more than subpoenas issued SEC in course of per- McGoff States. owned one hundred investigation alleged into whether McGoffs enjoyed ownership cent of Global inter- 1986, however, connection with South Africa violated disclo- By est Panax well. provisions sure empire of the federal securities laws. markedly McGoffs media to had dwindled daily newspaper an interest in one F.2d at 188-90. Aside factual one nexus, guide" "shopping Michigan. Appellee’s litigation the SEC is unrelated to this Brief at 11-12. case. non-capital 1986), of limitations for eral statute (D.D.C. Nov. J.A. at filed No. 86-369 offenses),5 concluded that the court file the infor- Government below, parties both proceedings 1984. no later than June mation statute-of-limitations recognized that supra. 1, quoted impression. Since the Stipulation first was one question dispositive so, potentially the issue was had Since not done District Government case, of the same parties were granted motion to dismiss Court McGoff’s should be ad- question mind ap- information as time-barred. agreed. Court District first. The dressed peal followed. an order the court entered Accordingly, briefing schedule and direct- establishing a II. a statement of parties prepare ing the dispute. parties in facts not material issue, addressing question Before at following: stipulated to the thereafter briefly general pause we summarize the (“McGoff”) last Peter McGoff 1. John purposes Foreign structure of the and for allegedly acted Supreme Act. Agents Registration As Republic of South Government recently dealing observed in a case Court Africa”) 13,1979. (“South on June Africa FARA, aspect of stat- with another “[t]he See Information 119. explains purpose of the ute itself the basic registered under 2. McGoff never — Keene, Meese v. regulatory scheme.” agent of South Africa. FARA as an U.S.-, 1862, 1865, 107 95 L.Ed.2d States of America 3. The United (1987). Specifically, origi- FARA 415 relationship s investigating McGoff been nally enacted: August Africa since at least South defense, protect the national inter- [T]o of 1979. foreign security, relations of the nal and right has never waived 4. McGoff requiring public disclo- States United rely of limitations as statute engaging propaganda charge by persons in this to the criminal sure defense case. on behalf of activities or foreign political parties, occurrences or events governments, 5. No factual way running of any tolled the have foreign principals so that other and applicable to the of limitations people of the United and the Government charge criminal in this case. identity may be informed of States light stipulated of these Id. persons appraise at 12-13. their may facts, question the District the sole before light and actions statements did the stat- was one of law—when Court and activities. their associations failure to file under of limitations for ute (1942), 22 (quoting 56 248-49 Id. Stat. begin FARA to run? Policy Purpose Note 611 U.S.C. § Court, 1986, the District In December see also Viereck v. United Subchapter); following peri- argument, held that the oral 318 U.S. from begins to run the last od (1943); Attorney General 87 L.Ed. 734 for a allegedly acts as an individual Inc., People, 684 937-45 Irish F.2d Hearing See foreign principal. on Motion denied, (D.C.Cir.1982), cert. Information, States v. to Dismiss (1983). 74 L.Ed.2d (D.D.C. McGoff, No. Dec. Cr. grad- years, focus has FARA’s Over 19,1986), 105. Inasmuch J.A. Congress’ original ually con- shifted for violations FARA (1982)(gen- propagandist or political cern years, U.S.C. about five § or informa- provides is found [sic] as follows: the indictment 5. Section 3282 years next within five after instituted Except expressly provided as otherwise tried, law, have been committed. prosecuted, such offense shall person or no shall (1982). offense, any capital, punished § unless 18 U.S.C. scope persons subject seeking overthrow the to FARA is subversive broad. Section 611 defines the critical now familiar situation Government6 “agent[s] foreign principals],” terms public relations lobbyists, lawyers, include anyone almost who any undertakes goal less radical pursuing consultants public-related activity or financial on behalf policies to “influencpng] [Government] foreign principal. U.S.C. particular the staisfaction [their] [sic] 611(c).7 613, however, Section then ex- § Cong., 89th 1st S.Rep. No. client.” empts sweep diplomatic from FARA’s focus has But Sess. agents; agents involved commercial or of FARA changed, notion has re- the core activities; non-political and attorneys who namely same, government mained the represent foreign principals legal mat- generally public should be officials and the government agen- ters before court who act on identify those behalf of able cy. id. 613.8 The definition of “for- frequent- The idea is foreign principal. broad; eign principal” is also includes a recurring government: in modern ly one foreign government, foreign political party, needed in order public disclosure is for the persons or other of groups combinations or times, (and, public Government it- organized doing and business outside the self) 611(b).9 accurately evaluate such United id. to activities. States. See § (1) accompanying engages Report polit- 6. The House bill that within United States in original version of became the FARA echoed in ical activities for or the interests of such generation ago: legislative purpose a foreign this principal; (ii) require public United purpose persons acts within the States as a all [T]he ... counsel, agent, political publicity relations who are propaganda purposes propaganda United States for informa- employee political aimed tion-service or to- consultant — establishing foreign princi- ward eign system government, in United States a for- of for or in the interests pal; group of or action of govern- foreign (iii) solicits, our a nature ment, institutions of within the United States col- any purpose political lects, disburses, or for a contributions, other of dispenses or propaganda nature —to with the State money, things loans or other of value for or Department supply and information about foreign principal; in the interest of such or [sic], political propaganda their activties their (iv) represents within the United States employers, terms of their and the contracts. foreign principal any interests of such before H.R.Rep. Cong., No. 75th 1st Sess. 2 or official of Government of the (1937); S.Rep.No. Cong., see also 75th 3d States; and (1938) (incorporating Report). Sess. 1-2 House (2) consents, any person agrees, who as- Responsibility administering the Act was as, purports sumes or to act or who is or Department later shifted from the of State to the be, pursu- holds whether or himself out to Department Apr. of See Act of Justice. relationship, agent an ant foreign principal contractual of a ch. § 56 Stat. see also (1) defined in clause of Inquiry Billy Libya: Into the Matter Carter and of this subsection. Hearings Investigate the Subcomm. to Before 611(c). § U.S.C. Representing Activities Individuals the Inter- turn, of (d), shields Subsection most members Foreign ests Governments the Senate of of of domestic from classification media Comm, ludiciary, Cong., 96th 2d Sess. 611(d). "agent[s] foreign principal.” of a Id. § (statement Deputy of Associate General Keuch) Billy Robert L. Carter Hear- [hereinafter Specifically, exempts section 613 seven classes ings ]. foreign agents requirements of 612(a): 1) officials; 2) diplomatic or consular 611(c), provision, pro- 7. The relevant section 3) foreign governments; staff officials of mem- vides: officers; 4) per- diplomatic bers of or consular (c) Expect provided [sic] subsection engaged private, nonpolitical sons in various (d) section, “agent term of a for- activities; 5) persons solely engaged in reli- eign principal" means— scholastic, 6) gious, pursuits; per- or scientific (1) any person agent, repre- acts who sons activities concern the defense of a whose sentative, servant, employee, any person or or foreign government security of which is order, capacity any who acts in other at the States; 7) per- deemed to the United and vital control, request, or direction under the or of a qualified practice sons law on behalf of iden- person principal any or whose foreign principals tified before U.S. courts and directly indirectly supervised, activities or are tribunals. 22 U.S.C. § directed, controlled, financed, or subsidized part major by foreign princi- whole or in a 611(b) provides: 9. Section pal, directly through any and who or other person— (b) “foreign principal” The term includes— years a three the same for requirements are serve FARA’s 612(a). following Under the termination such status.” in section forth set must, Id. provision, terms commencing or her days within provides Section 618 both criminal activities, statement file a civil sanctions violations statute. include, things, (1) among other tois violations, (a) pre- For willful subsection (2) address(es); name and registrant’s $10,000 five penalty years a or scribes (3) “compre- nationality; a registrant’s Id. imprisonment, or both. Sub- § nature of [the] hensive (f) Attorney General authorizes business,” including list of registrant’s restraining injunction or order secure foreign principals; employees and all all “any person engaged in or whenever agreement or copies of each written engage any acts which consti- about and conditions of description of the terms constitute a violation of tute or will 612(a).10 After Id. agreement. oral § each 618(f).12 Id. § provision [of FARA].” initially registering, an reg- comprehensive FARA thus creates every six supplemental statements ulatory foreign agent registra- scheme for Id. updating the information. months of indi- tion. It delineates certain class 612(b). provide viduals must information who association, corpora- is an If the precisely the It details the Government. imposes tion, partnership, required, timing as well as information reg- FARA’s comply Finally, form for that information. requirements upon the officers of istration at directly pertinent and more to the case organization entity. of the the Dissolution hand, the the statute criminalizes willful any not relieve acting agent an “shall pro- comply failure to with the information obligations. fulfilling these officer” requirements. duction id. See § Notwithstanding comprehensive its “keep registered required A is scheme, contain own FARA does not its agent of he is an a preserve while and Prosecutions under limitations. and foreign principal such of account books governed gen- by therefore the FARA are Attorney as the other records” General’s supra note 5. five-year statute. eral, Id. regulations specify. 615.11 § remaining “pre- there is a wrinkle which But same section also directs (4) relationship; any (1) foreign country information government tion of a and regulations Attorney foreign political party; required by a General’s of, States, FARA; (2) (5) person a the United implementing outside and other infor- person is it is that such an unless established necessary keep the state- mation a of and domiciled 612(a)(5)- individual and citizen misleading. being §Id. ment from States, person or that such within United (11). organized and is under or individual created any laws of the United States (1986) (specifying § 11. See also C.F.R. 5.500 juris- place subject to the State or other maintained). records to princi- United States and has its diction States; pal place of business within the United to FARA in 12. These civil measures were added pre-existing criminal sanctions 1966 because association, (3) partnership, corporation, a thought the sort of activities were too harsh for organization, persons or other combination of prescribed the statute. See Pub. that were organized having laws of or under the 89-486, 7(2), (1966); § L.No. 80 Stat. place principal of business in a coun- Hearings, Billy supra at also note Carter try. (statement Attorney Deputy of Associate 611(b). § 22 U.S.C. Keuch) (using "the criminal Robert L. General fly going penalties a [is after [FARA] like] items to be included Other Howitzer”). civil mecha- a Since these (1) description are: a available, appears involved; been (2) nisms have compensation a recitation what case, never, present Government has before pursuant precise activities undertaken anyone solely sought criminally prosecute for (3) agency; acting if the principal generally by foreign Govern- a violation FARA. is in turn controlled that 611(c)(1), Reply principal, descrip- see 22 U.S.C. ment’s Brief 1-3. spe- 424, 430, issue before us. No U.S. given rise to the 101 S.Ct. expressly (1981); of FARA estab- 66 L.Ed.2d United States provision cific Oregon, peri- v. 643, 648, the statute lishes when 366 U.S. 81 S.Ct. time, At the two of Schwegmann begins (1961); to run. same od 6 L.Ed.2d 575 Broth directly the is- v. Calvert provisions bear on Corp., ers Distillers FARA’s 341 U.S. addressing the 384, 395-96, nature and duration sue 71 S.Ct. 95 L.Ed. to file and of offense (Jackson, J., concurring); Unit Lines, failing obligation. It is to CAB, to fulfill ed Air Inc. v. pertinent pro- of the two interpretation (D.C.Cir.1977). appropriately Since we FARA, sections 612 visions of look to sources extrinsic the statute only we now turn. light they may shed on the darker labyrinth, of a statutory corridors no need

Ill for resort to such even sources arises if the Burlington statute itself is clear. North pause we ac- We outset of what ern Railroad Co. v. Oklahoma Tax Com interpretive knowledge to be difficult — mission, -, U.S. 107 S.Ct. govern principles task to set out (1987). 95 L.Ed.2d 404 analysis. our being said, That hasten we to acknowl A edge the unfortunate but inherent charac of both English language teristic stated, the Simply distinctive but limited legislative process statutory com judiciary role of the cases such this is (or silent) are mands often muffled at those Congress’ intent discern as embodied in we, points where interpreters legisla See, e.g., Japan hand. statute at commands, tive greatest would wish for Whaling Association American Cetace — sure, clarity. To be the words of a statute Society, U.S.-, (and should) certainly convey often do dis 92 L.Ed.2d 166 meaning, cernible Albertini, and to that extent we States v. 675, 679-80, are, obviously, give bound to them effect. 86 L.Ed.2d 536 See Board v. Governors Dimension Fi express goal To succinctly our so has the Corp., 361, nancial 681, 474 106 (but U.S. S.Ct. emphasizing virtue of the cardinal of 688-89, (1986). 88 overlooked) L.Ed.2d principle “legislative ten 691 But we intention, more, realistically cannot expect in every without is not legislation.” York, Congress City Train v. New 35, 45, speak enactment pris will 420 U.S. 845, 839, (1975); precision 95 tine In encompass S.Ct. 43 so as to L.Ed.2d 1 all situa Union, Brock, ternational may tions that UAW v. confront 746 Article III 855, denied, (D.C.Cir.1984), F.2d 860 branch. Accordingly, cert. are we infre 825, 81, 474 U.S. quently beyond 106 S.Ct. 88 forced to L.Ed.2d 66 venture the con (1985). We quest therefore cannot our fines fulfill statute in the for the duty merely by beginning particu meaning. with the step statute’s When is nec statutory language lar question in essary, Supreme but taught, Court it pausing only briefly, there as if it were a should nonetheless be taken with caution. waystation en route to another thing, destination. For one may what on first encounter On the we contrary, must appear dwell to be illuminating may turn out to language and structure of the entire stat be a will-o’-the-wisp. Jordan v. United Cf. ute. If Justice, entirety our examination of Department States 591 F.2d clear, the statute a unequivocal 753, evinces (D.C.Cir.1978) (en an banc); 767-69 swer to the interpretive question, Rosen, job is Vaughn v. 1136, our 523 F.2d 1142-43 James, United at an end. States v. (D.C.Cir.1975). another, For extrinsic — -, 3122, 3116, U.S. 92 reports sources such as committee (1986); L.Ed.2d 483 Garcia v. United best, amount, floor precur debates States, 70, 75, 479, 469 U.S. which, 105 482- legislation, S.Ct. sors standing 83, (1984); 83 L.Ed.2d 472 Rubin v. United alone, give courts should not effect. Cf.

1077 regime Chadha, flexibility, a so S.Ct. characteristic 462 103 v. U.S. INS (1983). interpre- to us on this court in the familiar 317 77 L.Ed.2d agencies entrusted to tation statutes underlying the principles broad To these are, short, in far administration. We out- interpretation, two further judicial task territory here. See Chevron side Chevron directly bearing on this emerge more points v. Natural Resources U.S.A. Inc. Defense First, although extrinsic sources case. Council, 842-45, 104 467 U.S. S.Ct. (and reliability are thus vary widely their 2781-83, (1984); 694 81 L.Ed.2d to wholesale classification susceptible — Cardoza-Fonseca, also INS v. U.S. when, here, legis usefulness), as to their 1220-22, -, 107 94 L.Ed.2d S.Ct. response to need voiced lation arises point (1987). to that obvious is 434 Related Branch, interpretive aid by the Executive matter, that, practical the fact as a pro voices found those may ofttimes be law can clarity demanded in the criminal See, e.g., legislation. viding impetus prove to more difficult achieve Tran Island Motor v. Rock States prohibita than in ad mala prescribing Co., n. 419 71 S.Ct. 382 340 U.S. n. sit the traditional mala in se. dressing In the (1951); see also International L.Ed. 391 95 former, legislating against Congress is not ICC, 801 v. Teamsters Brotherhood of law, tapestry the rich of the common reh’g (D.C.Cir.1986), n. 1428 & 4 F.2d may help backdrop invest enact (D.C.Cir.1987). This granted, , meaning by history. afforded ments with when, is also true especially so here See, e.g., v. United Standefer role in draft takes an active the Executive 10, 19, 100 2005, 64 L.Ed.2d U.S. S.Ct. to Con legislation presenting ing the (1980). Instead, venturing See, Vogel States v. e.g., United gress. seas, into less well-charted where 16, 31-32, 102 Co., Fertilizer necessary under frame of reference Miller 830-31, 70 L.Ed.2d standing may to fix be more difficult both Youakim, U.S. and, fundamentally, courts more In this 59 L.Ed.2d subject those who are law’s stric interpretations of situation, the views and Viereck, tures. U.S. at Cf. provide actors Executive Branch these S.Ct. at 563-64. be, respects, may in some context for what legislative response to an executive re mind, principles in these we With broad quest. statutory provisions at turn to the controversy us. before heart

Second, recognize while the inevit- courts contexts, and, ability in certain the desira- B bility legislation leaves some details applied, to be resolved the statute basic) (and step any The first most limits are limits. Those are most there path language of the interpretive is the involving sanc- graphic in cases criminal See, e.g., v. United States itself. statute — elementary to our law. tions. is 2246, Hohri, U.S.-, 2250, 107 S.Ct. context, courts have tradition- the criminal Landreth Timber (1987); 96 51 L.Ed.2d ally required greater clarity in draftsman- Landreth, 681, 685, 105 Co. v. 471 U.S. contexts, ship civil commensurate than (1985); 2301-02, 2297, 85 L.Ed.2d 692 S.Ct. principle that in a free with the bedrock Safety v. Consumer Products Comm’n subject country potentially citizens who are Inc., 102, 108, 100 Sylvania, GTE 447 U.S. have no- to criminal sanctions should clear (1980); 2051, 2056, 766 64 L.Ed.2d S.Ct. may tice of the behavior that cause sanc- FLRA, Association v. Overseas Education See, e.g., upon visited them. tions to be 61, (D.C.Cir.1987). 64 We there- States, 207, v. Dowling United 473 U.S. precise begin by setting out the termi- fore 3134, 3139-40, 218, 3127, 105 S.Ct. statutory of nology of one the two relevant (1985). 87 L.Ed.2d 152 618(e) FARA: provisions, section any such say, of crimes must be Failure is law That is supplements thereto as There is in a or clear. less room statute’s 1078 612(a) 601, 607-08, 1112, sec-

required by either section 401 U.S. 91 S.Ct. 1117- 18, (1971) (quoting Moris 28 356 612(b) shall con- L.Ed.2d of this title tion States, v. 246, 263, sette United 342 U.S. 72 long continuing offense a sidered 240, 250, (1952)); 96 accord S.Ct. L.Ed. 288 exists, notwithstanding such failure Co., NLRB v. Amax Coal 322, 453 U.S. or other stat- of limitations 329, 2789, 2794, 101 S.Ct. 69 L.Ed.2d 672 contrary. ute to Thus, interpret a court is to such 618(e). Id. sense,” legal in their legal terms “familiar necessary 618(e) constitutes Section States, Henry v. 393, 395, United 251 U.S. starting analysis point in our because it 186, 185, (1920), 40 S.Ct. L.Ed. un with Mr. McGoff creates offense provided “contrary has less di charged. language of is But the section Morissette, rection.” 342 U.S. at 618(e), alone, standing take appears not to Here, find S.Ct. we no hint of a very provision For the is essential- us far. direction,” “contrary we and thus accord cross-reference, serving to criminalize ly a traditional-legal meaning. term its requirements satisfy the the failure to “continuing The notion offense” has Act, namely sections other sections traditionally type identified a of offense 612(b). Nonetheless, examina- fundamentally different most known 618(e) yields important two first-year to the common law. As stu law insights. learn, (presumably) dents of criminal First, 618(e) establishes that the typically completed fense is as soon each “as required” failure to file a statement is element the crime has For occurred. “continuing is a section 612 offense.” example, larceny completed is as soon as Although customarily are con courts taking there been actual employed by Congress strue terms to have property consent, of another without see, e.g., Escondi ordinary meaning, their permanently deprive intent the own do Mutual Water Co. v. La Jolla Band er The use. offense does not “contin Indians, 765, 772, Mission 466 U.S. ue” over complete time. crime is when (1984); complete. “continuing S.Ct. 80 L.Ed.2d 753 the act A of Patterson, fense,” contrast, American Tobacco Co. v. is an unlawful course 63, 68, 102 perdure. of conduct does U.S. 71 L.Ed.2d As the Su Ass’n, preme notion, Overseas Education Court has described the “the “continuing F.2d at term unlawful course conduct ‘set on foot offense” is single impulse operated by everyday ordinary no with an mean notion force,’ illegal until ing. contrary, intermittent the ultimate To the it is a term art. v. objective finally Toussie attained.” approach interpreting The settled emphasizing terms is therefore one or J., (White, 25 L.Ed.2d 156 dinary meaning. Supreme As the Court dissenting) (quoting United States Mid Freed, instructed in United States v. Co., state U.S. Congress borrows art terms of “[W]here (1939)). 83 L.Ed. 563 ex classic in which legal are accumulated the tradi- ample conspira offense is meaning prac- tion and of centuries of cy.13 tice, presumably adopts knows cluster of ideas that were to attached borrowing “continuing In the term each body borrowed word in the learn- of offense” for the offense created in section ing from 618(e), which it taken Congress imported gen and only meaning convey judi- use described, will to concept just eral common-law cial mind principle directly unless otherwise instructed.” but also a that bears States, See generally repeated provide support, Toussie v. United 397 failure to failure 112, 134-36, 858, 870-71, reports, register U.S. 90 S.Ct. 25 file failure to under the Alien J., (1970) (White, Act, (gen- Registration L.Ed.2d dissenting) notify 156 local [and] failure offenses, continuing citing change eral discussion of examples board of a of address” "embezzlement, nuisance, offenses) (footnotes conspiracy, bigamy, continuing omitted).

1079 is, obligation file the stat statements us. And that before the issue terminates.’’) (emphasis prosecutions as to commences ute for of added).16 text, According statutory runs the last to the continuing from offenses long continuing See Fi offense continues “for as as such offense. of lan- failure exists.” The “such failure” United 329 U.S. swick v. turn, guage, refers 91 L.Ed. “[f]ailure Butler, ...as States 612(a).” In re is ... section Cir.1986) (11th (conspiracy); 1532-33 618(e) added). In Litiga Antitrust (emphasis other Corrugated U.S.C. Container § words, continuing tion, (D.C.Cir.1981). proscribed offense See F.2d 618(e) (5th only section continues Dictionary Law while generally Black’s sug required by “is 1979).14 principle individual ... section This well-settled ed. 612(a)” obligation there is present file. When no gests to resolve the controver that file, specifici obviously necessary identify with there can no offense it is sy failing obligation. fulfill A (1) is section for that ty what offense created 618(e) 618(e) parsing is com of section thus shows when that offense resolution of the issue before us lies in the plete. of imposed duration to file (and related) point to be The second focus, then, by section Our must Congress’ employment of a gleaned necessarily proper interpreta- include the concept is that con- the rule common-law provision. the latter not, general, contin- do tinuing offenses Toussie, disagrees indefinitely. See But the Government what ue J., (White, unexceptional seem to be inter- at 870-71 dis- would (discussion pretive straightfor- of what Justice White course. the face senting) statutory language directing continuing offense of fail- ward us to to be the found draft).15 required by for the ex- determine what “is ... section ing to 612(a),” 618(e) argues that is language of makes the Government press continuing unnecessary beyond offense created to look the text of clear Indeed, 618(e). See exception. no 22 U.S.C. the Government’s here is 618(e), standing 618(e); H.R.Rep. position No. 89th that section cf alone, (1966), Cong. & creates an offense that continues Cong., 2d U.S.Code Sess. (describ- registration regardless of the pp. until actual Admin.News 612(a) obligation. of the section ing changes in the 1966 amendments duration minor Appellant See ambiguities Reply Brief for at 5-6. “clarifying certain to FARA generally Appellant Brief at 12-14. present act as to the time when the continuing “continuing jority did not consider the offense a defines the term offense" 14. Black’s dispute no one and therefore had occasion as follows: description continuing of- Justice White’s span Type which is committed over crime fenses, a discussion that we view as clear and as, example, conspiracy. As to of time Thus, dissenting unexceptionable. opinion limitations, period of the last act of general prin- provides a useful discussion of the the offense controls for commencement of ciples It should offenses. there- offense," "continuing period. such that A fore be clear we have fallen into only act within the last thereof ignoring embarrasing, error of insubordinate alleged the statute of limitations need be majority opinion embracing the dissent. information, or one the indictment may separate or consist of acts a course Indeed, acknowledges the Government singleness which arises from the conduct but the offense here does not continue involved thought, purpose may action which indefinitely. Reply dispute at 8. The Brief single impulse. deemed long it how continues. The Government 1979) over (5th (cita- Dictionary Law ed. Black’s until actual maintains registration offense continues omitted). tions hand, occurs; on the other McGoff long argues pertained so 15. Justice White’sdissent in Toussie that the offense continues unregistered actually failing to individual acts as whether offense of agent. continuing The ma- draft was offense all. 1080 agree.17 language required The sec- refers the failure file “as is We cannot trigger- 618(e) clearly quite 612(a).”18 links section by

tion ... to the point statute for the The Government have us would read the continuing offense de- last word, “such,” phrase, as well as “as is 612(a). statute, in scribed section by 612(a),” required ... section out of sec- 612(a). it, resort to section compels we read 618(e) altogether. We are unable in stated, Here, why. fully more accept ig- conscience invitation to this Initially, but observe we cannot language Congress nore saw fit to interpretation from suffers Government’s In the a compellingly enact. absence of interpretive recurring but the fundamental persuasive contrary,19 indication to the we give weight due and failing flaw of Congress must assume that intended that every word in the statute. See effect employ language actually which it chose to Corp., 442 330, Reiter v. Sonotone U.S. meaning. have was to 2326, 2331, 339, 60 L.Ed.2d 931 99 S.Ct. reading objec- The Government’s is also Mining Regulation re (1979); Surface 618(e) tionable because it section isolates Litigation, 627 (D.C.Cir. 1346, F.2d 1362 statute, rest including from the of the Suth- generally 1980). Singer, 2A N. expressly 612(a). cross-referenced section Statutory erland Construction 46.06 “ Supreme instructed, As the Court has ‘it (Sands 1984). 4th ed. The Government that, settled interpreting is well in a stat- 618(e) as if it reads section created ute, court merely will not look to a continuing long “as offense as failure particular general clause in which words exists,” than the statement rather used, will but will in be take connection saying actually says. what it And what the whole ... and the provision says in fact the of- ob- is that ” v. long jects policy “as and fense continues as such failure law.’ Stafford Briggs, 535, plainly 527, 774, exists.” The term “such 444 U.S. 100 failure” S.Ct. — context, say, Comm’n, -, in Needless to this criminal we Tax homa U.S. 107 S.Ct. 1860, 1855, (1987); interpre- owe L.Ed.2d 404 United no deference Government's States Albertini, 2897, NRDC, v. U.S. 105 S.Ct. tation of the statute. v. Chevron USA Cf. 2902, (1985); L.Ed.2d 837, 2778, Consumer Products 467 U.S. 104 S.Ct. 81 L.Ed.2d 694 Inc., Safety Sylvania, — Comm’n v. GTE 447 U.S. Cardoza-Fonseca, also INS U.S. cf. 2056, 2051, 100 S.Ct. 64 L.Ed.2d 766 -, 1207, (1987). 107 S.Ct. 94 L.Ed.2d 434 is, (1980). suggest, respectfully This we an odd supra at 1077. theory. notion democratic and constitutional must, all, law, Society governed by after implicit 18. The excisions the Government’s non-binding, by historical materials were 618(e) reading of section can best be illustrated passed both Houses following language from the Govern- Chadha, presented to the See INS v. President. Reply ment's Brief: 462 U.S. L.Ed.2d 317 618(e) language is unam- [of section ] But, event, any Supreme Court “ biguous any way and not limited in —"failure repeatedly ‘[0]nly instructed that the most to file ... extraordinary showing contrary intentions’ in continuing shall be a offense” that of- justify legislative history departure will uninterrupted long fense continues "for as "plain unambiguous”] language [the such failure exists.” Albertini, [of statute].” United States v. Reply Appellant Brief for at 9-10. This formu- (quoting U.S. at 105 S.Ct. at 2902 Garcia v. lation, however, cross-referencing leaves out the 469 U.S. phrase, 612(a)." "as is ... section It (1984)); 83 L.Ed.2d 472 see also United express provi- is this reference to a coordinate Turkette, States v. specify sion of serves FARAwhich what "fail- (1981); Burlington 69 L.Ed.2d 246 N. file; ure” is It is R.R., involved. not a mere failure S.Ct. at 1860. Because we find the required by it is a failure file as language 618(e) section unambig section clear and 612(a) (1) If (establishing either does not uous termination require (2) filing first no instance or as the event termi longer filing, (1) offense), requires nating then there is either no we would ac cordingly require persuasive showing failure or longer "such failure” no exists. contrary 618(e)’s legislative history. in section generally willing Courts have been to see if phase As will seen when we of our reach legislative such indications can be found analysis, the record here far short of falls See, history. e.g., Burlington v. Okla- N. R.R. standard. (1980) (quoting and should harmony, 68 L.Ed.2d Brown v. be read in so as to How.) Duchesne, (19 meaning. drain neither of briefly We ex- (1857)); Logis plain reasoning L.Ed. 595 accord respect. our in this Offshore tics, Tallentire, 477 U.S. Inc. v. “notwithstanding” phrase, note, we 91 L.Ed.2d S.Ct. appended to the same clause which incor- This, believe, of the mes we is also one porates section 612. The former thus sages dispatched by Supreme Court in not, reason, in should be construed as a explanation recent of Chevron’s mean free-floating provision; part it is of an inte- — U.S.-, Cardoza-Fonseca, ing. 107 grated is, phrase view, whole. The in our 94 L.Ed.2d statutory articulation of the common-law Thus, express even absence principle that the limitations is 612(a) to section contained cross-reference triggered until the conclusion of the 618(e), would inclined to section we continuing offense. That say, is to provision interpreting look to the former offense continues despite any over time latter, 618(e) inasmuch as section crimi- statute of might limitations which other- comply nalizes a failure to with section thought wise be triggered when the But we need deal the dream began offense might first and which thus 618(e) hypothetical. spe- Section world prosecution bar before the offense had end- cifically incorporates the duration of the ed. 612(a) obligation section to file as the In the “notwithstanding” absence this governing the duration of the con- factor phrase, might some doubt well arise as to seen, tinuing offense. As we have in employing whether the term “continuing continuing offense condemned section offense” incorporate intended to 618(e) only exists while there a “failure particular this principle. In common-law to file ... as is either section words, (as other thought could be indeed 612(a) 612(b).” or section When “such fail- was the case under FARA before the 1950 exists, longer obviously ure” no as is amendments) that the statute of limitations requirement longer case when no ex- failure-to-register for a offense would be- ists, continuing then the offense is ended. gin day to run from the first obligation short, 612(a) ignore section in the face view, existed. Under that the offense express of this reference is not con- would terminate when the statute-of-limita- trary judicially principles articulated period expired, tions even if the underlying fundamentally construction but also By conduct including continued. this explicit statutory odds with the directive then, 618(e) phrase, section ensures that FARA itself. 612(a) obligation termination of the section Notwithstanding perceive what we as the period, calculated on which oddity general interpretive of its approach, began, the conduct will terminate the con- argues specifically Government more tinuing concluding phrase offense. This 618(e), phrase last of section “not- 618(e), unfortunately, offers little withstanding any statute of limitations or insight precisely continuing into when the contrary,” compels other statute to the us offense ends.20 to limit our consideration to the four cor- 618(e). readily ners We concede C argument this is not without force.

But, reflection, upon persuaded Our rather extended of section we are treatment (1) 618(e) concluding phrase 618(e) designed of section to demonstrate that phrase question resolving the earlier sen- same decisive the stat- tence that directs us to section can ute-of-limitations issue is when the continu- text, appears phrase phrase simply reasonably 20. The Government to read this will not "clearly meaning] nothing as registration by meaning. but actual bear this It is the termination interrupt will the con- that terminates the tinuing Reply nature of the omission.” Brief at offense. sought 10. But as we have to demonstrate in question, This than ing agent we has previously offense terminates. who acted. satisfied, Nothing in the on the duration of the definition indicates that are turns it operates 612(a). counterintuitively to of section label forever registration obligation someone “agent foreign princi- Thus, long analysis last our we move pal” because that individual once acted in 618(e) provision, namely from section 611(c), such a capacity. U.S.C. 612(a), § to in the referred former quoted too, supra note 7. So the statute’s impor- its obvious section. Because of prescriptions registration of the content of tance, operative language we set forth the ongoing statements focus on relationships 612(a) in the text which of section follows: agents between principals. See id. agent obligation foreign of an of a 612(a)(l)-(ll), (b). Inasmuch as the stat- § registration principal to file a statement (1) contemplates agent’s ute an filing the shall, day of becoming after the tenth immediately upon statement almost becom- agent, day day, from such continue ing agent updating thereafter such status termination shall filing continually changes reflect agent not such his obli- relieve activities, agent's (al- it appears also registration gation to file though, admittedly, expressly) to con- during which he was an template of the filing require- termination principal. agent foreign aof ment at agency the time the relationship 612(a) (emphasis added). 22 U.S.C. § ends. provision components. has two The first Further statutory evidence that Con- (non-italicized)portion complements section gress contemplated some definite termi- 618(e) obligation by making file a nation of obligations created FARA statement “continue from appears in provision section 615. That re- day” such, offense. As —a quires agents registered pre- who have language any promise does not hold serve records peri- of their activities “for a determining for assistance in when the con- years following od of three the termi- tinuing offense terminates. nation status.” U.S.C. 615 § second, portion that, It is the italicized (emphasis added). This understanding ac- believe, key we provides dispute cords, moreover, purpose with the stated above, before us. As we saw continu- FARA, which permit, promptly, is to evalu- ing offense terminates when the section ation they of these activities are under- 612(a) obligation expires. to file It is the supra taken. (quoting language directly italicized addresses 248-49). Stat. FARA does not evince an question expiration. Before passing antiquarian Congress’ part; interest on language, however, consideration of this FARA’s focus is on the here and now. it will analysis aid our briefly describe said, being recognize That we that the one aspect previously adumbrated portion italicized of section could be filing obligation imposed FARA. See read as extending obligation to file supra text at 1073-81. beyond the life agency relationship From the which manner in FARA defines language itself. This is appears what status of an relationship and to do stating that “termination of such (and mandates the content statements [agency] status agent shall relieve such supplements) foreign agents must from his file a file, appears it statutory obligation statement.” 22 U.S.C. That lan- expires when the ceases activi- guage, alone, clearly taken cuts in favor of ties foreign on behalf of principal. Af- interpretation. the Government’s But the all, ter once an individual ceased his provision stop there, does not however. It activities, longer “agent he is no of a goes dangling phrase on to add a foreign principal” meaning within the interpretive muddies the Specifi- waters. FARA. The reason is that the cally, section de- words, the section concludes with the fining “agent foreign principal" period during focus- “for the which he was an es solely on acting, who is Upon rather principal.” reflec- National Insulation Trans tion, phrase ren- 615 appears to us that this ICC, portation provision Committee ambiguous pertinent 683 F.2d ders 612(a), depends (D.C.Cir.1982); Zeigler meaning Coal Co. v. prepositional phrase modifies. Kleppe, (D.C.Cir.1976). what this short, cavalierly cy pres we should not by the the view advanced Govern- Under that which the enacted and the ment, the word “state- phrase modifies Eagle-Pich into law. signed President ment,” thereby serving describe the con- Industries, EPA, er Inc. v. F.2d statement. Accord- tent (D.C.Cir.1985). Accordingly, 930 n. 11 view, ing statutory is to this reading adoption of the McGoff would describing to file a strongly preferred upon consideration of during person period which” the acted “the Yet, statutory text alone. since neither reading, champi- agent. The second as an excluded, confidently can we are con McGoff, phrase modi- by oned is that 612(a) strained to conclude that section is obligation temporally, pre- or more fies the ambiguous. “to file.” That cisely, modifies the words is, only file” “for “to This conclusion is buttressed a recent during period which he was an Supreme decision of the United States fashion, foreign principal.” Read in this Court, quite setting. albeit different language, the function of the italicized Young Community v. Nutrition Insti- quoted supra ensure tute, 476 U.S. provide does not termination of the (1986), statutory L.Ed.2d 959 issue be- an affirmative defense for failure to provides striking parallel fore the Court agent. during period that one is an interpretive question to the now before us. possible readings Neither of these can Young proper interpretation concerned the confidently on the be embraced basis Food, following language grammatical structure alone. The Govern Drug, and Cosmetic Act: content-descriptive might ap ment’s view [poisonous] substance ... [W]hen reading, pear the more natural inasmuch as avoided, Secretary cannot be shall the word “statement” situated closer limiting promulgate regulations prepositional phrase than is the infini thereon to such ex- quantity therein tive “to file” featured McGoff. But the necessary pro- tent as he finds reading sig from a Government’s suffers health, public tection problem; nificant it runs afoul of the well- quantity exceeding the limits so fixed principle interpretation established purposes deemed shall also be unsafe condemning statutory language to the rub application another section of [of heap surplusage is much to be bish the Act]. Singer, 2A Sutherland avoided. N. added). (emphasis 21 U.S.C. § Statutory Construction A 46.06. began analysis by noting The Court can, FARA-required registration statement English language that “the does not al- logic, to no relate other than “the ways specify force a writer to which of two period during which” the individual acted possible objects is the one to which a modi- agent. reading, The Government’s phrase fying relates.” 106 S.Ct. at 2364. upon analysis, would thus render redun Food, Drug, provi- Act entire, The and Cosmetic phrase. dant the thirteen-word It view, provided, in sion at issue the Court’s go saying should without that courts are to principle. phrase The an illustration of this eviscerating be reluctant to embrace such above, found, See, italicized the Court was a e.g., Reiter v. Sono interpretations. “dangling” modifying phrase. could Corp., 442 U.S. at It tone 99 S.Ct. at Menasche, modify 2331; modify “quantity,” or it could United States 528, 538-39, 513, 519-20, promulgate.”21 While acknowl- 75 S.Ct. 99 L.Ed. “shall precise options Young respect are to section of FARA. available grammatically modifying phrase options issue in both cases is a identical to the available reading urged by the edging pri- ambiguity in the statute alone (and accepted court) appear would suffice in the parties our criminal vate setting invoke the time-honored rule of “may seem some more the case — lenity, States, McNally v. United Supreme point- reading,” Court natural U.S.-, L.Ed.2d reading was not the ed out that such a — (1987); Tanner v. United accordingly possible one and held that the U.S.-, 97 L.Ed.2d statutory language ambiguous. Id. at IY, see also Having ambiguity, 2364-65. discerned infra putting thus pens warrant down our at this Court, principles, under deferred Chevron point affirming the District Court. We agency’s interpretation longstanding decline, perhaps academically, nonetheless provision as modifying “shall process short-circuit the of trying to promulgate” requiring and therefore not at,all discern, possible, Congress’ if intent promulgation regulations. of formal on this issue. We therefore turn to the our Now return to case. After exam- legislative history, mindful as we said be ining statutory the entire framework as fore step that this a be taken cautious pertinent directly provisions, well as the see circumstances, ly any see, under e.g., Gar 21, supra note likewise find ourselves we cia, 75, 482-83; 469 U.S. at 105 S.Ct. at grammatical uncertainty confronted with 648, Oregon, 1281, 366 U.S. at 81 S.Ct. at the Supreme like that which faced Court in especially attempting interpret but so in closely apposite sort of Young. With this ambiguous will, provisions. criminal We us, very precedent recent before we short, in look to see what historical persuaded provision are before us suggest, materials but we do so without in ambiguity.22 suffers from the same flaw of suggesting fashion that which would extraordinary be in country a free ruled dissenting colleague Our outlines several law—that man or woman could con arguments contrary support position. victed of crime of extra-statu virtue acknowledge We the force of several of his tory expressions or, legislative “intent” points. however, bottom, At all roads in precisely, “meaning” more found in the the dissent lead from one axis: central legislative history. web of unambiguous. That, believe, we error; indeed, is in it is precisely the error provisions, two relevant sections rigid in certainty the construction of 612(a) 618(e), were to FARA in added statutory language Supreme 1950, Court they parts but were of different en- in Young. discerned our decision in Surely 612(a) part actments. Section was of what so high recent a lesson from so appears school- to have been a non-controversial go by pupils master should not minor, unheeded in bill comprising technical amend- judiciary’s precincts. ranks of the lower surprisingly, ments to FARA. Not what prepositional answer, phrase such extent as he ambiguity. us with it leaves We —"to necessary protection public course, finds owe, for the no deference to the Govern- Young; period during health" in "for which ment’s construction of a criminal statute. See foreign principal" he was an aof Indeed, supra general principles note phrase case before us. The in both instances statutes, interpretation of criminal see Toussie v. modify could adjectival a noun either and thus be an States, 115, United U.S. at 90 S.Ct. at 860 phrase prepositional being noun —the (“ ‘[Cjriminal limitations are statutes “to lib- “quantity” ’ Young in or “statement” in our case— erally interpreted repose.” in favor United or a prepositional verb and thus be an adverbial Scharton, States v. 416, 417, 285 U.S. S.Ct. [52 phrase being promulgate" verb “shall —the (1932).”) (quoting 76 L.Ed. 917] Young or “to file” in our case. The two cases 222, 227, Habig, States v. 929, 390 U.S. 88 S.Ct. present grammatical thus the identical dilem- (1968)), 19 L.Ed.2d 1055 as well as the rule ma. States, lenity, of 381, 387, see v. United 447 U.S. Bifulco 65 L.Ed.2d 205 Young While conclusion led the Court in (1980); step analysis Rewis United 401 U.S. to the next in the Chevron —name- ly, agency's interpretation, deference to 28 L.Ed.2d 2365-66; IV-C, Young, Chevron, suggest just op- see also section see also infra posite. U.S. at 104 S.Ct. at 2782—and thus the for the duration of the limi- avoid detection exist establishes history does legislative period and afterwards be free to designed accom- tations First, creating impunity. those activities with It continue purposes. plish two day to correct this and other flaws was to “continues obligation that Department on of Justice rec- fixed the last FARA that day,” the statute provisions at issue agent of a ommended that the two agent acts as an foreign which from which to the statute. the date be added foreign principal as Second, runs. of limitations the statute inaugural provision The first made during which he “for the phrase, January Hill appearance Capitol principal,” was agent of a was an sent Attorney General Clark when previously available eliminate a meant to McCarran, of the Senate Chairman Senator defense, namely termination Committee, pro- “a draft of a Judiciary liability for failure to com- wiped out status relating security internal posed bill require- FARA’s ply with Letter from Attor- of the United States.” ments. to Senator McCarran ney General Clark contrast, 618(e), 1949), was a small reprinted in (Jan. 14, Cong.Rec. Section piece legislation, part proposed of a controversial bill contained a Security Act of ch. in- variety the Internal of amendments to the Nation’s reprinted I, 20(b), 64 Stat. to this security tit. ternal laws. Of relevance 984, 1001. Cong. 4(b) Serv. proposed legisla- Code is section case threat of the tion, eventually That measure addressed became public into 618(e) Attorney infiltration Communism General Clark’s of FARA. States. institutions of the United explained: life and transmittal letter nature, of the law’s controversial By virtue purpose proposed of this amend- [T]he floor debates reports and the committee 4(b) permit [i.e., section is to ment ] quite legislation this are accompanying any offender at time prosecution of an However, relatively minor lengthy. to dis- during he continues in sec- FARA now codified amendment to merely and not within regard the statute 618(e) to have been overlooked seems period from the time that he 3-year least, very it was shuffle. At the law and subject first became The voluminous not the focus of attention. registered but failed to do should have Security Internal legislative history of the so. provi- provides little discussion of the Act (1949). Id., reprinted in Cong.Rec. 442 insight little into the and hence offers sion language clearly expresses dissatisfac- This 618(e). interpretation of section proper period’s beginning the limitations tion with begin by describing the common We thus It day the first of the offense. to run on amending, origin the two enactments however, insight, into when the offers little 618(e). 612(a) respectively, sections to commence under period was specific legislative his- discuss the We then hand, the one proposed bill. On provisions. tory of each of the two support the Govern- letter could be read to prosecution permit- position that ment’s registers, whenev- ted at time until one occurs, that, until then the prior to the two er that because undisputed It (or ex-agent) con- limi- amendments, precisely, more could FARA’s (then “disregarding] years) began to run on ceivably be said to be tations three hand, other “dis- an individual acted as statute.” On the day first naturally re- more regime regarding] led unrea- the statute” foreign agent. register required failing while reason that fers to for the obvious sonable results 612(a), which, as we have agency relationship under section of an the duration seen, during period of the three-year limita- easily exceed the could fairness, But, we must conclude period. An could therefore be- itself. tions Attorney activities, passage in General register, that this short gin his or her fail particular reprinted H.R.Rep. no illumina- No. Clark’s letter offers 81st question. Cong., tion on the 2d Sess. Letter also McCarran, Peyton Ford Chair- from to Sen. receiving the days proposed Four after Judiciary man of the Senate Committee Department, Senator bill from the Justice 12, 1949)(same), (Apr. S.Rep. reprinted in S.595. introduced McCarran (1950), Cong., No. 81st Sess. (1949). Following 2d 2-3 Cong.Rec. 440 its intro- duction, languished Cong.Serv.1950, p. until it was U.S.Code 2886.23 the bill eventually larger, into omni- incorporated genesis We thus see of the bills security note bill. See bus internal infra 612(a) 618(e) amending respec- sections tively a part common concern meantime, Department of Jus- In the prevent Executive Branch to the statute of McCarran, again tice to Senator once wrote expiring limitations from while the House, time Speaker and to the agent continued his or her efforts on behalf ex- transmitting proposed bill that dealt foreign principal. pro- We see proposed legis- clusively with FARA. This posed amendment to section the con- through both proceeded quickly lation over agent’s cern whether an ceasing activ- eventually passed Houses and was some could liability ities be deemed to cut off prior passage two months failing comply with FARA's 618(e). Department’s proposed bill (We requirements. in Mr. likewise see sections, amending contained two sections Ford’s letter approach an “either or” 612(a) and 617. transmittal letter excludes the interpretation: Government’s Capitol Hill came this time not from Attor- begins the statute to run either “from Ford, ney Peyton but General Clark date on he was first General. Mr. Attorney Assistant or from the last on which such proposed Ford amendment to described the unregistered agent acted.”) tracing 612(a) as follows: separate path bill each took in Con- presently the section reads there is [A]s gress, we clear find indications in the histo- room doubt to whether the statute ry of section enacted against prosecution of limitations of an the amendment with of the intention ad- agent reg- for comply failure to the dressing both concerns. The issue ais bit provisions act istration of the commences murkier, however, in history of section to run from the date on which he was 618(e). required register first to or from the last day unregistered agent such which 2 has acted. Doubt has also arisen toas liability agent registra- of an to file a legislation proposed by The the Justice period during tion statement Department amending 612(a) section was acting agent which he was as an aof promptly introduced on the floor of the foreign principal if he has since ceased House, Cong.Rec. (1949) (re- see 95 5207 activity. such cording April introduction of H.R. 4386 on 27, 1949), Peyton Speaker, Letter from Ford The Judiciary to and referred to the 12, 1949), Representatives (Apr. of House Committee. id.24 The Re- See Committee significant (D.C.Cir.1986) It is (citing that the Government's cur- 1428-29 position Co., rent trigger-point statute limitations States v. Rock Island Motor Transit —that commences on day first 431 n. n. 389 95 L.Ed. 391 formerly unregistered agent actually registers— (1951)), rehearing granted, (D.C.Cir. F.2d interpre- possible 1987). was not even mentioned as a Department tation the Justice in the 1950 by Peyton transmittal letter authored Ford. H.R. 4386 was entitled bill to "A amend sec- 2(a) provisions origi- 612(a), Since the of the at issue tion and section 7 [22 U.S.C. §§ with, by, Foreign Registration nated Agents and were drafted Jus- 617] of the Act of amended, Department, expression tice registra- Mr. Ford's as to make failure of provision's offense, weight pro- intent entitled to as a tion a obligation and to continue the piece officers, directors, legislative history. bative persons See Interna- ICC, acting tional comply despite Brotherhood as to Teamsters such with the act description claiming following as an affirmative defense that set forth the port 612(a) agency relationship au- withdrawal from report- to section amendment tomatically liability eliminated for failure H.R. 4386: ing out H.R.Rep. file.25 No. 1775 at 2. to section proposed The amendment Second, 612 of is intended to of a FARA] the Committee’s delineation [section First, it accomplish purpose. will purpose” exactly dual “dual accords with the may 612(a) any compound now exist structure of doubt which remove analysis the lan- begin will we discerned our statute of limitations supra guage itself. text at 1081-83. day last on which an run from the Report providing makes clear that in unregistered agent has acted as such “obligation registra- ... file a Second, it is the United States. within day tion statement shall ... continue from any as to remove doubt intended 612(a), day,” in- U.S.C. § registration file a liability agent of an tended to “that the statute of establish in which period he was begin to run only from the will acting agent and thereafter has day agent unregistered last on which an activity. such ceased That, course, acted as such.” is the Cong., 2d Sess. 1 H.R.Rep. No. 81st day agency relationship on which the termi- Report on the amend- The House purpose nates. This title echoed 612(a) effected H.R. to section ments bill, amending which describes the understanding of this furthers our designed measure as make the violation respects. significant in two provision registration obligation “continuing First, Report an intent to evinces supra note offense.” 24. To accom- concerns, separate the two which address plish purpose the second remove —“to expressed in Mr. Ford’s transmittal were liability agent of an doubt to the to file a quoted supra letter, that an- statement for pro- Department of Justice in imated acting he an agent” which was —Con- 612(a). amendments to section One posing provided gress portion in the latter of sec- familiar should now be concern 612(a) [foreign that “termination of amendments, prior the stat- agency] shall not status relieve reader — ute as commenc- of limitations was viewed from his to file a ing on the which period during he statement for first under FARA. The sec- principal,” was an subject concern was that individuals “for period” ond U.S.C. lan- attempting guage FARA were to evade the Act’s thus eliminated argument requirements by ceasing their and an affirmative defense the activities (2) activity foreign agent.” Cong. of a See It ceased the which dissolution (1950). registration; this title includ- Rec. 3433 Because was part of ed as a the Act and does not conflict with (3) It itself. has dissolved itself, Congress’ text it is an indication of the Department opinion of Justice is of the continuing that a offense be See intent created. your and the enact- committee concurs that Co., 1037, City Hardin v. Title & Escrow 797 F.2d .;. proposed provide ment of the bill will the (D.C.Cir.1986); Raytheon see also Habib Department proper weapon with to com- the 1204, Co., (D.C.Cir.1980). 1210 & n. 8 bat this novel subversive tactic. 2; S.Rep. H.R.Rep. No. 1900 at see also No. over a 25. A related concern arose similar tactic 1775, (1950); Sen.Rep. Congs., 1-2 2d Sess. 81st organizations operating on behalf for- 1900, (1950), Cong., No. 2d Sess. U.S.Code 81st Report eign principal. The Senate described Cong.Serv.1950, p. remedy To this con- as this tactic follows: cern, proposed it the same time amendments might be a rather recent noted that tactic [I]t Department suggested to section the Justice country organizations in of subversive day the to- amending liability 617 to of section continue the has been to resist under the request acting replying officers or of entities as act partment to the the De- directors register agents organization. of in Justice to the follow- of the after dissolution ing three veins: 22 U.S.C. 617. foreign princi- It has disaffiliated from the pals; agency relationship (b) had in ended so where section the subsection there is obligation. reporting had the Section contained an [FARA], too amendment of the along with amendments to of introduced effect which is to make failure designed accomplish the same was offense. du- argument to the respect plicates part the in change result substantive had organization reg- 1 of proposed carried section law. Notwith- supra standing had duplication activities dissolved. See istrable and obsoles- patent bills, your 25.26 note cense these commit- tee feels constrained recommend fa- Approximately two weeks after the Com- vorably proposed section 1 of this bill H.R. reported mittee out the measure is, for the very practical reason that debate, passed by House with no was is in jeopardy passage S.595 of because Cong.Rec. (1950) (passed 4610-11 nature controversial of its other 1950), April House on sent subject matter. In the belief that Judiciary Senate. Id. at 4639. Senate legislation instant is noncontroversial reported the bill in Committee June very likely and would be enacted into recommending passage without amend- law, your it, committee recommends Cong., S.Rep. ment. No. 81st 2d knowing that can changed S.595 Report essentially Sess. The Senate the floor. Report. begins by mirrors the House It Cong.Serv.1950, Id. at U.S.Code p. 2887. restating of the contents the letter from Peyton outlining prevalent Ford uncer- apparent It is passage from this tainty over the statute of limitations. specific way 618(e) in which “dupli- section Then, Report notes the of “tactic sub- part” cates in the amendments to section organizations” prose- of defending versive 612(a) reiterating that the failure to by arguing that they cutions dis- were register in compliance with section 612 is a solved or ceased activities. their See su- “continuing offense,” i.e., one which in the bill, pra Report note 25. The summa- 612(a) words section “continues from rizes, aims to achieve “[clarification day day.” inescap- The inference seems ques- section on intendment these 618(e) able that the amendment section Cong.Serv.1950, tions.” Id. at U.S.Code intended accomplish pur- same Thus, p. Report, Senate like that pose portion as this amendments House, demonstrates in- an overall 612, namely section to ensure that the stat- respond tent had difficulties that ute of limitations commenced on the arisen in the Executive Branch’s adminis- agency relationship terminated. What tration FARA. more, this interpretation accords with analysis 618(e)’s our language section reinforcing pur- In addition to the dual linking the limitations to the dura- pose language evident tion established 612(a), Report the Senate addresses the supra at 1075-78. relationship between section By token, the same casts substantial 618(e) (the latter, seen, we having have doubt on the Government’s view that sec- comprehensive, in a been subsumed more 618(e) alone resolves the issue of when slow-moving bill, S.595): security internal begins to run. Attention is directed to the fact that reposing there is presently on Senate Correlatively, Report the implies the Senate S.595, Calendar bill relating a to the in- did the portion S.595 not affect other security ternal of the of the amendments to section That provides (a) (b) part: 26. Section 617 in relevant and 612 of tions of section this title.... any organization acting Each officer Dissolution of ... and each director of an ... agent foreign principal of a agent foreign principal not an which is of a shall not relieve obligation individual shall be under to cause any any officer ... or director ... from com- agent such registration and execute file a plying provisions with the of this section. supplements statement and thereto and 22 U.S.C. 617. filing required when such under subsec- Cong.Rec. designed loopholes was to defeat some part proposal [FARA].” of (1950)(statement defense of termination 11,025 McCarran). the affirmative of Sen. relationship. note supra agency the loophole, the first As to the Senator ex- part accomplished was the 25. This aim plained that skillful tactics of “subversive 612(a) “termi- providing that of section organizations,” supra would note be agency] [foreign status shall nation of by providing specifically eliminated that vi- agent from his relieve olation of section 612 would be a for the statement separately He went on offense. address foreign agent he was an during which of impact the the amendments on the stat- corollary inference makes principal.” following limitations in passage: ute of the light of the fact section 618 as sense in This bill ... closes another loop- also matters of enforcement whole concerns hole, by making person certain that a (which questions of Act would include charged with violations the act can- of period com- such as when the limitations plead the statute limitations. At menced) does not address substantive and time, present may be contended issues, availability such as the of affirma- begins that the statute to run at the time tive defenses. agent when the was first together, Taken House and Senate register. interpretation, Under such an Reports to section 612 on the amendments escape prosecution if he could for the possible leave little doubt which of the statute, period of the he would thereafter provision readings of that was intended exempted registering from even establishes, Congress. history first, That though he continued his subversive activ- section 612 crafted portion that a ities. Under the purpose causing the stat- bill now before Sen- specific for the day begin only ute limitations to commence on the statute to run ate the would terminated; relationship agency day last the unregis- from the on which second, 618(e), designat- tered acted as such. comply as a ed failure to with section 612 Id. offense,” “continuing was intended to have upon the The Government seizes breadth the safe effect.27 portion argue that Con- italicized gress go beyond addressing intended to justice by in the administration of concerns legisla- portion of the There is one other effectively eliminating altogether the stat- history tive of section that bears limitations failure to ute of for us. in a question before It is found view, In FARA. under the Government’s on the statement Senator McCarran negates clarity with which passage this immediately passed floor before the Senate previously fixed the passages discussed response request H.R. to a for trigger-point the statute limitations bill,” explanation “an this Senator agent acted the last began by observing generally McCarran principal. purpose capacity this bill is to close “the dissent, ply terminating respect, agency, supra all misses the at 27. The due 1085- 86; it, foregoing suggesting statute, point analysis interpret as we does. excuse[sj” logic "retroactively is, our somehow that an reading, applicable under our That duty agent’s to file a begins to run at the conclu- "immediately upon termination of the prosecution agency relationship. A sion of Dissenting relationship." opinion appropriately lawfully brought can thus Nothing be farther the truth. Our could five-year period any follow- time within the purpose interpretation express ar- vindicates the Hence, relationship. ing termination of that Department of Justice in seek- ticulated ing fears, groundless to the dissent’s in contrast which was amend sections properly prosecution have of Mr. McGoff could very gap points the dissent out. fill prior to June been instituted at time sought Department to foreclose an Justice enjoying the full measure with the Government comply cutting liability failing off Congress. running room envisioned registration requirements sim- FARA's with unpersuaded. thing, hear). If, For one have had occasion to as We are portion, considering the italicized maintains, Congress even Government in- did statement no Senator McCarran’s effectively tend the draconian measure of clarity. crystalline It speaks means eliminating limitations, statute of well appears that he could have been to us question obvious arises why the Article I imprecise way, in referring, albeit to the accomplish branch did not this remarkable fact the bill the statute of limi- that under straightforward fashion, result a more long longer no run as as the tations would offenses, capital as did for generally agency relationship continued. This read- IV.A, why and an un- such infra usual would, course, ing be with the consistent (indeed drastic) step engender did not very next notion articulated sentence any none, or discussion debate. We find remarks, namely that as Senator’s nor has the Government directed our atten- matters the statute commenced on stood tion any.29 day foreign agents began acting circumstances, Under these we are well agents. thing, another For Govern- advised to heed pay Supreme Court’s interpretation por- ment’s of this isolated repeated admonition, grounded both in tion of remarks conflicts with the Senator’s common theory, sense and democratic quoted passage. the final sentence single legislator, remarks of even the discern, readily As the will reader sponsor, controlling analyzing are not sentence, which after all concludes the Sen- legislative history. That is all the more exegesis ator’s of this feature amendments, when, here, quite true emphatically states those remarks exam 612(a) under ambiguous the amendment to section ined in are context at best begin will to run internally See, when at worst e.g., inconsistent. relationship terminates.28 Rossi, 25, 15, Weinberger v. 456 U.S. 35 n. 1510, n. 71 L.Ed.2d 715 Finally, cannot we but observe that the (1982); Brown, Chrysler Corp. v. argument Government's contains seeds 1705, 1722, 60 L.Ed.2d by suggesting of its own refutation (1979); Northern Colorado Water Congressional accomplish intent to such a FERC, Conservancy District v. step gleaned bold in a solitary can be (D.C.Cir.1984). phrase single legislator’s These sorts of comments (which, course, potentially provid the members of the comments are other useful system ing Congress' House in our bicameral would not evidence of when intent attempts phrase 28. The Government resist originally the clear As the section. amended in import by arguing of this last sentence 612(a) that it is provided part in relevant ambiguous. suggests day It that the "last follows: unregistered agent which the acted as such” activity [D]iscontinuance such shall not may very day mean well the last which the agent obligation relieve such from his to file a agent unregistered. Reply Brief at 13. Con- period during statement solely syntax, sidered argument as an exercise in which he within the acted United States as an more, tortuously strained. What is agent foreign principal. of a implausible recognizes it is rendered when one 64 Stat. 399. The current reads version as fol- is, evidently, paraphrasing that it Report language, of the Senate lows: argu- as to which no similar of such [T]ermination status shall not relieve Report ment can mounted. The Senate stat- obligation regis- such from his to file a ques- ed that the amendments would answer the period during tration for the whether the statute of limitations com- foreign principal. menced when the register he was an was first "from change the last on which U.S.C. § was made in unregistered agent S.Rep. has acted." No. purpose "clarifying 1966 for the avowed cer- 1950, 2887; Cong.Serv. p. at U.S.Code see also ambiguities tain ... act as the time supra at 1086-87. when the to file state- H.R.Rep. ments commences terminates." It should noted that a further amendment Cong., No. 2d 89th Sess. 8 see also to FARAoccurred without discussion of the S.Rep. Cong., No. 89th 1st Sess. 9 far-reaching result that the Government attrib- (same), Cong. p. U.S.Code & Admin.News Compare utes to it. 22 U.S.C. with Act § Aug. ch. 64 Stat. 399. The apparently minor amendment occurs in the last

1091 479, 105 S.Ct. 83 L.Ed.2d 472 the “they are consistent with only when Turkette, (1984); v. United States legislative 452 U.S. other statutory language and 2524, 2527, County, 476 101 S.Ct. 69 L.Ed.2d history.” Brock v. Pierce 1840, (1981). 1834, 246 90 253, L.Ed.2d U.S. City College v. (1986) (citing Grove 248 seen, As we have the amendment to sec- 1211, 567,

Bell, 465 U.S. 555, 618(e) in 1950 originated tion enacted (1984)). 1218, L.Ed.2d 516 79 Department proposed the of Justice as a “permit prosecu- result, reasonably can revision intended most that As a during of an at offender time McCarran’s comments made of Senator whole, disregard he that, they period continues to the statute the floor taken 3-year from merely and not within with the House and not inconsistent are such, subject the time that he first became Reports. As these comments Senate registered law and should have but failed only evidence concern- provide cumulative Attorney so.” readings of to do Letter General ing plausible of the two (Jan. 14, 1949), McCarran The least can Clark Senator correct. that section reprinted in Cong.Rec. 95 441-42 comments are said is that the Senator’s inconsistent, infrequent a not internally Unfortunately, in At- ambiguity communication, in human and that frailty torney description whether General’s as to single legisla- isolated statement disregard of the statute continued dur- weight. tor, to little the sentence is entitled ing agency relationship the existence of an (or, contrast, indefinitely in continued until

4 in place), took not resolved 618(e) 618(e), ensuing history section history of section Turning to the frequently Article I As is so legislative history little in branch. we find case, legislative in most remarks histo- Security Internal Act that even bears paraphrases interpretation provision. ry It are little more than of other of that instance, language, Attorney language be recalled that should quoted. See, e.g., 618(e) naturally language just conveys a General’s more 427, (1) Cong., meaning, namely S.Rep. 80th 1st Sess. 9 straightforward No. S.595); (1949) S.Rep. No. (accompanying section creates an offense contin 2369, (1950) (accom- Cong., long obligation to file 81st 2d Sess. as the under ues S.4037).30 612(a) continues, rémaining panying referenc- 618(e) limitations, part for the mere- in accord es to section most with the 619(e)’s terms, see, e.g., concerning continuing ly rule of restate section traditional (statement 14,177 fenses, Cong.Rec. of Sen. only when the section commences 14,179 (statement McCarran); id. 612(a) obligation No at of Sen. expires. clearly to file McCarran); 3112, Conf.Rep. 81st contrary Congress’ ap H.R. No. indication of intent (1950) (conference Cong., report Bur legislative history. 2d pears in the Sess. Cf. N.R.R., supra see 1860; accompanying H.R. note lington United 107 S.Ct. at Albertini, 29), unhelpful v. 472 U.S. another characteristic States L.Ed.2d 536 much that falls under broad rubric “legislative history.” Garcia S.4037, eventually debating passed provision was became section ate House 618(e) own, originally security was introduced Senator internal bill of its H.R. part Cong.Rec. S.4037, See 95 McCarran as of S.595. passed sent it to Senate. The Senate 440(1949); A supra 1085-86. number also replacing and then amended H.R. 9490 security being measures were of other internal provisions with the substance S.4037. See id. and in considered an effort 14,628. 14,388, 14,390, After some minor bill, produce an Senator omnibus McCarran changes, this H.R. 9490 conference version of bill, S.4037, subsequent which in- introduced corporated (1950) (introduction enacted, veto, over Presidential as the Inter- 12,145-46 Cong.Rec. S.595. See I, 20(b), Security ch. nal Act of tit. S.4037); 14,170, id. at Cong. reprinted 64 Stat. U.S.Code 14,177 (statement McCarran) (describing of Sen. Serv. 1001. S.595). incorporating While the Sen- S.4037 history items from the of the statute of Only appropriate two limitations would be Security go paraphras- Act beyond register. for a Again, Internal failure to we believe Attorney ing or the the bill itself General’s that if had intended this remarka- Neither, however, turns explanation. brief result, ble intent that would more be clear- significant analysis to upon out be of as- ly oblique than in manifested an reference. addressing question at sistance in hand. especially light This is true in of the differ- S.595, First, introducing soon Senator after later, expressed ent intent passage in the provi- McCarran solicited comments 612(a), of amendments to begin section to authorities, sions from a number of includ- period the limitations relationship once the Hanson, ing private attorney. one a Elisha foreign agency of Finally, ended. provi- Mr. concern that the Hanson voiced lends to more itself natural 618(e) sion to section which was become interpretation, namely that a successful would “in all statutes effect of abolish[] flouting specific period of the law for a respect regis- in of to file limitations failure should not “forever” immunize a violator required by tration statements law.” prosecution. not, from The statement does Elisha See Letter from Hanson Senator read, fairly convey assumption of the 17, 1949), (June reprinted McCarran in violator, polar opposite having once —that (1949). Cong.Rec. 9748-49 Senator McCar- statute, violated may be subject forever responded ran to Mr. in Hanson’s concerns prosecution. transmitting a letter the latter’s comments The second historical similarly item is Kilgore: to Senator unhelpful. Specifically, offering when gravamen failing this offense [of general description provisions of the register] is not an overt act but a mere S.595, Senator McCarran made the follow- might failure to act. The offense under ing point: “Fifth. It removes the penalty very some circumstances be difficult to register on- failure to Foreign under the do legal discover. I not like the idea of a Agents Registration Act from agent, situation which foreign in if he by providing limitations that such failure successfully can the law for some [flout] shall be a continuing considered time, may unnamed thereafter Cong.Rec. 12,068 (1950) offense.” prosecution. immune forever (statement McCarran). of Senator Letter from Senator McCarran Senator comment, like Senator McCarran’s letter to Kilgore 1949), (July reprinted in 95 Kilgore, Senator is the statement of a sin- Cong.Rec. 9749-50 Senator McCar- gle legislator its breadth could be placed ran underlying correspondence accomplish read to a more drastic result hope colleagues record in the than is language indicated of the Cong.Rec. would it. consider See 95 statute or rest of legislative histo- (statement McCarran). Senator ry. fundamentally, More this statement is We concede that Senator McCarran’s let incorrect matter as a of law. As discussed ter support could construed above, supra 1078-79, see at interpretation Government’s section offenses are not ... from the “remove[d] 618(e). all, suggests After the letter limitations”; statute of the statute of limi- Senator McCarran viewed with disfavor an tations applies with full force such of- inability prosecute solely occasioned due fenses. to passage quite apart of time. But sum, legislative comments, notion contrast to the that such individual his- tory 612(a), legislation, legislative even sponsor histo- are ry see, weight, Security entitled the Internal e.g., to little Act of 1950 in Wein Rossi, general, berger 618(e) particular, v. 456 U.S. at 35 n. and section 15; provides S.Ct. at n. Chrysler Corp. particular guidance no in ascer- Brown, 1722; taining 441 U.S. at when the continuing offense cre- supra 612(a) 618(e) ated in Senator McCar sections termi- comment, (and when, ran’s if way urged read in nates accordingly, the statute Government, suggest begins run). would no We are thus 618(e) which, instance related to the most heinous itself as we crimes left establish, known to our Premeditated murder sec- law. sought to looks to previously disclose, thing; one failure to even 612(a) duration tion to determine highly society, quite open, regulated an- trig- the statute of limitations offense and other. of sec- ger-point. Happily, while text leg- ambiguous, the statute’s go saying that a It should without court seen, speaks history, we have islative guess precise not should second means clearly. more Congress implement legis to its has chosen Hill, objectives. lative TVA U.S. Cf. 153, 173-74, 187-88, 2291-92, IV (1978). 57 L.Ed.2d 117 But fact considerations, based Several additional that construction im Government’s history,

upon statute and buttress implicit putes Congress to an intent to act in this case. our ultimate conclusion Congress ly, when other circumstances accomplish ability demonstrated an to A explicitly, result clearly same and is a First, to counseling against ready acceptance are reluctant embrace we factor because, interpretation interpretation. of the Government’s Government’s Cf. Maze, painfully to the United States v. U.S. by clear should now 38 L.Ed.2d 603 reader, virtually eliminate patient it would for failure to file of limitations statute addition, interpreta the Government’s accept interpreta- this To under FARA.31 absurd, if tion leads to results not which cf tion, statutory to have overlook we would Patterson, American Tobacco Co. v. obligation to to file was indications 1534, 1538-39, U.S. termination, con- have definite and some L.Ed.2d 748 States v. Turk Congress modify by intended to clude that ette, 2527; 101 S.Ct. at U.S. at implication principle the common-law that Depart Transbrasil Linhas Aereas v. S.A. do not indefi- offenses continue Transportation, ment of supra at nitely. 1082-83. See (D.C.Cir.1986), singular 205-06 strike us as Although Congress indisputably enjoys unlikely ly to have intended. been Under limitations, of power provide no statute to construction, an Government’s individu (no limita- see 18 U.S.C. 3281 statute of § prosecution is to subject al forever Torcia, offenses); 1 capital tions for C. penalties, stiff criminal see 18 U.S.C. § Law at 415-16 Wharton’s Criminal § for an in the form of a omission failure (14th 1978)(“The protection ed. afforded is, provide required by what information is not of a statute of limitations a matter bottom, As we sug a disclosure statute. right legislative grace.”), of doubt but we above, although gested such conduct cer Congress that choose exercise at, would certainly tainly not to far be blinked power implicitly, such an in such a Congress appears, unusual removed from what be fashion, for offense least, roundabout fore now at to have considered so partake the nature of does as to indefinite serious warrant the threat all, on the Indeed, After one occasion prosecution. mala in se. id. 3281. See § Congress actually Congress’ intended to purpose, eliminate fundamental we limitations, seen, explicitly. punish it did statute of so have was agents And solitary See 18 U.S.C. that the activities described practical dispute points process, 31. McGoff realities that cerns due an issue be- parties, cognizance likely the statute of will tween the we can take make it practical reality recognize play. Specifically, come into he notes for all never filing practical purposes, the Government’s construc- late statement —the claims statute of event the Government can start the statute results in no limita- candidly recog- tions. The itself statute of limitations admission Government —is which, guilt Appellant’s (argu- as to nizes this. Brief at 14-16 to an offense under the view, -ing power to eliminate the statute of limitations has the Government's chooses). or not has not run. Whether this raises con- limitations if it so rather, compel statute; statutory language legislative it was disclosure history or of these permit evaluation activities. reinforced consideration its in- addition, terpretation as we logically cannot limited supra saw, civil mechanisms in foreign agent enforcement situation which fails goal forcing stressed the 1966 further to file Section whatsoever. punishing all, rather than nondisclo- 618(e), disclosure applies to after to file “failure[s] If employment of criminal sanc- sures.32 ... as is either section setting employ tions in this indeed 612(b).” 618(e). U.S.C. § swatter, fly supra Howitzer lieu of a language appears not only include passing strange note then it would be complete failures but also other provide prosecutions for lifetime noncompliance forms of with section obviously deemed to be what the Executive filing late, such as statements that are omit something quite than less a life-or-death facts, or material contain material misstate- offense. 618(e) Our belief that section ments. cov- arguably types ers what are less serious more, What is the facts of this case by 612(d), is violations buttressed prospect of long-de demonstrate that the appears to make willful failure high layed prosecutions hardly is fiction. fully comply prosecutable with FARA The Government contends that Mr. McGoff a “willful failure file a state- agreement into an over entered oral twelve thereto,” supplement ment or precisely ago years act for the 618(e). that which is covered Government of South Africa. Whatever logical extension Government’s assertions, the merits of the Government’s argument ability would stretch indefi- apparent it must that a focusing be trial nitely prosecute beyond FARA violations long ago presents events that occurred so may what gravest type considered the practical problems; serious to state the ob relatively violation to less serious ones. vious, died, may have witnesses memories unlikely It in the extreme that this may say faded. This is not have strange Congress’ result reflects intent. legitimately go such a could not trial for contrary, point ward. To the our is much sum, the presence types When narrower. an alternate construction difficulties adumbrated above counsel difficulties, available that avoid such will against embracing the Government’s inter- interpretation court should eschew the pretation. Happily, in circumstances of produce that will absurd or unjust results case, is, interpretation alternative alternative, and embrace the if that inter seen, as we sup- have both available pretation is consistent with the discernible ported statutory legislative in the text legislative See, purpose. e.g., v. history. Inasmuch we have found this Griffin Contractors, Inc,, 564, Oceanic 458 U.S. construction be consistent with Con- 575, 3252, 3245, 102 S.Ct. 73 L.Ed.2d 973 gress’ indeed, to precisely what intent— (1982); (7 Kirby, United States v. 74 U.S. Congress intended—we should not hesitate Wall.) 482, 486,19 (1869); 278 L.Ed. Trans give interpretation. effect to that Linhas, 205-06; 791 brasil S.A. F.2d at Virgin Government Islands v. Ber B 221, (3d ry, Cir.1979). 225 argues McGoff that difficulties consti- Our reluctance to embrace proportion the far-reach- tutional if arise Govern- ing implications posi- of the Government’s accepted. ment’s construction sig- Most mooring in the absence firmer suggests nificantly, permit- McGoff argues interpretation terminated, 32. The Department dissent has of Justice is precludes we advance the Govern- powerless. far nonetheless ment, The Govern- using injunctive ment from compel the civil remedies to all, after has a full available half-decade anyone agency relationship from the termination agency relationship once the has ended. As- agent's to secure an indictment willful suming arguendo injunctive remedies failure to under Act. would not lie once the individual’s status

1095 — States, v. (1987); Tanner United indefinitely prose- U.S. ting the Government 2739, -, (1987); 107 S.Ct. 97 90 in certain L.Ed.2d of FARA could violations cute States, 381, 387, v. United 447 U.S. transgress requirements circumstances Bifulco 2247, 2252, (1980); 100 65 L.Ed.2d S.Ct. 205 Process Clause. of the Due States, 808, 812, Rewis v. United 401 U.S. argument. It dwell on this We need not 1056, 1059, (1971); 91 28 L.Ed.2d 493 S.Ct. analysis of our purposes is sufficient States, Dixson v. also 465 U.S. authority than Justice Jack no less an 1177, 79 L.Ed.2d indefinitely prospect “of an son found the 458 That rule has been recent result in continuing offense would [which] ly Supreme described Court as fol of the statute indeterminate extension lows: be “of doubtful constitu of limitations” to concerning [A]mbiguity ambit tionality if it were created Con even criminal statutes should be resolved States, v. Krulewitch United gress.” lenity. favor of 716, 724-25, U.S. Tanner, Rewis, (quoting 107 S.Ct. at 2753 (Jackson, J., concurring). L.Ed. 91 S.Ct. at 1059 (citing 401 U.S. at Lovasco, United States U.S. Cf. States, 81, 83, Bell v. United U.S. 52 L.Ed.2d 752 S.Ct. (1955)); accord S.Ct. L.Ed. 905 (1977) (“[T]he ‘statute of limitations does Lewis v. United 55, 65, 100 445 U.S. rights fully define [defendants’] Unit 63 L.Ed.2d 198 occurring prior to respect to the events Batchelder, ed States v. 121- indictment,’ ... the Due Process clause 22, 2198, 2203, 99 S.Ct. 60 L.Ed.2d 755 play protecting against a limited role to States, (1979); Ladner v. United 358 U.S. United States delay,”) (quoting oppressive 169, 178, 209, 214, 3 79 S.Ct. L.Ed.2d 199 Manon, 307, 324, 455, 92 v. 404 U.S. S.Ct. (1958). principle applied has been not (1971)). 465, 30 L.Ed.2d 468 Since it is well only interpretation to the of substantive a “statute should be inter established that provisions, criminal but to the construction preted, fairly possible, way if in such a statutes, Simpson v. United sentencing free it from not insubstantial constitu States, 6, 14-15, 909, 914, 435 U.S. 98 S.Ct. Overholser, doubts,” Lynch v. tional 369 (1978), 55 L.Ed.2d 70 and statutes of limita 711, 705, U.S. 82 S.Ct. 8 L.Ed.2d tions, Toussie, 397 U.S. at 115, 90 S.Ct. at (1962), 211 that an inter we observe the result of which Justice Jack pretation acknowledges the Even the Government constitutionali son considered “of doubtful vitality lenity, rule of continued of the appear raise “not ty” would insubstan appear slightest which would Accordingly, tial constitutional doubts.” open question in the wake of its most presence such a constitutional issue recent reaffirmation a unanimous Su- appropriately considered as a factor Tanner, Court. preme 107 S.Ct. at against counseling the Government’s inter Government, furthermore, im- 2753. The See, e.g., United v. Five States pretation. plicitly potential appli- concedes the rule’s Devices, 441, 448-49, Gambling 346 U.S. case; cability to this the Government ar- 190, 194-95, 98 L.Ed. 179 gues apply instead that we should not Benson, v. Crowell 618(e), alone, standing rule because section 285, 296-97, (1932) (Brandéis, 76 L.Ed. 598 unambiguous supplies a clear and answer J.). question of when the statute of limitations commences. Ap- Brief for C pellant If the statute were indeed at Finally, importantly, clear, and most our the Government would course be holding support correct; solid in the well-es Supreme repeatedly finds Court “ interpretation noted, crim principle tablished ‘touchstone’ of the rule of statutory ambiguity.” Bifulco, lenity. lenity inal known as the rule of statutes — See, States, 2252; e.g., McNally v. accord United 447 at 100 S.Ct. at U.S. Lewis, 921; -, 100 at 107 97 L.Ed.2d 292 445 U.S. at S.Ct. U.S. S.Ct. run, Batchelder, begun at U.S. at S.Ct. statute has not been trial, 2203; argued tolled. Prior to Huddleston McGoff U.S. S.Ct. the limitations on his offense under Supreme Court began L.Ed.2d 782 the Act to run in when he had “manu- courts not to has also admonished agent, last acted as so that the 1986 infor- none exists.” ambiguity facture where mation was time-barred. The United Batchelder, 442 at U.S. argued States statute of limita- 2203; Bifulco, 447 U.S. at accord begin would tions to run until McGoff S.Ct. at 2252. covering filed agent. activities as The district court do “manu- But not succumb clever we agreed with McGoff dismissed the in- temptations concluding that facturing” formation. speaks ambiguously is- on the Indeed, the sue most that can at hand. plain, unambiguous language reasonably be said for Government’s Act demonstrates that the district court position the merits is that sections erred: the statute of for a crimi- limitations 618(e) clearly do not rule out prosecution agent's nal failure to time, position. At the same our review register begin under the Act does not statutory provi- of the relevant text until agent registers. run This un- sions, whole, legis- the statute as a and the conclusion, perhaps avoidable odd first history lative convinces us Mr. blush, upon compelled reflection not only reading McGoff s is correct: the statute of statutory language but consistent failing under purposes legislative with the declared begins FARA to run from last history of majority, by the Act. The mis- an individual acts as an reading language Act, sig- the clear Thus, principal. even if our left analysis nificantly government’s ability curtails the Congres- us without clear indication of to enforce the fundamental intent, lenity sional the rule of would coun- imposes agents foreign principals Act against strongly sel in- Government’s to disclose their connections and activities terpretation. agents. V I. In summary, the correctly District Court dismissed as time-barred the infor- criminal A. against judg- mation filed Mr. McGoff. Its The true issue in this case does not con-

ment is therefore Rather, cern statute of limitations. precise Affirmed. this case turns on the definition of the offense with which McGoff was BORK, Judge, dissenting: Circuit charged. Supreme Court's decision in the United States filed a crimi- Toussie United nal charging information court (1970), provides district S.Ct. L.Ed.2d 156 appellee having agent Toussie, McGoff with been an analysis. the framework for who foreign principal, Republic a failing register was convicted of for the Africa, filing draft, South military without Attor- argued appeal that since ney registration General the register statement re- his complete failure was when quired by Foreign Agents Registration he register was first and did proceeds assump- so, Act. This case five-year do limitations tions agent that McGoff last an prosecution eight was barred his years after South Africa non-registration. and that he' never that time Id. registered agent government under the It is Act. at 860. The S.Ct. conceded undisputed that the Toussie that had first rendered himself lia- governing years, prosecution eight before, McGoff’s offense is years five ble to but (1982), that, argued U.S.C. if it has that his offense continued until his § language” Agents Registra- of the Foreign summarized Id. The Court registration. continuing a “If the offense is tion Act McGoff’s offense continues until the issue: not, but, if timely, registers. To prosecution was he demonstrate this conclu- one dismissing sion, erred in not provisions District Court I turn to the Act.2 indictment.” Id. B. offense did held that Toussie’s The Court , stating a began by It person not continue. who Any subordinates himself find offense continues should that an court foreign principal in its en- a behalf language of the explicit “the only if either activities, gages certain enumerated or compels such a criminal statute substantive himself, anyone agrees, represents or who conclusion, in- or the the crime nature of person, “agent such a is an of a must assured- volved such foreign principal” under the Act. U.S.C. as a intended that it be treated ly have 611(c) (1982). If exempt, see id. continuing one.” 397 U.S. at 612(f), 613, 611(d), every agent such §§ draft The Court found that at 860. subject registration require- to the Act’s statute, required registration “at ment. Id. § places” as place or times and such time The terms of section are decisive 113, 90 may prescribe, id. at the President of this case. section describes an language “that contained no agent’s registration requirement as fol- contemplate[d]” continuing of- clearly lows: fense, the Act regulation and that a under person agent shall No act as an of a register referring continuing duty to a foreign principal unless he has filed with insufficient, itself, to establish Attorney com- General a true and continuing offense. Id. at registration plete statement ... as re- only “highly equivocal” at 863. With (a) quired ... or unless subsection[ ] ambigu- implication this “somewhat exempt registration____ from Ex- he continuing of- ous” statute established a every per- cept provided, as hereinafter fense, prosecution the Court ordered the of a son who becomes an 122-23, 90 as time-barred. Id. at dismissed shall, principal days within ten there- 864.1 S.Ct. at after, the Attorney file with General ... analogous The issue this case is statement____ The obli- sides Although in Toussie. here both gation foreign principal of an under concede failure to shall, file a af- offense, they dis- Act is a day becoming ter the tenth If the agree long over how it continues. agent, day, continue long continues as the offense so re- of such status shall not termination prosecution his of agency, continues agent obligation to lieve such from his con- is time-barred. If the offense McGoff registration peri- for the file a statement long register, agent as the fails to tinues so during agent which he an of a od was timely. of is To an- prosecution McGoff foreign principal. question long McGoff’s of how swer 612(a) (1982). 22 U.S.C. § continues, rely I crite- offense Toussie’s registration deciding I discuss elements of the whether an offense contin- ria Toussie, statutory requirement I in the order of their all. In the words of ues at “explicit The an presentation. it evident that under first sentence bars believe structure, "nothing legisla- language, purpose and to this con- 1. The Court also found that there 2. The Act, history pointing tive clusion, all it con- in the offense itself to render inherent” Toussie, distinguish because, this case from (a tinuing, conspiracy conceded- unlike factors, ambiguous, prompt- those at where best offense), register ly the failure to failing to Court to find that the offense of ed the day "bring did not a renewed threat of the each draft continue at all. for the did not prevent.” Congress sought evil substantive course, Here, everyone agrees s that McGoff U.S. at 90 S.Ct. at 864. degree, obligation but the continues some disagree about parties when it ends. acting sentence, having read, as such without agent fairly unambig- from the third uously registration question. statement. The second answers that filed person who an requires sentence becomes registration agent statement with- to file a C. assuming days of the status of in ten explication I conclude the of section agent. two sentences are not redun- These 612(a) by summarizing first what to this contradictory one another. See dant point the section has said—and said. not Frank v. United The affirmatively first two sentences state (D.C.Cir.1958) (reversing procedural agent’s they two duties and when be- grounds failing criminal conviction gin. The statute next extends one of the agent Act register as an under the duties, obligation two register upon agent acting registration); without becoming agent, beyond an the initial mo- v. Peace Cen- United States Information registration required. ment when is (D.D.C.1951). ter, F.Supp. statute is when duty silent on not act together, though they provide Read that agent having as an registered without days registration one has ten to file a state- ends; given silence, might one reason- entering agency ment after into a covered ably presume just obligation as the arrangement foreign principal, with a begins agent begins when the to act as an agent arrangement may not act on that agent, obligation so also the ends when already having filed. without This two-fold agent acting agent. ceases statutory scheme dovetails with the Act’s might similarly presume One purpose Act seeks disclosure both —the agent’s file, obligation to begins ten foreign relationships principals days agent, after he an becomes also ends the acts that arise from them. See Meese agent when longer agent. is no an But — -, Keene, U.S. not silent on point, this (1987).3 95 L.Ed.2d 415 squarely rejects any presumption. out, laid With these two duties we are The says: second half of its third sentence position now to examine the third [i.e., “termination such status one’s sta- sentence of section That sentence agent foreign principal] tus as of a shall parts. divides itself into two In its first agent [i.e., agent relieve such an of a part, says agent's obli- foreign principal] obligation from his gation upon to file a statement for dur-

becoming agent an does not cease ing agent an which he was of a day end of the tenth after he becomes an principal.” 612(a) (1982). 22 U.S.C. § agent, day.” but “continue[s] There can be no doubt this about what The reader now knows without doubt that language phrase means. The first means an obligation not relieved relinquished has who his ten-day period file as soon as the registered and who has not ended. But does yet point the reader know before or after that time is still under the agent duty when register. relieved phrase next file. The wording exact the second half describes bounds of what the former (known original 3. The Act in foreign principal having version acts without Act), the McCormack ch. 52 Stat. 631 [registered].” H.R.Rep. Cong., No. 77th (1938), provided only every person that who notes, (1941). Report 1st As Sess. 3 the the foreign agent princi- "shall ... become an prohibition acting of the addition without pal shall forthwith file” a statement. filing only enlargement a theoretical "effected] 2, prohibition §Id. 52 Stat. at 632. The distinct statute,” existing "proof of the since of viola- acting agent filing of as an without was added prohibition practically tion" of either "is identi- 263, 1, 248, (1942). in 1942. § Ch. Stat. 251 56 Indeed, grant days cal." Id. the ten of in which Report explained The House on this amendment becoming agent, by to file after an also added change any the may that "eliminates doubt amendment, the 1942 works a of contraction possible exist as to more than one venue of statute, formerly required filing the which had present action under the statute. Prosecution "forthwith.” possible any will now be district wherein an

1099 obligation his register account of his Act’s over head until agent to he dis is —an per- McGoff, he relationship and the acts agency closes information. under agent. phrases The two case, formed while facts before us this the conse agent a former together render read quently at moment obligation this under an he the Act until violation of continuous Therefore, register. apart even required the information. discloses express Act’s reference to the the simple, it is language is clear. limitations, later, I discuss see I.D., government’s prose Section though see necessary, not helpful, It is infra unquestionably timely, cution McGoff the Act’s how result period for since the limitations suit on a purpose. Viereck v. United (D.C.Cir.1944). 847, of a duty necessarily begins 849 The Act breach foreign ends, penalize agents duty duty is not meant to run when and McGoff’s being agents, or deter principals Toussie, file has ended. not 397 becoming agents, simply persons from but 114-15, 860; at 90 S.Ct. at U.S. also In persons to cause to disclose information Corrugated re Container Antitrust Li agency public. Accord- their to the about (D.C.Cir.1981) 875, (com 886 tig., F.2d expect no the Act ingly, there is reason mencement of limitations for con hinge on the the disclosure end). spiracy conspiracy’s coincides with agency. continuation of Cessation however, The majority panel, of this agency not the Act does eliminate evil agent’s obligation holds that remedy, which is the failure to seeks to under section ceases when the itself, i.e., disclose; regis- only disclosure his principal. ceases activities for tration, Indeed, puts an end to that evil. holding reading is based a strained that, might argue regardless one of the First, language Act. language, statutory the “substantive evil not statute before us is aimed at when the Congress sought prevent” is “renewed” agent’s obligation reg- not to act without Toussie, register, day’s each failure to istering ends, agent’s but rather when 864, at U.S. at so obligation to file ends—that is the issue of nature that failure “is such Con- statutory in this An construction case. gress assuredly must have intended that principal agent who has acted his as a Id. be treated [offense].” past yet but has ended his activities and 860. See United States agency relationship, maintains his for ex- Bailey, U.S. contract, agen- his ample by still maintains (discussed 62 L.Ed.2d 575 register must cy “status” and under I.D.). Section infra Indeed, reading Act. even doubt, agents obey no Usually, will simply acting “holds out” who himself they law and when are first re- having obliged reg- acted would seem therefore, Usually, quired to do so. disclo- 611(c)(2)(1982).4 See 22 ister. U.S.C. § agent is still an sure will occur while the Second, majority remarkably finds agent. not “al- “usually” But does mean 612(a)’s the second half third ways,” this case illustrates. An ambiguous. pertinent I registers quote sentence completes who never but adding language again, impunity still has disclosed its immediate se- says pub- quel emphasizing majori- Act the information that the words ambiguity: lic fit ty generate needs. has seen to hold the believes “termi- represent period during seem to the “certain which he acted These situations within ambiguities" ending agent. regarding obli- United States" Ch. § (1950). gation By referring only to file that addressed the 1966 Stat. to the were H.R.Rep. "activity,” might No. discontinuance of the statute amendments Act. exempted agents acting Cong., currently 89th 2d Sess. see Pub.L. No. have those 89-486, 2(1), agent. 80 Stat. Before who nonetheless maintain the status amendment, amendment, by basing point the Act had stated that the The 1966 the end agent’s] obligation agent, activity” of [an "discontinuance of the to file on one's status as possible interpretation. did him file "for not relieve of the eliminated this agents light nation of such status shall not relieve such of “in the of their associations obligation to a agent registra- from his activities,” which is the Act’s funda- period during the tion statement purpose, Keene, mental 107 S.Ct. at for agent foreign prin- a which he was an quite logically comprise appraisal could the of cipal. registration The statement shall in- agents’ of “statements light and actions” in following____” clude the U.S.C. past present of their “associations and added). 612(a) (1982) (emphasis fact, activities” both within and without the generated all majority’s ambiguity the agency relationship. might “logically” It solely by phrase the but its first public’s appraisal activity assist the of the word, think “for.” I it obvious that “for” of the lobbyist govern- chief for a foreign “covering,” phrase means and that the mo- ment, example, for to know he statement,” “registration difies the term formerly lobbyist the chief for an American indicating define the dates that the state- corporation that dealt extensively with that Note, Foreign The coverage. ment’s Indeed, “logical” nation. it would be Agents Registration Regis- Act: When is registration McGoff’s belated initial state- Required?, tration S.C.L.Rev. 693- ment only to disclose not activity his (1983) 612(a)’s (summarizing section obli- agent for South Africa but also subse- gation is, way). in this That the as, quent activity put hypothetical registration provid- must file a statement example, a of Rights member the U.S. Civil ing requested regarding information Commission. surely might That assist the agent, time he was an and need not public appraisal of all of McGoff’s actions provide regarding information times before and statements. or agency. after his therefore, As a matter “logic,” of majority concedes this is the Act’s statement well could re- “more reading natural” of the lan- Act’s quire of regarding disclosure information guage. reading I add would that this sois periods before or after agency. straightforward appli- “natural” to be a also, course, There “logical” are of strong cation of simplest of “one of canons why Congress reasons reject would such a construction,” statutory rule the last requirement, which would amount to the antecedent, provides “qualifying which perfectly surveillance of legal activities phrases” ordinarily applied are “to be now-ordinary Americans were who for- phrase immediately preceding words merly agents. Congress’ To indicate rejec- and are not to be construed as extending to logical result, tion this unacceptable but others more remote.” United v. States language expressly Pritchett, (D.C.Cir. 459 & n. 9 temporal restricts registra- reach of the 1972). majority rejects nonetheless period during statement this reading “normal language agent. was an Viereck Id. the statute.” It instead claims that reading this natural would render (holding, L.Ed. un- phrase “surplusage” because a language der later-amended of 1938 ver- required by “can, statement the Act 612(b) Act, logic, sion that six- period relate no other than ‘the month supplemental registration period during which’ the individual acted as need agent.” agent,” cover activities “as Maj. op. an Even if this all charged any capacity during activities in simply “logical” court were agent). six months while statutory rather than an It interpretation, was neces- sary position majority’s point would address be mistaken. here, illogical specifically There would nothing re- since none of the about items to person quiring registration statement, who becomes be included foreign principal immediately disclose which the Act lists information after the 612(a), about himself from either before or third specifies after sentence of section agent. the time he period had become time Public that relates appraisal of agency, “statements and actions” easily and most the items could subsequent period relationship’s termination. I the encompass periods outside odd, proposition say find to the least. 612(a)(l)-(ll) this 22 U.S.C. agency. See way. No criminal statute works this Yet Thus, being from mere “sur- far passage the this in the Act only function during phrase period the “for the plusage,” majority’s reading is to dis- under the foreign princi- agent of a he was an which pel proposition with the truism that regarding fact the provides vital pal” agent later an even if the ceases to be agent every who coverage to statement’s agent agent, liable an he remains while agent register, especially the and must perform duty agent. his This is preceding clause of registers, as the who surplusage very high aof order.5 expressly contemplates, sentence same the simplest, Perhaps compel- most the but agency] status.” “termination of [his after ling, proof majority reads section majority an read- The offers alternative 612(a) erroneously of the this: removal is, least, say the the ing of statute give word from the statute the “not” would the majority The believes that forced. majority exactly the sense it wants. The period” beginning “for the modifies phrase say, statute then would “termination rewrite the statute “obligation,” and would agent’s] agent shall status relieve [the [the] agency termination of status as follows: registration obligation from his to file a agent “from his obli- not relieve the shall period during for the he which during period the which he was gation for agent foreign an I am principal.” of a foreign principal to file a agent of an I majority confident that the and would Under read- registration statement.” this agree language this would end the agents duty do their and ing, who wish agent’s his duty agency. Unfortu- statute, from the guidance have no register nately majority, the exact for the this is only majority’s “logic,” the but opposite statute did of the write. statements should time their what reading It is majority’s obvious that the Moreover, adopting reading, this cover. is completely the real statute untenable. language majority is the that renders it shown, 612(a) clearly As I have “surplusage,” Act at best. Accord- of the requires agent’s the conclusion that provides ing reading, to that obligation register beyond the continues agency termination of one’s does not language his The agency. termination of duty register of his relieve comports unambiguous, with the sec- says nothing. an agent. he was while structure, promotes tion’s and the Act’s suppose be that an It would bizarre contrast, purpose. majority’s read- duty agent’s to file a state- ing hole in gaping of the section leaves a ment, majority’s view is owed statute, is, purpose, blunts long as government only so he is an terms, today its own incoherent. McGoff might retroactively ex- agent, be somehow obliged to file remains under section (absent question) passage im- cused statement as an upon agency may prosecuted mediately principal, termination to do so. failure relationship. majority apparently be- plausible regard that it lieves would be D. existing obligation arising from and an during relationship, govern- as somehow be- grants Section 618 of the Act ways power ment the to enforce in various ing during relationship by dissolved reading, registration, prosecution, majority points on the that under its resisted 5. The out prose- ground agency who could failed to had One of that his terminated. years up five termi- cuted time after Depart- express purposes articulated agency relationship. nation of I do registra- ment Justice was thus to insure the that. But does not "vindicate[ ] doubt express purpose interpreta- bility ex-agents. majority’s Department articulated reg- agent’s extinguishes Justice," majority Maj. op. claims. upon is thus ister termination indicate, reports pp. n. 27. The 1089 1104-05, infra directly contrary express purpose to an Department had ex- that the Justice legislation. perienced ex-agent instances in which had obligations imposed by the Act. period all of in here rather than sec- 612(a).7 (1982 1985). tion Supp. Ill 22 618 & U.S.C. § 618(a) imposes penalties criminal Section By correlating liability a obligation to the “any provision” for of the Act. violations file, 618(e) to completes section the work 618(a). It therefore renders liable for Id. begun § in section But it also does prosecution any person who breaches the 618(e), more. knowing Without section and 612(a) obligations any under section discussed provisions that violation of the Act’s is subject prosecution 618(a), to under by acting court above might be to reluctant find that the section registering byor principal without becom- 612(a) duty register to continues until the failing ing but to agent registers. The court would base its days ten thereafter. As sec- within does reluctance on the tension between the con- however, 612(a), singles 618 tion section tinuation of policy offenses and the of re- out failure to file a state- pose expressed through statutes of limita- ment for additional attention. 22 U.S.C. Toussie, 114-15, tion. See 397 U.S. at 90 618(e) (1982). 618(e) comple- Section § view, S.Ct. at 860. In my previously as obligation the discussion of ments discussed, explicit language of section 612(a) by establishing file in section a cor- 612(a) reluctance, overcomes this as Tous- liability for breach of obli- relative that permits. sie 397 U.S. at gation.6 obligation Just as the to file “con- But, addition, 618(e) at 860. in com- day,” 612(a), so tinues id. § pletely dispels the tension discussed in liability also for the breach of that obli- Toussie, and hence eliminates the sole ba- file, gation, i.e., the failure to “shall be any legitimate sis for reluctance about the continuing offense.” Id. considered proper result in this case. United States v. 618(e). obligation just as the file And § Bailey, 62 does not end with “termination of (1980), L.Ed.2d 575 plain. makes this agent] but continues he status” until [one’s Bailey, the Court construed a statute crim- files, 612(a), so liability also for the id. § inalizing escape custody, from federal 18 “for long failure file continues 751(a) (1982), as establishing U.S.C. § exists, notwithstanding any such failure continuing offense that ends when the statute limitation or other statute escapee in, himself so escap- turns that “an 618(e). contrary.” Id. Since the statute § ee can be held liable for failure to return obligation of limitations limits not an but custody as depar- well as for his initial breach, prosecution of its it is unsur- ture.” 444 U.S. at at S.Ct. 636. prising explicitly that the Act acknowledged address the The Court that should there majority government oversially governed 6. five-year understands the catch-all 618(e), alone, argue standing that "section cre- statute limitations. regis- ates an offense that continues until actual point majority, I note at this mistak regardless tration of the of the duration enly following Appellee McGoffs Brief for brief. 612(a) obligation.” Maj. op. at While 35-36, at thinks failure to under government's structure and rhetoric of the brief- 612(a) gives “prosecu § of the Act also rise to argument gave ing less full than attention penalties," op. maj. tion stiff criminal at 612(a), government I § do not believe 1985). (Supp. under U.S.C. § Ill Rather, suggests that is § irrelevant. issue, provision stemming at from 1917 and government acknowledges that one must in Act, wholly independent penalizes one 618(e) reading § “refer to the “acts who in the United States as an provided by’ Reply Appellant for § Brief foreign government prior without notification 5-6, insufficiently explains precise but Attorney Nothing Id. General.” meaning obligation. of that suggests purpose public statute disclo continuing. sure that the offense it creates is Nothing in the Act addresses the limitations five-year It seems obvious that the usual limita period prosecution of one acts who without begin 612(a), run registering would for this offense prose- in violation of or for acting any soon as provi- cution of ceases as such. other violation of the Act’s event, simply unsurprising, sions. This also is Act But irrelevant Melekh, designates none those this case. violations as continu- See United States v. offenses, ing (N.D.Ill.1961). they presumably F.Supp. are uncontr- my statutory lan finding of- close discussion “restraint” by noting guage and structure fenses, set out Tous- to the tension due case, majority’s issue and the mis of limitation and con- statutes between sie issue, disposition taken of that reach be tinuing Id. offenses. provision prose yond tension the Act’s for criminal found that But Court at 636. prosecutions cutions. Criminal under the from the case before “wholly absent” statute, Attorney Act have been rare. See federal Gener U.S.C. because another Inc., People, al Irish F.2d (1982), suspended the statute of § (D.C.Cir.1982). escapee injunctive the remained But civil long as the limitations 10,100 remedy the United for 414 n. available to States large. 444 U.S. at & at of[,] [any acts or “any ... violation ... n. [in] at 636 & comply with[,] any provi to of the failure] case and parallel The between this Bail- 618(f) Act],” sions of U.S.C. § [the case, In each dictates the result here. ey 1985), now (Supp.III also will be unavail of is offense omission— there a registration compel anyone to able to file a in, register oneself failure to failure to turn agency If statement once ended. only the end of ends with the oneself—that obligation the to file ends with the termi case, In each there is proscribed omission. relationship, re nation of the then provision express statutory separate a gardless of of what the statute limitations operation statute of suspends be, may the United States will be unable to In for that offense of omission. limitations registration, injunction compel use an to suspension of statutory Bailey, agent any longer since the is no under Supreme period enabled register. obligation to The disclosure the hesitation that the to find without Court hin compel consequently seeks to Act continue until the omis- did indeed offense might even more than it seem at dered first case, the ex- was remedied. this sion glance. my This result reinforces convic 618(e) language section should press holding is majority’s tion that the mistake finding dispel any hesitation over equally n.9 liability to file under the Act for the failure filed.8 continue until one has to II.

E. legislative strong- history The of the Act ly, although conclusively, supports up, explicit language of sec- To sum 618(e) 612(a) government’s position in this To- of the Act have case. tions correspond- gether statutory language, obligation and a established history every makes it undeniable that ing liability agent legislative on a reg- remains under an to to file a statement or McGoff principal foreign agent, subject liability. duty and that legal The to ister a is, government’s prosecution him file, failing there- and the offense omission of file, fore, timely. files. I only cease when the statute, maj. op. majority rejects of the Act closure 8. The also this view “virtually surely implicated by the limita- equally because it would eliminate" sus- a statute that file, period says for failure and then tions pends anyone “fleeing period the limitations for Congress actually one in- that "on the tended to eliminate occasion (1982), justice,” § 18 U.S.C. 3290 whether limitations, statute misdemeanant, or trivial his felon however Maj. capital op. explicitly" did so at as to crimes. offense. "virtually But eliminate” is 618(e)’s Section “virtual” "eliminate." majority passes easily point. over 9. The too is no different from that elimination majority correctly en- that civil indicates (1982), example, which the U.S.C. added offer a mechanisms were forcement Bailey on hesitation —in Court relied without fly cases in which that would swat for instance, running is not elimi- each the statute’s appropriate weapon than a howitzer. more merely suspended until offender nated but argues disarming of majority then majority's his omission. And the em- rectifies phasis fly no for concern since the swat cause (to it) triviality of the on the relative always government can use the howitzer. violating prohibitum malum involved dis- 4386). majority has rehearsed in detail approved by Since the The bill was the Judi- pertinent legislative ciary House, materials to this Committee each with ac- case, language reports, I find the companying since each of incorpo- which event, I will decisive rated a letter from Assistant the Attor- legislative highlight parts ney those his- Peyton H.R.Rep. General Ford.10 No. important. I tory Cong., find most 81st 2d S.Rep. Sess. Cong., (1950). No. 81st 2d Sess. A. The Reports, tracking explanation Legislation containing language letter, Department’s Justice stated that 618(e), made the failure to section which changed the bill dispel offense,” register “continuing was intro points: First, doubt two did the limita- January Cong.Rec. duced on 1949. 95 prosecution tions purport 440-41 This bill did not begin violations when the first was modify Cong.Rec. obliged on the last bill, itself, simply 441. Thus the relied unregistered had acted? then-existing 612(a), on the section which 1775, H.R.Rep. 1; supra, No. at S.Rep. No. continuing language obligation, had no 1900, Second, supra, at 1. what was the supra note for the view that the liability an agent registration to file a agent continuing obligation a had to file period during statement for the which he expiration ten-day window; after the the acting agent was if he had since only explicit continuing the bill made the activity? ceased this Id. liability prosecution of person. to such a While might the first doubt seem to be (letter Cong.Rec. at 442 from Attor See 95 case, the is, one relevant to this this case as Clark). ney By forgoing any General ex earlier, I said really not the about statute plicit language obligation, Congress ap of limitations but rather about the extent thought parently continuing char obligation register. the to The second end-point of acter and ultimate the obli 612(a) doubt about section the that bill ad- gation to file would be decided the dressed, goes beyond doubt, which the first courts, with reference to nature of the responsive one to McGoff’s situation: obligation itself express bill’s longer agent, Given that McGoff is an no ultimately language embodied section i.e., liability, what is McGoff’s his obli- 618(e). 413-14,100 Bailey, U.S. at gation registration to file a statement for (finding escape at period during agent? which he anwas reasons); offense for these see also Tous reports point Both committee refer on this sie, (finding 397 U.S. at at to “several instances” in unreg- which “an nothing registration inherent draft to agent istered registration has resisted on (cid:127) continuing). render ground agency that his had terminated explicitly But decided to state prior to Department the time when the [of obligation long how to file under sec- registration.” demanding was his Justice] sepa- continued. Consequently, H.R.Rep. 2; No. supra, at accord legislation introduced, initially rate was in S.Rep. 1-2, supra, No. at U.S.Code House, amend to section 95 Cong.Serv. p. Congress- 2887. The (1949)(introduction Cong.Rec. 5207 of H.R. men wanted to “remove all doubt as to the provided pertinent part: agent Ford’s letter of an to statement for form, period during present acting In its section 2 of which he as the act was provides Attorney agent for foreign principal aof if he has since persons acting agents General of all as activity. Department ceased such has However, foreign principals. as section unregis- encountered several instances of an presently reads there is room as for doubt agent’s resisting registration tered on the against whether prosecution the statute of limitations ground agency prior his had terminated agent comply of an failure Department to the time when the was de- registration provisions with the of the act manding registration. Clarification of the commences to run from the date on he questions intendment of the these register was first fromor the last is considered desirable. unregistered agent on which such has H.R.Rep. Cong., No. 81st 2d Sess. 3 liability acted. Doubt has also arisen as agent, he [persons],” for which tration after ceased be an registrability these supra, 2; “considering No. H.R.Rep. S.Rep. at No. Department was the Justice supra, clearly H.R.Rep. prosecution.” show Con- as the evidence gress contemplating prosecu- here supra, 2. This discussion No. agent’s obligation written with tion on an that continued to have been almost seems agency. of his after the end That in mind. McGoff way prosecution second a former then, reasonable, to read find it most I proceed: agent could could the Justice reports, committee these failure, charged with the he was an after them, as prompted letter that Department during period, well answering questions, or connected two required by register as law. That is how obligation “doubts,” agent’s about being prosecuted, McGoff is 612(a). First, does register under prosecution Congress intended beyond the agent’s continue But amendments to authorize. if the obli- throughout his ten-day window end of the gation continues after Second, agent’s obli- agency? does the ends, a former has no “af- agen- gation beyond the end of his continue prosecution, firmative defense” to such a distinct, asked, questions are cy? As but, since to invoke the statute of limita- separately, asked but since and therefore defense,” e.g., is an tions itself “affirmative “yes,” each is the second the answer to Wild, United States v. F.2d 421- subsumes the first. answer (D.C.Cir.1977), fortiori of these majority reads the second yet begun agent’s even run relating questions to an “affirmative still-continuing obligation.9 breach of (a in used the com- defense” term nowhere reports) by former that mittee the B. agency obligation ended his the end his legislative history is There additional 1087,1088,1089. op. While Maj. file. government’s supports position that the clear, reports certainly by no means the are this case. The McCarran-Hanson corre- is majority’s reading so not obvi- that the spondence directly question the addressed mistaken, upon analysis I can no ously see good policy it “in of whether was effect reading. I to sustain this reasonable basis all statutes of limitations” for abolish[ ] [to] referring a majority assume that the is Act. the failure under the against prosecution a former (1949) (letter Cong.Rec. 9749 from Elisha government five brought by within the Hanson); (in response, rejec- see id. at 9750 agency. a years after he ended Such of limitation on tion Sen. McCarran ways. in two prosecution proceed could prosecuting this omission offense to “some First, charge agent simply it the with could time”); 12,- Cong.Rec. period of named having register while he an failed to was (1950) (same). Report The Senate earlier, agent. I it is But as have indicated Security the Act of 1950 described Internal a later cessa- not tenable to maintain 618(e) to section in that Act the amendment agency could relieve the tion of provide reg- “to that failure to as meant government he duty file owed the the Registra- [Foreign Agents the ister under agent; previously an an amendment while continuing a shall considered Act not needed to make that A]ct offense, removing statute Moreover, thus it point clear. references S.Rep. No. government's “demanding,” of limitations.” 81st reports to the (1950). It agent’s “resisting,” regis- Cong., Sess. 9-10 concluded the former 2d obligation says is Report of that a that the amendment violation Senate bill, 618(e). 618(e) Congress security absent Otherwise § in the internal S. offense § pending simultaneously possible could have believed it to resolve a with H.R. 4386’s 612(a), "duplicate[d doubt the statute of limitations 4386] H.R. about § amendment Cong., S.Rep. § without amendment of part.” No. 2d Sess. Act’senforcement in (1950). 81st provision. duplication isWhat the Act’s enforcement I believe this indicates 612(a)’s 618(e) 612(a), express continuing obligation duplicated ex- § § of § insofar together beyond pro- agent’s general enforcement tension with Act’s 618(a), necessarily agent. imply his tenure vision in would said, “permit reports amending amendment would prosecution 612(a), of an offender time period that the limitations period disregard he continues to during the begins But, when ends. Id. Ias merely 3-year discussed, and not within a statute reports by have those no means “he when first became sub- from” they majority show what the thinks show. registered have ject and should law majority simply has overlooked the so.” Id. at 10. but to do failed Report, Senate which it neither cites nor briefly the majority’s I comment on must quotes point. on this The content Sena- reading legislative history. The of this ma- statement, tor McCarran’s individual seriously take jority fails to the McCarran- anticipated Report by stating that the correspondence. It dismisses it as Hanson failure-to-file offense was ... “remove[d] legislator’s, sponsor’s, albeit individual limitations,” from the statute of compare comment, maj. op. at which does of 12,068 Cong.Rec. S.Rep. with No. persuasiveness. lessen its But course supra, at is thus not “the state- says majority correspondence then that the single legislator ment that ... accom- says, cannot mean what it for the “remark- plishes] a more drastic result” than the meaning able result” that would necessi- history supports. the rest its clearly tate more “would be manifested [in Maj. op. at 1092.12 legislative history] oblique than I suggest by do not mean my discus- words, reference.” Id. at In other legislative history sion of the Act Congress reports failed to write its alone, history, standing is conclu- conduct debates on what meant with one way sive or the other. But I think it all the attention court thinks such a language harmonizes of the stat- required; “remarkable result” therefore ute, support and contains more for the Congress did not mean what it said. This government’s position the majority than in- might justifiable view when there no dicates.13 any- Member of legislative history sup- where III. ports given reading statute, of an unclear — Robinson, prosecution Since I find U.S.-, that McGoff's Kelly v. 353, 13, Act, S.Ct. authorized under the I 361-62 & n. 93 L.Ed.2d must address 216 (1986), hardly question but that is the of the situation here. whether the constitutional The majority’s objections conclusion is “especially McGoff raises prosecu- bar his true,” continues, it Congress because They later tion. do not. Report 12. That the and McCarran’s statement The fact that McGoff raises constitutional ar by suggesting both err "as a matter of law” continuing guments prevent proper reading does not a of generally offenses are removed from arguments, the statute. At least some of those if limitations, 1092, maj. op. the statute of at is them, hardly qualify all not stantial,” of as “not insub hair-splitting. point The of course is that this III, they see Section must be to infra continuing offense of omission is removed from play reading role in statutes. Com long operation so statute's as the omission — Schor, modity Trading Futures Comm'n v. continues. U.S.-, 3245, 3252, 106 S.Ct. 92 L.Ed.2d 675 event, (1986). any presence inAnd briefly dispose other reasons the 1 questions permit judi- constitutional does not majority gives reading for its of the Act. It cial rewrite of the statute. If the statute as "passing strange" finds the idea may that an unconstitutional, may indefinitely prosecutable written is for an we not save it offense relatively gravity. Maj. op. by transforming something little at 1094. As into it different indicated, already nothing I have there is Congress what from enacted. See id. "strange,” illogical, or the like about this idea. Finally, lenity I do not think that the rule of majority play is also troubled the fact that comes into here. The rule override cannot filings, just filings, might sense, deficient subject omitted statutory purpose, common or the fair liability. seriously to Yet defi- meaning meaning the narrowest statu- —the —of filings might important enough cient well be to Turkette, tory language. v. United States 452 prosecution justify is a decision for the 2524, 10, —that n. n. U.S. 588 101 S.Ct. 2531 69 executive branch to make. And executive (1981). is L.Ed.2d 246 The rule irrelevant ab- disposal has other tools at his to handle defi- see, statutory ambiguity, e.g., sent v. Bifulco filings cient of lesser seriousness. See 22 U.S.C. States, 100 United 447 U.S. S.Ct. 618(f), (1982 (g) 1985). Supp. & Ill

1107 becoming agent, Act per of his after argues that continuation McGoff registra timely mits. “One able to make a does he file is obligation to file until consequences with noncriminal but His rationale for process. of due violation failing any any to make at obscure, cites Jus position, otherwise this hardly position challenge is in a to time in Kru concurrence famous tice Jackson’s United constitutionality [Act].” 336 U.S. v. United lewitch Melekh, v. F.Supp. 193 592 States (1949), 716, 725, L.Ed. 93 790 (N.D.Ill.1961); States v. United Tous constitutionality of continu questioned sie, (2d Cir.1969) (dis 1159 long conspiracy offense as as its ing the involving tinguishing other cases as concealment, merely which is collateral any claim that disclosure at time would be offense, continued. In the Act before grounds, rev’d on other incriminatory), court, course, of infor concealment 25 L.Ed.2d 156 U.S. S.Ct. is itself the offense mation I beginning. think sufficient from the wholly Second, Bailey position state Court McGoff is same in, reading problem now that he was even under his any constitutional untroubled Act, years flight for the five after he continuing from the offense agent, any ceased and indeed at long fugitive remained justice for as initially register. 412-14, time after he failed at large. U.S. say, That McGoff’s self-incrimination it is Correspondingly, at 635-37. clear argument continuing apply any would plenary authority to estab whatever, offense duration ad- abolish, lish, statutes of limitation nothing peculiar to Act. dresses But States v. federal offenses. See United characterized, argument however Marion, 307, 322-24, reg- McGoff patently erroneous. failed (distinguish 30 L.Ed.2d initially required ister when he was to do ing “legislative assessments” between He so. then became liable for failure. presumptive prejudice embodied statutes today liability precisely remains His process pro due clause’s of limitation and Consequently, same. McGoff’s “inaction prejudice pre-in against tection actual give punish- did not rise to the threat Levine, v. United States delay); dictment beyond already risked,” ment he had Cir.1981) (3d (distin 126-27 F.2d continued statutory right peri guishing suspension of the of limitations “at- rights); od from constitutional all, merely to exist taches Ganaposki, F.Supp. 983- States the crime.” Tous- having once committed (M.D.Pa.1947). Nothing in the continua sie, “unpleasant 410 F.2d at obligation to file he tion of McGoff’s until doing consequence here of noth- [McGoff’s] process due clause. does file offends the ing” compulsory incrimination under hinging urges also that the end McGoff Toussie, Id.; accord the Constitution. filing file in of his results (White, J., U.S. at self-incrimination unconstitutional Martin, United States v. dissenting); admitting choice putting him a between (8th Cir.1984) (en banc).14 F.2d facts in the register or past failure to would reveal his IV. being prosecuted if he not to continues presents example This case a clear register. argument, although can, how court best inten- weight process more than his due slightly tions, step proper out of role as inter- its claim, merit. also lacks legislature’s intent and into preter First, not McGoff’s would intent. The the role of reviser of throughout it majority have resulted in incrimination whatso- makes evident it finds Act “Draconian” if registered days opinion he had within ten ever if (1980), applied Act is no claims as him 65 L.Ed.2d 205 and there 14. McGoff violates the first amendment. He somehow ambiguity in this case. prosecution says continued threat of that the be, understood, it must to end the obli- filing.

gation agent's with the continuation of the obli-

I doubt quite outrageous so gation to majority If the Act were believes. however,

ambiguous, of lenity rule legal

might rele- well nonetheless bestow majority’s finding. But al-

vance on the construe,

though Act is easy

ambiguous, arguably, and not even wheth- not, er would been Draco’s choice or have choice, Congress’

the Act is be enforced language, Because the Act’s written.

structure, legislative purpose, history support prosecution conclusion that

all major- timely,

of McGoff is and because the scope

ity significantly narrowed the agent's obligation register, which is Act,

the cornerstone of the

I respectfully dissent. CITIZEN, al., Petitioners,

PUBLIC et

v. YOUNG, Commissioner,

Dr. Frank Food Drug Administration, al., et

Respondents,

Cosmetic, Toiletry Fragrance Associ ation, Intervenor. CITIZEN, al., Appellants,

PUBLIC et

DEPARTMENT OF HEALTH & SERVICES,

HUMAN et al.

Nos. 86-5150. Appeals,

United States Court of

District of Columbia Circuit.

Argued March

Decided Oct. might due to possibility prosecuted his continued failure to "chills" he for his publisher his activities as writer and because he past failure to disclose his activities as an "worry being second-guessed must about on the any person is no different from that of who publications writings motivations for literally happens commits a crime and who also to be a Appel- for the rest of his life." Brief for publisher and writer. It has no first amend- Any lee 43-44. This claim is frivolous. significance. ment present "chill” on McGoffs activities due to the

Case Details

Case Name: United States v. John Peter McGoff

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

Date Published: Oct 13, 1987

Citation: 831 F.2d 1071

Docket Number: 87-3005

Court Abbreviation: D.C. Cir.