A possible precedent-
setting ruling by a federal judge in Honolulu means charges against a former U.S. Army Corps of Engineers contracting officer accused of accepting millions of dollars in bribes may have to be dismissed.
Senior U.S. District Judge Susan Oki Mollway ruled Friday that fraud and bribery charges against Duane Nishiie do not qualify for a wartime statute of limitations exemption and were therefore filed too late to be prosecuted. She ruled that the exemption only applies to fraud crimes connected to a declared war or authorized use of the country’s armed forces.
Nishiie’s crimes are alleged to have occurred in South Korea. The U.S. is not involved in a war in that country.
A federal grand jury returned an indictment in September 2017 charging Nishiie with conspiracy, bribery, wire fraud, money laundering and making false statements. In addition, the indictment charges him with “honest services” fraud, or fraud involving not doing the job for which he was being paid by the government.
According to the indictment, Nishiie steered two contracts that were part of a massive American military base consolidation project in South Korea to
a particular company in
exchange for millions of dollars in bribes. One contract was initially worth $400 million but later
ballooned to more than $800 million. The other contract was for $6 million.
U.S. Marshals arrested Nishiie in Honolulu one day after the grand jury
returned the indictment against him. He is free on $50,000 unsecured, signature bond and is scheduled to stand trial in February.
The indictment appears to have been returned within the 10-year statute of limitations for honest services fraud and the five-year limitations for conspiring to defraud the government and launder money as charged.
Nishiie is accused of not doing the job he was paid to do and accepting bribes between 2008 and 2010,
of conspiring to defraud the government between 2008 and 2015, and of conspiring to launder money between 2008 and 2013.
But the indictment appears to have been returned after the five-year statute of limitations for bribery, wire fraud and making false statements.
It accuses Nishiie of
accepting bribes between 2008 and May 2012, of sending emails to carry out the bribery scheme between 2008 and 2010, and of lying on financial disclosure
reports between 2010 and 2012.
Federal prosecutors from Washington claim that the law that suspends the statute of limitations for crimes of fraud against the government during the authorized use of the country’s armed forces apply because the
Afghan and Iraqi wars are not over. The suspension extends five years after the end of hostilities.
Congress approved the Wartime Suspension of Limitations Act in 1948 to give the government more time to uncover and prosecute fraud committed during massive procurement efforts during and in the buildup to war.
Mollway ruled that the
exemption does not apply in Nishiie’s case because the crimes he is accused of
committing have nothing
to do with the Afghan and Iraqi wars. Even if they did, those conflicts ended in 2001, when the U.S. formally recognized the Afghan government of Hamid Karzai, and in 2003 when President George W. Bush proclaimed the end
of major combat operations in Iraq.
