United States v. Hitt, Robert

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 22, 2001 Decided May 8, 2001

No. 00-3083

United States of America,
Appellant

v.

Robert Hitt,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 99cr00353-09)

Chrisellen R. Kolb, Assistant U.S. Attorney, argued the
cause for appellant. With her on the briefs were Wilma A.
Lewis, U.S. Attorney, at the time the brief was filed, John R.
Fisher, Roy W. McLeese, III and Steven J. Durham, Assis-
tant U.S. Attorneys.

Andrew L. Frey argued the cause for appellee. On the brief
were Dan Marmalefsky and Eric M. Acker.

 Before: Williams and Rogers, Circuit Judges, and
Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Rogers.

Dissenting opinion filed by Circuit Judge Williams.

Rogers, Circuit Judge: On October 19, 1999, the Grand
Jury returned a sixteen-count indictment for alleged fraudu-
lent misrepresentations made to the United States Depart-
ment of Commerce in connection with the sale by the McDon-
nell Douglas Corporation to the People's Republic of China of
machinery that was subject to export controls. Count One of
the indictment charged Robert Hitt, the Director of the China
Program Office at Douglas Aircraft Company, a wholly-owned
subsidiary of McDonnell Douglas, along with other defen-
dants, with conspiring to violate the laws of the United
States, in violation of 18 U.S.C. s 371 (2000), by deceiving the
United States government in the process of completing the
sale of the equipment. The district court ruled that the
conspiracy alleged in Count One ended on September 14,
1994, when the Department of Commerce issued the export
licenses required to sell the machinery, and that the prosecu-
tion of Hitt was therefore barred by the five-year statute of
limitations. See United States v. Hitt, 107 F. Supp. 2d 29, 30
(D.D.C. 2000); see also 18 U.S.C. s 3282 (2000). The govern-
ment appeals. We affirm.

I.

The indictment states that in the early 1990s, McDonnell
Douglas closed a manufacturing plant located in Columbus,
Ohio that had produced military aircraft for the United
States. See Count One pp 18-19. After closing this facility,
McDonnell Douglas and Douglas Aircraft Company (jointly,
"MDC") began negotiations with the China National Aero-
Technology Import and Export Corporation ("CATIC") and
some of its subsidiaries1 for the sale of various pieces of

__________
1 The CATIC subsidiaries named in the indictment are the
China National Aero-Technology International Supply Company
("CATIC/Supply"), located in Beijing; CATIC (USA) Inc., a wholly-
owned subsidiary of CATIC located in El Monte, California; and

equipment from the plant. See Count One pp 21-39. Among
the equipment in which CATIC expressed an interest were
several "machining tools"--"large sophisticated pieces of
equipment used in the production of aircraft parts." Count
One p 19. These tools were subject to export controls and
required export licenses from the United States Department
of Commerce. See Export Administration Act of 1979, 50
U.S.C. app. ss 2401-2420 (1991); Export Administration
Regulations, 15 C.F.R. ss 768-99 (2001).2 Upon learning
that the Department of Commerce strongly discouraged
MDC's sale of the equipment, see Count One p 26, MDC,
through its legal department, informed CATIC that the req-
uisite export licenses "would not be obtainable." Count One
p 28. CATIC, in turn, sought assistance from Robert Hitt "in
resolving the export license problem related to the sale of the
[machine tools]." Count One p 29. As Director of the China
Program Office, Hitt was responsible for implementing the
"trunkline program,"3 a $1 billion contract between MDC and
CATIC for the manufacture of commercial aircraft in China.
See Count One p 35. This contract gave MDC and Hitt a
vested financial interest in maintaining a favorable business
relationship with CATIC and the Chinese government. See
Count One pp 35-36. When CATIC encountered difficulties
in its negotiations with MDC for the Columbus equipment,
CATIC alluded to the trunkline contract. See Count One

__________
TAL Industries, Inc., a wholly-owned subsidiary of CATIC/US
located in El Monte, California. CATIC is a People's Republic of
China government-formed corporation located in Beijing. See
Count One p 8. We refer to these defendants as "the CATIC
defendants," and to the People's Republic of China as "China."

2 Although the Export Administration Act expired on August
20, 1994, the government maintains that the export controls man-
dated by the Act remained in force pursuant to a series of Execu-
tive Orders. Because the instant appeal addresses solely Hitt's
statute of limitations challenge, the court has no occasion to address
this matter.

3 The indictment refers to the project as both "trunkline" and
"trunkliner." See, e.g., Count One pp 35, 38, 40, 41. We refer to
the program as "trunkline."

p 35. MDC reacted to this pressure from CATIC, at one
point admitting "that negotiations with CATIC were being
conducted due to the pending $1 billion trunkliner program.
If not for the trunkliner, the slow paced negotiations ...
would be broken off in favor of auctioning equipment."
Count One p 38.

On February 15, 1994, MDC and CATIC entered into a
Purchase Agreement, under which MDC would sell to CATIC
various pieces of equipment from the Columbus plant, includ-
ing the machine tools that were subject to export controls, for
$5.4 million. See Count One p 39. Under the Agreement,
MDC was responsible for applying for and obtaining export
licenses where necessary, and CATIC was responsible for
shipping and exporting all machine tools that required an
export license. See Count One p 39. In addition, the con-
tract specified that title to the equipment would pass from
MDC to CATIC by July 5, 1994, "[u]pon completion of
removal from the Columbus, Ohio facility, and receipt by
MDC of the final thirty-five percent (35%) payment re-
quired." The contract also provided that the equipment must
be removed from the Columbus plant by July 5, 1994, or
MDC was required to pay for storage of the equipment at
another location. See Count One p 39(2).

On or about May 26, 1994, MDC and CATIC representa-
tives submitted ten export license applications to the Depart-
ment of Commerce. See Count One p 41. Each application
included (1) an application form, in which MDC represented
that the end-user for the equipment was the CATIC Machin-
ing Company in Beijing; (2) an "Export Justification" state-
ment, indicating that the machine tools would be "used in the
trunkline program in conjunction with the production of 40
commercial aircraft in [China]," Count One p 41(b); and (3)
an "end-user and end-use statement," prepared by CATIC
representatives, stating that the equipment would be used to
produce parts for the trunkline program. Count One p 41(d).
Based on the information submitted by MDC and CATIC, the
Department of Commerce granted the export licenses on or
about September 14, 1994. See Count One p 42. The licens-
es authorized the export of the equipment for use at the
CATIC Machining Center in Beijing for purposes of the

trunkline program. The licenses also required MDC to verify
the equipment's location and usage by performing quarterly
inspections of the CATIC facility and submitting quarterly
reports to the United States Government for a two-year
period.

After MDC and CATIC obtained the licenses, CATIC
arranged, on or about November 7, 1994, to ship the machine
tools to two separate points in China (contrary to the terms of
the export license), and ultimately to ship the equipment to a
factory in Nanchang, China that is allegedly involved in the
manufacture of military equipment. See Count One at WW 44,
47(l)-(n), 49, 51(21)-(24). On April 4, 1995, shortly after
MDC's required quarterly inspection of the CATIC facility,
MDC reported to the Department of Commerce that the
machine tools had been diverted to four different locations,
including the Nanchang facility. The government initiated an
investigation, which culminated in the indictment returned on
October 19, 1999.

The indictment charged one conspiracy Count and fifteen
substantive Counts.4 Hitt was charged only in Count One,
which charged him, MDC, CATIC, and two CATIC employ-
ees with conspiring to violate the laws of the United States, in
violation of 18 U.S.C. s 371, and with aiding and abetting
such a conspiracy, in violation of 18 U.S.C. s 2. Counts Two
through Fifteen charged the corporate defendants--MDC,
CATIC, and their affiliates--with statutory violations in con-
nection with the allegedly fraudulent acquisition of the export
licenses: Count Two charged false statements by the CATIC
defendants; Counts Three, Fourteen, and Fifteen charged
false statements by MDC in connection with the applications

__________
4 Counts Two and Three charged violations of the False State-
ments Act, 18 U.S.C. s 1001 (2000); Counts Four through Fifteen
charged violations of the Export Administration Act, 50 U.S.C. app.
s 2410(a) and of 15 C.F.R. ss 787.5 and 87.5; and Count Sixteen
charged violation of the International Economic Emergency Act, 50
U.S.C. s 1705(b) (1991) and 15 C.F.R. s 787.5. In addition, all
Counts charged a violation of 18 U.S.C. s 2 (2000) for aiding and
abetting.

for the export licenses; and Counts Four through Thirteen
charged all corporate defendants with false statements and
violations of various export statutes. Count Sixteen charged
the CATIC defendants with making false and misleading
statements to the Department of Commerce after the export
licenses were issued.

Hitt moved to dismiss the charges against him on the
grounds that the conspiracy alleged in Count One extended
only to the United States' September 14, 1994, issuance of the
export licenses and was therefore time barred. The govern-
ment opposed the motion, arguing that the conspiracy contin-
ued until the machine tools were shipped to China in or about
March 1995. The district court ruled as a matter of law that
the conspiracy alleged in the indictment ended when the
United States issued the export licenses, and that prosecution
of Hitt was therefore barred by the five-year statute of
limitations for conspiracy. See Hitt, 107 F. Supp. 2d at 30;
18 U.S.C. s 3282. The government appeals pursuant to 18
U.S.C. s 3731 (2000).

II.

"A conspiracy is a partnership in criminal purposes."
United States v. Kissel, 218 U.S. 601, 608 (1910). The
general federal conspiracy statute prohibits conspiracies "to
commit any offense against the United States" or "to defraud
the United States ... in any manner or for any purpose."5
18 U.S.C. s 371. To prosecute a defendant under s 371, "the
government must prove beyond a reasonable doubt that: (1)
two or more persons formed an agreement either to commit
an offense against or defraud the United States; (2) the

__________
5 The conspiracy statute provides:

If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or
any agency thereof in any manner or for any purpose, and one
or more such persons do any act to effect the object of the
conspiracy each shall be fined under this title or imprisoned not
more than five years, or both.

18 U.S.C. s 371.

defendant knowingly participated in the conspiracy with the
intent to commit at least one of the offenses charged or to
defraud the United States; and (3) at least one overt act was
committed in furtherance of the common scheme." United
States v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985); see
also United States v. Wilson, 160 F.3d 732, 737 (D.C. Cir.
1998); United States v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir.
1996). The five-year statute of limitations for a s 371 prose-
cution, see 18 U.S.C. s 3282, begins running "from the last
overt act during the existence of the conspiracy." Fiswick v.
United States, 329 U.S. 211, 216 (1946); see also Grunewald
v. United States, 353 U.S. 391, 397 (1957).

For the indictment to be timely with respect to Hitt, it
must show that no more than five years prior to the filing of
the indictment (i.e., at a point no earlier than October 19,
1994) (1) the conspiracy, as contemplated by the agreement,
still existed, and (2) at least one overt act in furtherance of
the conspiracy occurred. See Grunewald, 353 U.S. at 397.
In examining whether these conditions are fulfilled, "the
crucial question ... is the scope of the conspiratorial agree-
ment, 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."
Id. at 397; see also United States v. Bayer, 331 U.S. 532, 542
(1947). Key to determining the scope of the conspiracy--and
dispositive in the instant appeal--is the extent to which there
was a "meeting of minds" concerning the object of the
conspiracy. United States v. Rosenblatt, 554 F.2d 36, 38 (2d
Cir. 1977) (quoting Krulewitch v. United States, 336 U.S. 440,
448 (1949) (Jackson, J., concurring)); see also Treadwell, 760
F.2d at 336. "This does not mean that the conspirators must
be shown to have agreed on the details of their criminal
enterprise, but it does mean that the 'essential nature of the
plan' must be shown." Rosenblatt, 554 F.2d at 38 (quoting
Blumenthal v. United States, 332 U.S. 539, 557 (1947)).

To determine the scope of the alleged conspiratorial agree-
ment, the court is bound by the language of the indictment.
See generally Grunewald, 353 U.S. at 397; see also United
States v. Craft, 105 F.3d 1123, 1127-29 (6th Cir. 1997);

United States v. Roshko, 969 F.2d 1, 6-9 (2d Cir. 1992).
Adherence to the language of the indictment is essential
because the Fifth Amendment requires that criminal prosecu-
tions be limited to the unique allegations of the indictments
returned by the grand jury. See Russell v. United States,
369 U.S. 749, 768-71 (1962); Stirone v. United States, 361
U.S. 212, 216 (1960); United States v. Lawton, 995 F.2d 290,
292-93 (D.C. Cir. 1993). As the Supreme Court has ex-
plained, an indictment's main purpose is "to inform the defen-
dant of the nature of the accusation against him." Russell,
369 U.S. at 767. To this end, an indictment must "first,
contain[ ] the elements of the offense charged and fairly
inform[ ] a defendant of the charge against which he must
defend, and, second, enable[ ] him to plead an acquittal or
conviction in bar of future prosecutions for the same offense."
Hamling v. United States, 418 U.S. 87, 117 (1974) (citing
United States v. Debrow, 346 U.S. 374 (1953); Hagner v.
United States, 285 U.S. 427 (1932)). It is hence well-
established that a defendant "cannot be held to answer a
charge not contained in the indictment brought against him."
Schmuck v. United States, 489 U.S. 705, 717 (1989); see also
Stirone, 361 U.S. at 215-17; United States v. Krasovich, 819
F.2d 253, 254-55 (9th Cir. 1987).

Upon examining the text of the indictment, the district
court concluded that "the grand jury believed that the single
goal of the alleged conspiracy was the acquisition of the
export licenses from the Department of Commerce, which
goal was achieved on September 14, 1994." Hitt, 107 F.
Supp. 2d at 32. On appeal, the government contends that the
true goal of the conspiracy extended to the actual export and
delivery of the machinery to unauthorized locations in China.
The government maintains that the district court failed to
construe the indictment as a whole, see, e.g., United States v.
Inryco, Inc., 642 F.2d 290, 294 (9th Cir. 1981), incorrectly
regarded portions of the indictment as surplusage, see, e.g.,
United States v. Rezaq, 134 F.3d 1121, 1134 (D.C. Cir. 1998),
and invaded the province of the jury by determining that
certain overt acts within the statutory period did not further
the goal of the conspiracy. See United States v. Wilson, 26

F.3d 142, 159 (D.C. Cir. 1994). Specifically, the government
maintains that the district court disregarded several key
portions of the indictment indicating that the common goal of
all defendants was to export the machinery: (1) the latter
portion of the first sentence in Paragraph 44, which alleged
that "[a] goal of the conspiracy was to obtain export licenses
allowing the sale and exportation of machine tools to [Chi-
na]" (emphasis added); (2) the heading in Paragraph 43--
"Scheme to Insure Completion of the Contract"; (3) state-
ments of "Manners and Means" (pp 47-50) and "Overt Acts"
(p 51(21)-(25)) that refer to the shipment and delivery of the
tools to China, which occurred as late as March 1995 and thus
were within the statute of limitations period; and (4) the
explicit reference in Paragraph 43 to March 1995.

We review de novo the district court's legal conclusion
concerning the scope of the conspiracy. See United States v.
Dolan, 120 F.3d 856, 864 (8th Cir. 1997); United States v.
United Med. & Surgical Supply Corp., 989 F.2d 1390, 1398
(4th Cir. 1993). Consistent with our obligation to adhere to
the language of the indictment, and an indictment's primary
purpose of providing notice of the specific charges to the
defendant, we hold that the alleged conspiracy charged in
Count One ended with the issuance of the export licenses on
September 14, 1994. The indictment's references to subse-
quent events do not point to acts in furtherance of the alleged
conspirators' common goal and therefore may not be relied
upon to extend the conspiracy to a period within the statute
of limitations. See Grunewald, 353 U.S. at 405-06; Fiswick,
329 U.S. at 216-17.

A. Structure of Count One. Count One of the indict-
ment begins with an "INTRODUCTION" that states in rele-
vant part:

On or about September 14, 1994, the United States
Department of Commerce granted 10 export licenses to
[MDC] permitting [MDC] to export 13 large pieces of
machinery ... to [China] for use by ... [CATIC]. The
defendants ... made material false, fraudulent and mis-
leading statements and material omissions on the appli-

 cations, the end user certificates and in additional oral
and written submissions upon which the Department of
Commerce based its decision to issue the 10 export
licenses. [The Chinese corporate defendants] caused 6 of
the 13 pieces of machinery to be diverted to an unautho-
rized factory in Nanchang, [China], known to be used for
military production.

Count One p 1. Count One proceeds to review the regulatory
framework for the MDC-CATIC transaction, see Count One
pp 2-6; describe the equipment subject to export controls, see
Count One p 7; and identify the defendants, see Count One
pp 8-17. After providing this context, the indictment sets
forth the "Background to the Transactions." See Count One
pp 18-42. The "Background" details MDC's negotiations with
CATIC for the sale of the equipment from the Columbus
plant; MDC's vested financial interest in maintaining a favor-
able relationship with CATIC in light of the $1 billion trunk-
line program; and MDC's and CATIC's submission of the
materials necessary for obtaining the requisite export licens-
es. See id. The background discussion ends with the United
States' issuance of the export licenses on or about September
14, 1994. See Count One p 42.

Two key paragraphs follow. Paragraph 43 describes "THE
CONSPIRACY," and is subtitled "Scheme to Insure Comple-
tion of the Contract." Paragraph 43 states:

From in or about February, 1993 ... until in or about
March 1995 ... the defendants ... did unlawfully, will-
fully and knowingly combine, conspire, confederate and
agree together to commit offenses against the United
States, that is:

a. to willfully and knowingly make materially false
and fraudulent statements and representations and to
falsify, conceal and coverup [sic] by trick, scheme and
device material facts in matters within the jurisdiction
of the executive branch of the Government of the
United States ... in violation of [18 U.S.C. s 1001];

b. to willfully and knowingly make false and mislead-
ing statements and to conceal material facts from the

 United States Departments of Commerce and Defense
in the course of obtaining export licenses in violation of
[50 U.S.C. app. s 2410(a) and 15 C.F.R. s 787.5];

c. to use interstate wire communications, the mail
and interstate carriers in furtherance of a scheme to
defraud and to obtain property, that is export licenses
and machine tools for delivery to [China], by means of
false and fraudulent pretenses, representations and
promises in violation of [18 U.S.C. ss 1343 and 1341];

d. to possess, before on or about August 20, 1994,
machine tools with the intent to export them having
reason to believe that they would be exported in
violation of an export control imposed under Section 5
or 6 of the Export Administration Act, in violation of
[50 U.S.C. app. s 2410(b)(3) and 15 C.F.R.
s 787.1(a)(ii)(C)]; and

e. to buy and sell, before on or about August 20, 1994,
machine tools to be exported from the United States
subject to the Export Administration Regulations with
knowledge or reason to know that a violation of the
Export Administration Act is intended to occur with
regard to the transaction, in violation of [50 U.S.C.
app. s 2410(a) and 15 C.F.R. s 787.4(a)].

Count One pp 43.6

Paragraph 44 states the "Goal" of the conspiracy:

A goal of the conspiracy was to obtain export licenses
allowing the sale and exportation of machine tools to
[China]. [The CATIC defendants'] purpose, among oth-
ers, was to obtain the Columbus plant machine tools for
unrestricted use at undisclosed facilities within [Chi-
na].... [MDC] and Robert Hitt's purposes, among oth-
ers, were: (a) to maintain the ongoing commercial rela-
tionship between [MDC] and CATIC and to promote the
prospects for existing and future business contracts be-

__________
6 Paragraph 43 refers to August 20, 1994, only to indicate that
at the outset of the alleged conspiracy the Export Administration
Act was in effect and had not yet been repealed by Congress.

tween the parties; and (b) to obtain swift approval from
the United States Department of Commerce of export
license applications by presenting seemingly credible and
non-controversial justification and end-user information
in the license applications, even if such information was
not truthful, so that [MDC] could avoid the storage costs
provisions and the buy-back provision of the Columbus
asset sales contract between the parties.[7]

Count One then lists the "Manners and Means" that the
defendants used "in seeking to achieve the goal of the con-
spiracy."8 Count One p 45. Paragraphs 46 through 48 de-
scribe the false and misleading information supplied by the
CATIC defendants regarding the machine tools' end user and
end use. Paragraphs 49 and 50 describe the false information
to which MDC and Hitt certified in the applications and the
information that they concealed from Commerce Department
officials.

Finally, Paragraph 51 lists twenty-five alleged "Overt Acts"
committed by the defendants "[i]n furtherance of the conspir-
acy and to accomplish the objects thereof." These include (1)
Hitt, MDC, and CATIC's false and misleading statements to
government officials while applying for the export licenses;
(2) MDC's filing of the allegedly fraudulent export license

__________
7 As evidence that MDC's (and Hitt's) actions were in part
fueled by a desire to avoid these costs, Count One relies on a
January 13, 1994, memorandum, allegedly written by Hitt, which
states that "if an export license [were] not obtained ... [MDC]
would have a potential loss of $3.2 [million] ... [and] any costs to
store the assets past 1 May 1995 would have to also be assumed by
[MDC]." Count One p 40. After the government noted its appeal,
it was brought to the government's and the court's attention that
the memorandum was not authored by Hitt. The government no
longer relies on Paragraph 40, and absent this evidence, it is
unclear if the Grand Jury would attribute to Hitt all purposes listed
in Paragraph 44(b). For purposes of this appeal, we will assume
that the Grand Jury would.

8 Although Paragraph 44 refers to "[a] goal," the only goal
described in Count One appears in Paragraph 44.

applications; and (3) CATIC's efforts to divert the machinery
to unauthorized locations. Five of these alleged overt acts
occurred after the export licenses were issued:

(21) On November 2, 1994, [MDC] signed two separate
delivery sheets authorizing the removal of [some licensa-
ble machine tools] to destination "red" and [some licensa-
ble machine tools] to destination "black."[9]

(22) In or about November 1994, CATIC caused cargo
that had been licensed for export to Beijing to be shipped
[to and unloaded at two separate locations].

(23) In or about November 1994, CATIC caused another
shipment of cargo that had been licensed for export to
Beijing to be shipped to and unloaded at two separate
ports....

(24) On or about February 18, 1995, CATIC caused ... a
machine tool licensed for export to Beijing[ ] to be ...
[shipped] to [an unauthorized location].

(25) Between in or about November 1994 and in or about
March 1995, CATIC caused six machines licensed for
export to Beijing to be delivered to Nanchang.

Count One p 51(21)-(25). Only Overt Act No. 25 refers to a
date as late as March 1995. Only Overt Act No. 21 refers to
MDC. The "delivery sheets" that Overt Act No. 21 alleges
MDC signed are not alleged to be shipping authorization
documents; rather, they are internal MDC records of
CATIC's contractually-obligated removal of certain machine
tools from the Columbus plant. The remaining four overt
acts within the statutory period, Overt Acts No. 22 through
25, relate solely to CATIC's efforts to ship the machine tools
to unauthorized locations after MDC obtained the requisite
export licenses.

From the plain language and structure of Count One, it
would follow that "The Conspiracy" envisioned by the Grand
Jury was confined to the defendants' false statements and
__________
9 We assume that, as alleged in Paragraph 47(b), destination
"red" referred to Shanghai, China, and destination "black" referred
to Xinyang, China.

concealment of information from Commerce Department offi-
cials while applying for the export licenses. The "Goal" of
the conspiracy, as described in Paragraph 44, did not encom-
pass any event occurring after the export licenses' issuance
on September 14, 1994. Because Count One did not allege
that MDC and Hitt shared the separate purpose of the
CATIC defendants to divert the machine tools in violation of
the export licenses, the conspiracy was, as the district court
concluded, completed once the export licenses were issued.
See Hitt, 107 F. Supp. 2d at 30; see also Krasovich, 819 F.2d
at 255-56.

Notwithstanding the Grand Jury's plain statement of the
one common goal of the conspiracy in Paragraph 44, and its
statement of the separate purposes of the MDC and the
CATIC defendants, the government maintains that the al-
leged conspiracy continued until the machine tools were
shipped and delivered to China in March 1995. In support of
this contention, the government points to (1) Count One's
discussion of the Purchase Agreement, which, the govern-
ment maintains, contemplates events occurring after the ex-
port licenses' issuance; (2) references to "Manners and
Means" and "Overt Acts" that extended to the statutory
period; and (3) references in Paragraph 43 to March 1995.
Although the language on which the government relies may
point to possible ambiguities in the indictment, the court must
construe the indictment in light of its principal purposes of
clarity and notice. See Russell, 369 U.S. at 769-71; Stirone,
361 U.S. at 215-16; Lawton, 995 F.2d at 292-93. Conse-
quently, we adhere to the indictment's plain language.10

__________
10 Our dissenting colleague would interpret the language on
which the government relies as an indication that "the charged
conspiracy included the shipment and delivery of machine tools."
Dissenting Op. at 1. The plain language of the indictment, howev-
er, does not support such a conclusion. Unlike Forman v. United
States, 361 U.S. 416 (1960), where the Supreme Court interpreted
specific language in an indictment to charge a continuing conspiracy
to evade taxation, see id. at 423; Dissenting Op. at 9, the Grand
Jury in the instant case explicitly confined the conspiracy's goal to
"obtain[ing] export licenses." Count One p 44. Contrary to the

 B. Nature of the Purchase Agreement. The govern-
ment points to two factors to demonstrate that the Purchase
Agreement reflected the broader goal of exporting the ma-
chinery. First, it contends that the title of the subheading
"Scheme to Insure Completion of the Contract" in Paragraph
43 indicates a "scheme that would culminate in the shipment
of the tools to locations selected by CATIC without regard for
the license requirements." Appellant's Reply Br. at 13. In-
sofar as the objective of the sale was to get the machine tools
to China, the government maintains, the contract would not
be completed until CATIC received the machinery and all
parties therefore received the benefits of the transaction.
Second, the government points to language in the "Goal"
paragraph to indicate that, in accord with the Purchase
Agreement, the parties contemplated the machinery's export.
Neither contention is convincing.

In the government's view, the subheading "Scheme to
Insure Completion of the Contract" refers to a Purchase
Agreement that contemplated the delivery of the machine
tools to China and that regarded the export licenses simply as
a means for completing the transaction.11 The subheading,
the government maintains, relates directly to the background
discussion of the Purchase Agreement in Paragraphs 1
through 42 of the indictment, where the Grand Jury de-
scribed MDC's desire to maintain good relations with its

__________
view of the dissent, see Dissenting Op. at 3-4, the possible ambigui-
ties in the indictment arise not from this clear statement of the
goal, but rather from Count One's references to events occurring
after the licenses were issued. Although the dissent relies on the
indictment's inclusion of these events to argue that a broader
conspiracy existed, the dissent points to no action or event within
the statutory period that was agreed upon by both parties.

11 We do not reach the government's contention that the dis-
trict court incorrectly treated the text of this subheading as sur-
plusage. See Hitt, 107 F. Supp. 2d at 32 n.3. Even if this was
error, we are unconvinced that the "scheme" to which the phrase
refers contemplates actions occurring after the issuance of the
export licenses.

customer. The government further maintains that the Pur-
chase Agreement itself contemplated the export of the ma-
chinery: The Agreement provided that MDC would "obtain
the [export] licenses and, in the event they failed to obtain
[them], [MDC] was required to buyback [sic] the tools."
Count One p 39(1). Moreover, the government continues, the
Purchase Agreement contemplated obligations for the parties
that arose after the export licenses were issued: CATIC, for
example, was to assume shipping costs, and each party was
responsible for paying the taxes in its respective country.

There are insurmountable obstacles to the government's
reliance on the background discussion in Paragraphs 1
through 42. Count One begins with an "INTRODUCTION,"
stating, "On or about September 14, 1994, the United States
Department of Commerce granted 10 export licenses...."
Count One p 1. After a discussion of the regulatory frame-
work for export controls, see Count One pp 2-6, and a descrip-
tion of the sensitive equipment at issue, see Count One p 7,
and the parties to the transaction, see Count One pp 8-17, the
narration of events in the "Background" section, see Count
One pp 18-42, ends with the issuance of the export licenses.
These temporal limitations indicate the Grand Jury's focus on
the licensing process, not on events subsequent to the licens-
es' issuance. Such subsequent events, including the payment
of taxes and inspections required by the licenses, were collat-
eral actions that were not part of the shared scheme nor
threatening to the success of that scheme. See Schmuck, 489
U.S. at 711-14.

As to the Purchase Agreement, the Grand Jury found it
relevant to refer to only three of its provisions: (1) the sale
price of $5.4 million; (2) MDC's obligation to obtain export
licenses where required and, "in the event they failed ...[,]
buyback [sic] the tools;" and (3) MDC's obligation to pay for
storage if any machine tools had not received an export
license by July 5, 1994, the deadline for CATIC's removal of
the equipment from the Columbus plant. Count One p 39.
The Grand Jury alluded to no contractual provision involving
the shipment of the machine tools once the export licenses
were issued. Indeed, under the terms of the Purchase

Agreement, the contract would be completed once the licens-
es were issued, not when the machinery was delivered. Ti-
tle would pass after the licenses were obtained, and after
MDC received the final payment (by July 1994), not upon
the equipment's arrival in China. Furthermore, upon issu-
ance of the export licenses, the buy-back provision (which
was the last contingency to the sale) would be eliminated.
Hence, even if the Grand Jury had incorporated all provi-
sions of the Purchase Agreement into Count One, the gov-
ernment could not support its view that "issuance of the
licenses did not complete the commercial transaction." Ap-
pellant's Br. at 18. Moreover, as Hitt observes in his brief,
the Purchase Agreement required CATIC to export the
machine tools "in accordance with the export licenses." A
"scheme to insure completion of the contract" would there-
fore contradict the government's "essential claim--that the
defendants conspired to assist CATIC's effort to violate the
licenses." Appellee's Br. at 48.

Second, the government contends that the language in the
"Goal" paragraph of Count One clarifies the parties' intention
to export the machinery. The government points to the first
sentence of Paragraph 44, which states that "[a] goal of the
conspiracy was to obtain export licenses allowing the sale and
exportation of machine tools to [China]." (emphasis added)
An analysis of Paragraph 44 as a whole, however, indicates
that the government's reliance on the emphasized phrase is
misplaced.12 The phrase on which the government relies
modifies the word "licenses," not the word "goal"; this again

__________
12 The plausibility of the dissent's interpretation assigning a
"broader meaning" to the goal stated in Paragraph 44, see Dissent-
ing Op. at 3, arises not from the language of the indictment, but
rather from an intuitive belief that all conspirators must have been
aware of CATIC's ultimate purpose. The dissent cannot point to
language in Count One that substantiates that intuitive belief
because none of the events occurring within the statutory period
implies actions that were agreed upon by the parties. Thus, the
dissent's broader interpretation of the conspiratorial "goal" would
fail to satisfy the indictment's key purposes of clarity and notice.
See Russell, 369 U.S. at 765-77.

indicates that the focus of the conspiracy charge was the
licensing process. More significant, however, is the language
that follows the first sentence of Paragraph 44. The para-
graph proceeds to describe the different purposes of the
American and the Chinese defendants: "[The CATIC defen-
dants'] purpose, among others, was to obtain the ... machine
tools for unrestricted use at undisclosed facilities within [Chi-
na]." Count One p 44. The MDC defendants' (including
Hitt's) purposes, among others, were (1) to maintain a posi-
tive commercial relationship with CATIC and (2) to obtain the
export licenses. See id.

In view of the indictment's key purpose--to provide notice
to Hitt of the charges against which he should be prepared to
defend himself at trial, see Russell, 369 U.S. at 769-71;
Stirone, 361 U.S. at 216; Lawton, 995 F.2d at 292-93--the
district court properly placed great importance on the Grand
Jury's separate statement of the purposes of each group of
defendants, and its clear statement in Paragraph 44 that the
goal of the conspiracy was to obtain the export licenses.13
See Hitt, 107 F. Supp. 2d at 32-33. The purposes of the
MDC defendants coincided with those of the CATIC defen-
dants only with respect to the export licensing process, which
was the only aspect of the transaction in which the MDC
defendants were involved. The CATIC defendants' purposes,

__________
13 The government contends that the separate "purposes" listed
in Paragraph 44 simply set forth the parties' distinct motivations for
entering the ultimate agreement--to divert the machine tools for
use at unauthorized locations in China. This broader goal, however,
is inconsistent with the Grand Jury's description of MDC's motiva-
tion. MDC would satisfy its purpose of maintaining a favorable
relationship with CATIC only by performing the acts that were
under its control, namely selling the machine tools to CATIC and
applying for the export licenses necessary to complete the sale.
The dissent would hold that by documenting CATIC's removal of
the machine tools from the Columbus plant, MDC "concretely and
actively helped CATIC realize the shared goal of delivery to China."
Dissenting Op. at 5. That MDC later helped CATIC realize its
ultimate goal is distinct from indicating that MDC shared this goal
for purposes of the conspiracy defined by the Grand Jury.

which extended beyond the common goal of the conspiracy,
therefore cannot serve to broaden the definition of the conspi-
ratorial agreement. As this court observed in Wilson, 160
F.3d at 737-38, the motivation of a single conspirator does not
necessarily define the common goal of the conspiracy.

C. "Manners and Means" and "Overt Acts." The gov-
ernment also looks to the "Manners and Means" and "Overt
Acts" paragraphs of Count One for support of its broad
definition of the scope of the conspiracy. The introductory
paragraph under "Manners and Means" states that all defen-
dants (including Hitt) "would and did use the following man-
ner and means, among others, in seeking to achieve the goal
of the conspiracy." Count One p 45 (emphasis added). The
government contends that all of the manners and means
listed in Paragraphs 47 through 50, including actions taken
and information concealed "from in or about February, 1993
... to in or about March 1995," Count One p 46, were in
furtherance of "the" goal of the conspiracy. See Count One
pp 47-50. In addition, the government points to five overt
acts listed in Paragraph 51 that occurred within the statutory
period. See Count One p 51(21)-(25). We are unpersuaded
that the language under either of these headings expands the
scope of the conspiracy.

The government's reliance on the "Manners and Means"
paragraphs is misplaced. First, the introductory sentence
refers to "the" goal of the conspiracy. See Count One p 45.
The only goal defined by the Grand Jury appears in Para-
graph 44: "to obtain export licenses." Count One p 44. The
Grand Jury did not state the goal in terms of ensuring
completion of the Purchase Agreement or diversion of ma-
chinery once it arrived in China. Hence, this introductory
sentence cannot redefine or expand the scope of the conspira-
cy. Second, as in the "Goal" paragraph, the "Manners and
Means" paragraphs distinguish between the activities of the
MDC and CATIC defendants. See Count One pp 47-50.
From Count One's repeated distinction between the actions
and goals of each group of defendants, it reasonably follows
that the manners and means attributed to CATIC were not in
furtherance of the alleged conspirators' common goal. Final-

ly, the structure of the "Manners and Means" paragraphs
indicates that the inclusion of events occurring after Septem-
ber 14, 1994, and of the parties' alleged concealment of
shipping information, were intended to illustrate the defen-
dants' false statements and misrepresentations "[o]n the ap-
plications for the ten export licenses." Count One p 49; see
also Count One pp 47-48. Paragraphs 47 and 48--entitled
"False Statements Regarding the End User" and "False
Statements Regarding the End Use"--include references to
actions by CATIC occurring within the statutory period and
as late as March 25, 1995. See, e.g., Count One pp 47(l )-(n).
These events, however, are submitted in support of the
contention that CATIC "well knew [its statements] to be false
and misleading at the time the applications were filed."
Count One p 47. Similarly, Paragraphs 49 and 50--entitled
"False Statements and [O]missions [R]egarding the [E]nd
[U]ser" and "False Statements and Omissions Regarding End
Use"--refer to MDC's alleged concealment of shipping infor-
mation indicating an alternative delivery site for the machine
tools. See, e.g., Count One pp 49(b), (d). Contrary to the
government's contentions, this does not indicate that CATIC's
shipment and diversion of the machine tools furthered the
conspiratorial goal. Rather, MDC's alleged acts of conceal-
ment support the conclusions set forth at the beginning of
Paragraphs 49 and 50: first, that "[o]n the applications for
the ten export licenses [MDC] certified ... the end user[ ] to
be the CATIC Machining Company ... in Beijing, when in
truth and in fact, they knew, had reason to know and acted
with willful blindness to the fact that this end user designa-
tion was false and misleading," Count One p 49; and second,
that MDC's export justification statement "identif[ied] the
trunkline program as the end use, when in truth and in fact,
[MDC] knew, had reason to know and acted with willful
blindness to the fact that this end use designation was false
and misleading." Count One p 50.

The government further relies on the indictment's inclusion
of Overt Acts No. 21 through 25, which occurred within the
statutory period. See Count One p 51(21)-(25); supra Part
II.A. These five overt acts, however, do not in themselves
extend the scope of the conspiracy into the statutory period

unless the acts were committed in furtherance of the alleged
conspirators' common goal. See Grunewald, 353 U.S. at 397;
Fiswick, 329 U.S. at 216-17; Craft, 105 F.3d at 1128-29;
Roshko, 969 F.2d at 6-9; United States v. Davis, 533 F.2d
921, 926-29 (5th Cir. 1976). Only then could a jury properly
be allowed to determine whether the overt acts in question
actually furthered the common goal of the conspiracy. See
Wilson, 26 F.3d at 159 (citing cases). Overt Acts No. 21
through 25 do not satisfy this threshold requirement. Rath-
er, they are only consistent with the purpose that the indict-
ment attributed to the CATIC defendants: to divert delivery
of machinery to unauthorized locations. As previously dis-
cussed, Overt Acts No. 22 through 25 relate to CATIC's
diversion of the equipment to unauthorized locations; Overt
Act No. 21, the only overt act within the statutory period that
refers to MDC at all, merely discusses MDC's internal docu-
mentation of CATIC's contractually-obligated removal of the
equipment from the Columbus plant. Hence, none of these
five overt acts was in furtherance of the only common goal
stated in the indictment: the issuance of export licenses. As
a result, inclusion of Overt Acts No. 21 through 25 in the
indictment is insufficient to extend the conspiracy beyond the
goal stated in Paragraph 44. See Craft, 105 F.2d at 1128.

D. Reference in Paragraph 43 to March 1995. The
government's final contention focuses on the introductory
sentence of Paragraph 43 under "Scheme to Insure Comple-
tion of the Contract," which states that the conspiracy
spanned from "in or about February, 1993 ... until in or
about March 1995." Count One p 43. Because Paragraph 43
does not provide insight as to the conspirators' common goal,
however, it cannot by itself expand the conspiracy to reach
the statutory period.

Paragraph 43 is the only paragraph in the indictment that
seeks to describe the agreement among the parties. Indeed,
it is the only paragraph in which the indictment uses the word
"agree." See Count One p 43. The paragraph proceeds to
charge a criminal agreement among the alleged conspirators
to commit five offenses against the United States, in violation
of 18 U.S.C. s 371. See supra Part II.A. The government

contends that "[e]ach of the underlying statutory violations
subsumed within the conspiratorial agreement reflects the
conspirators' endeavor to secure the delivery of the tools to
China in accordance with CATIC's wishes." Appellant's Br.
at 30. This scheme, the government maintains, continues "as
long as the parties derive [its] anticipated economic benefits."
Id.

A reading of the plain language of the indictment does not
support the government's contentions. First, paragraphs
43(d) and (e) are expressly limited to acts that took place "on
or before August 20, 1994," and therefore refer to events
occurring outside the limitations period.14 Second, Paragraph
43(b) charges the defendants with fraudulent actions concern-
ing the export licenses, and thus cannot be construed to
extend beyond the point when the licenses were issued.
Third, Paragraph 43(c), although worded more broadly, focus-
es on the defendants' efforts to "defraud" the United States,
an act that, as the district court concluded, could only occur in
reference to the export licenses that the United States grant-
ed.15 See Hitt, 107 F. Supp. 2d at 35-36. This only leaves

__________
14 The government contends that Paragraphs 43(d) and (e)
should not be limited to August 20, 1994, because Paragraph 3
states that "the system of export controls established pursuant to
the Export Administration Act and implemented by the Export
Administration Regulations was continued in effect pursuant to a
series of Executive Orders," namely Executive Order 12924, 59 Fed.
Reg. 43437 (1994). Again, the court's obligation is to adhere to the
plain language of the indictment to ensure that the defendant has
received adequate notice of the charges brought against him. See
Russell, 369 U.S. at 762-69. Neither Paragraph 43(d) or (e)
charges a violation of E.O. 12924 or of Section 203 of the Interna-
tional Emergency Economic Powers Act ("IEEPA"), 50 U.S.C.
s 1702 (1991), which provides the statutory authority for the contin-
ued enforcement of the EAA's export restrictions. The plain
language of Paragraphs 43(d) and (e) thus indicates that the Grand
Jury charged offenses that occurred on or before the EAA's expira-
tion.

15 Paragraph 43(c) states that the defendants, including Hitt,
conspired

the boilerplate language of Paragraph 43(a), which tracks the
language of 18 U.S.C. s 1001. See Hitt, 107 F. Supp. 2d at
35. Absent specific allegations in the indictment concerning a
broader scope of the conspiracy, this cannot serve as a catch-
all, umbrella section for the government. The government,
as it has been warned, "cannot simply charge an offense by
using the general language of the statute or the common law,
but must accompany the generic language 'with such a state-
ment of the facts and circumstances as will inform the
accused of the specific offense, coming under the general
description, with which he is charged.' "16 Treadwell, 760
F.2d at 337 (quoting Hamling, 418 U.S. at 117-18).

__________
to use interstate wire communications, the mail and interstate
carriers in furtherance of a scheme to defraud and to obtain
property, that is export licenses and machine tools for delivery
to [China], by means of false and fraudulent ... representa-
tions ... in violation of [18 U.S.C. s 1343 and 1341].

The government concedes that MDC and Hitt could not logically
have conspired to obtain "machine tools for delivery to [China],"
because MDC already owned the tools. See Appellant's Br. at 26
n.8. The government contends, however, that MDC and CATIC
conspired to "deprive the United States of its ability to control the
export of these tools ... by submitting false license applications."
Id. Hitt responds that the government's claim under 18 U.S.C.
ss 1343 and 1341 is foreclosed by Cleveland v. United States, 121 S.
Ct. 365 (2000), which states that licenses "do[ ] not create a proper-
ty interest." See id. at 372. Because Hitt sought dismissal of
Count One on statute of limitations grounds, we have no occasion to
decide whether the mail and wire fraud statutes apply or whether
export licenses constitute property under Cleveland.

16 The government further contends that the term "conceal" in
Paragraphs 43(a) and (b) and the charged violation of 15 C.F.R.
s 787.5 in Paragraph 43(b) broaden the scope of the conspiracy
because they charge MDC and Hitt with failing to disclose changes
of material fact to licensing officials even after the export licenses
were issued. As discussed infra Part II.C, in Count One the Grand
Jury alleged concealment not as independent acts in furtherance of
the conspiracy, but rather in support of its conclusion that MDC

 Nor may the government rely on the "economic benefits"
theory, under which the "scheme" is deemed to extend until
the conspirators receive the economic rewards of the agree-
ment. See, e.g., United States v. Northern Improvement Co.,
814 F.2d 540, 542 (8th Cir. 1987); United States v. Mennuti,
679 F.2d 1032, 1035 (2d Cir. 1982); United States v. Walker,
653 F.2d 1343, 1347-48 (9th Cir. 1981). In the instant case,
the anticipated economic benefits of the "scheme" would
extend the duration of the conspiracy only if all defendants
contemplated those benefits and agreed to receive them. See
Girard, 744 F.2d at 1171-74. As discussed, the plain lan-
guage of the indictment indicates that only the CATIC defen-
dants intended to divert the machinery to an unauthorized
location in China. Under the indictment, this economic re-
ward of the transaction was not agreed upon by all defen-
dants and therefore may not be used as a basis to extend the
scope of the conspiracy.

For these reasons, we conclude that a common-sense read-
ing of the indictment indicates that the Grand Jury defined a
conspiracy that ended with the Department of Commerce's
issuance of the export licenses. It is clear from the indict-
ment why MDC and Hitt participated in the fraudulent
scheme to obtain the export licenses: They sought to main-
tain good relations with the Chinese government, especially in
light of the substantial financial gain represented by the
MDC-CATIC joint venture. MDC would satisfy this objec-
tive by selling to CATIC the equipment that it desired, and
by obtaining the export licenses that would allow CATIC to
transport the machinery to China. Under the Purchase

__________
and Hitt provided false and misleading information in the export
license applications. Furthermore, the obligations imposed by 15
C.F.R. s 787.5 are triggered upon a "change of material fact or
intention" occurring after MDC submitted the export license appli-
cations. 15 C.F.R. s 787.5(a)(3). No such change is alleged in
Count One; rather, the false information that is the basis of the
conspiracy charge was known to the defendants before they submit-
ted the export license applications. Thus, Paragraph 43(b)'s refer-
ence to 15 C.F.R. s 787.5 does not expand the conspiracy to actions
occurring after the licenses were issued.

Agreement, that would complete the transaction, as CATIC
was responsible for the machinery's removal and transporta-
tion. Although the consequence of MDC's alleged fraudulent
acquisition of the export licenses might be CATIC's unautho-
rized use of the machinery, this does not indicate that
CATIC's actions upon acquiring the machine tools would be
part of the conspiratorial agreement. As the Supreme Court
explained in Fiswick, "[t]hough the result of a conspiracy may
be continuing, the conspiracy does not thereby become a
continuing one ... '[C]ontinuous co-operation of the conspira-
tors to keep it up' is necessary." 329 U.S. at 216 (citations
omitted); see also United States v. Doherty, 867 F.3d 47, 61-
62 (1st Cir. 1989).

The government is hardly unaware of the inconsistency in
its attempt to expand the scope of the conspiratorial agree-
ment beyond the plain language of the indictment. In re-
sponse to questioning during oral argument, the government
claimed that the conspiracy charge would remain valid even if
an intervening event--such as the sinking of the ship that
transported the equipment or a change of heart by the
Chinese government--impeded the actual delivery of the
machinery to the unauthorized locations. If delivery or ship-
ment of the machinery was unnecessary to the common goal
of the conspirators, then by definition the government cannot
extend the conspiracy past the issuance of the export licenses.
Thus, the government may not rely on Overt Acts No. 21
through 25, and on Count One's sporadic references to events
within the statutory period, to expand the conspiracy or
modify its goal.17 See Grunewald, 353 U.S. at 406; Fiswick,
329 U.S. at 216-17; Craft, 105 F.3d at 1123; Roshko, 969
F.2d at 6-8; Davis, 533 F.2d at 928. Defining the goal of the

__________
17 Insertion of "March 1995" in Count One was apparently an
effort to avoid the five-year limitations deadline. MDC executed six
waivers of the statute of limitations, "[i]n consideration of the
federal government delaying any final decision with respect to the
filing of criminal or administrative charges...." Hitt states in his
brief that although the government obtained waivers of the statute
of limitations from MDC and all but one of the CATIC defendants,
it never sought such a waiver from him. See Appellee's Br. at 9.

conspiracy in the broad manner that the government propos-
es would frustrate not only the indictment's purpose of giving
notice to a defendant, but also the purpose of having a statute
of limitations. See Grunewald, 353 U.S. at 401-02 (citing
Krulewitch, 336 U.S. at 455-56 (Jackson, J., concurring));
Doherty, 867 F.2d at 61-62. Count One does not allege that
the defendants had the common purpose of diverting the
machinery to unauthorized locations. If the government en-
visioned a broader common goal for the conspirators, namely
"shipment of the tools to locations selected by CATIC without
regard for the license requirements," Appellant's Reply Br. at
13, it was obligated to ensure that the Grand Jury stated that
goal with certainty and thereby conformed to the "basic
principles of fundamental fairness" underlying the two key
purposes of an indictment--notice to the defendant and pro-
tection against double jeopardy. Russell, 369 U.S. at 763,
765-66.

Accordingly, we affirm the order of the district court
dismissing Count One of the indictment against Hitt.

 Williams, Circuit Judge, dissenting: The indictment--read
as a whole--fairly informs the defendant that the charged
conspiracy included the shipment and delivery of machine
tools and thus included the alleged overt acts committed
within the five-year limitations period. I would reverse the
district court's dismissal of Count One.

Though the indictment is long, the gist of its story--
assumed to be true for these purposes--is simple enough.
Facing reduced government business, McDonnell Douglas
Corporation, a defense contractor, decided to shut down its
military aircraft plant in Columbus, Ohio. After considerable
negotiation, McDonnell Douglas agreed to sell for $5.4 million
various machine tools from the plant to China National Aero-
Technology Import and Export Corporation ("CATIC"), its
partner in an ongoing $1 billion joint venture. Indictment,
Count One p p 18, 21-39. Some of the equipment could be
legally shipped to China only with export licenses from the
Commerce Department; the contract stated that if they could
not be obtained McDonnell Douglas would have to buy the
equipment back. Id. at p 39. Before the deal was made,
Robert Hitt, then the Director of the China Program Office at
Douglas Aircraft (a wholly-owned division of McDonnell
Douglas), was called in to help resolve any problems in
obtaining the licenses. Id. at p 29. In submissions to the
Commerce Department, both contracting parties falsely stat-
ed that the tools would be used only in a Beijing facility
dedicated to the development of civilian aircraft as part of the
joint venture. Id. at p p 41, 50. On September 14, 1994 the
Commerce Department granted the licenses. Id. at p 42. In
November 1994, CATIC arranged, with the help of McDon-
nell Douglas, to ship the equipment to two different ports
(some 600 miles apart) in China. Id. at p p 51(21)-(23). Dur-
ing approximately the next four months, CATIC diverted six
machines (licensed for export to Beijing) to a factory in
Nanchang. Id. at p 51(25). At the request of the Commerce
Department, McDonnell Douglas inspected the machine tools
in China and reported that the terms of the licenses had been
violated--setting off a Commerce Department investigation
that ultimately led to the October 19, 1999 indictment before
us. See United States v. Hitt, 107 F. Supp. 2d 29, 31 (D.D.C.
2000).

 The key issue here is whether Count One of the indictment
alleges a conspiracy continuing beyond October 19, 1994 and
is thus properly chargeable under the five-year statute of
limitations. See Fiswick v. United States, 329 U.S. 211, 216
(1946) (statute "runs from the last overt act during the
existence of the conspiracy."). Count One explicitly alleges
five overt actions taken after that date, see Count One p 51
(21-25), but these five acts would not count for our purposes
unless performed pursuant to the conspiracy. "[T]he 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. 391, 397 (1957). In fact the indict-
ment provides ample signs that the claimed conspiracy ex-
tended not merely to the securing of export licenses (issued
September 14, 1994) but also to the shipment of the equip-
ment to China through actions that bring the conspiracy well
within the five-year window.

* * *

An indictment need not be perfectly crafted to survive
judicial scrutiny. "The true test of the sufficiency of an
indictment is not whether it could have been made more
definite and certain, but whether it contains the elements of
the offense intended to be charged, and sufficiently apprises
the defendant of what he must be prepared to meet." United
States v. Debrow, 346 U.S. 374, 376 (1953) (internal quotations
omitted) (emphasis added). It must "fairly inform[ ]" the
defendant of the charge, Hamling v. United States, 418 U.S.
87, 117 (1974), and tell him of its nature "with reasonable
certainty," United States v. Simmons, 96 U.S. 360, 362 (1877).
We read the indictment "in its entirety," and construe it
"according to common sense with an appreciation of existing
realities." United States v. Inryco, Inc., 642 F.2d 290, 294
(9th Cir. 1981).

 Our specific task is to determine whether the alleged
actions within five years of the indictment promoted the
object of the alleged conspiracy. The query is similar to
resolving claims that a trial court's permissive evidence rul-
ings broadened the indictment. While indictments cannot be
"constructively amended" outside of the grand jury (to permit
introduction of evidence), they are interpreted reasonably:

In order to prevail on his claim of constructive amend-
ment, [a defendant] must show that the proof at trial "so
altered an essential element of the charge that, upon
review, it is uncertain whether the defendant was con-
victed of conduct that was the subject of the grand jury's
indictment." No constructive amendment occurs "where
a generally framed indictment encompasses the specific
legal theory or evidence used at trial." Accordingly, we
have "consistently permitted significant flexibility in
proof, provided that the defendant was given notice of
the core of criminality to be proven at trial."

United States v. Berger, 224 F.3d 107, 117 (2d Cir. 2000)(in-
ternal citations omitted). Taken as a whole, this indictment
adequately apprises Hitt that the conspiracy extended beyond
the receipt of the export licenses and encompassed the ship-
ment of the equipment to China.

A natural starting place is the language explicitly address-
ing the goal of the conspiracy--"to obtain export licenses
allowing the sale and exportation of machine tools to [Chi-
na]." Count One p 44 (emphasis added). Taken alone, this
passage is susceptible of the narrow reading assigned by the
majority--that the goal was only to secure the licenses, with
the parties lacking any shared purpose as to actual export or
delivery. But the broader meaning asserted by the govern-
ment is quite plausible. When a person says he wants to
obtain "a visa allowing travel to Beijing," the literal reading--
that he is indifferent to the use of the visa--is possible but
not necessarily likely. That depends on context. The re-
mainder of the indictment, as we shall see, shows that the
grand jury was asserting that the parties' jointly intended to
get the tools to China. The written contract between McDon-

nell Douglas and CATIC focused on obtaining the export
licenses, to be sure, but parties can be (and often are) accused
of having a conspiratorial agreement beyond that memorial-
ized in a legitimate sales deal. There is no parol evidence
rule that prevents a criminal agreement from being broader
than a contract to which it is related.

Having chosen the narrow reading of the statement of
conspiratorial "goal," the majority then discounts everything
in the indictment inconsistent with that reading. See Maj. Op.
at 18-19 (saying that CATIC defendants' alleged purposes
"extended beyond the common goal" of the conspiracy and
thus cannot "broaden" its definition); 19 (saying that "Man-
ner and Means" paragraphs cannot "expand" or "redefine"
scope of conspiracy because grand jury did not state goal in
broad terms); 20-21 (saying that overt acts cannot be accept-
ed as stated because this would "extend" scope beyond stated
goal); 21 (saying that stated duration of conspiracy to March
1995 cannot be accepted because it would conflict with alleged
goal and would "expand" conspiracy); 23 (saying that Para-
graph 43(a) cannot function as a "catch-all, umbrella section"
for the government because of its "generic language"); 24
(saying that economic benefit to McDonnell Douglas from
completing shipment must be disregarded because only CAT-
IC was interested in delivery of the equipment). The more
conventional approach, when confronted with an ambiguity, is
to assume that other provisions of the document as a whole
may shed light on the meaning of the ambiguous passage.
Here they do indeed--the statements of purposes, of means
and manner, of duration of the conspiracy, and of overt acts
all point to the broader meaning. See Count One p p 1, 43-
50, 51(21)-(25).

The indictment says that the CATIC defendants--unsur-
prisingly--cared about shipment: They wanted to get the
equipment for "unrestricted use at undisclosed facilities with-
in [China], including Nanchang, a factory known for its
military production." Id. at p 44. And McDonnell Douglas
and Hitt are explicitly said to have purposes that would
extend beyond the issuance of the licenses: They wanted to
"maintain the ongoing commercial relationship between

McDonnell Douglas and CATIC and to promote the prospects
for existing and future business contacts between the par-
ties." Id. Obviously McDonnell Douglas's purpose of main-
taining a favorable commercial relationship with CATIC
would have been thwarted if the licenses were obtained but
never used; thus McDonnell Douglas's alleged purpose fits
the broader meaning, and only the broader meaning, of the
stated goal.

The majority asserts that McDonnell Douglas "would satis-
fy its purpose ... only by performing the acts that were
under its control, namely selling the machine tools to CATIC
and applying for the export licenses necessary to complete
the sale." Maj. Op. at 18 n.13 (emphasis added). This
reflects a mistaken idea of what was under McDonnell Doug-
las's control. In fact the indictment explicitly alleges an
affirmative post-October 19, 1994 act that was under McDon-
nell Douglas's control, namely filling out forms coded to get
the equipment to the two intended sites in China. See Count
One p 51 (21) (November 2, 1994 act); see also id. at p 47(b)
(explaining coding system). Thus McDonnell Douglas con-
cretely and actively helped CATIC realize the shared goal of
delivery to China.

Moreover, at least until the licenses were used, McDonnell
Douglas could advance the joint interests of the alleged
conspirators by keeping quiet. The indictment includes an
allegation of "conceal[ing]" by trick, scheme or device materi-
al facts in the jurisdiction of the executive branch (Count One
p 43(a)) in violation of 18 U.S.C. s 1001 and asserts that the
conspiracy went on until March 1995 (Count One s 51 (25)),
when the tools were delivered to Nanchang.1 The majority

__________
1 The indictment also explicitly alleges violation of 15 CFR
s 787.5, which imposes a continuing obligation to disclose: "Every
person who has made any representation, statement, or certification
must notify, in writing, the Bureau of Export Administration ... of
any change of any material fact or intention from that previously
represented, stated, or certified." 15 CFR s 787.5(a)(3); see also
55 Fed. Reg. 31,176 (1990). Because this reference is located in a

nonetheless throws out the period of shipment and delivery
on the ground that inclusion of the period needed for the
conspirators to reap the full benefits could properly "extend
the duration of the conspiracy only if all defendants contem-
plated those benefits and agreed to receive them." Maj. Op.
at 24. But McDonnell Douglas's benefits included the rela-
tionship enhancement that completed shipment would bring,
and in any event the cases allow inclusion of the period
needed for each conspirator to receive his or her share of the
benefits. See United States v. Mennuti, 679 F.2d 1032, 1036
(2d Cir. 1982) ("Similarly, even if the main objective of the
conspiracy in this case was to defraud [the insurance compa-
ny], the conspiracy continued until its other objectives, includ-
ing [one co-conspirator's] own payoff, were achieved."). And,
given that the scheme of deceit and concealment is alleged to
have culminated in a specific event (i.e., the delivery occurring
in March 1995), there is no risk of defendants' being charged
with an eternal conspiracy. Properly understood, the indict-
ment thus falls easily on the permissible side of the line
drawn by then-Judge Breyer in United States v. Doherty, 867
F.2d 47 (1st Cir. 1989), distinguishing between receiving the
fruits of an enterprise in "one action, or a handful of actions,
taking place over a limited period of time," id. at 61, and
receiving them in the form of a "lengthy, indefinite series of
ordinary, typically noncriminal, unilateral actions, such as
receiving salary payments," id. The former is permissible,
the latter often not. Here the indictment is of the former
type.

From the government's acknowledgment at oral argument
that the indictment would remain valid even if the ship
containing the equipment sank before it reached China, the
majority concludes that "[i]f delivery or shipment of the
machinery was unnecessary to the common goal of the con-
spirators, then by definition the government cannot extend
the conspiracy past the issuance of the export licenses." Maj.
Op. at 25. On this basis, the majority simply reads out of the

__________
subsection that appears to be focused on "obtaining" the licenses,
Count One s 43(b), I do not rely on it.

indictment all five post-October 19, 1994 overt acts. Id. But
the government did not say that the shipment was unneces-
sary to achieve the conspiracy's goal; it said only that the
indictment would still be valid if the shipment were not
successful. See Oral Argument Tr. at 10. This reflects a
standard truth of conspiracy law: One can be convicted of
conspiracy even if the goal is not realized, so long as there is
an overt act in furtherance of the goal. See United States v.
Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985); Wayne R.
LaFave, Modern Criminal Law 645 (2d ed. 1988). The sunk
ship hypothetical is relevant only in that such a sinking
would, in all likelihood, have conclusively thwarted the par-
ties' shared goal, thus ending the conspiracy. If that had
occurred more than five years prior to indictment, the indict-
ment for conspiracy would be time barred. But no ship sank,
and indeed the equipment didn't even leave Ohio until after
the key date of October 19, 1994.

Most telling is the indictment's list of overt acts, expressly
stated by the indictment to be "[i]n furtherance of the
conspiracy and to accomplish the objects thereof." Count
One p 51 (emphasis added). Five of the listed acts--including
the shipment and diversion of the tools--plainly occurred
after October 1994, within the statute of limitations for con-
spiracy. See id. at p p 51(21)-(25). Though the majority
suggests otherwise, see Maj. Op. at 13, 14-15 n.10, it is
irrelevant (1) that Hitt did not personally perform any of
these acts, (2) that the records executed in Overt Act 21 are
internal McDonnell Douglas records, (3) that four out of five
acts relate to CATIC's shipping efforts, and (4) that the
parties did not agree specifically as to each of the acts.
When parties join a scheme, they become responsible for the
entirety of its execution, "joined together by their knowledge
of its essential features and broad scope," Blumenthal v.
United States, 332 U.S. 539, 558 (1947), and either party's
ignorance of the details of the overt acts committed by the
other is of no consequence. Id. See also Pinkerton v.
United States, 328 U.S. 640, 646-47 (1946); United States v.
Curry, 977 F.2d 1042, 1058 (7th Cir. 1992) ("The government
is not required to prove any overt acts with regard to a

particular defendant within the limitations period; instead,
the government is required to prove that the conspiracy
existed into the limitations period and that the defendants did
not withdraw before that period.").

The majority refuses to read the indictment as a whole
when it argues that these acts are not in furtherance of the
conspiracy because they do not relate to the receipt of the
export licenses. See Maj. Op. at 21. Although overt acts
cannot extend the scope of the conspiracy unless they were
committed in furtherance of a common goal, see id., an
indictment's allegations of overt acts can help interpret its
other language. Accord Williamson v. United States, 207
U.S. 425, 458 (1908) (using limited character of alleged overt
acts to support narrow reading of remainder of indictment).
Since only a single conspiracy is charged, the majority's
reasoning implies that the grand jury's inclusion of these acts
was unnecessary or mistaken. But we should not excise part
of the indictment lightly. See United States v. Rezaq, 134
F.3d 1121, 1134 (D.C. Cir. 1998) ("[A] motion to strike sur-
plusage [from the indictment] should be granted only if it is
clear that the allegations are not relevant ... "; "Rule 7(d)
has been strictly construed against striking surplusage.")
(internal quotations and citations omitted).

The Manner and Means section of the indictment is in full
accord. The grand jury alleged that "in seeking to achieve
the goal of the conspiracy" CATIC "did ship the equipment to
locations not reflected in such export applications," and
McDonnell Douglas and Hitt concealed from the government
"that separate packing instructions, designating two ports of
delivery, were being employed for all of the licensable ma-
chine tools." Count One p p 45, 47, 49(b)(2). The majority
discards the allegedly false statements made to the Com-
merce Department and other activities after the licenses were
issued, using the now familiar argument that these couldn't
have been in fulfillment of the conspiracy's goal, as narrowly
construed by the majority. See Maj. Op. at 19-20. But the
indictment specifies that the conduct described under Man-
ners and Means was to "achieve the goal of the conspiracy."
The necessary implication is that the better reading of the

"goal" statement is the broader one encompassing efforts to
deliver the goods.

Finally, the indictment states in at least three places that
the conspiracy ended in or around March 1995. Count One
p p 43, 47(n), 51(25). In Forman v. United States, 361 U.S.
416 (1960), overruled on other grounds, Burks v. United
States, 437 U.S. 1, 18 (1978), the Supreme Court was similarly
confronted with an ambiguous indictment that alleged its
duration in years and asserted some overt acts even in the
year of indictment. It explicitly relied on the overt acts to
resolve the ambiguity. See 361 U.S. at 423.

* * *

Robert Hitt may be entirely innocent of the charges. Or
the government may in fact be unable to prove his joinder in
the broader goal of the conspiracy and thus his complicity in
the activities after issuance of the licenses. But the indict-
ment's unequivocal assertions of McDonnell Douglas's pur-
poses, of the conspiracy's duration, of the manner and means
of execution that involve completion of the shipment, and of
the overt acts looking to that completion plainly resolve the
indictment's ambiguous statement of the conspiracy's goal,
making clear that it charges a conspiracy reaching into the
five-year window. Since the indictment adequately apprised
Hitt of the scope of the charged conspiracy, the statute of
limitations defense cannot properly rest on its language.