United States v. Duane Nishiie ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10405
Plaintiff-Appellant,
D.C. No.
v. 1:17-cr-00550-
SOM-1
DUANE NISHIIE, AKA Suh Jae Hon,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Hawaii
Susan O. Mollway, District Judge, Presiding
Argued and Submitted January 15, 2021
San Francisco, California
Filed May 12, 2021
Before: Mary M. Schroeder, Jay S. Bybee, and
Ryan D. Nelson, Circuit Judges.
Opinion by Judge R. Nelson;
Concurrence by Judge Schroeder
2 UNITED STATES V. NISHIIE
SUMMARY *
Criminal Law
The panel reversed the district court’s order dismissing
as time barred seven non-conspiracy criminal counts, and
remanded for further proceedings, in a case in which the
indictment alleges that Duane Nishiie engaged in a scheme
seeking payments in exchange for steering the award of
Department of Defense contracts for infrastructure,
engineering, and construction projects in Korea.
The seven non-conspiracy counts, which were based on
alleged activity that occurred prior to September 21, 2012,
would be time barred absent a suspension—pursuant to
Wartime Suspension of Limitations Act (WSLA), 18 U.S.C.
§ 3287—of the running of the five-year statute of limitations
set forth in 18 U.S.C. § 3282(a).
The appeal raised a question of first impression: which
of the three categories of offenses under the WSLA—fraud,
property, or contract—is modified by a clause requiring a
nexus between the charged criminal conduct and a specific,
ongoing war or congressional authorization of military force.
After considering the WSLA’s plain language and
structure, well-established canons of statutory construction,
and the WSLA’s amendment history and context, the panel
concluded that the WSLA's restrictive-relative clause does
not modify the first offense category “involving fraud or
attempted fraud” or the second offense category involving
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. NISHIIE 3
“any real or personal property of the United States.” The
panel held that the running of any statute of limitations
applicable to the WSLA’s fraud and property offense
categories—offense categories under which Nishiie was
charged—is therefore suspended, whether or not a nexus
exists between these offenses and either war or “authorized
use of the Armed Forces.”
Concurring, Judge Schroeder agreed that the district
court’s judgment must be reversed, but disagreed with the
majority that any canon of statutory construction aids this
court’s decision. What persuaded Judge Schroeder that the
suspension restriction applies only to crimes related to
contracts (and not to fraud and property crimes) is that the
contract category and the restrictive clause were enacted
together in July 1944 and have stayed together despite
subsequent amendments reordering the list of crimes within
the WSLA.
COUNSEL
Francesco Valentini (argued), Trial Attorney, Appellate
Section; Robert A. Zink, Acting Deputy Assistant Attorney
General; Brian C. Rabbit, Acting Assistant Attorney
General; Richard B. Evans, Peter M. Nothstein, and Erica
O’Brien Waymack, Trial Attorneys, Public Integrity
Section; Criminal Division, United States Department of
Justice, Washington, D.C.; for Plaintiff-Appellant.
De Anna S. Dotson (argued), Dana Point, California, for
Defendant-Appellee.
4 UNITED STATES V. NISHIIE
OPINION
R. NELSON, Circuit Judge:
This appeal raises a question of first impression: which
of the three categories of offenses under the Wartime
Suspension of Limitations Act (“WSLA”), 18 U.S.C.
§ 3287—fraud, property, or contract—is modified by a
clause requiring a nexus between the charged criminal
conduct and a specific, ongoing war or congressional
authorization of military force. If the WSLA’s war nexus
clause—“which is connected with or related to the
prosecution of the war or directly connected with or related
to the authorized use of the Armed Forces”—applies, then
the criminal charges against Duane Nishiie are time barred.
The district court held the WSLA’s war nexus clause
modifies both the fraud and property offense categories,
meaning the seven criminal counts against Nishiie were time
barred. Based upon the WSLA’s text, history, and context,
however, we hold that the war nexus clause modifies only
the third offense category—not at issue here. Accordingly,
we reverse the district court’s dismissal of Nishiie’s seven
criminal counts and remand for further proceedings.
I
Beginning around 2005, the governments of the United
States and the Republic of Korea (“Korea”) commenced a
joint program to relocate and consolidate military bases and
installations located in Korea. Between approximately 2006
and 2012, Duane Nishiie is alleged to have worked as a
contracting officer in Korea for the United States
Department of Defense (“DOD”).
On September 21, 2017, a federal grand jury charged
Nishiie in a nine-count indictment based on alleged conduct
UNITED STATES V. NISHIIE 5
originating in Korea. According to the indictment, between
2008 and 2015, Nishiie engaged in a scheme seeking
payments in exchange for steering the award of multi-
million-dollar contracts for infrastructure, engineering, and
construction projects in Korea. The indictment further
alleged that around 2012 Company A employed Nishiie,
after his resignation from the DOD, to lobby DOD to favor
Company A for projects in Korea. To facilitate this, Nishiie
allegedly accepted bribes, received kickbacks, laundered
money, made false reporting disclosures, concealed
evidence, and worked with a co-conspirator, among other
conduct.
Nishiie was charged with conspiracy to commit bribery
and honest-services fraud (18 U.S.C. § 371); bribery
(18 U.S.C. §§ 2; 201(b)(2)); three counts of honest-service
wire fraud (18 U.S.C. §§ 1343; 1346); conspiracy to commit
money laundering (18 U.S.C. § 1956(h)); and three counts
of making a false statement (18 U.S.C. § 1001). 1 The seven
non-conspiracy criminal counts at issue in this appeal were
based on alleged activity that occurred prior to September
21, 2012, and therefore would have been time barred absent
a suspension of the running of the applicable five-year
statute of limitations pursuant to the WSLA. The United
States also sought forfeiture of property under 18 U.S.C.
§§ 981(a), 982(a), and 2461(c).
Nishiie moved to dismiss the indictment on the ground
that the charges were barred by the applicable statute of
1
Some of the charges were also brought against co-defendant
Seung-Ju Lee, a purported officer in the Korean Ministry of Defense’s
procurement arm. The two conspiracy counts, not at issue in this appeal,
are based on Nishiie’s alleged actions in concert with Lee and other
individuals.
6 UNITED STATES V. NISHIIE
limitations. See 18 U.S.C. § 3282(a). According to Nishiie,
“[t]he completion dates, that initiated the running of the
statute of limitations” of the following counts in the
indictment are: “Count Two – May 2012, Count Three –
September 18, 2008, Count Four – March 20, 2009, Count
Five – April 6, 2010, Count Seven – February 9, 2010, Count
Eight – January 18, 2011, Count Nine – January 13, 2012.”
Under the WSLA, certain charges suspend the running of
any statute of limitations applicable to any offense:
“involving fraud or attempted fraud against the United States
. . . whether by conspiracy or not” (fraud offense); or
“committed in connection with the acquisition, care,
handling, custody, control or disposition of any real or
personal property of the United States” (property offense);
or “committed in connection with the negotiation,
procurement, award . . . of any contract, subcontract, or
purchase order which is connected with or related to the
prosecution of the war or directly connected with or related
to the authorized use of the Armed Forces” (contract
offense). 18 U.S.C. § 3287.
This restrictive relative clause (also called the limiting
“which” clause)—“which is connected with or related to the
prosecution of the war or directly connected with or related
to the authorized use of the Armed Forces”—follows a series
of three enumerated offense categories. The “which” clause
undisputedly modifies the third category for contract
offenses. Whether the “which” clause also modifies the
remote fraud and property offense categories ultimately is
dispositive of the question here. In short, if the limiting
“which” clause modifies the fraud and property offense
categories, the seven non-conspiracy counts against Nishiie
are time barred. If the “which” clause does not modify the
fraud and property offense categories, the running of any
applicable statute of limitations has been suspended and the
UNITED STATES V. NISHIIE 7
charges are not time barred. The relevant first sentence of
the WSLA provides:
When the United States is at war or Congress
has enacted a specific authorization for the
use of the Armed Forces, as described in
section 5(b) of the War Powers Resolution
(50 U.S.C. 1544(b)), the running of any
statute of limitations applicable to any
offense (1) involving fraud or attempted
fraud against the United States or any agency
thereof in any manner, whether by conspiracy
or not, or (2) committed in connection with
the acquisition, care, handling, custody,
control or disposition of any real or personal
property of the United States, or
(3) committed in connection with the
negotiation, procurement, award,
performance, payment for, interim financing,
cancelation, or other termination or
settlement, of any contract, subcontract, or
purchase order which is connected with or
related to the prosecution of the war or
directly connected with or related to the
authorized use of the Armed Forces, or with
any disposition of termination inventory by
any war contractor or Government agency,
shall be suspended until 5 years after the
termination of hostilities as proclaimed by a
Presidential proclamation, with notice to
Congress, or by a concurrent resolution of
Congress.
18 U.S.C. § 3287.
8 UNITED STATES V. NISHIIE
Nishiie argues the suspension of the running of any
statute of limitations applicable to either the fraud or
property offense categories is not triggered because the
“United States was not at war nor had a specific
authorization for the use of armed forces been declared for
South Korea during the time applicable to the facts of this
case.” According to Nishiie, a nexus to war is required to
trigger the suspension of the running of any applicable
statute of limitations under the WSLA’s fraud and property
offense categories, similar to the contract offense category.
Consequently, Nishiie argues absent “war or authorized use
of Armed Forces in any conflict in South Korea during the
time Nishiie was working in South Korea,” the statute of
limitations for “Counts Two, Three, Four, Five, Seven,
Eight, and Nine, all expired prior to the filing of the
Indictment on September 21, 2017.”
The United States argues the indictment is timely
because the “WSLA has never contained a requirement that
offenses falling under its first two categories be
substantively related to the hostilities.” It reads the WSLA’s
limiting “which” clause to only modify the contract offense
category, and not the fraud and property offense categories.
Under this interpretation, to trigger suspension of the
running of any applicable statute of limitations, no
substantive nexus is required between either fraud or
property offense categories and the prosecution of war or
authorization of military force.
The district court summarized the issue: if the limiting
“which” clause “applies to all three categories” of
offenses—fraud, property, and contract—then “at least some
of the charges against Defendant Duane Nishiie may be
time-barred. If, on the other hand, the modifier applies only
to the closest category, the limitations periods applicable to
UNITED STATES V. NISHIIE 9
the charges in this case are tolled, and all of the charges
against Nishiie are timely.”
The district court held that the “which” clause is a
“modifier [that] applies to all three categories” based on the
language of the statute, its legislative history, and the rule of
lenity. Therefore, the district court held that the statute of
limitations was not tolled as to the seven non-conspiracy
criminal counts alleged in the indictment, as there was not a
nexus between the war and the alleged crimes. On this basis,
the district court dismissed Counts Two, Three, Four, Five,
Seven, Eight, and Nine as untimely. 2 The district court noted
the United States’s “conten[tion] that Nishiie’s alleged fraud
with respect to steering military base contracts in Korea falls
under the first offense category, which involves fraud-based
crimes, rather than the more specific contract-based crimes
in the third category.” Consequently, according to the
district court, the United States “will likely never
characterize any offense it charges as falling under” the third
offense category to “avoid the impact of the ‘which’ clause.”
The United States appealed the district court’s order
dismissing the seven non-conspiracy criminal counts,
arguing the exclusive application of the limiting “which”
clause to the WSLA’s third offense category or “offenses
that involve wartime contracts” is the correct reading. We
2
The district court did not dismiss Counts One and Six, the
conspiracy counts, as it “question[ed] its authority to dismiss Counts One
and Six” because it “would require . . . grant[ing] a motion that no party
ha[d] filed.” “While the [district] court agree[d] that the applicable
statutes of limitations would bar Counts One and Six had those counts
alleged conspiracies that ended by April 30, 2012, that [wa]s not the
charge before th[e] [district] court.”
10 UNITED STATES V. NISHIIE
have jurisdiction under 18 U.S.C. § 3731. See United States
v. Russell, 804 F.2d 571, 573 (9th Cir. 1986).
II
We review the district court’s dismissal of Nishiie’s
seven counts on statute-of-limitations grounds de novo. See
Mills v. City of Covina, 921 F.3d 1161, 1165 (9th Cir. 2019).
III
The WSLA’s plain language and structure, well-
established canons of statutory construction, and the
WSLA’s amendment history and context, show the limiting
“which” clause at issue does not modify either the fraud or
property offense categories.
The Supreme Court has not squarely confronted this
question in its few cases interpreting the WSLA. Because
both parties claim favorable precedent from the Court’s
WSLA jurisprudence, we briefly summarize those cases. In
Kellogg Brown & Root Servs., Inc. v. United States, 575 U.S.
650, 655–62 (2015), the Court held that the “text, structure,
and history of the WSLA show that the Act applies only to
criminal offenses.” Notably, the Court omitted inclusion of
the limiting “which” clause when it quoted the statutory
text. 3
See e.g., Kellogg Brown, 575 U.S. at 657 (“Congress made more
3
changes in 1948. From then until 2008, the WSLA’s relevant language
was as follows:
‘When the United States is at war the running of any
statute of limitations applicable to any offense
UNITED STATES V. NISHIIE 11
In 1953, the Court decided three cases interpreting the
WSLA, two of which are informative here. See United
States v. Grainger, 346 U.S. 235 (1953); Bridges v. United
States, 346 U.S. 209 (1953); United States v. Klinger,
345 U.S. 979 (1953) (per curiam). In Bridges, the Court
considered whether the WSLA “suspended the running of
the general three-year statute of limitations” for three
charged offenses of knowingly making and conspiring to
make a false statement under oath in a naturalization
proceeding, and aiding fraud. 346 U.S. at 211, 221 (footnote
omitted). Because the acts occurred in 1945 and the
indictment was brought in 1949, the indictment had to be
dismissed unless the “general limitation applicable to
noncapital offenses” was “suspended or superseded.” Id. at
215–16. The Court held that the WSLA did not apply
because none of the offenses “involve[d] the defrauding of
the United States in any pecuniary manner or in a manner
concerning property” and precedent interpreting “wartime
suspension of limitations authorized by Congress [were]
limited strictly to offenses in which defrauding or attempting
to defraud the United States is an essential ingredient of the
offense charged.” Id. at 221.
In Grainger, a case involving fraudulent attempts to
obtain payments from the Commodity Credit Corporation,
the Court considered whether the WSLA “suspended the
(1) involving fraud or attempted fraud against the
United States or any agency thereof in any manner,
whether by conspiracy or not . . . shall be suspended
until three years after the termination of hostilities as
proclaimed by the President or by a concurrent
resolution of Congress.’”).
This is not the first instance the Court has recited the WSLA in this
manner.
12 UNITED STATES V. NISHIIE
running of the general three-year statute of limitations as to
violations of the false claims clause of the False Claims Act”
and “if so, whether the indictments for such offenses, found
in 1952, were timely.” 346 U.S. at 237 (footnote omitted).
The Court held the WSLA tolled the limitations period,
which permitted the United States to prosecute, in 1952,
False Claim Act offenses committed in 1945 and 1946. Id.
at 240. The Court also omitted inclusion of the limiting
“which” clause when it recited provisions of the WSLA. 4
Finally, in United States v. Smith, the Court held the
WSLA “inapplicable to crimes committed after the date of
termination of hostilities.” 342 U.S. 225, 228 (1952).
Prosecution for the crimes charged—forgery and knowingly
making a false statement—were barred because the charges
were committed after the “date of the proclamation of
termination of hostilities.” Id. at 227. The Court again
omitted inclusion of the restrictive relative clause when it
quoted the relevant provisions of the WSLA. 5
4
The Court stated: “The Suspension Act provides that—
‘When the United States is at war the running of any
statute of limitations applicable to any offense
(1) involving fraud or attempted fraud against the
United States or any agency thereof in any manner,
whether by conspiracy or not * * * shall be suspended
until three years after the termination of hostilities as
proclaimed by the President or by a concurrent
resolution of Congress.’”
Grainger, 346 U.S. at 242.
5
The Court stated:
UNITED STATES V. NISHIIE 13
No Supreme Court or circuit-court decision applying the
WSLA definitively answers whether the limiting “which”
clause modifies remote antecedents. See United States v.
DeLia, 906 F.3d 1212, 1221 n.11 (10th Cir. 2018) (collecting
cases). We do so now in the first instance.
A
“Statutory construction ‘is a holistic endeavor,’ and, at
a minimum, must account for a statute’s full text, language
as well as punctuation, structure, and subject matter.” U.S.
Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc.,
508 U.S. 439, 455 (1993) (quoting United Sav. Assn. of
Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S.
365, 371 (1988)). “We begin, as we must, with the text” of
At the time of the alleged offenses the Act read in
relevant part: “The running of any existing statute of
limitations applicable to any offense against the laws
of the United States (1) involving defrauding or
attempts to defraud the United States or any agency
thereof whether by conspiracy or not, and in any
manner, * * * shall be suspended until three years after
the termination of hostilities in the present war as
proclaimed by the President or by a concurrent
resolution of the two Houses of Congress.”
Smith, 342 U.S. at 226–27 (footnote omitted). Two 1950s era circuit-
court opinions omit the limiting “which” clause: “‘When the United
States is at war the running of any statute of limitations applicable to any
offense (1) involving fraud or attempted fraud against the United States
or any agency thereof in any manner, whether by conspiracy or not, [. . .]
(3) * * *, shall be suspended . . . .’” See United States v. Lurie, 222 F.2d
11, 13 (7th Cir. 1955); see also United States v. Witherspoon, 211 F.2d
858, 861–62 (6th Cir. 1954) (“Title 18 U.S.C. § 3287, in part, provides:
‘When the United States is at war the running of any statute of limitations
applicable to any offense (1) involving fraud or attempted fraud against
the United States * * * shall be suspended . . .’”).
14 UNITED STATES V. NISHIIE
the WSLA. See Connell v. Lima Corp., 988 F.3d 1089, 1097
(9th Cir. 2021). Our “review is guided by well-established
rules of statutory interpretation. We ‘begin[] with the
statutory text, and end[] there as well if the text is
unambiguous.’” Id. (quoting BedRoc Ltd., LLC v. United
States, 541 U.S. 176, 183 (2004)).
As amended, and relevant to the charges against Nishiie,
the WSLA provides:
When the United States is at war or Congress
has enacted a specific authorization for the
use of the Armed Forces, as described in
section 5(b) of the War Powers Resolution
(50 U.S.C. 1544(b)), the running of any
statute of limitations applicable to any
offense (1) involving fraud or attempted
fraud against the United States or any agency
thereof in any manner, whether by conspiracy
or not, or (2) committed in connection with
the acquisition, care, handling, custody,
control or disposition of any real or personal
property of the United States, or
(3) committed in connection with the
negotiation, procurement, award,
performance, payment for, interim financing,
cancelation, or other termination or
settlement, of any contract, subcontract, or
purchase order which is connected with or
related to the prosecution of the war or
directly connected with or related to the
authorized use of the Armed Forces, or with
any disposition of termination inventory by
any war contractor or Government agency,
shall be suspended until 5 years after the
UNITED STATES V. NISHIIE 15
termination of hostilities as proclaimed by a
Presidential proclamation, with notice to
Congress, or by a concurrent resolution of
Congress.
18 U.S.C. § 3287.
We recognize the plain language of the WSLA without
resort to canons of construction does not necessarily convey
a clear reading of whether the fraud and property offense
categories are modified by the limiting “which” clause. But
“[a]mbiguity is a creature not of definitional possibilities but
of statutory context.” Brown v. Gardner, 513 U.S. 115, 118
(1994). Therefore, we resolve any potential ambiguity using
all available tools in a judge’s interpretive toolbox.
B
Ordinary canons of statutory construction support an
unambiguous reading of the WSLA’s limiting “which”
clause. See Valenzuela Gallardo v. Barr, 968 F.3d 1053,
1063 (9th Cir. 2020). Two syntactic canons are specifically
raised here: the last antecedent canon and the series-qualifier
canon. These canons ostensibly conflict in reaching the
correct interpretation. The last antecedent canon, however,
is most aligned with the WSLA’s language and context.
1
The last antecedent canon applies in the interpretation of
“statutes that include a list of terms or phrases followed by a
limiting clause.” Lockhart v. United States, 577 U.S. 347,
351 (2016); see A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts 144 (2012) (“Scalia &
Garner”). “The rule reflects the basic intuition that when a
modifier appears at the end of a list, it is easier to apply that
16 UNITED STATES V. NISHIIE
modifier only to the item directly before it.” Lockhart, 577
U.S. at 351; see Barnhart v. Thomas, 540 U.S. 20, 26 (2003).
Consistent with the last antecedent canon, the limiting
“which” clause would only modify the third category—
contract offenses—that immediately precedes it.
Accordingly, as a corollary, neither the fraud nor
property offense categories—under which Nishiie was
charged—are similarly constrained. See Lockhart, 577 U.S.
at 351. While it is grammatically possible to read the
limiting “which” clause to modify the fraud and property
offense categories, the restrictive relative clause is thus best
read consistent with the last antecedent canon to only modify
the immediately preceding contract offense category. See
Hall v. U.S. Dep’t of Agric., 984 F.3d 825, 838 (9th Cir.
2020). This is “particularly true where it takes more than a
little mental energy to process the individual entries in the
list, making it a heavy lift to carry the modifier across them
all.” Lockhart, 577 U.S. at 351. The varied syntax and
distinct elements within each category of offense “makes it
hard for the reader to carry” the limiting clause across the
two remote offense categories. See id.
Punctuation also supports the last antecedent canon as
the most relevant canon for the WSLA. “The doctrine of the
last antecedent, including its observation about the
placement of commas, is consistent with general
grammatical rules, found outside the legal context,
governing restrictive and nonrestrictive (also called
‘essential’ and ‘nonessential’) clauses.” State v. Webb,
927 P.2d 79, 83 (Or. 1996) (Graber, J.) (en banc). As noted
by the Webb Court, the Chicago Manual of Style contains a
reflection of this rule. See id. According to The Chicago
Manual of Style § 6.27 (17th ed. 2017) (ebook):
UNITED STATES V. NISHIIE 17
A clause is said to be restrictive (or defining)
if it provides information that is essential to
understanding the intended meaning of the
rest of the sentence. Restrictive relative
clauses are usually introduced by that (or by
who/whom/whose) and are never set off by
commas from the rest of the sentence. . . . A
clause is said to be nonrestrictive (or
nondefining or parenthetical) if it could be
omitted without obscuring the identity of the
noun to which it refers or otherwise changing
the intended meaning of the rest of the
sentence. Nonrestrictive relative clauses are
usually introduced by which (or
who/whom/whose) and are set off from the
rest of the sentence by commas.
No comma separates the limiting “which” clause from the
third offense category in the current version of the WSLA:
“committed in connection with the negotiation . . . of any
contract, subcontract, or purchase order which is connected
with or related to the prosecution of the war or directly
connected with or related to the authorized use of the Armed
Forces.” 18 U.S.C. § 3287. Given the restrictive relative
clause is not set off from the immediately preceding category
by a comma, common grammatical rules suggest that
Congress intentionally tied it to the last antecedent.
2
On the other hand, application of the series-qualifier
canon is inappropriate given the WSLA’s first paragraph
contains just a single 187-word sentence. The series-
qualifier canon intuitively comports with casual, spoken
English, but not with complex criminal legislation. Under
18 UNITED STATES V. NISHIIE
this syntactic canon, “[w]hen there is a straightforward,
parallel construction that involves all nouns or verbs in a
series,” then a postpositive modifier “normally applies to the
entire series.” Scalia & Garner at 147. This canon is
inadvisable here for several reasons. The text within each
category of offense does not present a parallel construction.
One need look no further than the district court’s masterclass
sentence diagramming, see United States v. Nishiie, 421 F.
Supp. 3d 958, 966–67 (D. Haw. 2019), to recognize the
complexity of the WSLA’s language. The density and
intricacy of the WSLA’s text also counsel against
application of the series-qualifier canon here.
Some examples underscore the general primacy of the
last antecedent canon for a multi-pronged disjunctive statute,
like the WSLA, over the series-qualifier canon. Spoken or
written statements presenting an uncomplicated and short
series of nouns or phrases are more readily interpreted using
the series-qualifier canon. Consider the following examples.
In the “phrase ‘no person shall be deprived of life, liberty, or
the pursuit of happiness, without due process of law,’ the
phrase ‘without due process of law’ modifies all three
terms.” Enron Creditors Recovery Corp. v. Alfa, S.A.B. de
C.V., 651 F.3d 329, 335 (2d Cir. 2011). As another example:
“Imagine a friend told you that she hoped to meet ‘an actor,
director, or producer involved with the new Star Wars
movie.’ You would know immediately that she wanted to
meet an actor from the Star Wars cast—not an actor in, for
example, the latest Zoolander.” Lockhart, 577 U.S. at 362
(Kagan, J., dissenting). Likewise, “[s]uppose a real estate
agent promised to find a client ‘a house, condo, or apartment
in New York.’ Wouldn’t the potential buyer be annoyed if
the agent sent him information about condos in Maryland or
California?” Id. These straightforward and conversational
statements require no mental gymnastics. In such plain and
UNITED STATES V. NISHIIE 19
parallel sentences, the series-qualifier canon makes sense.
But application of the series qualifier canon does not apply
given the complexity of the WSLA’s language.
3
The disjunctive “or” as used in the WSLA is also
instructive. “Canons of construction ordinarily suggest that
terms connected by a disjunctive be given separate
meanings, unless the context dictates otherwise; here it does
not.” Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979).
“As a general rule, the use of a disjunctive in a statute
indicates alternatives and requires that they be treated
separately.” Azure v. Morton, 514 F.2d 897, 900 (9th Cir.
1975). Use of the disjunctive form here—“or” after the first
and second offense categories—“tends to cut off” the
“which” clause so that its “backward reach is limited.” See
Scalia & Garner at 149. While “statutory context can
overcome the ordinary, disjunctive meaning of ‘or,’” the
WSLA’s context—using the “or” twice—“favors the
ordinary disjunctive meaning of ‘or.’” See Encino
Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018). 6
The relevant text—a single 187-word sentence—simply
does not favor carryover modification given the repetitive
use of a determiner—“or”—before the third offense
category. See Scalia & Garner at 148. 7
6
“The ordinary and contemporary meaning of the term is sometimes
‘either . . . or . . . but not both’ and other times ‘and/or.’ We have
consistently defined ‘or’ as indicating separate alternatives.” United
States v. Gallegos, 613 F.3d 1211, 1215 (9th Cir. 2010).
7
Consider an example in miniature: Suppose a parent instructs a
child she can ride a scooter, a skateboard, or a bike with a helmet. The
20 UNITED STATES V. NISHIIE
C
Ultimately, “statutory language must be construed as a
whole.” Shaw v. Bank of Am. Corp., 946 F.3d 533, 539 (9th
Cir. 2019) (citation omitted). To apply the contested
limiting “which” clause to modify the first and second
offense categories would contravene not only ordinary
canons of construction but also the WSLA’s structure. The
location of both the fraud and property offense categories
structurally precede the contract offense category. Consider,
arguendo, Nishiie’s proposed interpretation. His reading
would invite additional interpretative conundrums than
presently exist. We would construe, for example, the first
offense category as the following: “involving fraud or
attempted fraud against the United States or any agency
thereof in any manner, whether by conspiracy or not, which
is connected with or related to the prosecution of the war or
directly connected with or related to the authorized use of
the Armed Forces.” See 18 U.S.C. § 3287. This begs the
question: does the limiting “which” clause modify the
immediately preceding phrase, “whether by conspiracy or
not,” or does it modify only “fraud and attempted fraud”?
Excising the restrictive relative clause and grafting it to
remote antecedents ultimately renders an illogical
construction in the context of the WSLA: a series of
disjunctive clauses containing complex elements.
modifier “with a helmet” is best understood as applying to each activity.
Alternatively, suppose the parent instructs the child she can ride a
scooter, or a skateboard, or a bike with a helmet. With the additional
disjunctive—an “or” before “a skateboard”—the helmet modifier is best
understood as requiring a helmet for bike riding alone. In other words,
the second instruction would be best understood to mean the child can
ride a scooter, or she can ride a skateboard, or she can ride a bike with a
helmet.
UNITED STATES V. NISHIIE 21
Moreover, as characterized by the district court, this
limiting “which” clause is not only situated within the third
offense category but also nestled between another limiting
clause that corresponds to contractual affairs: “or with any
disposition of termination inventory by any war contractor
or Government agency.” Whether to graft this limiting
clause concerning “termination inventory” to modify the
first and second offense categories thus raises more
interpretative problems. Our “reading avoids jumping
backward over multiple prepositional phrases” in “favor of
a more natural reading.” See Hall, 984 F.3d at 838.
D
“In addition to exploring the text of the statute itself, we
examine the relevant statutory context.” Cnty. of Amador v.
U.S. Dep’t of the Interior, 872 F.3d 1012, 1022 (9th Cir.
2017). The statutory context and history of the WSLA
provide equally strong support for the conclusion, see
Kellogg Brown, 575 U.S. at 659, that no nexus is required
between either the fraud or property offense categories and
the limiting “which” clause. Statutory history, particularly
from 1944, “conclusively refutes” the interpretation
advanced by Nishiie. 8 See Powerex Corp. v. Reliant Energy
Servs., Inc., 551 U.S. 224, 231 (2007).
“The WSLA’s roots extend back to the time after the end
of World War I. Concerned about war-related frauds,
Congress in 1921 enacted a statute that extended the statute
of limitations for such offenses.” Kellogg Brown, 575 U.S.
8The district court’s analysis, though comprehensively reasoned,
overlooks statutory history between 1940 and 1950 that strongly
suggests Congress unambiguously intended our construction. This
oversight may well be because the parties did not flesh out the statutory
history below. But this history buttresses our conclusion.
22 UNITED STATES V. NISHIIE
at 656. The 1921 Act “provided as follows: ‘[I]n offenses
involving the defrauding or attempts to defraud the United
States or any agency thereof . . . and now indictable under
any existing statutes, the period of limitations shall be six
years.’” Id. (quoting Act of Nov. 17, 1921, ch. 124, 42 Stat.
220) (emphasis omitted). “[T]he 1921 Act was a temporary
measure enacted to deal with problems resulting from the
First World War.” Id. at 1978.
“In 1942, after the United States entered World War II,
Congress enacted a similar suspension statute. This law, like
its predecessor, applied to fraud ‘offenses . . . now indictable
under any existing statutes,’ but this time the law suspended
‘any’ ‘existing statute of limitations’ until the fixed date of
June 30, 1945.” Id. at 1975 (citation and internal quotation
marks omitted). The predecessor statute from 1942 read in
relevant part:
That the running of any existing statute of
limitations applicable to offenses involving
the defrauding or attempts to defraud the
United States or any agency thereof, whether
by conspiracy or not, and in any manner and
now indictable under any existing statutes,
shall be suspended until June 30, 1945, or
until such earlier time as the Congress by
concurrent resolution, or the President, may
designate.
Act of Aug. 24, 1942, ch. 555, 56 Stat. 747–48. Only one
offense category was identified in the 1942 version:
“defrauding or attempts to defraud the United States.”
Absent from the 1942 statute was a comparable “which”
clause concerning the “prosecution of the war” or
“authorized use of the Armed Forces.”
UNITED STATES V. NISHIIE 23
Successive amendments starting in 1944 introduced the
“which” clause and added additional offense categories. The
position of the limiting “which” clause, however, remained
consistent throughout subsequent amendments despite
reordering of the alternative offense categories. This
strongly suggests the war nexus clause was intended to limit
exclusively what was then the second and now the third
offense category—for contract offenses. The earlier 1944
version read in relevant part:
The running of any existing statute of
limitations applicable to any offense against
the laws of the United States . . .
(2) committed in connection with the
negotiation, procurement, award,
performance, payment for, interim financing,
cancelation or other termination or
settlement, of any contract, subcontract, or
purchase order which is connected with or
related to the prosecution of the present war,
or with any disposition of termination
inventory by any war contractor or
Government agency, shall be suspended . . . .
Act of July 1, 1944, ch. 358, §19(b), 58 Stat. 667. This July
1944 amendment introduced a limiting “which” clause
nearly identical with the modern statute—“which is
connected with or related to the prosecution of the present
war”—along with a new contract offense category. Another
limiting clause—“or with any disposition of termination
inventory by any war contractor or Government agency”—
was nestled within the contract offense category.
A subsequent October 1944 amendment read in relevant
part:
24 UNITED STATES V. NISHIIE
The running of any existing statute of
limitations applicable to any offense . . .
(2) committed in connection with the
negotiation, procurement, award,
performance, payment for, interim financing,
cancelation or other termination or
settlement, of any contract, subcontract, or
purchase order which is connected with or
related to the prosecution of the present war,
or with any disposition of termination
inventory by any war contractor or
Government agency, or (3) committed in
connection with the care and handling and
disposal of property under the Surplus
Property Act of 1944 . . . .
Act of Oct. 3, 1944, ch. 479, 58 Stat. 781. Because
sequential changes in predecessor statutes best reflect
congressional intent, the cumulative effect of these 1942 and
1944 amendments resolve any ambiguity about the reach of
the restrictive relative clause with respect to the fraud and
property offense categories in the current version of the
WSLA. That the contested “which” clause immediately and
consistently follows one offense category—namely contract
offenses—across predecessor versions of the WSLA is a
strong indication of its plain meaning.
Placement of the limiting “which” clause in the October
1944 Act is the historical lynchpin that resolves any
ambiguity about whether the “which” clause only modifies
the contract offense category. Indeed, the textual assignment
in the October 1944 Act of the clause—“which is connected
with or related to the prosecution of the present war”—to
immediately follow the contract category (then the second
offense category) makes it impossible to read the clause as
UNITED STATES V. NISHIIE 25
modifying either the then-first (fraud) or certainly the then-
third (property) offense categories.
In 1948, Congress made additional changes and codified
the WSLA in Title 18 of the United States Code. This 1948
codification, part of a broader codification of the Criminal
Code generally, was titled the “Wartime Suspension of
Limitations.” It read in relevant part:
When the United States is at war the running
of any statute of limitations applicable to any
offense . . . (3) committed in connection with
the negotiation, procurement, award,
performance, payment for, interim financing,
cancelation, or other termination or
settlement, of any contract, subcontract, or
purchase order which is connected with or
related to the prosecution of the war, or with
any disposition of termination inventory by
any war contractor or Government agency,
shall be suspended until three years after the
termination of hostilities as proclaimed by
the President or by a concurrent resolution of
Congress.
WSLA, Pub. L. No. 80-772, § 3287, 62 Stat. 683, 828
(1948). Of importance to our analysis, during the
codification process Congress reordered the offense
categories as fraud, property, and then contract. While the
codification process placed contract offenses as the third
category, it also confined the limiting “which” clause only
to the contract offense. If Congress intended the scope of
the limiting “which” clause, post-codification, to deviate
from apparent meaning accrued over time, it would have had
to clearly express so. Congress did not do that.
26 UNITED STATES V. NISHIIE
To the contrary, “absent [substantive] comment it is
generally held that a change during codification is not
intended to alter the statute’s scope.” See Walters v. Nat’l
Ass’n of Radiation Survivors, 473 U.S. 305, 318 (1985); see
also Tidewater Oil Co. v. United States, 409 U.S. 151, 162
(1972) (stating “a well-established principle governing the
interpretation of provisions altered in the 1948 revision is
that ‘no change is to be presumed unless clearly expressed’”)
(citation omitted); Keene Corp. v. United States, 508 U.S.
200, 209 (1993) (same). And with respect to the “1948
revision of the Criminal Code, the House and Senate Reports
caution repeatedly against reading substantive changes into
the revision.” See Muniz v. Hoffman, 422 U.S. 454, 474
(1975); see also Fourco Glass Co. v. Transmirra Prods.
Corp., 353 U.S. 222, 227 (1957) (“For it will not be inferred
that Congress, in revising and consolidating the laws,
intended to change their effect, unless such intention is
clearly expressed.”). Because “[f]undamental changes in the
scope of a statute are not typically accomplished” with
“subtle” moves, Kellogg Brown, 575 U.S. at 661, the
codification does not alter congressional meaning evident
from prior history, particularly the October 1944 Act.
Repetitive construction of the limiting “which” clause to
follow only the contract offense category, or the
immediately preceding clause, is flatly inconsistent with any
carryover modification to the two remote offense categories.
E
Our reading of the WSLA is also consistent with a nearly
identical statute of limitations enacted in 1950 and codified
in 1956 as part of the Uniform Code of Military Justice
UNITED STATES V. NISHIIE 27
(“UCMJ”). 9 See 10 U.S.C. § 843(f). That this statutory
comparison is not a textual cross-reference within the same
statute does not weaken its persuasiveness. See, e.g., Brown,
513 U.S. at 118. “[W]hen Congress uses the same language
in two statutes having similar purposes, particularly when
one is enacted shortly after the other, it is appropriate to
presume that Congress intended that text to have the same
meaning in both statutes.” Smith v. City of Jackson, Miss.,
544 U.S. 228, 233 (2005). “[C]ourts generally interpret
similar language in different statutes in a like manner when
the two statutes address a similar subject matter.” United
States v. Novak, 476 F.3d 1041, 1051 (9th Cir. 2007).
Unamended since its 1950 enactment, Article 43(f) of
the UCMJ reads in full:
When the United States is at war, the running
of any statute of limitations applicable to any
offense under this chapter—
(1) involving fraud or attempted fraud
against the United States or any agency
thereof in any manner, whether by conspiracy
or not;
(2) committed in connection with the
acquisition, care, handling, custody, control,
or disposition of any real or personal property
of the United States; or
9
See Art. 43. Statute of Limitations, Pub. L. No. 81-504, ch. 162, 64
Stat. 107, 121–22 (1950); Pub. L. No. 84-1028, ch. 1041, § 843, 70A
Stat. 1, 51–52 (1956).
28 UNITED STATES V. NISHIIE
(3) committed in connection with the
negotiation, procurement, award,
performance, payment, interim financing,
cancellation, or other termination or
settlement, of any contract, subcontract, or
purchase order which is connected with or
related to the prosecution of the war, or with
any disposition of termination inventory by
any war contractor or Government agency;
is suspended until three years after the
termination of hostilities as proclaimed by
the President or by a joint resolution of
Congress.
10 U.S.C. § 843(f). In all relevant respects, Article 43(f)
mirrors the codified version of the WSLA. And it was
adopted just two years after the WSLA was codified in the
current form. Beyond sharing a similar purpose with the
WSLA, lengthening a statute of limitations, § 843(f) uses
semi-colon punctuation, separated and numbered prongs
identifying offense categories, and grammatical space
between each category. Its construction of the “which”
clause to immediately follow the contract offense category
reinforces our unambiguous interpretation of the WSLA.
Congress could not have contemplated substantive
distinctions between practically identical and nearly
contemporaneous statutes of limitations.
* * *
Given this statutory history and context, complemented
by canons of construction consistent with the WSLA’s plain
text and structure, we have little trouble concluding that the
WSLA’s “which” clause unambiguously modifies the third
UNITED STATES V. NISHIIE 29
category for contract offenses—not at issue here. As such,
the fraud offense category—under which the United States
charged Nishiie—and the property offense category are not
modified by this war nexus clause. 10
IV
We recognize the WSLA “creates an exception to a
longstanding congressional ‘policy of repose’ that is
fundamental to our society and our criminal law.” Bridges,
346 U.S. at 215–16. The WSLA suspends already-running
statutes of limitation when its conditions are met. As we
detail, the WSLA unambiguously tolls the statute of
limitations during any period of war or authorization of the
use of the Armed Forces. We are acutely aware—and
somewhat concerned—that this interpretation, while legally
correct, may effectively toll the statute of limitations for
offenses under the WSLA for 20, 30, even 40 plus years. In
large part that results from the expansion of war powers far
beyond what they were when the WSLA was codified in
1948. Any policy concern for subjecting defendants to
10
Nishiie argues that “some ambiguity” in the WSLA counsels for
application of the “rule of lenity.” But the lenity principle is used to
“resolve ambiguity in favor of the defendant only ‘at the end of the
process of construing what Congress has expressed’ when the ordinary
canons of statutory construction have revealed no satisfactory
construction.” Lockhart, 577 U.S. at 376 (quoting Callanan v. United
States, 364 U.S. 587, 596 (1961)). As explained above, see supra
Part III, the WSLA is unambiguous. No “grievous ambiguity or
uncertainty” in the WSLA arises “after considering text, structure, [and]
history” such that we must guess as to what Congress intended. See
Barber v. Thomas, 560 U.S. 474, 488 (2010) (internal citations and
quotation marks omitted). Thus, the rule of lenity has no application
here.
30 UNITED STATES V. NISHIIE
decades-long liability is subordinated to the WSLA’s
unambiguous language.
“We sit as judges, not as legislators . . .” California v.
Ramos, 463 U.S. 992, 1014 (1983). “It is hardly this Court’s
place to pick and choose among competing policy arguments
. . . selecting whatever outcome seems to us most congenial,
efficient, or fair. Our license to interpret statutes does not
include the power to engage in . . . judicial policymaking.”
Pereida v. Wilkinson, 141 S. Ct. 754, 766–67 (2021).
Inducing perpetual limbo for potential criminal defendants
under the WSLA is presumably not what Congress had
contemplated. Nor did the 1940s era Congress likely
anticipate the transformation of warfare. Our interpretation
may seem like a gratuitous reading in light of modern
criminal justice reform. “But our public policy is fixed by
Congress, not the courts.” Bridges, 346 U.S. at 231 (Reed,
J., dissenting). Readily apparent from the WSLA’s
amendment history is that Congress is fully capable of
changing course and cabining the reach of any statute of
limitations if it decides public policy warrants such a change.
See Ramos v. Wolf, 975 F.3d 872, 900 (9th Cir. 2020)
(R. Nelson, J., concurring) (“Our sole responsibility as
Article III judges is narrow—‘to say what the law is.’”)
(quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177,
2 L.Ed. 60 (1803)); id. (“By constitutional design, the branch
that is qualified to establish . . . policy and check any
excesses in the implementation of that policy is Congress.”)
(citing City & Cnty. of San Francisco v. U.S. Citizenship &
Immigr. Servs., 944 F.3d 773, 809 (9th Cir. 2019) (Bybee,
J., concurring)).
Indeed, Congress has seemingly blessed this lengthy
tolling even given the modern expansion of the WSLA’s war
powers. When Congress amended the WSLA in 2008,
UNITED STATES V. NISHIIE 31
Congress changed the WSLA’s triggering event, providing
that suspension of the running of any applicable statute of
limitations was available not only “[w]hen the United States
is at war” but also when Congress has enacted a specific
authorization for the “use of the Armed Forces.” Congress
also extended the suspension period from three to five years.
Pub. L. 110-417, § 855, 122 Stat. 4545 (2008). These
patterns provide a concert of clarity sustaining our
unambiguous interpretation of the WSLA. At the time of
these 2008 amendments, Congress had twice authorized the
use of the Armed Forces since 2000: Authorization for Use
of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001);
Authorization for Use of Military Force Against Iraq
Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498(2002). These triggering events under the WSLA effectively
suspend the running of any statute of limitations applicable
to the fraud and property offense categories until five years
after the termination of hostilities is pronounced “by a
Presidential proclamation, with notice to Congress, or by a
concurrent resolution of Congress.” See 18 U.S.C. § 3287.
So, at the time of the 2008 amendments, Congress was
already aware the WSLA’s statute of limitations was tolled
for 13 years and likely would be tolled for longer. Since no
termination of hostilities has been announced, the
suspension of the running of applicable statute of limitations
now approaches two decades or more. See United States v.
Melendez-Gonzalez, 892 F.3d 9, 15 (1st Cir. 2018); United
States v. Frediani, 790 F.3d 1196, 1200–01 (11th Cir. 2015);
United States v. Pfluger, 685 F.3d 481, 485 (5th Cir. 2012).
Congress was certainly aware of the impact of these
Authorizations when it amended the WSLA in 2008 and
made no changes to the tolling provision. Nor has it since.
32 UNITED STATES V. NISHIIE
V
We conclude the WSLA’s restrictive relative clause—
“which is connected with or related to the prosecution of the
war or directly connected with or related to the authorized
use of the Armed Forces”—does not modify the first offense
category “involving fraud or attempted fraud” or the second
offense category involving “any real or personal property of
the United States.” 18 U.S.C. § 3287. Therefore, the
running of any statute of limitations applicable to the
WSLA’s fraud and property offense categories—offense
categories under which Nishiie was charged—is suspended,
whether or not a nexus exists between these offenses and
either war or “authorized use of the Armed Forces.” We
therefore reverse the district court and remand for further
proceedings.
REVERSED AND REMANDED.
SCHROEDER, Circuit Judge, concurring:
I agree with the majority’s conclusion that we must
reverse the district court. This is because the legislative
history and the subsequent codification of a similar provision
in the Uniform Code of Military Justice, 10 U.S.C. § 843(f),
compel this result. This history was unfortunately not
presented to the district court in the slim memoranda it
received.
I do not agree with the majority, however, that any canon
of statutory construction aids our decision. The majority
relies on the “last antecedent” canon, counting the syllables
and dissecting the arrangement of the words of the series to
conclude, apparently because of the series’ complexity, that
UNITED STATES V. NISHIIE 33
the modifier applies only to the last word in the series. The
district court diagramed the complex structure of the entire
sentence to conclude that the “series qualifier” canon is more
appropriate and that the modifier applies to all of the
components. United States v. Nishiie, 421 F. Supp. 3d 958,
968–71 (D. Haw. 2019). These differing opinions serve to
underscore Karl Llewellyn’s observation seventy years ago
that we can find a canon of interpretation to support any
result. See Karl N. Llewellyn, Remarks on the Theory of
Appellate Decision and the Rules or Canons of About How
Statutes are to be Construed, 3 Vand. L. Rev. 395 (1950).
The question before us is whether a clause, restricting the
suspension of the statute of limitations to those crimes
connected to ongoing military operations, applies to all three
categories of crimes in the WSLA or just to the third
category, contract crimes, that immediately precedes the
clause. What persuades me that the restriction applies only
to the last, contract, category is this: the restrictive clause
was part of the same July 1944 amendment that added the
contract category of crimes. When that category, with the
limitation, was originally added, it was the second item in
the provision. When subsequent amendments re-ordered the
list of crimes within the statute, the restrictive clause went
with the contract category to become number three within
the list. WSLA, Pub. L. No. 80-772, § 3287, 62 Stat. 683,
828 (1948). The important point to me is that the contract
category and the limitation were enacted together, and they
have stayed together despite reordering of the WSLA; they
should therefore be applied together. The “which” clause is
a limitation that should not be applied to the types of crimes
Congress identified separately, and without such limitation.
The majority correctly concludes that this reading is
further supported by the subsequent codification of a nearly
34 UNITED STATES V. NISHIIE
identical statute in the Uniform Code of Military Justice,
10 U.S.C. § 843(f), where the formulation and sequence of
paragraphs leave no doubt as to what the clause modifies.
The district court relied on expressions of intent by the
proponents of a 2008 amendment. Nishiie, 421 F. Supp. 3d
at 980. Congress there amended the WSLA to apply during
“the authorized use of Armed Forces” as well as during
officially declared wars. As the district court observed, the
amendment’s proponents intended to broaden the WSLA to
apply to crimes related to military activities in Afghanistan
and Iraq. See id. at 968–71. Yet the proponents did not
express any intent to limit the WSLA to those particular
military activities, and the amendment itself did not contain
any such locational limitation.
We are thus now left with a statute that requires a
connection to military activities only with respect to crimes
related to contracts, and that suspends the statute of
limitations for fraud and property crimes so long as the
United States is engaged in authorized military activities
anywhere.
The result is odd in today’s world where we speak of
“forever wars,” but it was understandable in 1944 when the
United States was engaged in a worldwide conflagration
with a perceptible end. That is when Congress enacted the
proviso with which we are concerned and which Congress
has not changed.
For these reasons, I agree with the majority that the
district court’s judgment must be reversed.