24-2975 United States v. Bulloch
United States Court of Appeals For the Second Circuit
August Term 2025
Argued: September 22, 2025 Decided: January 27, 2026
No. 24-2975
UNITED STATES OF AMERICA,
Appellee,
v.
KENT BULLOCH,
Defendant-Appellant,
WILLIAM YOUNG, SR., a/k/a Bill,
Defendant.
Appeal from the United States District Court for the Eastern District of New York No. 1:20CR00181, Peggy Kuo, Magistrate Judge; Eric R. Komitee, District Judge.
Before: ROBINSON and MERRIAM, Circuit Judges. *
Defendant-appellant Kent Bulloch appeals from a judgment entered in the United States District Court for the Eastern District of New York convicting him, following a jury trial, of a misdemeanor offense of conspiracy to violate a provision of the Defense Production Act of 1950, 50 U.S.C §4512, stemming from his involvement in a scheme during the COVID-19 pandemic to buy personal protective equipment (“PPE”) in bulk and resell it for a profit. See United States v. Bulloch, No. 1:20CR00181(EK)(PK), 2024 WL 4654134 (E.D.N.Y. Nov. 1, 2024).
On appeal, Bulloch argues that the term “accumulate” as used in Section 4512 is interchangeable with the term “hoard” and means “to gather, collect, or accrue over a period of time.” Bulloch contends that the evidence at trial was insufficient to prove that he acquired PPE over a period of time or intended to withhold PPE from the market for a period of time, and that his conviction therefore cannot stand. We disagree with Bulloch on this narrow question of statutory interpretation. Accordingly, we AFFIRM.
JEREMY GUTMAN, New York, NY, for Defendant- Appellant.
ROBERT POLLACK, Assistant United States Attorney (Michael W. Gibaldi, Assistant United States Attorney, on the brief), for Joseph Nocella,
* Circuit Judge Alison J. Nathan was originally a member of the panel but was unable to participate in consideration of this matter. Pursuant to this Court’s Internal Operating Procedures, the appeal was heard and decided by the remaining members of the panel, who are in agreement. See 2d Cir. IOP E(b).
2 Jr., United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
SARAH A. L. MERRIAM, Circuit Judge:
Defendant-appellant Kent Bulloch appeals from a judgment entered in the
United States District Court for the Eastern District of New York (Kuo, M.J.),
convicting him, following a jury trial before the Magistrate Judge, of a
misdemeanor offense of conspiracy to violate Section 4512 of the Defense
Production Act of 1950 (“DPA”). The conviction stems from Bulloch’s
involvement in a scheme during the COVID-19 pandemic to buy, using money
from investors, personal protective equipment (“PPE”) in bulk and resell it at an
inflated price. Bulloch was sentenced principally to a two-year term of probation
and a fine of $1,000. Bulloch also appeals from an order of the District Judge
(Komitee, D.J.), affirming the judgment entered by the Magistrate Judge. See
United States v. Bulloch, No. 1:20CR00181(EK)(PK), 2024 WL 4654134 (E.D.N.Y.
Nov. 1, 2024).
On appeal, Bulloch argues that the term “accumulate” as used in Section
4512 of the DPA is synonymous with the term “hoard,” which, according to
Bulloch, means “to gather, collect, or accrue over a period of time.” Bulloch Br. at 6
3 (emphasis added). Bulloch requested a jury instruction to that effect, which was
denied. In accordance with his proposed definition, Bulloch contends that the
government had to prove beyond a reasonable doubt that he intended to
withhold scarce materials from the market for a period of time. Bulloch avers
that the evidence at trial was insufficient to prove his intent to withhold PPE –
specifically, KN-95 masks – from the market for a period of time, and thus his
conviction cannot stand. We disagree with Bulloch on this narrow question of
statutory interpretation. Accordingly, we AFFIRM.
I. BACKGROUND
A. Defense Production Act of 1950 and COVID-19 Regulation
Congress passed the DPA, 50 U.S.C. §§4501 et seq., during the Korean War
in an effort “to maintain a large production of military goods while seeking also
to meet the long-denied and increasing needs of the Nation’s civil economy.”
Allen v. Grand Cent. Aircraft Co., 347 U.S. 535, 549 (1954). To that end, the Act
authorizes the President to “allocate materials, services, and facilities in such
manner, upon such conditions, and to such extent as [he or she] shall deem
necessary or appropriate to promote the national defense.” 50 U.S.C. §4511(a)(2).
4 The President may exercise this authority “to control the general distribution of
any material in the civilian market” only if:
the President finds (1) that such material is a scarce and critical material essential to the national defense, and (2) that the requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship.
Id. §4511(b). With respect to materials that have been designated as scarce and
critical to the national defense, Section 4512, titled “Hoarding of designated
scarce materials,” provides:
In order to prevent hoarding, no person shall accumulate (1) in excess of the reasonable demands of business, personal, or home consumption, or (2) for the purpose of resale at prices in excess of prevailing market prices, materials which have been designated by the President as scarce materials or materials the supply of which would be threatened by such accumulation.
Id. §4512. A willful violation of that section is a misdemeanor punishable by up
to one year in prison and a fine of up to $10,000. See id. §4513.
On March 13, 2020, as the COVID-19 pandemic began to affect the United
States, the President issued Proclamation No. 9994, declaring “that the COVID-19
outbreak in the United States constitutes a national emergency.” Proclamation
No. 9994, 85 Fed. Reg. 15337. Then, as relevant to this appeal, the President
issued two executive orders (“EOs”) pursuant to his authority under, among
5 other things, the DPA. First, on March 18, 2020, the President issued EO 13909,
titled “Prioritizing and Allocating Health and Medical Resources to Respond to
the Spread of COVID-19.” Exec. Order 13909, 85 Fed. Reg. 16227. EO 13909
found: “To ensure that our healthcare system is able to surge capacity and
capability to respond to the spread of COVID-19, it is critical that all health and
medical resources needed to respond to the spread of COVID-19 are properly
distributed to the Nation’s healthcare system and others that need them most at
this time.” Id. Accordingly, the EO concluded “that health and medical
resources needed to respond to the spread of COVID-19, including personal
protective equipment and ventilators, meet the criteria specified in” §4511(b) of
the DPA, id., as “scarce and critical material[s] essential to the national defense,”
§4511(b)(1). The President delegated authority to the Secretary of Health and
Human Services (“HHS”) “to determine, . . . the proper nationwide priorities and
allocation of all health and medical resources, including controlling the
distribution of such materials . . . in the civilian market, for responding to the
spread of COVID-19 within the United States.” Exec. Order 13909, 85 Fed. Reg.
16227.
6 Then, on March 23, 2020, the President issued EO 13910, titled “Preventing
Hoarding of Health and Medical Resources To Respond to the Spread of COVID-
19.” That Order stated: “To ensure that our Nation’s healthcare systems are able
to surge capacity and capability to respond to the spread of COVID-19, it is the
policy of the United States that health and medical resources needed to respond
to the spread of COVID-19, such as personal protective equipment and sanitizing
and disinfecting products, are not hoarded.” 85 Fed. Reg. 17001. The President
further delegated authority to the Secretary of HHS “to prevent hoarding of
health and medical resources necessary to respond to the spread of COVID-19
within the United States.” Id.
Pursuant to these EOs, on March 25, 2020, the Secretary of HHS published
a “Notice of Designation of Scarce Materials or Threatened Materials Subject to
COVID-19 Hoarding Prevention Measures” which “designat[ed] health and
medical resources necessary to respond to the spread of Coronavirus Disease
2019 (COVID-19) that are scarce or the supply of which would be threatened by
excessive accumulation,” and that were to be “subject to the hoarding prevention
measures authorized under the Executive order and the [DPA].” 85 Fed. Reg.
17592-01. The notice designated several materials as “scarce” or “threatened,”
7 including, as relevant here, certain PPE such as “N-95 Filtering Facepiece
Respirators,” “Other Filtering Facepiece Respirators,” “PPE face masks,” and
“PPE surgical masks.” Id.
B. Offense Conduct 1
In March and April 2020, recognizing the anticipated “real shortage of
masks” and the “real profit to be made,” Gov’t App’x at 81 (Gov’t Ex. 102T),
Bulloch engaged in a scheme to solicit investors to buy large quantities of PPE
masks and resell them at a markup. Bulloch personally solicited potential
investors. He also handled the money; investors would send funds to be held in
Bulloch’s attorney trust account, which he would then use to purchase masks.
When the masks were resold at a higher price, the proceeds would be held in
Bulloch’s trust account.
As alleged in the Information, “[o]n or about April 22, 2020, Bulloch and
[William] Young,” his co-conspirator, “participated in a telephone call with” an
undercover FBI agent, who “indicated that he intended to re-sell the PPE he was
seeking to purchase from Bulloch and Young and that he intended to increase the
1These facts are drawn from the evidence presented at trial; they are “taken in the light most favorable to the jury’s verdict.” United States v. Capers, 20 F.4th 105, 112 n.2 (2d Cir. 2021).
8 resale price of the PPE by 50 percent.” App’x at 19 (capitalization altered).
Specifically, Bulloch and the undercover agent discussed a plan to purchase 1
million masks at a cost of $3.80 per mask; the undercover agent would then send
the “total purchase price” to Bulloch to be held in Bulloch’s attorney trust
account. Gov’t App’x at 67 (Gov’t Ex. 4). Bulloch would then use the funds to
purchase masks and ship the masks to the undercover agent, who in turn would
sell the masks for $5.70 per mask – a 50% markup. The undercover agent
proposed that he would keep 80% of the profit, Bulloch would get 10%, and
Young would get 10%.
After that call, on April 22, 2020, Bulloch sent the undercover agent an
escrow agreement and wiring information. The escrow agreement provided,
among other things: “Client shall not charge more than 10% above costs to
secondary buyer. For example if masks cost $5.50 client will not resale masks
above $6.05.” Gov’t App’x at 69 (Gov’t Ex. 13A). The agreement further
provided that “[a]ll funds received into escrow shall be deposited with other
escrow funds in a general trust account of Law Offices of Kent Bulloch unless
otherwise instructed,” and “[e]scrow agent shall be paid as a paymaster and
process facilitator .1 of net profit.” Gov’t App’x at 70. The wiring information
9 provided that the trust account was held in the name of “Law Offices of Kent
Bulloch.” Gov’t App’x at 67.
II. PROCEDURAL HISTORY
Bulloch was arrested pursuant to a warrant and criminal complaint and
made his initial appearance on May 4, 2020. He was charged by way of an
Information dated May 18, 2020, with a single count of conspiracy to violate
Sections 4512 and 4513 of the DPA by
knowingly and willfully conspir[ing] to accumulate, for the purpose of resale at prices in excess of prevailing market prices, materials which have been designated by the President as scarce materials or materials the supply of which would be threatened by such accumulation, to wit: certain personal protective equipment (‘PPE’), including KN95 Filtering Facepiece Respirators (the ‘KN95 Masks’) and 3-Ply surgical masks (the ‘3-Ply Masks’).
App’x at 18.
Prior to trial, the parties submitted proposed jury instructions. Bulloch
objected to the government’s proposed jury instruction that defined the word
“accumulate,” as used in Section 4512, as “to gather, collect, or accrue.” App’x
at 30. He instead sought a jury instruction that defined “accumulate” as “to
gather, collect, or accrue over a period of time.” Id. (emphasis added). Bulloch’s
proposed instruction then stated: “To establish this element in a prosecution
under the statute that prohibits hoarding scarce materials, the government must
10 establish that the defendant’s accumulation of materials caused them to be
withheld from the market for a period of time long enough to cause or allow
their price to rise.” Id. The Magistrate Judge indicated at the pretrial conference
that she would reject Bulloch’s proposed instruction.
Bulloch then moved to dismiss the Information on the basis that Section
4512 of the DPA is unconstitutionally vague. As relevant to this appeal, Bulloch
argued that “the word ‘accumulate’ in the context of 50 U.S.C. §4512
unambiguously refers to conduct that entails hoarding.” Letter Motion to
Dismiss the Information at 3, United States v. Bulloch, No. 1:20CR00181(PMK)(EK)
(E.D.N.Y. July 15, 2022), Doc. #55. 2 The Magistrate Judge denied Bulloch’s
motion, holding: “The plain language of 50 U.S.C. §4512 is unambiguous and
contains no temporal element.” Opinion and Order at 8, United States v. Bulloch,
No. 1:20CR00181(PMK)(EK) (E.D.N.Y. July 19, 2022), Doc. #64.
2Bulloch also argued that the language “prevailing market price” rendered the statute unconstitutionally vague. Letter Motion to Dismiss the Information at 3- 4, United States v. Bulloch, No. 1:20CR00181(PMK)(EK) (E.D.N.Y. July 15, 2022), Doc. #55. Bulloch does not press this argument on appeal; he has therefore abandoned it. See United States v. Prawl, 149 F.4th 176, 187 (2d Cir. 2025) (“An argument not raised on appeal is generally deemed abandoned.” (citation modified)).
11 The matter proceeded to trial. At the close of evidence, the Magistrate
Judge instructed the jury: “The first element is that the Defendant accumulated
or conspired [to] accumulate certain materials specified in the information;
namely, PPE, including KN95 masks and 3-ply masks. ‘Accumulate’ is used in
the ordinary sense and simply means to gather, collect, or accrue.” App’x at 23.
The jury returned a verdict convicting Bulloch. The Magistrate Judge sentenced
Bulloch principally to two years of probation and imposed a $1,000 fine.
Bulloch appealed to the District Judge pursuant to 18 U.S.C. §3402 and
Federal Rule of Criminal Procedure 58(g)(2)(B), raising, among others, the same
argument about the term “accumulate.” The District Judge affirmed the
conviction, concluding that Section 4512 is unambiguous and that the plain
meaning of the term “accumulate” as used in the statute “contains no temporal
limitation.” United States v. Bulloch, No. 1:20CR00181(PMK)(EK), 2024 WL
4654134, at *4 (E.D.N.Y. Nov. 1, 2024). The District Judge further held that the
statutory context supported interpreting “accumulate” in accordance with its
plain meaning. See id. Finally, the District Judge concluded that, even assuming
the text was ambiguous, the legislative history confirmed that the drafters did
not intend for the statute to target only accumulation that occurs over some
12 indefinite but prolonged period of time. See id. at *6. In light of the statutory
analysis, the District Judge rejected Bulloch’s vagueness challenge. Bulloch
appealed.
III. DISCUSSION
This appeal presents a single, narrow issue: the meaning of the term
“accumulate” as used in Section 4512 of the DPA. On appeal, as before the
District Court, Bulloch argues that the term “accumulate” as used in Section 4512
means “hoard,” and “[i]f that is correct, Bulloch’s conviction cannot stand,
because the evidence at trial did not establish that he conspired to hoard scarce
materials.” Bulloch Br. at 13. In other words, according to Bulloch, “the only
‘accumulation’ [Section 4512] prohibits is accumulation that comprises hoarding.
. . . If so defined, the statute would not apply to Bulloch because the trial
evidence established that he did not contemplate maintaining an inventory of
masks; rather, his intent was to secure a purchaser’s payment in advance and to
distribute masks as soon as he acquired them.” Id. at 6. 3 We disagree with
Bulloch’s interpretation.
3Bulloch styles his argument as a challenge to the sufficiency of the evidence. But he argues only that the evidence was insufficient to sustain his conviction if this Court agrees with his interpretation of the term “accumulate” – he does not
13 A. The statutory text is unambiguous.
We review the interpretation of a federal statute de novo. See United States
v. Aleynikov, 676 F.3d 71, 76 (2d Cir. 2012).
The principles of statutory interpretation are familiar. We begin with the
statute’s “plain meaning, if it has one.” United States v. Dauray, 215 F.3d 257, 260
(2d Cir. 2000). “In looking at a statute’s plain meaning, we also must consider
the context in which the statutory terms are used, as we do not . . . construe
statutory phrases in isolation; we read statutes as a whole.” Springfield Hosp., Inc.
v. Guzman, 28 F.4th 403, 418 (2d Cir. 2022) (citation modified); United States v.
Gayle, 342 F.3d 89, 93 (2d Cir. 2003), as amended (Jan. 7, 2004) (“The text’s plain
meaning can best be understood by looking to the statutory scheme as a whole
and placing the particular provision within the context of that statute.” (citation
modified)). “Due respect for the prerogatives of Congress in defining federal
crimes prompts restraint in this area, where we typically find a narrow
interpretation appropriate.” Aleynikov, 676 F.3d at 76 (citation modified).
If the statutory language is unambiguous, the inquiry ends there. See
Gayle, 342 F.3d at 92. But “[i]f we find the statutory provision ambiguous, . . . we
contend that the evidence was insufficient to convict him under the definition of accumulate adopted by the District Court.
14 then turn to canons of statutory construction for assistance in interpreting the
statute.” United States v. Rowland, 826 F.3d 100, 108 (2d Cir. 2016) (citation
modified). Finally, “[w]e resort to legislative history only if, after consulting
canons of statutory instruction, the meaning remains ambiguous.” Id. (citation
modified).
1. Plain meaning
Section 4512 states:
In order to prevent hoarding, no person shall accumulate (1) in excess of the reasonable demands of business, personal, or home consumption, or (2) for the purpose of resale at prices in excess of prevailing market prices, materials which have been designated by the President as scarce materials or materials the supply of which would be threatened by such accumulation.
50 U.S.C. §4512 (emphases added). Where Congress did not define certain terms
– here, the word “accumulate,” see 50 U.S.C. §4552 (definitions) – we
“presumptively give those terms their ordinary meaning.” EPA v. Calumet
Shreveport Refin., L.L.C., 145 S. Ct. 1735, 1747 (2025); accord Dauray, 215 F.3d at 260
(where “Congress provided no definition of the term[],” we “consider the
ordinary, common-sense meaning of the word[]”); see also Aleynikov, 676 F.3d
at 76 (“Statutory construction must begin with the language employed by
Congress and the assumption that the ordinary meaning of that language
15 accurately expresses the legislative purpose.” (citation modified)).
Dictionary definitions generally agree that the ordinary meaning of the
term “accumulate” contains no temporal requirement. For example, Webster’s
Third New International Dictionary defines “accumulate” to mean “to heap up
in a mass: pile up,” “amass,” and “collect, gather.” Accumulate, Webster’s Third
New International Dictionary (unabridged ed. 2002); accord Accumulate, Oxford
English Dictionary (2d ed. 1989) (defining “accumulate” to mean “[t]o heap up in
a mass, to pile up” or “to amass or collect”). Webster’s New International
Dictionary, Second Edition, published just ten years after the DPA was enacted,
similarly defined “accumulate” as “[t]o heap up in a mass; to pile up; hence, to
collect or bring together; to amass.” Accumulate, Webster’s Second New
International Dictionary (unabridged ed. 1960). And The American Heritage
Dictionary of the English Language defines “accumulate” as “[t]o gather or cause
to increase; amass.” Accumulate, The American Heritage Dictionary of the
English Language (5th ed. 2011). As these definitions illustrate, the plain
meaning of the term “accumulate” – both now and as it was used close in time to
when the statute was adopted – includes no requirement that accumulation
occur only over a specific or lengthy period of time.
16 The dictionary definitions accord with ordinary usage. While a person
may certainly “accumulate,” “gather,” or “collect” items over a period of time,
one may also accumulate, gather, or collect items within a day, or even within
minutes or seconds. For example, a person who drives to the supermarket and
buys 100 rolls of toilet paper in one trip has “accumulated” 100 rolls of toilet
paper, just as she would if she went to the supermarket once a day for 100 days,
each time buying one roll of toilet paper until she had 100 rolls. Put simply, the
plain meaning of the term “accumulate” does not mandate that the accumulation
occur only over some unspecified, prolonged period of time, as Bulloch urges. 4
Bulloch cites two dictionary definitions, neither of which undermines our
conclusion. Bulloch relies on the Dictionary.com definition of “accumulate,”
which, like the others we have cited, contains no temporal requirement; it defines
“accumulate” as “to gather or collect, often in gradual degrees; heap up.”
Accumulate, Dictionary.com. 5 That definition permits a temporal element, but
4 We note that Bulloch does not provide any explanation of just how long, under his interpretation, one would need to withhold materials with the intent to resell them at above-market prices. 5 Accumulate, Dictionary.com, https://www.dictionary.com/browse/accumulate (last visited Jan. 22, 2026). [https://perma.cc/25VC-6PP7]
17 certainly does not require it. Bulloch further contends that The Cambridge
Dictionary of American English defines accumulate to mean: “to
collect a large number of things over a long period of time.” Bulloch Br. at 19.
That definition – an outlier – actually appears in the general Cambridge
Dictionary, and in fact, the website providing the definition indicates it is taken
from the “Cambridge Advanced Learner’s Dictionary & Thesaurus.” The
Cambridge Dictionary website indicates that the “American Dictionary” defines
the term as “to collect or increase something gradually, esp. [but not necessarily]
over a period of time.” Accumulate, Cambridge Dictionary. 6 Bulloch’s own
definitions confirm that the plain meaning of “accumulate” can – but need not –
include accumulation over a period of time. And the mere fact that one
dictionary defines accumulation as occurring “over a long period of time” does
not otherwise force an ambiguity in the term’s plain meaning. See MCI
Telecommunications Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 227 (1994) (“But what
petitioners demand that we accept as creating an ambiguity here is a rarity even
rarer than that: a meaning set forth in a single dictionary (and, as we say, its
6Accumulate, Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/accumulate (last visited Jan. 22, 2026) [https://perma.cc/49NP-GFL5].
18 progeny) which not only supplements the meaning contained in all other
dictionaries, but contradicts one of the meanings contained in virtually all other
dictionaries.”).
2. Context
While conceding that the “ordinary sense” of the term “accumulate”
“simply means to gather, collect, or accrue,” Bulloch contends that the broader
statutory context “unmistakably” requires reading the term “accumulate” as
occurring “over a period of time.” Bulloch Br. at 19. We disagree. To the
contrary, we conclude that the broader context of the statutory provision confirms
that Congress intended the term “accumulate” as used in Section 4512 to be
interpreted in accordance with its ordinary meaning, which lacks any temporal
requirement. See Springfield Hosp., Inc., 28 F.4th at 418.
Section 4512 contains a prefatory clause – “[i]n order to prevent hoarding”
– that announces the statute’s purpose. See District of Columbia. v. Heller, 554 U.S.
570, 577 (2008) (A “prefatory clause . . . announces a purpose.”). The prefatory
clause is followed by two alternative operative clauses, i.e., two alternative
means, separated by the disjunctive “or,” by which the statutory purpose of
preventing hoarding is achieved. First, “no person shall accumulate . . . in excess
19 of the reasonable demands of business, personal, or home consumption . . .
materials which have been designated by the President as scarce.” 50 U.S.C.
§4512. Second, and independently, “no person shall accumulate . . . for the
purpose of resale at prices in excess of prevailing market prices[] materials which
have been designated by the President as scarce.” Id. The latter operative clause,
at issue in this case, is devoid of any temporal limitation. There is no durational
requirement for a person’s accumulation of scarce materials for the purpose of
reselling in excess of prevailing market rates. This provision criminalizes
accumulation with the intention of reselling scarce materials in excess of
prevailing market prices, without defining or restricting the period of time over
which a person must withhold those materials while intending to sell them for a
profit. And the absence of any temporal guideline makes sense; market prices
can change in an instant, and therefore one may need only accumulate scarce
materials for a short time when intending to resell them in excess of prevailing
market prices. To be sure, the accumulation of scarce materials over a long
period of time with an intent to resell them in excess of prevailing market prices
certainly falls within the scope of Section 4512, but it does not follow that the
statute criminalizes only such prolonged accumulation. See Stanley v. City of
20 Sanford, Fla., 606 U.S. 46, 55-56 (2025) (“[E]ven supposing [petitioner’s]
conditional-mandate theory were a textually permissible way to understand the
statute, we do not usually pick a conceivable-but-convoluted interpretation over
the ordinary one.”).
Bulloch counters that the provision’s prefatory clause makes it “plain that
‘accumulate’ is used as a synonym, or a virtual synonym, for ‘hoarding.’”
Bulloch Br. at 16. For several reasons, we are not persuaded.
First, Bulloch’s “preferred definition of [accumulate] would overlap with
other verbs in the statute”: namely, hoard. Rowland, 826 F.3d at 108. Accepting
Bulloch’s construction would require a conclusion that Congress meant “hoard”
when it said “hoard,” but also meant “hoard” when it said “accumulate” – a
conclusion that runs headlong into the longstanding principle that we must “give
effect, where possible, to every word of a statute.” Duncan v. Walker, 533 U.S.
167, 167 (2001); Pulsifer v. United States, 601 U.S. 124, 149 (2024) (“In a given
statute, the same term usually has the same meaning and different terms usually
have different meanings.”); accord United States v. Kozeny, 541 F.3d 166, 174 (2d
Cir. 2008) (“When interpreting a statute, we are required to give effect, if
possible, to every clause and word of a statute.” (citation modified)).
21 Second, reading “accumulate” to mean “hoard” would impermissibly limit
the scope of the operative clauses. While “a prefatory clause [may] resolve an
ambiguity in the operative clause[,] . . . a prefatory clause does not limit or
expand the scope of the operative clause.” Heller, 554 U.S. at 577-78 (emphasis
added). As explained, the operative clause at issue lacks any temporal limitation:
It prohibits accumulation of scarce materials with an intention to resell them in
excess of prevailing market prices, which could change instantaneously. If we
accepted Bulloch’s definition of “accumulate,” we would narrow the scope of the
operative clause to cover only accumulation that occurs over an unspecified but
prolonged period of time. That cannot be squared with the statute’s plain
language or with principles of statutory interpretation. 7
Third, even if we were to read “accumulate” as interchangeable with
“hoard,” the plain meaning of “hoard” itself does not necessarily require that the
hoarding occur over some prolonged period of time. See, e.g., Hoard, Oxford
7 Bulloch protests that he does “not assert that section 4512’s prefatory clause limits the scope of its operative clause, but that it contains a word (‘hoarding’) that informs the meaning of the word on which its operative clause hinges.” Bulloch Br. at 21 (emphases in original). But his argument is that the prefatory language “hoard” requires reading a temporal requirement into “accumulate,” where the word “accumulate” concededly would not otherwise contain such a requirement. That is precisely the kind of impermissible scope-expanding described in Heller.
22 English Dictionary (2d ed. 1989) (“To amass and put away (anything valuable)
for preservation, security, or future use.”); Hoard (verb), Webster’s Third New
International Dictionary (unabridged ed. 2002) ( “to collect or accumulate or
amass into a hoard: lay up a hoard of”); Hoard (noun), Webster’s Third New
International Dictionary (unabridged ed. 2002) (defining a “hoard” as “a
collection or accumulation or amassment of something . . . put aside for
preservation or safekeeping or future use often in a greedy or miserly or
otherwise unreasonable manner . . . ”). Even assuming that the definition implies
some temporal element – which we do not here hold – even that definition does
not dictate a specific period of time over which hoarding must occur. Thus, even
if we agreed with Bulloch that “accumulate” means “hoard,” it does not
necessarily follow that the statute criminalizes hoarding only for a prolonged
period of time.
Beyond the prefatory clause, Bulloch’s other efforts to draw support from
the statutory context do not support an abandonment of the ordinary meaning of
“accumulate.” For example, Bulloch contends that Section 4512’s “subsequent
reference to ‘materials the supply of which would be threatened by such
accumulation’” requires reading “accumulate” to mean “hoard” because the
23 Secretary of HHS stated that “scarce materials” are those “likely to be[] in short
supply or the supply of which would be threatened by hoarding.” Bulloch Br.
at 18-19 (emphasis in original). Bulloch posits that the Secretary’s “substitution
of ‘hoarding’ for ‘such accumulation’” proves that “accumulation” is
“interchangeable with ‘hoarding.’” Id. at 19. Not so. The statutory text and the
notice issued by the Secretary of HHS concern both “scarce materials” and
“materials the supply of which would be threatened by such accumulation.”
Compare 50 U.S.C. §4512 (proscribing the accumulation of “materials which have
been designated by the President as scarce materials or materials the supply of
which would be threatened by such accumulation” (emphasis added)), with 85
Fed. Reg. 17592-01 (designating “[h]ealth or medical resources . . . which are, or
are likely to be, in short supply (scarce materials) or the supply of which would
be threatened by hoarding (threatened materials)” (emphasis added)). The
Secretary’s use of the word “hoarding” instead of “accumulation” with respect to
threatened materials does not rewrite the statute’s use of the term “accumulate.” 8
8As explained above, even if we agreed that the terms were interchangeable, it would not follow that the statute would then prohibit only accumulation or hoarding that occurred over a prolonged period of time.
24 And in any event, the statute independently regulates the accumulation of
materials that are deemed scarce. 9
Finally, Bulloch points to the DPA’s “Declaration of Policy,” 50 U.S.C.
§4502, focusing on one of eight congressional findings: “[T]he security of the
United States is dependent on the ability of the domestic industrial base to
supply materials and services for the national defense and to prepare for and
respond to military conflicts, natural or man-caused disasters, or acts of terrorism
within the United States.” Id. §4502(a)(1). From there, while acknowledging that
“this policy declaration does not provide direct guidance regarding the meaning
of section 4512,” Bulloch contends that “the statute is directed toward conduct
that removes designated materials from the market and thereby reduces their
available supply,” and thus does not target “price-gouging” or “profiteering.”
Bulloch Br. at 24-25.
9Bulloch relies on two out-of-Circuit district court decisions, both of which used the terms “hoarding” and “accumulate” interchangeably, as evidence that “accumulate” in Section 4512 is not intended to be used in “the ‘ordinary sense.’” Bulloch Br. at 19; id. at 16-17 (first citing United States v. Ritchey, 604 F. Supp. 3d 397 (S.D. Miss. 2022) and then citing United States v. Leal-Matos, No. 3:21CR00150 (SCC), 2022 WL 476094, at *1 (D.P.R. Feb. 15, 2022)). But neither of those district courts was presented with a dispute regarding the meaning of the term “accumulate” within Section 4512.
25 However, as explained, the text of Section 4512 criminalizes two distinct
methods of accumulation, one of which is “accumulat[ing] . . . for the purpose of
resale at prices in excess of prevailing market prices, materials which have been
designated . . . as scarce materials or materials the supply of which would be
threatened by such accumulation.” 50 U.S.C. §4512. We decline to ignore or
erase the plain text of Section 4512 in light of one general policy goal, which itself
does not actually conflict with Section 4512. As we have explained, “[a]ppeals to
broad remedial goals and congressional purpose are not a substitute for the
actual text of the statute when it is clear.” Mei Xing Yu v. Hasaki Rest., Inc., 944
F.3d 395, 412 (2d Cir. 2019); accord Stanley, 606 U.S. at 58 (“Nobody disputes the
ADA’s stated ambition to root out ‘discrimination against individuals with
disabilities.’ §12101(b)(1). But it is quite mistaken to assume . . . that any
interpretation of a law that does more to advance a statute’s putative goal must
be the law.” (citation modified)).
Accordingly, we conclude that the statutory context reinforces, rather than
undermines, the text’s plain meaning.
In sum, the word “accumulate” in Section 4512 is unambiguous and must
be interpreted in accordance with its ordinary meaning, which does not require
26 that accumulation occur over an undefined but prolonged period of time.
Nothing in the statutory context persuades us to depart from the plain meaning
of the term. In light of that conclusion, we need not consult interpretive aids
such as canons of construction or legislative history. See Rowland, 826 F.3d at 108.
B. Because the statutory text is unambiguous, the rule of lenity does not apply.
Bulloch contends that if this Court finds ambiguity in Section 4512, then
the rule of lenity requires reading the statute in a manner consistent with
Bulloch’s interpretation. “The touchstone of the rule of lenity is statutory
ambiguity.” United States v. Gonzalez, 407 F.3d 118, 124 (2d Cir. 2005) (citation
modified). Because we conclude that “the plain language of [Section 4512]
unambiguously indicates that” the term “accumulate” does not require that
Bulloch possessed masks for some unspecified period of time, “there is no need
to turn to a rule of construction to further divine the meaning of the statute, and
the rule of lenity does not apply.” United States v. DiCristina, 726 F.3d 92, 105 (2d
Cir. 2013).
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of District Court.