U.S. v. McGoff

• Decision Date: 13 October 1987
• Docket Number: No. 87-3005,87-3005
• Parties: , 56 USLW 2223 UNITED STATES of America, Appellant v. John Peter McGOFF.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1071

831 F.2d 1071

265 U.S.App.D.C. 312, 56 USLW 2223

UNITED STATES of America, Appellant v. John Peter McGOFF.

No. 87-3005.

United States Court of Appeals District of Columbia Circuit.

Argued May 18, 1987.

Decided Oct. 13, 1987.

Appeal from the United States District Court for the District of Columbia (Criminal No. 86-00369-01).

Robert D. Sharp, Atty., Dept. of Justice, with whom Joseph E. diGenova, U.S. Atty. and Brian M. Murtagh, Asst. U.S. Atty., Washington, D.C., were on the brief for appellant. Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellant.

Raymond G. Larroca, with whom Herbert J. Miller, Jr. and Stephen L. Braga, Washington, D.C., were on the brief for appellee.

Before BORK and STARR, Circuit Judges, and EDWARD D. RE, Chief Judge, ^* United States Court of International Trade.

Opinion for the Court filed by Circuit Judge STARR.

Dissenting opinion filed by Circuit Judge BORK.

STARR, Circuit Judge:

This case presents an issue of first impression. The precise question is whether the statute of limitations for the offense of failing to register as required by the Foreign Agents Registration Act of 1938 (FARA), 22 U.S.C. Secs. 611-621 (1982 & Supp. III 1985), begins to run on (1) the last day that an unregistered foreign agent acts on behalf of a foreign principal, or (2) the first day that a formerly unregistered agent actually registers. Under the former approach, the Government's attempted prosecution of the defendant in this case is time-barred. Under the latter approach, the statute of limitations has not yet come into play since the defendant never registered under FARA. Presented with these competing approaches, the District Court embraced the first and accordingly dismissed the criminal information. We are now called upon to determine whether the trial court erred as a matter of law.

After careful examination of the relevant statutory provisions, as well as FARA's structure and legislative history, we find ourselves in accord with the District Court's determination. In our judgment, the trigger-point of the statute of limitations is the last day on which the foreign agent allegedly acted as such. We therefore affirm.

I

This case began in October 1986 when the United States Attorney filed a criminal information against John Peter McGoff. ¹ The information charged that Mr. McGoff had violated sections 612 and 618 of FARA by willfully failing to register as an agent of the Republic of South Africa. See Information, United States v. McGoff, Cr. No. 86-369, at 7 (D.D.C. filed Oct. 31, 1986), reprinted in Joint Appendix (J.A.) at 5, 11. Mr. McGoff was then and remains a newspaper publisher and columnist, ² who by virtue of a "deep and long-held belief," see Appellee's Brief at 11, has publicly advocated close ties between the United States and the Republic of South Africa. In Mr. McGoff's view, such ties are vital to the defense of the United States and the free world. Id.

The information alleged that in 1974 Mr. McGoff entered into a secret agreement with officials of the Republic of South Africa. See Information, United States v. McGoff, at 2, J.A. at 6. The alleged agreement had as its primary objective McGoff's purchasing The Washington Star, a now-defunct daily newspaper formerly published in the Nation's Capital, with funds provided sub rosa by South Africa. According to the information, South Africa hoped through this purchase effectively to counter the perceived anti-South Africa bias of The Washington Post. Id. This check and balance was to be achieved through publication of "positive material relating to the strategic and economic importance of South Africa to the United States." Id. The relationship between Mr. McGoff and the South African Government allegedly expanded in 1975 to include an effort to purchase an interest in UPITN Corp., an international news film distributor. Id. at 4, J.A. at 8. Mr. McGoff's activities on behalf of South Africa, the Government maintains, continued until June 1979, when his efforts to acquire The Washington Star ended in failure. ³ After this proposed acquisition fell through, the alleged agency relationship terminated. Id. at 5, J.A. at 9.

The information asserts that during the five-year period from 1974 to 1979, McGoff actively concealed the relationship through such clandestine devices as secret accounts, dummy corporations, and code words. See id. at 2-3, J.A. at 6-7. Despite these efforts, the relationship evidently came to light in late 1978 when

a judicial commission that the government of South Africa appointed to inquire into alleged irregularities in that nation's former Department of Information ... stated that McGoff had received more than $11.3 million from the South African government to attempt to purchase the Washington Star ... and a controlling interest in the United Press International and Television Network [UPITN].

SEC v. McGoff, 647 F.2d 185, 188 (D.C.Cir.), cert. denied, 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 974 (1981). ⁴ These disclosures prompted the Justice Department to launch an investigation into McGoff's activities in 1979 that led, years later, to the filing of the information in October 1986. See Joint Statement of Material Facts Not in Dispute, United States v. McGoff, Cr. No. 86-369 (D.D.C. filed Nov. 1986), J.A. at 12.

In the proceedings below, both parties recognized that the statute-of-limitations question was one of first impression. Since the issue was potentially dispositive of the case, the parties were of the same mind that this question should be addressed first. The District Court agreed. Accordingly, the court entered an order establishing a briefing schedule and directing the parties to prepare a statement of material facts not in dispute. The parties thereafter stipulated to the following:

1. John Peter McGoff ("McGoff") last allegedly acted as an agent for the Government of the Republic of South Africa ("South Africa") on June 13, 1979. See Information p 9.

2. McGoff never registered under the FARA as an agent of South Africa.

3. The United States of America has been investigating McGoff's relationship with South Africa since at least August of 1979.

4. McGoff has never waived his right to rely on the statute of limitations as a defense to the criminal charge in this case.

5. No factual occurrences or events have in any way tolled the running of the statute of limitations applicable to the criminal charge in this case.

Id. at 12-13. In light of these stipulated facts, the sole question before the District Court was one of law--when did the statute of limitations for failure to file under FARA begin to run?

In December 1986, the District Court, following oral argument, held that the period begins to run from the last day an individual allegedly acts as an agent for a foreign principal. See Hearing on Motion to Dismiss Information, United States v. McGoff, Cr. No. 86-369, at 20 (D.D.C. Dec. 19, 1986), J.A. at 86, 105. Inasmuch as the limitations period for violations of FARA is five years, see 18 U.S.C. Sec. 3282 (1982) (general statute of limitations for non-capital offenses), ⁵ the court concluded that the Government was required to file the information no later than June 13, 1984. See Stipulation 1, quoted supra. Since the Government had not done so, the District Court granted McGoff's motion to dismiss the information as time-barred. This appeal followed.

II.

Before addressing the question at issue, we pause briefly to summarize the general purposes and structure of the Foreign Agents Registration Act. As the Supreme Court recently observed in a case dealing with another aspect of FARA, "[t]he statute itself explains the basic purpose of the regulatory scheme." Meese v. Keene, --- U.S. ----, 107 S.Ct. 1862, 1865, 95 L.Ed.2d 415 (1987). Specifically, FARA was originally enacted:

[T]o protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the Government and the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in the light of their associations and activities.

Id. (quoting 56 Stat. 248-49 (1942), 22 U.S.C. Sec. 611 Note on Policy and Purpose of Subchapter); see also Viereck v. United States, 318 U.S. 236, 244, 63 S.Ct. 561, 564, 87 L.Ed. 734 (1943); Attorney General v. Irish People, Inc., 684 F.2d 928, 937-45 (D.C.Cir.1982), cert. denied, 459 U.S. 1172, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983).

Over the years, FARA's focus has gradually shifted from Congress' original concern about the political propagandist or subversive seeking to overthrow the Government ⁶ to the now familiar situation of lobbyists, lawyers, and public relations consultants pursuing the less radical goal of "influenc[ing] [Government] policies to the staisfaction [sic] of [their] particular client." S.Rep. No. 143, 89th Cong., 1st Sess. 4 (1965). But as its focus has changed, the core notion of FARA has remained the same, namely that government officials and the public generally should be able to identify those who act on behalf of a foreign principal. The idea is a frequently recurring one in modern government: public disclosure is needed in order for the public (and, at times, the Government itself) accurately to evaluate such activities.

The scope of persons subject to FARA is broad. Section 611 defines the critical terms "agent[s] of foreign principal[s]," to include almost anyone who undertakes any public-related or financial activity on behalf of a foreign principal. See 22 U.S.C. Sec. 611(c). ⁷ Section 613, however, then exempts from FARA's sweep diplomatic agents; agents involved in commercial or non-political activities; and attorneys who represent foreign...