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U.S. v. HITT

July 14, 2000

UNITED STATES OF AMERICA,
V.
ROBERT HITT, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman, District Judge.

OPINION

Under the Fifth Amendment to the United States Constitution, "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ." U.S. CONST. amend. V. As a consequence, a defendant may be prosecuted only for the crimes actually set forth in the indictment returned by the grand jury. Defendant Robert Hitt moves to dismiss the indictment in this case as against him on the ground that the only crime with which he has been charged by the grand jury — conspiracy to commit specific statutory offenses against the United States, in violation of 18 U.S.C. § 371 — is barred by the five-year statute of limitations. Because the indictment that was returned on October 19, 1999 unambiguously describes a conspiracy that ended with the granting of export licenses by the Department of Commerce on September 14, 1994, and because any broadening of the definition or scope of the conspiracy would constitute an impermissible constructive amendment of the grand jury's indictment, the Court must grant Mr. Hitt's motion and dismiss the indictment as against him.

I. BACKGROUND

The defendants are charged in a sixteen-count indictment with deceiving the United States government in their applications to export to China a number of machimng tools, large sophisticated pieces of equipment used in the production of aircraft parts. Court One of the indictment — the only count in which Mr. Hitt is charged — alleges a conspiracy among all of the named defendants extending from in or about February 1993 to in or about March 1995 with the goal of obtaining the necessary export licenses through false, fraudulent and misleading applications.

Counts Two through Sixteen allege violations of specific statutes in connection with the allegedly fraudulent acquisition of the licenses. In particular, the indictment alleges that the McDonnell Douglas defendants — McDonnell Douglas Corporation and Douglas Aircraft Company — and the CATIC defendants — Chinese National Aero-Technology Import and Export Corporation ("CATIC"), China National Aero-Technology International Supply Company, CATIC (USA) Inc., TAL Industries, Inc., Yan Liren and Hu Boru — made false and misleading statements to the United States government indicating that the machining tools were going to Chinese factories owned by CATIC that manufacture commercial aircraft when in fact the defendants knew that the machines were destined for other undisclosed factories (including some factories that manufacture military equipment) and that they concealed the true facts from the government, all in violation of 18 U.S.C. § 1001; the Export Administration Act and regulations, 50 U.S.C.App. § 2401 et seq., 15 C.F.R. § 768 et seq., and the International Emergency Economic Powers Act. 50 U.S.C. § 1701 et seq. Mr. Hitt is not charged with any of these substantive offenses.

On or about May 26, 1994, defendants submitted ten applications to the Department of Commerce for licenses to export the machining tools to China.*fn1 The applications represented that the ultimate consignee (the end user) for the equipment was the CATIC Machining Company LTD in Beijing, China, and that the machining tools were to be used in connection with the trunkline program to produce 40 commercial aircraft in China (the end use). See Indictment ¶ 41. The Department of Commerce granted the export licenses on September 14, 1994. See Indictment ¶ 42.

In March 1995, acting in compliance with the conditions imposed on the export licenses by the Department of Commerce, McDonnell Douglas conducted an inspection of CATIC's facilities to ensure compliance with the terms of the licenses. McDonnell Douglas discovered that several of the machine tools had been shipped to a manufacturing plant in Nanchang, China, a factory known to produce military equipment, instead of the intended location in Beijing. McDonnell Douglas reported the apparent violation to the Department of Commerce, which initiated its own investigation. That investigation resulted in the return of the indictment in this case on October 19, 1999.

II. DISCUSSION

In a prosecution for conspiracy under 18 U.S.C. § 371, the statute of limitations begins running "from the last overt act during the existence of the conspiracy." Fiswick v. United States, 329 U.S. 211, 215, 67 S.Ct. 224, 91 L.Ed. 196 (1946); see also Grunewald v. United States, 353 U.S. 391, 397, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) (prosecution must prove that "at least one overt act in furtherance of the conspiratorial agreement was performed within" the statute of limitations period). "Hence, the crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy." Grunewald v. United States, 353 U.S. at 397, 77 S.Ct. 963. The scope of the agreement charged by the grand jury and the overt acts taken in furtherance of it are defined by the text of the indictment. Absent the return of a superseding indictment, the government is bound to prosecute the crimes charged in the indictment and no others. See Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) ("after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself"); Gaither v. United States, 413 F.2d 1061, 1072 (D.C.Cir. 1969) (same); see also Schmuck v. United States, 489 U.S. 705, 717, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989) ("It is ancient doctrine of both the common law and of our Constitution that a defendant cannot be held to answer a charge not contained in the indictment brought against him").

Mr. Hitt contends that the goal of the conspiracy as described in the grand jury indictment was to obtain the export licenses for the machining tools and that goal was achieved on September 14, 1994, when the Department of Commerce granted the licenses. Since the statute of limitations for conspiracy under 18 U.S.C. § 371 is five years, see 18 U.S.C. § 3282, and the indictment was not returned until October 19, 1999, he therefore maintains that the indictment against him is time-barred and must be dismissed.*fn2 The government disputes Mr. Hitt's reading of the indictment. It maintains that the indictment describes a conspiracy with a broader goal than simply the acquisition of export licenses: a conspiracy "to obtain machine tools for use in the People's Republic of China for uses to be determined by CATIC . . . [a]nd not by the Department of Commerce." May 19, 2000 Thanscript of Oral Argument at 20; see also Government's Opposition at 9.*fn3 Under this definition, the conspiracy's aim was not achieved until the machining tools arrived at the alternative locations in China — an event that occurred between November 1994 and March 1995, within the statute of limitations period.

The government also contends that, even if the goal of the conspiracy was to obtain the export licenses on September 14, 1994, the last overt act in furtherance of the conspiracy did not occur until CATIC reaped the economic rewards of the conspiracy. Under this argument, the last overt act in furtherance of the conspiracy also would be the arrival of the machining tools at the alternative locations in China. See Indictment ¶ 51 (25).

A. The Conspiracy Charged by the Grand Jury

As much as the government attempts to mold the language of the indictment to its theories, the indictment actually returned by the grand jury simply does not support the government's reading. A section-by-section analysis of the indictment unavoidably leads the Court to the conclusion that the grand jury believed that the single goal of the alleged conspiracy was the acquisition of ...


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