United States v. Duane Nishiie

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.

8

The 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.