United States v. Nishiie

• Decision Date: 27 September 2019
• Docket Number: Cr. No. 17-00550 SOM
• Citation: 421 F.Supp.3d 958
• Parties: UNITED STATES of America, Plaintiff, v. Duane NISHIIE, aka "Suh Jae Hon"; and Seung-Ju Lee, Defendants.
• Court: U.S. District Court — District of Hawaii

421 F.Supp.3d 958

UNITED STATES of America, Plaintiff,

v.Duane NISHIIE, aka "Suh Jae Hon"; and Seung-Ju Lee, Defendants.

Cr. No. 17-00550 SOM

United States District Court, D. Hawai‘i.

Signed September 27, 2019

Peter M. Nothstein, Richard B. Evans, Erica O'Brien Waymack, US Department of Justice, Washington, DC, for Plaintiff.

Louis Michael Ching, Myles S. Breiner, Law Offices of Myles S. Breiner, Honolulu, HI, for Defendants.

ORDER REJECTING THE ARGUMENT THAT THE WARTIME SUSPENSION OF LIMITATIONS ACT TOLLS THE STATUTES OF LIMITATIONS WITH RESPECT TO THE CRIMES ALLEGED IN THE INDICTMENT

Susan Oki Mollway, United States District Judge

This court must determine whether a modifying clause in a statute applies to all three categories of crimes listed in the statute, or to just the category closest to the modifying clause.If the modifier applies to all three categories, then at least some of the charges against DefendantDuane Nishiie may be time-barred.If, on the other hand, the modifier applies only to the closest category, the limitations periods applicable to the charges in this case are tolled, and all of the charges against Nishiie are timely.Having parsed the language of the statute and having considered its legislative history, this court, guided by the "rule of lenity," concludes that the modifier applies to all three categories.The court orders supplemental submissions addressing the impact of this determination.

I.THE WARTIME SUSPENSION OF LIMITATIONS ACT.

The statute at the crux of the limitations discussion is the Wartime Suspension of Limitations Act ("WSLA"), which reads:

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, or 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.

Definitions of terms in section 103 of title 41 shall apply to similar terms used in this section.For purposes of applying such definitions in this section, the term "war" includes 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) ).

This court's focus is on what words are modified by the "which" clause that this court has emphasized in boldface.Do they modify (1), (2), and (3), or only (3)?

Initially enacted in the wake of World War II, the WSLA has been construed by the Supreme Court and lower courts.It has also been amended.In making the present ruling, this court acknowledges that competing canons of construction are in play, and that there are matters of punctuation and syntax that may pull in different directions.This court attempts to address those matters.But this court recognizes that focusing only on the text of the statute does not lead to a definitive reading of the statute.For that reason, this court's analysis includes a detailed examination of congressional purpose, not just with respect to the original statute but also with respect to the 2008amendment.

Nishiie has moved to dismiss the charges against him.He argues that the charges are all time-barred.The Government's response is that any charge brought more than five years after the alleged commission of any crime charged in the Indictment is timely because, under the WSLA, the five-year statute has been suspended.

II.CHARGES AGAINST NISHIIE.

DefendantDuane Nishiie allegedly worked as a United States contracting officer in Seoul, Korea, for the section of the United States Army Corps of Engineers known as the Far East District.The United States proposed to relocate and consolidate some of its military installations in South Korea.Nishiie allegedly saw this as a chance to enrich himself.Among other things, in return for money, he allegedly provided advantages to a large multinational company that was bidding on a government project.

Nishiie has been charged in an eight-count indictment filed on September 21, 2017.Some of the charges are also asserted against Co-Defendant Seung-Ju Lee.

Count One asserts that, in violation of 18 U.S.C. § 371,¹Defendants conspired 1) to receive something of value in return for being influenced in the performance of an official act in violation of 18 U.S.C. § 201(b)(2)²and2 ) to defraud and deprive the public of honest services through bribery in violation of 18 U.S.C. § 1343.³Specifically, the Indictment alleges that, from 2008 through 2015, Defendants accepted bribes to influence the awarding of multi-million-dollar military contracts in Korea.A five-year limitations period applies to violations of § 371.SeeUnited States v. Walker , 653 F.2d 1343, 1344(9th Cir.1981)(applying five-year limitations period found in § 3282 to § 371 charge);United States v. Davis , 533 F.2d 921, 926(5th Cir.1976)("In a conspiracy prosecution brought under § 371 the government in order to avoid the bar of the limitations period of § 3282 must show the existence of the conspiracy within the five years prior to the return of the indictment, and must allege and prove the commission of at least one overt act by one of the conspirators within that period in furtherance of the conspiratorial agreement.");18 U.S.C. § 3282(a)("Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.").

Count Two asserts a substantive violation of 18 U.S.C. § 201(b)(2), alleging that, from 2008 through 2012, Defendants received bribes in return for which Nishiie, a public official, was influenced in the performance of his official acts with respect to awarding military contracts in Korea.The applicable limitations period for a § 201(b)(2) violation is five years.See18 U.S.C. § 3282(a).

Counts Three through Five allege that, in violation of 18 U.S.C. § 1343, Defendants used wire communications in interstate and foreign commerce from 2008 through 2015 to further a scheme or artifice to defraud the United States by receiving bribes and kickbacks with respect to the awarding of military contracts.Generally, the applicable limitations period for a § 1343 violation is five years.SeeUnited States v. Aubin , 87 F.3d 141, 147(5th Cir.1996)(stating that the five-year limitations period of 18 U.S.C. § 3282 is generally applicable to wire fraud violations, but that the ten-year limitations period of 18 U.S.C. § 3293 applies when a § 1343 offense affects a financial institution);18 U.S.C. § 3282(a).

Count Six alleges that, from 2008 through 2013, Defendants conspired to launder money constituting the proceeds from unlawful activity, violating 18 U.S.C. § 1956(h)."The statute of limitations for actions brought under § 1956(h) is five years."United States v. LaSpina , 299 F.3d 165, 173(2d Cir.2002)(2000)(citing18 U.S.C. § 3282 ).

Counts Seven, Eight, and Nine allege that, in violation of 18 U.S.C. § 1001, Nishiie made materially false, fictitious, and fraudulent statements in 2010, 2011, and 2012, by failing to disclose all reportable assets, sources of income, and outside position on confidential financial disclosure reports.A five-year limitations period applies to violations of § 1001.SeeUnited States v. Smith , 740 F.2d 734, 736(9th Cir.1984)(applying five-year limitations period to § 1001).

The Indictment also seeks forfeiture of all property involved in Counts One through Six.

III.ANALYSIS.

The court spends considerable time discussing the language of the WSLA, concluding that more than one reading is reasonable.It is in light of that ambiguity that the court examines the legislative history of the WSLA, focusing on what Congress intended to accomplish by passing the WSLA and its 2008amendment.

A.The Text of the WSLA Can Be Reasonably Read in More Than One Way.

When the plain language of a statute is reasonably clear, courts enforce that plain language unless it leads to unreasonable or impracticable results.Caminetti v. United States , 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442(1917)("Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.");Animal Legal Def. Fund v. United States Dep't of Agric. , 933 F.3d 1088(9th Cir.2019)("If the language has a plain meaning or is unambiguous, the statutory interpretation inquiry ends there."(quotation marks and citation omitted));Miranda v. Anchondo , 684 F.3d 844, 849(9th Cir.2012)(stating that "statutory interpretation begins with the statutory text.If the statutory language is unambiguous and the statutory scheme is coherent and consistent, judicial inquiry must cease."(alterations, quotation marks, and citation omitted));United States v. Gallegos , 613 F.3d 1211, 1214(9th Cir.2010)("If the plain language of a statute renders its meaning reasonably clear, we will not investigate further unless its application...