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10/13/87 United States of America, v. John Peter Mcgoff

October 13, 1987




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, "the statute itself explains the basic purpose of the regulatory scheme." Meese v. Keene, 481 U.S. 465, 107 S. Ct. 1862, 1865, 95 L. Ed. 2d 415 (1987). Specifically, FARA was originally enacted:


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


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.


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 , 22 U.S.C. §§ 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. *fn1 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 at 5, 11. Mr. McGoff was then and remains a newspaper publisher and columnist, *fn2 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. *fn3 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 .

SEC v. McGoff, 207 U.S. App. D.C. 360, 647 F.2d 185, 188 (D.C. Cir.), cert. denied, 452 U.S. 963, 69 L. Ed. 2d 974, 101 S. Ct. 3114 (1981). *fn4 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 para. 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.

*fn5. 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. § 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.

To 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. § 611 Note on Policy and Purpose of Subchapter); see also Viereck v. United States, 318 U.S. 236, 244, 87 L. Ed. 734, 63 S. Ct. 561 (1943); Attorney General v. Irish People, Inc., 221 U.S. App. D.C. 406, 684 F.2d 928, 937-945 (D.C. Cir. 1982), cert. denied, 459 U.S. 1172, 74 L. Ed. 2d 1015, 103 S. Ct. 817 (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*fn6 to the now familiar situation of lobbyists, lawyers, and public relations consultants pursuing the less radical goal of " influenc[ing] [Government] policies to the dsatisfaction [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. § 611(c).*fn7 Section 613, however, then exempts from FARA's sweep diplomatic agents; agents involved in commercial or non-political activities; and attorneys who represent foreign principals in legal matters before any court or government agency. See id. § 613.*fn8 The definition of "foreign principal" is also broad; it includes a foreign government, foreign political party, or other combinations of persons or groups organized and doing business outside the United States. See id. § 611(b).*fn9

FARA's registration requirements are set forth in section 612(a). Under the terms of that provision, an agent must, within 10 days of commencing his or her activities, file a registration statement which is to include, among other things, (1) the registrant's name and address(es); (2) the registrant's nationality; (3) a "comprehensive statement of the nature of [the] registrant's business," including a list of all employees and all foreign principals; and (4) copies of each written agreement or a description of the terms and conditions of each oral agreement. Id. § 612(a).*fn10 After initially registering, an agent is required to file supplemental statements every six months updating the information. Id. § 612(b).

If the agent is an association, corporation, or partnership, section 617 imposes the obligation to comply with FARA's registration requirements upon the officers of the entity. Dissolution of the organization acting as an agent "shall not relieve any officer" from fulfilling these obligations. See id. § 617.

A registered agent is required to "keep and preserve while he is an agent of a foreign principal such books of account and other records" as the Attorney General's regulations specify. Id. § 615.*fn11 The same section also directs the agent to "preserve the same for a period of three years following the termination of such status." Id.

Section 618 provides both criminal and civil sanctions for violations of the statute. For willful violations, subsection (a) prescribes a penalty of $10,000 or five years imprisonment, or both. Id. § 618(a). Subsection (f) authorizes the Attorney General to secure an injunction or restraining order whenever "any person is engaged in or about to engage in any acts which constitute or will constitute a violation of any provision [of FARA]." Id. § 618(f).*fn12

FARA thus creates a comprehensive regulatory scheme for foreign agent registration. It delineates a certain class of individuals who must provide information to the Government. It details precisely the information required, as well as the timing of and form for that information. Finally, and more directly pertinent to the case at hand, the statute criminalizes the willful failure to comply with the information production requirements.

Notwithstanding its comprehensive scheme, FARA does not contain its own statute of limitations. Prosecutions under FARA are therefore governed by the general, five-year statute. See supra note 5. But there is a remaining wrinkle which has given rise to the issue before us. No specific provision of FARA expressly establishes when the statute of limitations period begins to run. At the same time, two of FARA's provisions directly bear on the issue by addressing the nature and duration of the obligation to file and of the offense of failing to fulfill that obligation. It is to the interpretation of the two pertinent provisions of FARA, sections 612 and 618, that we now turn. III

We pause at the outset of what we acknowledge to be a difficult interpretive task to set out the principles that govern our analysis.


Simply stated, the distinctive but limited role of the judiciary in cases such as this is to discern Congress' intent as embodied in the statute at hand. See, e.g., Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 106 S. Ct. 2860, 2866-67, 92 L. Ed. 2d 166 (1986); United States v. Albertini, 472 U.S. 675, 679-80, 86 L. Ed. 2d 536, 105 S. Ct. 2897 (1985). To express our goal so succinctly has the virtue of emphasizing the cardinal (but often overlooked) principle that "legislative intention, without more, is not legislation." Train v. City of New York, 420 U.S. 35, 45, 43 L. Ed. 2d 1, 95 S. Ct. 839 (1975); International Union, UAW v. Donovan, 241 U.S. App. D.C. 122, 746 F.2d 855, 860 (D.C. Cir. 1984), cert. denied, International Union, UAW v. Brock, 474 U.S. 825, 106 S. Ct. 81, 88 L. Ed. 2d 66 (1985). We therefore cannot fulfill our duty merely by beginning with the particular statutory language in question but pausing there only briefly, as if it were a waystation en route to another destination. On the contrary, we must dwell on the language and structure of the entire statute. If our examination of the entirety of the statute evinces a clear, unequivocal answer to the interpretive question, our job is at an end. See United States v. James, 478 U.S. 597, 106 S. Ct. 3116, 3122, 92 L. Ed. 2d 483 (1986); Garcia v. United States, 469 U.S. 70, 75, 83 L. Ed. 2d 472, 105 S. Ct. 479 (1984); Rubin v. United States, 449 U.S. 424, 430, 66 L. Ed. 2d 633, 101 S. Ct. 698 (1981); United States v. Oregon, 366 U.S. 643, 648, 6 L. Ed. 2d 575, 81 S. Ct. 1278 (1961); Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384, 395-96, 95 L. Ed. 1035, 71 S. Ct. 745 (1951) (Jackson, J., concurring); United Air Lines, Inc. v. CAB, 186 U.S. App. D.C. 401, 569 F.2d 640, 647 (D.C. Cir. 1977). Since we appropriately look to sources extrinsic to the statute only for the light they may shed on the darker corridors of a statutory labyrinth, no need for resort to such sources even arises if the statute itself is clear. Burlington Northern Railroad Co. v. Oklahoma Tax Commission, 481 U.S. 454, 107 S. Ct. 1855, 1860, 95 L. Ed. 2d 404 (1987).

That being said, we hasten to acknowledge the unfortunate but inherent characteristic of both the English language and the legislative process that statutory commands are often muffled (or silent) at those points where we, as interpreters of legislative commands, would wish for greatest clarity. To be sure, the words of a statute often do (and certainly should) convey discernible meaning, and to that extent we are, obviously, bound to give them effect. See Board of Governors v. Dimension Financial Corp., 474 U.S. 361, 106 S. Ct. 681, 688-89, 88 L. Ed. 2d 691 (1986). But we cannot realistically expect that in every enactment Congress will speak with pristine precision so as to encompass all situations that may confront the Article III branch. Accordingly, we are not infrequently forced to venture beyond the confines of the statute in the quest for the statute's meaning. When that step is necessary, the Supreme Court has taught, it should nonetheless be taken with caution. For one thing, what on first encounter may appear to be illuminating may turn out to be a will-o'-the-wisp. Cf. Jordan v. United States Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 767-69 (D.C. Cir. 1978) (en banc); Vaughn v. Rosen, 173 U.S. App. D.C. 187, 523 F.2d 1136, 1142-43 (D.C. Cir. 1975). For another, extrinsic sources such as committee reports and floor debates amount, at best, to precursors of legislation, to which, standing alone, courts should not give effect. Cf. INS v. Chadha, 462 U.S. 919, 77 L. Ed. 2d 317, 103 S. Ct. 2764 (1983).

To these broad principles underlying the task of judicial interpretation, two further points emerge more directly bearing on this case. First, although extrinsic sources vary widely in their reliability (and thus are not susceptible to wholesale classification as to their usefulness), when, as here, legislation arises in response to a need voiced by the Executive Branch, interpretive aid may ofttimes be found in those voices providing the impetus to legislation. See, e.g., United States v. Rock Island Motor Transit Co., 340 U.S. 419, 95 L. Ed. 391, 71 S. Ct. 382 (1951); see also International Brotherhood of Teamsters v. ICC, 255 U.S. App. D.C. 384, 801 F.2d 1423, 1428 & n.4 (D.C. Cir. 1986),

reh'g granted, 260 U.S. App. D.C. 221, 818 F.2d 87 (D.C. Cir. 1987). This is especially so when, as is also true here, the Executive takes an active role in drafting the legislation and presenting it to Congress. See, e.g., United States v. Vogel Fertilizer Co., 455 U.S. 16, 31-32, 70 L. Ed. 2d 792, 102 S. Ct. 821 (1982); Miller v. Youakim, 440 U.S. 125, 144, 59 L. Ed. 2d 194, 99 S. Ct. 957 (1979). In this situation, the views and interpretations of these Executive Branch actors provide a context for what may be, in some respects, a legislative response to an executive request.

Second, while courts recognize the inevitability and, in certain contexts, the desirability of legislation that leaves some details to be resolved as the statute is applied, there are limits. Those limits are most graphic in cases involving criminal sanctions. This is elementary to our law. In the criminal context, courts have traditionally required greater clarity in draftsmanship than in civil contexts, commensurate with the bedrock principle that in a free country citizens who are potentially subject to criminal sanctions should have clear notice of the behavior that may cause sanctions to be visited upon them. See, e.g., Dowling v. United States, 473 U.S. 207, 218, 228-29, 105 S. Ct. 3127, 87 L. Ed. 2d 152 (1985).

That is to say, the law of crimes must be clear. There is less room in a statute's regime for flexibility, a characteristic so familiar to us on this court in the interpretation of statutes entrusted to agencies for administration. We are, in short, far outside Chevron territory here. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-45, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S. Ct. 1207, 1220-22, 94 L. Ed. 2d 434 (1987). Related to that obvious point is the fact that, as a practical matter, the clarity demanded in the criminal law can prove to be more difficult to achieve in prescribing mala prohibita than in addressing the traditional mala in se. In the former, Congress is not legislating against the rich tapestry of the common law, a backdrop which may help invest enactments with meaning afforded by history. See, e.g., Standefer v. United States, 447 U.S. 10, 19, 64 L. Ed. 2d 689, 100 S. Ct. 1999 (1980). Instead, Congress is venturing into less well-charted seas, where the frame of reference necessary to understanding may be more difficult to fix both by courts and, more fundamentally, by those who are subject to the law's strictures. Cf. Viereck, 318 U.S. at 241-42.

With these broad principles in mind, we turn to the statutory provisions at the heart of the controversy before us.


The first (and most basic) step on any interpretive path is the language of the statute itself. See, e.g., United States v. Hohri, 482 U.S. 64, 107 S. Ct. 2246, 2250, 96 L. Ed. 2d 51 (1987); Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 85 L. Ed. 2d 692, 105 S. Ct. 2297 (1985); Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980); Overseas Education Association v. FLRA, 824 F.2d 61, slip op. at 6 (D.C. Cir. 1987). We therefore begin by setting out the precise terminology of one of the two relevant statutory provisions, section 618(e) of FARA:

Failure to file any such registration statement or supplements thereto as is required by either section 612(a) or section 612(b) of this title shall be considered a continuing offense for as long as such failure exists, notwithstanding any statute of limitations or other statute to the contrary.

Id. § 618(e).

Section 618(e) constitutes the necessary starting point in our analysis because it creates the offense with which Mr. McGoff is charged. But the language of section 618(e), standing alone, appears not to take us very far. For the provision is essentially a cross-reference, serving to criminalize the failure to satisfy the requirements of other sections of the Act, namely sections 612(a) and 612(b). Nonetheless, examination of section 618(e) yields two important insights.

First, section 618(e) establishes that the failure to file a statement "as is required" by section 612 is a "continuing offense." Although courts are customarily to construe terms employed by Congress to have their ordinary meaning, see, e.g., Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 772, 80 L. Ed. 2d 753, 104 S. Ct. 2105 (1984); American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 71 L. Ed. 2d 748, 102 S. Ct. 1534 (1982); Overseas Education Ass'n, 824 F.2d 61, slip op. at 8, the term "continuing offense" is no everyday notion with an ordinary meaning. To the contrary, it is a term of art. The settled approach for interpreting such terms is therefore not one emphasizing ordinary meaning. As the Supreme Court instructed in United States v. Freed,

"Where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed."

401 U.S. 601, 607-08, 91 S. Ct. 1112, 28 L. Ed. 2d 356 (1971) (quoting Morissette v. United States, 342 U.S. 246, 263, 96 L. Ed. 288, 72 S. Ct. 240 (1952)); accord NLRB v. Amax Coal Co., 453 U.S. 322, 329, 69 L. Ed. 2d 672, 101 S. Ct. 2789 (1981). Thus, a court is to interpret such legal terms in their "familiar legal sense," Henry v. United States, 251 U.S. 393, 395, 64 L. Ed. 322, 40 S. Ct. 185 (1920), unless Congress has provided a "contrary direction." Morissette, 342 U.S. at 263. Here, we find no hint of a "contrary direction," and we thus accord the term its traditional legal meaning.

The notion of "continuing offense" has traditionally identified a type of offense fundamentally different from most known to the common law. As first-year law students (presumably) learn, a criminal offense is typically completed as soon as each element of the crime has occurred. For example, a larceny is completed as soon as there has been an actual taking of the property of another without consent, with the intent permanently to deprive the owner of its use. The offense does not "continue" over time. The crime is complete when the act is complete. A "continuing offense," in contrast, is an unlawful course of conduct that does perdure. As the Supreme Court has described the notion, "the unlawful course of conduct is 'set on foot by a single impulse and operated by an intermittent force,' until the ultimate illegal objective is finally attained." Toussie v. United States, 397 U.S. 112, 136, 25 L. Ed. 2d 156, 90 S. Ct. 858 (1970) (White, J., dissenting) (quoting United States v. Midstate Co., 306 U.S. 161, 166, 83 L. Ed. 563, 59 S. Ct. 412 (1939)). The classic example of a continuing offense is conspiracy.*fn13

In borrowing the term "continuing offense" for the offense created in section 618(e), Congress imported not only the general common-law concept just described, but also a principle that bears directly on the issue before us. And that is, the statute of limitations as to prosecutions for continuing offenses runs from the last day of the continuing offense. See Fiswick v. United States, 329 U.S. 211, 216, 91 L. Ed. 196, 67 S. Ct. 224 (1946); United States v. Butler, 792 F.2d 1528, 1532-33 (11th Cir. 1986) (conspiracy); In re Corrugated Container Antitrust Litigation, 213 U.S. App. D.C. 319, 662 F.2d 875, 886 (D.C. Cir. 1981). See generally Black's Law Dictionary 291 (5th ed. 1979).*fn14 This well-settled principle suggests that to resolve the present controversy it is necessary to identify with specificity (1) what offense is created by section 618(e) and (2) when that offense is complete.

The second (and related) point to be gleaned from Congress' employment of a common-law concept is the rule that continuing offenses do not, in general, continue indefinitely. See Toussie, 397 U.S. at 134-36 (White, J., dissenting) (discussion of what Justice White found to be the continuing offense of failing to register for the draft).*fn15 The express language of section 618(e) makes clear that the continuing offense created here is no exception. See 22 U.S.C. § 618(e); cf. H.R. Rep. No. 1470, 89th Cong., 2d Sess. 8 (1966) (describing minor changes in the 1966 amendments to FARA as "clarifying certain ambiguities in the present act as to the time when the obligation to file registration statements commences and terminates.") (emphasis added).*fn16 According to the statutory text, the offense continues "for as long as such failure exists." The "such failure" language, in turn, refers to the "failure to file any such registration statement . . . as is required by . . . section 612(a)." 22 U.S.C. § 618(e) (emphasis added). In other words, the continuing offense proscribed by section 618(e) continues only while an individual "is required by . . . section 612(a)" to file. When there is no obligation to file, there obviously can be no offense for failing to fulfill that obligation. A parsing of section 618(e) thus shows that resolution of the issue before us lies in the duration of the obligation to file imposed by section 612(a). Our focus, then, must necessarily include the proper interpretation of the latter provision.

But the Government disagrees with what would seem to be an unexceptional interpretive course. In the face of straightforward statutory language directing us to determine what "is required by . . . section 612(a)," the Government argues that it is unnecessary to look beyond the text of section 618(e). Indeed, the Government's position is that section 618(e), standing alone, creates an offense that continues until actual registration regardless of the duration of the section 612(a) obligation. See Reply Brief for Appellant at 5-6. See generally Brief for Appellant at 12-14. We cannot agree.*fn17 The language of section 618(e) quite clearly links the triggerpoint for the statute of limitations to the last day of the continuing offense described in section 612(a). The statute, as we read it, compels resort to section 612(a). Here, more fully stated, is why.

Initially, we cannot but observe that the Government's interpretation suffers from the fundamental but recurring interpretive flaw of failing to give due weight and effect to every word in the statute. See Reiter v. Sonotone Corp., 442 U.S. 330, 339, 60 L. Ed. 2d 931, 99 S. Ct. 2326 (1979); In re Surface Mining Regulation Litigation, 201 U.S. App. D.C. 360, 627 F.2d 1346, 1362 (D.C. Cir. 1980). See generally 2A N. Singer, Sutherland Statutory Construction § 46.06 (Sands 4th ed. 1984). The Government reads section 618(e) as if it created an offense continuing "as long as failure to file the statement exists," rather than as saying what it actually says. And what the provision in fact says is that the offense continues "as long as such failure exists." The term "such failure" plainly refers to the failure to file "as is required by . . . section 612(a)." *fn18

The Government would have us read the word, "such," as well as the phrase, "as is required by . . . section 612 (a)," out of section 618(e) altogether. We are unable in conscience to accept this invitation to ignore language which Congress saw fit to enact. In the absence of a compellingly persuasive indication to the contrary,*fn19 we must assume that Congress intended that language which it choose to employ actually was to have meaning.

The Government's reading is also objectionable because it isolates section 618(e) from the rest of the statute, including the expressly cross-referenced section 612(a). As the Supreme Court has instructed, "'it is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words will be used, but will take in connection with it the whole statute . . . and the objects and policy of the law.'" Stafford v. Briggs, 444 U.S. 527, 535, 63 L. Ed. 2d 1, 100 S. Ct. 774 (1980) (quoting Brown v. Duchesne, 60 U.S. (19 How.) 183, 194, 15 L. Ed. 595 (1857)); accord Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S. Ct. 2485, 2494, 91 L. Ed. 2d 174 (1986). This, we believe, is also one of the messages dispatched by the Supreme Court in its recent explanation of Chevron's meaning. Cardoza-Fonseca, 480 U.S. 421, 107 S. Ct. 1207, 94 L. Ed. 2d 434.

Thus, even in the absence of the express cross-reference to section 612(a) contained in section 618(e), we would be inclined to look to the former provision in interpreting the latter, inasmuch as section 618(e) criminalizes a failure to comply with section 612(a). But we need not deal in the dream world of hypotheticals. Section 618(e) specifically incorporates the duration of the section 612 (a) obligation to file as the factor governing the duration of the continuing offense. As we have seen, the continuing offense condemned by section 618(e) exists only while there is a "failure to file . . . as is required either by section 612(a) or section 612(b)." When "such failure" no longer exists, as is obviously the case when the requirement no longer exists, then the continuing offense is ended. In short, to ignore section 612(a) in the face of this express reference is not only contrary to judicially articulated principles of construction but also fundamentally at odds with the explicit statutory directive of FARA itself.

Notwithstanding what we perceive as the oddity of its general interpretive approach, the Government argues more specifically that the last phrase of section 618(e), "notwithstanding any statute of limitations or other statute to the contrary," compels us to limit our consideration to the four corners of section 618(e). We readily concede that this argument is not without force. But, upon reflection, we are persuaded that (1) this concluding phrase of section 618(e) and (2) the earlier phrase of the same sentence that directs us to section 612(a) can and should be read in harmony, so as to drain neither of meaning. We briefly explain our reasoning in this respect.

The "notwithstanding" phrase, we note, is appended to the same clause which incorporates section 612. The former thus should not, in reason, be construed as a free -floating provision; it is part of an integrated whole. The phrase is, in our view, a statutory articulation of the common-law principle that the statute of limitations is not triggered until the conclusion of the continuing offense. That is to say, the offense continues over time despite any statute of limitations which might otherwise be thought to be triggered when the offense first began and which might thus bar prosecution before the offense had ended.

In the absence of this "notwithstanding" phrase, some doubt might well arise as to whether in employing the term "continuing offense" Congress intended to incorporate this particular common-law principle. In other words, it could be thought (as indeed was the case under FARA before the 1950 amendments) that the statute of limitations for a failure-to-register offense would begin to run from the first day the obligation existed. Under that view, the offense would terminate when the statute-of-limitations period expired, even if the underlying conduct continued. By including this phrase, then, section 618(e) ensures that termination of the section 612(a) obligation period, calculated from the day on which the ...

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