United States v. John Peter McGoff

831 F.2d 1071, 265 U.S. App. D.C. 312, 1987 U.S. App. LEXIS 13983

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 13, 1987
• Docket: 87-3005
• Status: Published

Opinions

STARR, Circuit Judge:

This case presents an issue of first impression. The precise question is whether the statute of limitations for the offense of failing to register as required by the Foreign Agents Registration Act of 1938 (FARA), 22 U.S.C. §§ 611-621 (1982 & Supp. Ill 1985), begins to run on (1) the last day that an unregistered foreign agent acts on behalf of a foreign principal, or (2) the first day that a formerly unregistered agent actually registers. Under the former approach, the Government’s attempted prosecution of the defendant in this case is time-barred. Under the latter approach, the statute of limitations has not yet come into play since the defendant never registered under FARA. Presented with these competing approaches, the District Court embraced the first and accordingly dismissed the criminal information. We are now called upon to determine whether the trial court erred as a matter of law.

After careful examination of the relevant statutory provisions, as well as FARA’s structure and legislative history, we find ourselves in accord with the District Court’s determination. In our judgment, the trigger-point of the statute of limitations is the last day on which the foreign agent allegedly acted as such. We therefore affirm.

I

This case began in October 1986 when the United States Attorney filed a criminal information against John Peter McGoff.¹ The information charged that Mr. McGoff had violated sections 612 and 618 of FARA by willfully failing to register as an agent of the Republic of South Africa. See Information, United States v. McGoff, Cr. No. 86-369, at 7 (D.D.C. filed Oct. 31, 1986), reprinted in Joint Appendix (J.A.) at 5, 11. Mr. McGoff was then and remains a newspaper publisher and columnist,² who by virtue of a “deep and long-held belief,” see Appellee’s Brief at 11, has publicly advocated close ties between the United States and the Republic of South Africa. In Mr. McGoff’s view, such ties are vital to the defense of the United States and the free world. Id.

The information alleged that in 1974 Mr. McGoff entered into a secret agreement with officials of the Republic of South Africa. See Information, United States v. McGoff, at 2, J.A. at 6. The alleged agreement had as its primary objective McGoff’s purchasing The Washington Star, a now-defunct daily newspaper formerly published in the Nation’s Capital, with funds provided sub rosa by South Africa. According to the information, South Africa hoped through this purchase effectively to counter the perceived anti-South Africa bias of The Washington Post. Id. This check and balance was to be achieved through publication of “positive material relating to the strategic and economic importance of South Africa to the United States.” Id. The relationship between Mr. McGoff and the South African Government allegedly expanded in 1975 to include an effort to purchase an interest in UPITN Corp., an international news film distributor. Id. at 4, J.A. at 8. Mr. McGoff’s activities on behalf of South Africa, the Government maintains, continued until June 1979, when his efforts to acquire The Washington Star ended in failure.³ After this proposed acquisition fell through, the alleged agency relationship terminated. Id. at 5, J.A. at 9.

The information asserts that during the five-year period from 1974 to 1979, McGoff actively concealed the relationship through such clandestine devices as secret accounts, dummy corporations, and code words. See id. at 2-3, J.A. at 6-7. Despite these efforts, the relationship evidently came to light in late 1978 when

a judicial commission that the government of South Africa appointed to inquire into alleged irregularities in that nation’s former Department of Information ... stated that McGoff had received more than $11.3 million from the South African government to attempt to purchase the Washington Star ... and a controlling interest in the United Press International and Television Network [UPITN],

SEC v. McGoff, 647 F.2d 185, 188 (D.C. Cir.), cert. denied, 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 974 (1981).⁴ These disclosures prompted the Justice Department to launch an investigation into McGoff’s activities in 1979 that led, years later, to the filing of the information in October 1986. See Joint Statement of Material Facts Not in Dispute, United States v. McGoff, Cr. No. 86-369 (D.D.C. filed Nov. 1986), J.A. at 12.

In the proceedings below, both parties recognized that the statute-of-limitations question was one of first impression. Since the issue was potentially dispositive of the case, the parties were of the same mind that this question should be addressed first. The District Court agreed. Accordingly, the court entered an order establishing a briefing schedule and directing the parties to prepare a statement of material facts not in dispute. The parties thereafter stipulated to the following:

1. John Peter McGoff (“McGoff”) last allegedly acted as an agent for the Government of the Republic of South Africa (“South Africa”) on June 13,1979. See Information 119.

2. McGoff never registered under the FARA as an agent of South Africa.

3. The United States of America has been investigating McGoff s relationship with South Africa since at least August of 1979.

4. McGoff has never waived his right to rely on the statute of limitations as a defense to the criminal charge in this case.

5. No factual occurrences or events have in any way tolled the running of the statute of limitations applicable to the criminal charge in this case.

Id. at 12-13. In light of these stipulated facts, the sole question before the District Court was one of law — when did the statute of limitations for failure to file under FARA begin to run?

In December 1986, the District Court, following oral argument, held that the period begins to run from the last day an individual allegedly acts as an agent for a foreign principal. See Hearing on Motion to Dismiss Information, United States v. McGoff, Cr. No. 86-369, at 20 (D.D.C. Dec. 19,1986), J.A. at 86, 105. Inasmuch as the limitations period for violations of FARA is five years, see 18 U.S.C. § 3282 (1982) (general statute of limitations for non-capital offenses),⁵ the court concluded that the Government was required to file the information no later than June 13, 1984. See Stipulation 1, quoted supra. Since the Government had not done so, the District Court granted McGoff’s motion to dismiss the information as time-barred. This appeal followed.

II.

Before addressing the question at issue, we pause briefly to summarize the general purposes and structure of the Foreign Agents Registration Act. As the Supreme Court recently observed in a case dealing with another aspect of FARA, “[t]he statute itself explains the basic purpose of the regulatory scheme.” Meese v. Keene, — U.S.-, 107 S.Ct. 1862, 1865, 95 L.Ed.2d 415 (1987). Specifically, FARA was originally enacted:

[T]o protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the Government and the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in the light of their associations and activities.

Id. (quoting 56 Stat. 248-49 (1942), 22 U.S.C. § 611 Note on Policy and Purpose of Subchapter); see also Viereck v. United States, 318 U.S. 236, 244, 63 S.Ct. 561, 564, 87 L.Ed. 734 (1943); Attorney General v. Irish People, Inc., 684 F.2d 928, 937-45 (D.C.Cir.1982), cert. denied, 459 U.S. 1172, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983).

Over the years, FARA’s focus has gradually shifted from Congress’ original concern about the political propagandist or subversive seeking to overthrow the Government⁶ to the now familiar situation of lobbyists, lawyers, and public relations consultants pursuing the less radical goal of “influencpng] [Government] policies to the staisfaction [sic] of [their] particular client.” S.Rep. No. 143, 89th Cong., 1st Sess. 4 (1965). But as its focus has changed, the core notion of FARA has remained the same, namely that government officials and the public generally should be able to identify those who act on behalf of a foreign principal. The idea is a frequently recurring one in modern government: public disclosure is needed in order for the public (and, at times, the Government itself) accurately to evaluate such activities.

The scope of persons subject to FARA is broad. Section 611 defines the critical terms “agent[s] of foreign principals],” to include almost anyone who undertakes any public-related or financial activity on behalf of a foreign principal. See 22 U.S.C. § 611(c).⁷ Section 613, however, then exempts from FARA’s sweep diplomatic agents; agents involved in commercial or non-political activities; and attorneys who represent foreign principals in legal matters before any court or government agency. See id. § 613.⁸ The definition of “foreign principal” is also broad; it includes a foreign government, foreign political party, or other combinations of persons or groups organized and doing business outside the United States. See id. § 611(b).⁹

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

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

A registered agent is required to “keep and preserve while he is an agent of a foreign principal such books of account and other records” as the Attorney General’s regulations specify. Id. § 615.¹¹ The same section also directs the agent to “preserve the same for a period of three years following the termination of such status.” Id.

Section 618 provides both criminal and civil sanctions for violations of the statute. For willful violations, subsection (a) prescribes a penalty of $10,000 or five years imprisonment, or both. Id. § 618(a). Subsection (f) authorizes the Attorney General to secure an injunction or restraining order whenever “any person is engaged in or about to engage in any acts which constitute or will constitute a violation of any provision [of FARA].” Id. § 618(f).¹²

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

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

Ill

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

A

Simply stated, the distinctive but limited role of the judiciary in cases such as this is to discern Congress’ intent as embodied in the statute at hand. See, e.g., Japan Whaling Association v. American Cetacean Society, — U.S.-, 106 S.Ct. 2860, 2866-67, 92 L.Ed.2d 166 (1986); United States v. Albertini, 472 U.S. 675, 679-80, 105 S.Ct. 2897, 2902, 86 L.Ed.2d 536 (1985). To express our goal so succinctly has the virtue of emphasizing the cardinal (but often overlooked) principle that “legislative intention, without more, is not legislation.” Train v. City of New York, 420 U.S. 35, 45, 95 S.Ct. 839, 845, 43 L.Ed.2d 1 (1975); International Union, UAW v. Brock, 746 F.2d 855, 860 (D.C.Cir.1984), cert. denied, 474 U.S. 825, 106 S.Ct. 81, 88 L.Ed.2d 66 (1985). We therefore cannot fulfill our duty merely by beginning with the particular statutory language in question but pausing there only briefly, as if it were a waystation en route to another destination. On the contrary, we must dwell on the language and structure of the entire statute. If our examination of the entirety of the statute evinces a clear, unequivocal answer to the interpretive question, our job is at an end. See United States v. James, — U.S. -, 106 S.Ct. 3116, 3122, 92 L.Ed.2d 483 (1986); Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482-83, 83 L.Ed.2d 472 (1984); Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981); United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 6 L.Ed.2d 575 (1961); Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384, 395-96, 71 S.Ct. 745, 751, 95 L.Ed. 1035 (1951) (Jackson, J., concurring); United Air Lines, Inc. v. CAB, 569 F.2d 640, 647 (D.C.Cir.1977). Since we appropriately look to sources extrinsic to the statute only for the light they may shed on the darker corridors of a statutory labyrinth, no need for resort to such sources even arises if the statute itself is clear. Burlington Northern Railroad Co. v. Oklahoma Tax Commission, — U.S. -, 107 S.Ct. 1855, 1860, 95 L.Ed.2d 404 (1987).

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

To these broad principles underlying the task of judicial interpretation, two further points emerge more directly bearing on this case. First, although extrinsic sources vary widely in their reliability (and thus are not susceptible to wholesale classification as to their usefulness), when, as here, legislation arises in response to a need voiced by the Executive Branch, interpretive aid may ofttimes be found in those voices providing the impetus to legislation. See, e.g., United States v. Rock Island Motor Transit Co., 340 U.S. 419 n. 9, 71 S.Ct. 382 n. 9, 95 L.Ed. 391 (1951); see also International Brotherhood of Teamsters v. ICC, 801 F.2d 1423, 1428 & n. 4 (D.C.Cir.1986), reh’g granted, 818 F.2d 87 (D.C.Cir.1987). This is especially so when, as is also true here, the Executive takes an active role in drafting the legislation and presenting it to Congress. See, e.g., United States v. Vogel Fertilizer Co., 455 U.S. 16, 31-32, 102 S.Ct. 821, 830-31, 70 L.Ed.2d 792 (1982); Miller v. Youakim, 440 U.S. 125, 144, 99 S.Ct. 957, 968, 59 L.Ed.2d 194 (1979). In this situation, the views and interpretations of these Executive Branch actors provide a context for what may be, in some respects, a legislative response to an executive request.

Second, while courts recognize the inevitability and, in certain contexts, the desirability of legislation that leaves some details to be resolved as the statute is applied, there are limits. Those limits are most graphic in cases involving criminal sanctions. This is elementary to our law. In the criminal context, courts have traditionally required greater clarity in draftsmanship than in civil contexts, commensurate with the bedrock principle that in a free country citizens who are potentially subject to criminal sanctions should have clear notice of the behavior that may cause sanctions to be visited upon them. See, e.g., Dowling v. United States, 473 U.S. 207, 218, 228-29, 105 S.Ct. 3127, 3134, 3139-40, 87 L.Ed.2d 152 (1985).

That is to say, the law of crimes must be clear. There is less room in a statute’s

regime for flexibility, a characteristic so familiar to us on this court in the interpretation of statutes entrusted to agencies for administration. We are, in short, far outside Chevron territory here. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984); see also INS v. Cardoza-Fonseca, — U.S. -, 107 S.Ct. 1207, 1220-22, 94 L.Ed.2d 434 (1987). Related to that obvious point is the fact that, as a practical matter, the clarity demanded in the criminal law can prove to be more difficult to achieve in prescribing mala prohibita than in addressing the traditional mala in se. In the former, Congress is not legislating against the rich tapestry of the common law, a backdrop which may help invest enactments with meaning afforded by history. See, e.g., Standefer v. United States, 447 U.S. 10, 19, 100 S.Ct. 1999, 2005, 64 L.Ed.2d 689 (1980). Instead, Congress is venturing into less well-charted seas, where the frame of reference necessary to understanding may be more difficult to fix both by courts and, more fundamentally, by those who are subject to the law’s strictures. Cf. Viereck, 318 U.S. at 241-42, 63 S.Ct. at 563-64.

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

B

The first (and most basic) step on any interpretive path is the language of the statute itself. See, e.g., United States v. Hohri, — U.S.-, 107 S.Ct. 2246, 2250, 96 L.Ed.2d 51 (1987); Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S.Ct. 2297, 2301-02, 85 L.Ed.2d 692 (1985); Consumer Products Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); Overseas Education Association v. FLRA, 824 F.2d 61, 64 (D.C.Cir.1987). We therefore begin by setting out the precise terminology of one of the two relevant statutory provisions, section 618(e) of FARA:

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

Id. § 618(e).

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

First, section 618(e) establishes that the failure to file a statement “as is required” by section 612 is a “continuing offense.” Although courts are customarily to construe terms employed by Congress to have their ordinary meaning, see, e.g., Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 772, 104 S.Ct. 2105, 2110, 80 L.Ed.2d 753 (1984); American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982); Overseas Education Ass’n, 824 F.2d at 65, the term “continuing offense” is no everyday notion with an ordinary meaning. To the contrary, it is a term of art. The settled approach for interpreting such terms is therefore not one emphasizing ordinary meaning. As the Supreme Court instructed in United States v. Freed,

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

401 U.S. 601, 607-08, 91 S.Ct. 1112, 1117-18, 28 L.Ed.2d 356 (1971) (quoting Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 250, 96 L.Ed. 288 (1952)); accord NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 2794, 69 L.Ed.2d 672 (1981). Thus, a court is to interpret such legal terms in their “familiar legal sense,” Henry v. United States, 251 U.S. 393, 395, 40 S.Ct. 185, 186, 64 L.Ed. 322 (1920), unless Congress has provided a “contrary direction.” Morissette, 342 U.S. at 263, 72 S.Ct. at 250. Here, we find no hint of a “contrary direction,” and we thus accord the term its traditional-legal meaning.

The notion of “continuing offense” has traditionally identified a type of offense fundamentally different from most known to the common law. As first-year law students (presumably) learn, a criminal offense is typically completed as soon as each element of the crime has occurred. For example, a larceny is completed as soon as there has been an actual taking of the property of another without consent, with the intent permanently to deprive the owner of its use. The offense does not “continue” over time. The crime is complete when the act is complete. A “continuing offense,” in contrast, is an unlawful course of conduct that does perdure. As the Supreme Court has described the notion, “the unlawful course of conduct is ‘set on foot by a single impulse and operated by an intermittent force,’ until the ultimate illegal objective is finally attained.” Toussie v. United States, 397 U.S. 112, 136, 90 S.Ct. 858, 871, 25 L.Ed.2d 156 (1970) (White, J., dissenting) (quoting United States v. Midstate Co., 306 U.S. 161, 166, 59 S.Ct. 412, 414, 83 L.Ed. 563 (1939)). The classic example of a continuing offense is conspiracy.¹³

In borrowing the term “continuing offense” for the offense created in section 618(e), Congress imported not only the general common-law concept just described, but also a principle that bears directly on the issue before us. And that is, the statute of limitations as to prosecutions for continuing offenses runs from the last day of the continuing offense. See Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224, 227, 91 L.Ed. 196 (1946); United States v. Butler, 792 F.2d 1528, 1532-33 (11th Cir.1986) (conspiracy); In re Corrugated Container Antitrust Litigation, 662 F.2d 875, 886 (D.C.Cir.1981). See generally Black’s Law Dictionary 291 (5th ed. 1979).¹⁴ This well-settled principle suggests that to resolve the present controversy it is necessary to identify with specificity (1) what offense is created by section 618(e) and (2) when that offense is complete.

The second (and related) point to be gleaned from Congress’ employment of a common-law concept is the rule that continuing offenses do not, in general, continue indefinitely. See Toussie, 397 U.S. at 134-36, 90 S.Ct. at 870-71 (White, J., dissenting) (discussion of what Justice White found to be the continuing offense of failing to register for the draft).¹⁵ The express language of section 618(e) makes clear that the continuing offense created here is no exception. See 22 U.S.C. § 618(e); cf H.R.Rep. No. 1470, 89th Cong., 2d Sess. 8 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2397, 2403 (describing minor changes in the 1966 amendments to FARA as “clarifying certain ambiguities in the present act as to the time when the obligation to file registration statements commences and terminates.’’) (emphasis added).¹⁶ According to the statutory text, the offense continues “for as long as such failure exists.” The “such failure” language, in turn, refers to the “[f]ailure to file any such registration statement ...as is required by ... section 612(a).” 22 U.S.C. § 618(e) (emphasis added). In other words, the continuing offense proscribed by section 618(e) continues only while an individual “is required by ... section 612(a)” to file. When there is no obligation to file, there obviously can be no offense for failing to fulfill that obligation. A parsing of section 618(e) thus shows that resolution of the issue before us lies in the duration of the obligation to file imposed by section 612(a). Our focus, then, must necessarily include the proper interpretation of the latter provision.

But the Government disagrees with what would seem to be an unexceptional interpretive course. In the face of straightforward statutory language directing us to determine what “is required by ... section 612(a),” the Government argues that it is unnecessary to look beyond the text of section 618(e). Indeed, the Government’s position is that section 618(e), standing alone, creates an offense that continues until actual registration regardless of the duration of the section 612(a) obligation. See Reply Brief for Appellant at 5-6. See generally Brief for Appellant at 12-14. We cannot agree.¹⁷ The language of section 618(e) quite clearly links the trigger-point for the statute of limitations to the last day of the continuing offense described in section 612(a). The statute, as we read it, compels resort to section 612(a). Here, more fully stated, is why.

Initially, we cannot but observe that the Government’s interpretation suffers from the fundamental but recurring interpretive flaw of failing to give due weight and effect to every word in the statute. See Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979); In re Surface Mining Regulation Litigation, 627 F.2d 1346, 1362 (D.C.Cir. 1980). See generally 2A N. Singer, Sutherland Statutory Construction § 46.06 (Sands 4th ed. 1984). The Government reads section 618(e) as if it created an offense continuing “as long as failure to file the statement exists,” rather than as saying what it actually says. And what the provision in fact says is that the offense continues “as long as such failure exists.” The term “such failure” plainly refers to the failure to file “as is required by ... section 612(a).”¹⁸

The Government would have us read the word, “such,” as well as the phrase, “as is required by ... section 612(a),” out of section 618(e) altogether. We are unable in conscience to accept this invitation to ignore language which Congress saw fit to enact. In the absence of a compellingly persuasive indication to the contrary,¹⁹ we must assume that Congress intended that language which it chose to employ actually was to have meaning.

The Government’s reading is also objectionable because it isolates section 618(e) from the rest of the statute, including the expressly cross-referenced section 612(a). As the Supreme Court has instructed, “ ‘it is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words will be used, but will take in connection with it the whole statute ... and the objects and policy of the law.’ ” Stafford v. Briggs, 444 U.S. 527, 535, 100 S.Ct. 774, , 68 L.Ed.2d 1 (1980) (quoting Brown v. Duchesne, 60 U.S. (19 How.) 183, 194, 15 L.Ed. 595 (1857)); accord Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 2494, 91 L.Ed.2d 174 (1986). This, we believe, is also one of the messages dispatched by the Supreme Court in its recent explanation of Chevron’s meaning. Cardoza-Fonseca, — U.S.-, 107 S.Ct. 1207, 94 L.Ed.2d 434.

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

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

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

In the absence of this “notwithstanding” phrase, some doubt might well arise as to whether in employing the term “continuing offense” Congress intended to incorporate this particular common-law principle. In other words, it could be thought (as indeed was the case under FARA before the 1950 amendments) that the statute of limitations for a failure-to-register offense would begin to run from the first day the obligation existed. Under that view, the offense would terminate when the statute-of-limitations period expired, even if the underlying conduct continued. By including this phrase, then, section 618(e) ensures that termination of the section 612(a) obligation period, calculated from the day on which the conduct began, will terminate the continuing offense. This concluding phrase of section 618(e), unfortunately, offers little insight into precisely when the continuing offense ends.²⁰

C

Our rather extended treatment of section 618(e) was designed to demonstrate that the decisive question in resolving the statute-of-limitations issue is when the continuing offense terminates. This question, we are satisfied, turns on the duration of the registration obligation of section 612(a). Thus, we move at long last in our analysis from section 618(e) to the provision, namely section 612(a), referred to in the former section. Because of its obvious importance, we set forth the operative language of section 612(a) in the text which follows:

The obligation of an agent of a foreign principal to file a registration statement shall, after the tenth day of his becoming such agent, continue from day to day, and termination of such status shall not relieve such agent from his obligation to file a registration statement for the period during which he was an agent of a foreign principal.

22 U.S.C. § 612(a) (emphasis added). This provision has two components. The first (non-italicized) portion complements section 618(e) by making the obligation to file a registration statement “continue from day to day” — a continuing offense. As such, this language does not hold any promise for assistance in determining when the continuing offense terminates.

It is the second, italicized portion that, we believe, provides the key to the dispute before us. As we saw above, the continuing offense terminates when the section 612(a) obligation to file expires. It is the italicized language that directly addresses the question of expiration. Before passing to consideration of this language, however, it will aid our analysis to describe briefly one aspect of the previously adumbrated filing obligation imposed by FARA. See supra text at 1073-81.

From the manner in which FARA defines the status of an agency relationship and mandates the content of statements (and supplements) which foreign agents must file, it appears that the statutory obligation to file expires when the agent ceases activities on behalf of the foreign principal. After all, once an individual has ceased his activities, he is no longer an “agent of a foreign principal” within the meaning of FARA. The reason is that the section defining “agent of a foreign principal" focuses solely on the agent who is acting, rather than the agent who has previously acted. Nothing in the definition indicates that it operates counterintuitively to label forever someone as an “agent of a foreign principal” because that individual once acted in such a capacity. See 22 U.S.C. § 611(c), quoted supra note 7. So too, the statute’s prescriptions of the content of registration statements focus on ongoing relationships between agents and principals. See id. § 612(a)(l)-(ll), (b). Inasmuch as the statute contemplates (1) an agent’s filing the statement almost immediately upon becoming an agent and (2) thereafter updating that filing continually to reflect changes in the agent's activities, it also appears (although, admittedly, not expressly) to contemplate termination of the filing requirement at the time the agency relationship ends.

Further statutory evidence that Congress contemplated some definite termination of the obligations created by FARA appears in section 615. That provision requires agents who have registered to preserve records of their activities “for a period of three years following the termination of such status.” 22 U.S.C. § 615 (emphasis added). This understanding accords, moreover, with the stated purpose of FARA, which is to permit, promptly, evaluation of these activities as they are undertaken. See supra at 1073 (quoting 56 Stat. 248-49). FARA does not evince an antiquarian interest on Congress’ part; FARA’s focus is on the here and now.

That being said, we recognize that the italicized portion of section 612(a) could be read as extending the obligation to file beyond the life of the agency relationship itself. This is what the language appears to do by stating that “termination of such [agency] status shall not relieve such agent from his obligation to file a registration statement.” 22 U.S.C. § 612(a). That language, taken alone, clearly cuts in favor of the Government’s interpretation. But the provision does not stop there, however. It goes on to add a dangling phrase that muddies the interpretive waters. Specifically, the section concludes with the words, “for the period during which he was an agent of a foreign principal.” Upon reflection, it appears to us that this phrase renders ambiguous the pertinent provision of section 612(a), for its meaning depends on what this prepositional phrase modifies.

Under the view advanced by the Government, the phrase modifies the word “statement,” thereby serving to describe the content of the registration statement. According to this view, the statutory obligation is to file a registration statement describing “the period during which” the person acted as an agent. The second reading, championed by McGoff, is that the phrase modifies the obligation temporally, or more precisely, modifies the words “to file.” That is, an agent is required “to file” only “for the period during which he was an agent of a foreign principal.” Read in this fashion, the function of the italicized language, quoted supra at 1081-82, is to ensure that termination of the agency does not provide an affirmative defense for failure to file during the period that one is an agent.

Neither of these possible readings can confidently be embraced on the basis of grammatical structure alone. The Government’s content-descriptive view might appear the more natural reading, inasmuch as the word “statement” is situated closer to the prepositional phrase than is the infinitive “to file” featured by McGoff. But the Government’s reading suffers from a significant problem; it runs afoul of the well-established principle of interpretation that condemning statutory language to the rubbish heap of surplusage is much to be avoided. See 2A N. Singer, Sutherland Statutory Construction § 46.06. A FARA-required registration statement can, in logic, relate to no period other than “the period during which” the individual acted as an agent. The Government’s reading, upon analysis, would thus render redundant the entire, thirteen-word phrase. It should go without saying that courts are to be reluctant to embrace such eviscerating interpretations. See, e.g., Reiter v. Sonotone Corp., 442 U.S. at 339, 99 S.Ct. at 2331; United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615 (1955); National Insulation Transportation Committee v. ICC, 683 F.2d 533, 537 (D.C.Cir.1982); Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 406 (D.C.Cir.1976). In short, we should not cavalierly cy pres that which the Congress enacted and the President signed into law. See Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 922, 930 n. 11 (D.C.Cir.1985). Accordingly, adoption of the McGoff reading would strongly be preferred upon consideration of the statutory text alone. Yet, since neither can confidently be excluded, we are constrained to conclude that section 612(a) is ambiguous.

This conclusion is buttressed by a recent decision of the United States Supreme Court, albeit in a quite different setting. In Young v. Community Nutrition Institute, 476 U.S. 974, 106 S.Ct. 2360, 90 L.Ed.2d 959 (1986), the statutory issue before the Court provides a striking parallel to the interpretive question now before us. Young concerned the proper interpretation of the following language from the Food, Drug, and Cosmetic Act:

[W]hen such [poisonous] substance ... cannot be avoided, the Secretary shall promulgate regulations limiting the quantity therein or thereon to such extent as he finds necessary for the protection of the public health, and any quantity exceeding the limits so fixed shall also be deemed unsafe for purposes of the application [of another section of the Act].

21 U.S.C. § 346 (1982) (emphasis added).

The Court began its analysis by noting that “the English language does not always force a writer to specify which of two possible objects is the one to which a modifying phrase relates.” 106 S.Ct. at 2364. The Food, Drug, and Cosmetic Act provision at issue provided, in the Court’s view, an illustration of this principle. The phrase italicized above, the Court found, was a “dangling” modifying phrase. It could modify “quantity,” or it could modify “shall promulgate.”²¹ While acknowledging that the reading urged by the private parties (and accepted by our court) in the case “may seem to some the more natural reading,” the Supreme Court pointed out that such a reading was not the only possible one and accordingly held that the statutory language was ambiguous. Id. at 2364-65. Having discerned ambiguity, the Court, under Chevron principles, deferred to the agency’s longstanding interpretation of the provision as modifying “shall promulgate” and therefore not requiring promulgation of formal regulations.

Now to return to our case. After examining the entire statutory framework as well as the directly pertinent provisions, see supra note 21, we likewise find ourselves confronted with grammatical uncertainty like that which faced the Supreme Court in Young. With this sort of closely apposite and very recent precedent before us, we are persuaded that the provision before us suffers from the same flaw of ambiguity.²²

Our dissenting colleague outlines several arguments to support his contrary position. We acknowledge the force of several of his points. At bottom, however, all roads in the dissent lead from one central axis: the statute is unambiguous. That, we believe, is in error; indeed, it is precisely the error of rigid certainty in the construction of statutory language that the Supreme Court discerned in our decision in Young. Surely so recent a lesson from so high a schoolmaster should not go unheeded by pupils in the ranks of the judiciary’s lower precincts.

This ambiguity in the statute alone would appear to suffice in the criminal setting to invoke the time-honored rule of lenity, see McNally v. United States, — U.S.-, 107 S.Ct. 2875, 2881, 97 L.Ed.2d 292 (1987); Tanner v. United States, — U.S.-, 107 S.Ct. 2739, 2753, 97 L.Ed.2d 90 (1987); see also infra section IY, and thus warrant putting down our pens at this point and affirming the District Court. We nonetheless decline, perhaps academically, to short-circuit the process of trying to discern, if at,all possible, Congress’ intent on this issue. We therefore turn to the legislative history, mindful as we said before that this is a step to be taken cautiously under any circumstances, see, e.g., Garcia, 469 U.S. at 75, 105 S.Ct. at 482-83; Oregon, 366 U.S. at 648, 81 S.Ct. at 1281, but especially so in attempting to interpret ambiguous criminal provisions. We will, in short, look to see what the historical materials suggest, but we do so without in any fashion suggesting that which would be extraordinary in a free country ruled by law — that a man or woman could be convicted of a crime by virtue of extra-statutory expressions of legislative “intent” or, more precisely, “meaning” found in the web of legislative history.

The two relevant provisions, sections 612(a) and 618(e), were added to FARA in 1950, but they were parts of different enactments. Section 612(a) was part of what appears to have been a non-controversial bill comprising minor, technical amendments to FARA. Not surprisingly, what legislative history does exist establishes that section 612(a) was designed to accomplish two purposes. First, by creating an obligation that “continues from day to day,” the statute fixed the last day on which a foreign agent acts as an agent of a foreign principal as the date from which the statute of limitations runs. Second, the phrase, “for the period during which he was an agent of a foreign principal,” was meant to eliminate a previously available defense, namely that termination of agency status wiped out liability for failure to comply with FARA’s registration requirements.

Section 618(e), in contrast, was a small part of a controversial piece of legislation, the Internal Security Act of 1950, ch. 1024, tit. I, § 20(b), 64 Stat. 1005, reprinted in 1950 U.S. Code Cong. Serv. 984, 1001. That measure addressed the threat of the infiltration of Communism into the public life and institutions of the United States. By virtue of the law’s controversial nature, the committee reports and floor debates accompanying this legislation are quite lengthy. However, the relatively minor amendment to FARA now codified in section 618(e) seems to have been overlooked in the shuffle. At the very least, it was not the focus of attention. The voluminous legislative history of the Internal Security Act provides little discussion of the provision and hence offers little insight into the proper interpretation of section 618(e).

We thus begin by describing the common origin of the two enactments amending, respectively, sections 612(a) and 618(e). We then discuss the specific legislative history of each of the two provisions.

It is undisputed that, prior to the two 1950 amendments, FARA’s statute of limitations (then three years) began to run on the first day that an individual acted as a foreign agent. This regime led to unreasonable results for the obvious reason that the duration of an agency relationship could easily exceed the three-year limitations period. An agent could therefore begin his or her activities, fail to register, avoid detection for the duration of the limitations period and afterwards be free to continue those activities with impunity. It was to correct this and other flaws in FARA that the Department of Justice recommended that the two provisions at issue be added to the statute.

The first provision made its inaugural appearance on Capitol Hill on January 14, 1949, when Attorney General Clark sent Senator McCarran, Chairman of the Senate Judiciary Committee, “a draft of a proposed bill relating to the internal security of the United States.” Letter from Attorney General Clark to Senator McCarran (Jan. 14, 1949), reprinted in 95 Cong.Rec. 441 (1949). The proposed bill contained a variety of amendments to the Nation’s internal security laws. Of relevance to this case is section 4(b) of the proposed legislation, which eventually became section 618(e) of FARA. Attorney General Clark’s transmittal letter explained:

[T]he purpose of this proposed amendment [i.e., section 4(b) ] is to permit the prosecution of an offender at any time during the period he continues to disregard the statute and not merely within a 3-year period from the time that he first became subject to the law and should have registered but failed to do so.

Id., reprinted in 95 Cong.Rec. 442 (1949). This language clearly expresses dissatisfaction with the limitations period’s beginning to run on the first day of the offense. It offers little insight, however, into when the limitations period was to commence under the proposed bill. On the one hand, the letter could be read to support the Government’s position that prosecution is permitted at any time until one registers, whenever that occurs, because until then the agent (or more precisely, the ex-agent) could conceivably be said to be “disregarding] the statute.” On the other hand, “disregarding] the statute” more naturally refers to failing to register while required under section 612(a), which, as we have seen, is during the period of the agency itself. But, in fairness, we must conclude that this short passage in Attorney General Clark’s letter offers no particular illumination on the question.

Four days after receiving the proposed bill from the Justice Department, Senator McCarran introduced it as S.595. See 95 Cong.Rec. 440 (1949). Following its introduction, the bill languished until it was eventually incorporated into a larger, omnibus internal security bill. See infra note 29.

In the meantime, the Department of Justice once again wrote to Senator McCarran, and to the Speaker of the House, this time transmitting a proposed bill that dealt exclusively with FARA. This proposed legislation proceeded quickly through both Houses and was eventually passed some two months prior to passage of section 618(e). The Department’s proposed bill contained two sections, amending sections 612(a) and 617. The transmittal letter to Capitol Hill came this time not from Attorney General Clark but from Peyton Ford, Assistant to the Attorney General. Mr. Ford described the proposed amendment to section 612(a) as follows:

[A]s the section presently reads there is room for doubt as to whether the statute of limitations against prosecution of an agent for failure to comply with the registration provisions of the act commences to run from the date on which he was first required to register or from the last day on which such unregistered agent has acted. Doubt has also arisen as to the liability of an agent to file a registration statement for the period during which he was acting as an agent of a foreign principal if he has since ceased such activity.

Letter from Peyton Ford to The Speaker, House of Representatives (Apr. 12, 1949), reprinted in H.R.Rep. No. 1775, 81st Cong., 2d Sess. 3 (1950). See also Letter from Peyton Ford to Sen. McCarran, Chairman of the Senate Judiciary Committee (Apr. 12, 1949) (same), reprinted in S.Rep. No. 1900, 81st Cong., 2d Sess. 2-3 (1950), U.S.Code Cong.Serv.1950, p. 2886.²³

We thus see in the genesis of the bills amending sections 612(a) and 618(e) respectively a common concern on the part of the Executive Branch to prevent the statute of limitations from expiring while the foreign agent continued his or her efforts on behalf of a foreign principal. We see in the proposed amendment to section 612 the concern over whether an agent’s ceasing activities could be deemed to cut off liability for failing to comply with FARA's registration requirements. (We likewise see in Mr. Ford’s letter an “either or” approach that excludes the Government’s interpretation: the statute begins to run either “from the date on which he was first required to register or from the last day on which such unregistered agent has acted.”) In tracing the separate path each bill took in Congress, we find clear indications in the history of section 612(a) that Congress enacted the amendment with the intention of addressing both concerns. The issue is a bit murkier, however, in the history of section 618(e).

The legislation proposed by the Justice Department amending section 612(a) was promptly introduced on the floor of the House, see 95 Cong.Rec. 5207 (1949) (recording introduction of H.R. 4386 on April 27, 1949), and referred to the Judiciary Committee. See id.²⁴ The Committee Report set forth the following description of the amendment to section 612(a) in reporting out H.R. 4386:

The proposed amendment to section 2 [section 612 of FARA] is intended to accomplish a dual purpose. First, it will remove any doubt which may now exist that the statute of limitations will begin to run only from the last day on which an unregistered agent has acted as such within the United States. Second, it is intended to remove any doubt as to the liability of an agent to file a registration statement for the period in which he was acting as an agent and thereafter has ceased such activity.

H.R.Rep. No. 1775, 81st Cong., 2d Sess. 1 (1950). The House Report on the amendments to section 612(a) effected by H.R. 4386 furthers our understanding of this provision in two significant respects.

First, the Report evinces an intent to address the two separate concerns, which were expressed in Mr. Ford’s transmittal letter, quoted supra at 1086, that animated the Department of Justice in proposing amendments to section 612(a). One concern should by now be familiar to the reader — prior to the amendments, the statute of limitations was viewed as commencing on the first day on which an agent was required to register under FARA. The second concern was that individuals subject to FARA were attempting to evade the Act’s requirements by ceasing their activities and claiming as an affirmative defense that withdrawal from an agency relationship automatically eliminated liability for failure to file.²⁵ H.R.Rep. No. 1775 at 2.

Second, the Committee’s delineation of a “dual purpose” accords exactly with the compound structure of section 612(a) that we discerned in our analysis of the language itself. See supra text at 1081-83. The Report makes clear that in providing that the “obligation ... to file a registration statement shall ... continue from day to day,” 22 U.S.C. § 612(a), Congress intended to establish “that the statute of limitations will begin to run only from the last day on which an unregistered agent has acted as such.” That, of course, is the day on which the agency relationship terminates. This purpose is echoed in the title of the amending bill, which describes the measure as designed to make the violation of the registration obligation a “continuing offense.” See supra note 24. To accomplish the second purpose — “to remove any doubt as to the liability of an agent to file a registration statement for the period in which he was acting as an agent” — Congress provided in the latter portion of section 612(a) that “termination of [foreign agency] status shall not relieve such agent from his obligation to file a registration statement for the period during which he was an agent of a foreign principal,” 22 U.S.C. § 612(a). The “for the period” language of section 612(a) thus eliminated as an affirmative defense the argument that the agency relationship had ended and so too had the reporting obligation. Section 617, introduced along with amendments to 612, was designed to accomplish the same result with respect to the argument that the organization which had carried on registrable activities had dissolved. See supra note 25.²⁶

Approximately two weeks after the Committee reported out H.R. 4386, the measure was passed by the House with no debate, see 96 Cong.Rec. 4610-11 (1950) (passed House on April 3, 1950), and sent to the Senate. Id. at 4639. The Senate Judiciary Committee reported the bill in June 1950, recommending passage without amendment. S.Rep. No. 1900, 81st Cong., 2d Sess. (1950). The Senate Report essentially mirrors the House Report. It begins by restating the contents of the letter from Peyton Ford outlining the prevalent uncertainty over the statute of limitations. Then, the Report notes the “tactic of subversive organizations” of defending prosecutions by arguing that they were dissolved or ceased their activities. See supra note 25. The bill, the Report summarizes, aims to achieve “[clarification of the intendment of the section on these questions.” Id. at 2, U.S.Code Cong.Serv.1950, p. 2887. Thus, the Senate Report, like that of the House, demonstrates an overall intent to respond to the difficulties that had arisen in the Executive Branch’s administration of FARA.

In addition to reinforcing the dual purpose evident in the language of section 612(a), the Senate Report addresses the relationship between section 612(a) and 618(e) (the latter, as we have seen, having been subsumed in a comprehensive, more slow-moving internal security bill, S.595):

Attention is directed to the fact that there is presently reposing on the Senate Calendar S.595, a bill relating to the internal security of the United States, where in section 4, subsection (b) there is contained an amendment of [FARA], the effect of which is to make failure to register a continuing offense. This duplicates in part the substantive change in section 1 of the proposed law. Notwithstanding the duplication and obsolescense patent in these bills, your committee feels constrained to recommend favorably section 1 of this proposed bill as is, for the very practical reason that S.595 is in jeopardy of passage because of the controversial nature of its other subject matter. In the belief that the instant legislation is noncontroversial and would very likely be enacted into law, your committee recommends it, knowing that S.595 can be changed on the floor.

Id. at 2, U.S.Code Cong.Serv.1950, p. 2887.

It is apparent from this passage that the specific way in which section 618(e) “duplicates in part” the amendments to section 612(a) is by reiterating that the failure to register in compliance with section 612 is a “continuing offense,” i.e., one which in the words of section 612(a) “continues from day to day.” The inference seems inescapable that the amendment to section 618(e) was intended to accomplish the same purpose as this portion of the amendments to section 612, namely to ensure that the statute of limitations commenced on the day the agency relationship terminated. What is more, this interpretation accords with our analysis of section 618(e)’s language as linking the limitations period to the duration of the obligation to file established in section 612(a). See supra at 1075-78. By the same token, it casts substantial doubt on the Government’s view that section 618(e) alone resolves the issue of when the statute of limitations begins to run.

Correlatively, the Senate Report implies that S.595 did not affect the other portion of the amendments to section 612(a). That part of the proposal was designed to defeat the affirmative defense of termination of the agency relationship. See supra note 25. This aim was accomplished in the part of section 612(a) providing that “termination of [foreign agency] status shall not relieve such agent from his obligation to file a registration statement for the period during which he was an agent of a foreign principal.” This corollary inference makes sense in light of the fact that section 618 as a whole concerns matters of enforcement of the Act (which would include questions such as when the limitations period commenced) and does not address substantive issues, such as the availability of affirmative defenses.

Taken together, the House and Senate Reports on the amendments to section 612 leave little doubt which of the possible readings of that provision was intended by Congress. That history establishes, first, that a portion of section 612 was crafted for the specific purpose of causing the statute of limitations to commence on the day the agency relationship terminated; and second, that section 618(e), which designated failure to comply with section 612 as a “continuing offense,” was intended to have the safe effect.²⁷

There is one other portion of the legislative history of section 612(a) that bears on the question before us. It is found in a statement by Senator McCarran on the floor immediately before the Senate passed H.R. 4386. In response to a request for “an explanation of this bill,” Senator McCarran began by observing generally that “the purpose of this bill is to close some loopholes in [FARA].” 96 Cong.Rec. 11,025 (1950) (statement of Sen. McCarran). As to the first loophole, the Senator explained that skillful tactics of “subversive organizations,” supra note 25, would be eliminated by specifically providing that violation of section 612 would be a continuing offense. He went on separately to address the impact of the amendments on the statute of limitations in the following passage:

This bill ... also closes another loophole, by making certain that a person charged with violations of the act cannot plead the statute of limitations. At the present time, it may be contended that the statute begins to run at the time when the agent was first required to register. Under such an interpretation, if he could escape prosecution for the period of the statute, he would thereafter be exempted from registering even though he continued his subversive activities. Under the bill now before the Senate the statute would begin to run only from the last day on which the unregistered agent acted as such.

Id.

The Government seizes upon the breadth of the italicized portion to argue that Congress intended to go beyond addressing concerns in the administration of justice by effectively eliminating altogether the statute of limitations for failure to register under FARA. In the Government’s view, this passage negates the clarity with which the passages previously discussed fixed the trigger-point for the statute of limitations on the last day the agent acted in the capacity as agent for a foreign principal.

We are unpersuaded. For one thing, even considering only the italicized portion, Senator McCarran’s statement by no means speaks with crystalline clarity. It appears to us that he could well have been referring, albeit in an imprecise way, to the fact that under the bill the statute of limitations would no longer run as long as the agency relationship continued. This reading would, of course, be consistent with the notion articulated in the very next sentence of the Senator’s remarks, namely that as matters stood the statute commenced on the day foreign agents began acting as agents. For another thing, the Government’s interpretation of this isolated portion of the Senator’s remarks conflicts with the final sentence of the quoted passage. As the reader will readily discern, that sentence, which after all concludes the Senator’s exegesis of this feature of the amendments, states quite emphatically that under the amendment to section 612(a) the limitations period will begin to run when the agency relationship terminates.²⁸

Finally, we cannot but observe that the Government's argument contains the seeds of its own refutation by suggesting that Congressional intent to accomplish such a bold step can be gleaned in a solitary phrase of a single legislator’s comments (which, of course, the members of the other House in our bicameral system would not have had occasion to hear). If, as the Government maintains, Congress did intend the draconian measure of effectively eliminating the statute of limitations, the obvious question arises why the Article I branch did not accomplish this remarkable result in a more straightforward fashion, as it did for capital offenses, see generally infra section IV.A, and why such an unusual (indeed drastic) step did not engender any discussion or debate. We find none, nor has the Government directed our attention to any.²⁹

Under these circumstances, we are well advised to pay heed to the Supreme Court’s repeated admonition, grounded both in common sense and democratic theory, that the remarks of a single legislator, even the sponsor, are not controlling in analyzing legislative history. That is all the more true when, as here, those remarks examined in context are at best ambiguous and at worst internally inconsistent. See, e.g., Weinberger v. Rossi, 456 U.S. 25, 35 n. 15, 102 S.Ct. 1510, 1517 n. 15, 71 L.Ed.2d 715 (1982); Chrysler Corp. v. Brown, 441 U.S. 281, 311, 99 S.Ct. 1705, 1722, 60 L.Ed.2d 208 (1979); Northern Colorado Water Conservancy District v. FERC, 730 F.2d 1509, 1518 (D.C.Cir.1984). These sorts of comments are potentially useful in providing evidence of Congress' intent when and only when “they are consistent with the statutory language and other legislative history.” Brock v. Pierce County, 476 U.S. 253, 106 S.Ct. 1834, 1840, 90 L.Ed.2d 248 (1986) (citing Grove City College v. Bell, 465 U.S. 555, 567, 104 S.Ct. 1211, 1218, 79 L.Ed.2d 516 (1984)).

As a result, the most that can reasonably be made of Senator McCarran’s comments on the floor is that, taken as a whole, they are not inconsistent with the House and Senate Reports. As such, these comments provide only cumulative evidence concerning which of the two plausible readings of section 612(a) is correct. The least that can be said is that the Senator’s comments are internally inconsistent, a not infrequent frailty in human communication, and that as an isolated statement by a single legislator, the sentence is entitled to little weight.

Turning to the history of section 618(e), we find little in the legislative history of the Internal Security Act that even bears on the interpretation of that provision. It should be recalled that the language of section 618(e) more naturally conveys a straightforward meaning, namely (1) that the section creates an offense that continues as long as the obligation to file under section 612(a) continues, and (2) that the statute of limitations, in accord with the traditional rule concerning continuing offenses, commences only when the section 612(a) obligation to file expires. No clearly contrary indication of Congress’ intent appears in the legislative history. Cf. Burlington N.R.R., 107 S.Ct. at 1860; United States v. Albertini, 472 U.S. 675, 680, 105 S.Ct. 2897, 2902, 86 L.Ed.2d 536 (1985); Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482-83, 83 L.Ed.2d 472 (1984); United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981).

As we have seen, the amendment to section 618(e) enacted in 1950 originated with the Department of Justice as a proposed revision intended to “permit the prosecution of an offender at any time during the period he continues to disregard the statute and not merely within a 3-year period from the time that he first became subject to the law and should have registered but failed to do so.” Letter from Attorney General Clark to Senator McCarran (Jan. 14, 1949), reprinted in 95 Cong.Rec. 441-42 (1949).

Unfortunately, the ambiguity in the Attorney General’s description as to whether disregard of the statute continued only during the existence of an agency relationship (or, in contrast, continued indefinitely until registration took place), is not resolved in the ensuing history of section 618(e) in the Article I branch. As is so frequently the case, most remarks in the legislative history are little more than paraphrases of other language, in this instance, the Attorney General’s language just quoted. See, e.g., S.Rep. No. 427, 80th Cong., 1st Sess. 9 (1949) (accompanying S.595); S.Rep. No. 2369, 81st Cong., 2d Sess. 10 (1950) (accompanying S.4037).³⁰ The rémaining references to section 618(e) for the most part merely restate section 619(e)’s terms, see, e.g., 96 Cong.Rec. 14,177 (statement of Sen. McCarran); id. at 14,179 (statement of Sen. McCarran); H.R. Conf.Rep. No. 3112, 81st Cong., 2d Sess. 54 (1950) (conference report accompanying H.R. 9490, see supra note 29), another unhelpful characteristic of much that falls under the broad rubric of “legislative history.”

Only two items from the history of the Internal Security Act go beyond paraphrasing the bill itself or the Attorney General’s brief explanation. Neither, however, turns out upon analysis to be of significant assistance in addressing the question at hand. First, soon after introducing S.595, Senator McCarran solicited comments on its provisions from a number of authorities, including one Elisha Hanson, a private attorney. Mr. Hanson voiced concern that the provision which was to become section 618(e) would “in effect abolish[] all statutes of limitations in respect of failure to file registration statements as required by the law.” See Letter from Elisha Hanson to Senator McCarran (June 17, 1949), reprinted in 95 Cong.Rec. 9748-49 (1949). Senator McCarran responded to Mr. Hanson’s concerns in a letter transmitting the latter’s comments to Senator Kilgore:

The gravamen of this offense [of failing to register] is not an overt act but a mere failure to act. The offense might under some circumstances be very difficult to discover. I do not like the idea of a legal situation in which a foreign agent, if he can successfully [flout] the law for some unnamed period of time, may thereafter be forever immune to prosecution.

Letter from Senator McCarran to Senator Kilgore (July 9, 1949), reprinted in 95 Cong.Rec. 9749-50 (1949). Senator McCarran placed the underlying correspondence in the record in the hope that his colleagues would consider it. See 95 Cong.Rec. 9747 (statement of Senator McCarran).

We concede that Senator McCarran’s letter could be construed to support the Government’s interpretation of section 618(e). After all, the letter suggests that Senator McCarran viewed with disfavor an inability to prosecute occasioned solely due to passage of time. But quite apart from the notion that such individual comments, even by the sponsor of the legislation, are entitled to little weight, see, e.g., Weinberger v. Rossi, 456 U.S. at 35 n. 15, 102 S.Ct. at 1517 n. 15; Chrysler Corp. v. Brown, 441 U.S. at 311, 99 S.Ct. at 1722; see supra at 1090-91, Senator McCarran’s comment, if read in the way urged by the Government, would suggest that no statute of limitations would be appropriate for a failure to register. Again, we believe that if Congress had intended this remarkable result, that intent would be more clearly manifested than in an oblique reference. This is especially true in light of the different intent expressed later, in the passage of amendments to section 612(a), to begin the limitations period once the relationship of foreign agency ended. Finally, this statement lends itself to a more natural interpretation, namely that a successful flouting of the law for a specific period should not “forever” immunize a violator from prosecution. The statement does not, fairly read, convey an assumption of the polar opposite — that a violator, once having violated the statute, may forever be subject to prosecution.

The second historical item is similarly unhelpful. Specifically, when offering a general description of the provisions of S.595, Senator McCarran made the following point: “Fifth. It removes the penalty on- failure to register under the Foreign Agents Registration Act from the statute of limitations by providing that such failure to register shall be considered a continuing offense.” 96 Cong.Rec. 12,068 (1950) (statement of Senator McCarran). This comment, like Senator McCarran’s letter to Senator Kilgore, is the statement of a single legislator that in its breadth could be read to accomplish a more drastic result than is indicated by the language of the statute or the rest of the legislative history. More fundamentally, this statement is incorrect as a matter of law. As discussed above, see supra at 1078-79, continuing offenses are not “remove[d] ... from the statute of limitations”; the statute of limitations applies with full force to such offenses.

In sum, in contrast to the legislative history of section 612(a), the legislative history of the Internal Security Act of 1950 in general, and section 618(e) in particular, provides no particular guidance in ascertaining when the continuing offense created in sections 612(a) and 618(e) terminates (and when, accordingly, the statute of limitations begins to run). We are thus left with section 618(e) itself which, as we previously sought to establish, looks to section 612(a) to determine the duration of the offense and the statute of limitations trigger-point. Happily, while the text of section 612(a) is ambiguous, the statute’s legislative history, as we have seen, speaks more clearly.

IV

Several additional considerations, based upon the statute and its history, buttress our ultimate conclusion in this case.

First, we are reluctant to embrace the Government’s interpretation because, as should by now be painfully clear to the patient reader, it would virtually eliminate the statute of limitations for failure to file under FARA.³¹ To accept this interpretation, we would have to overlook statutory indications that the obligation to file was to have some definite termination, and conclude that Congress intended to modify by implication the common-law principle that continuing offenses do not continue indefinitely. See supra at 1078-79, 1082-83. Although Congress indisputably enjoys power to provide no statute of limitations, see 18 U.S.C. § 3281 (no statute of limitations for capital offenses); 1 C. Torcia, Wharton’s Criminal Law § 90, at 415-16 (14th ed. 1978) (“The protection afforded by a statute of limitations is not a matter of right but of legislative grace.”), we doubt that Congress would choose to exercise such an unusual power implicitly, in such a roundabout fashion, and for an offense which does not partake of the nature of mala in se. After all, on the one occasion Congress actually intended to eliminate a statute of limitations, it did so explicitly. See 18 U.S.C. § 3281. And that solitary instance related to the most heinous crimes known to our law. Premeditated murder is one thing; failure to disclose, even in an open, highly regulated society, is quite another.

It should go without saying that a court should not second guess the precise means Congress has chosen to implement its legislative objectives. Cf. TVA v. Hill, 437 U.S. 153, 173-74, 187-88, 98 S.Ct. 2279, 2291-92, 2298, 57 L.Ed.2d 117 (1978). But the fact that the Government’s construction imputes to Congress an intent to act implicitly, when in other circumstances Congress demonstrated an ability to accomplish the same result clearly and explicitly, is a factor counseling against ready acceptance of the Government’s interpretation. Cf. United States v. Maze, 414 U.S. 395, 405, 94 S.Ct. 645, 651, 38 L.Ed.2d 603 (1974).

In addition, the Government’s interpretation leads to results which if not absurd, cf American Tobacco Co. v. Patterson, 456 U.S. 63, 71, 102 S.Ct. 1534, 1538-39, 71 L.Ed.2d 748 (1982); United States v. Turkette, 452 U.S. at 580, 101 S.Ct. at 2527; Transbrasil S.A. Linhas Aereas v. Department of Transportation, 791 F.2d 202, 205-06 (D.C.Cir.1986), strike us as singularly unlikely to have been intended. Under the Government’s construction, an individual is forever subject to prosecution and stiff criminal penalties, see 18 U.S.C. § 951, for an omission in the form of a failure to provide information required by what is, at bottom, a disclosure statute. As we suggested above, although such conduct is certainly not to be blinked at, it is certainly far removed from what Congress appears, before now at least, to have considered so serious as to warrant the indefinite threat of prosecution. See id. § 3281. Indeed, Congress’ fundamental purpose, as we have seen, was not to punish foreign agents for the activities described in the statute; rather, it was to compel disclosure to permit evaluation of these activities. See supra at 1073. The addition, as we saw, of civil enforcement mechanisms in 1966 further stressed the goal of forcing disclosure rather than punishing nondisclosures.³² If employment of criminal sanctions in this setting was indeed to employ a Howitzer in lieu of a fly swatter, see supra note 12, then it would be passing strange to provide for lifetime prosecutions for what the Executive obviously deemed to be something quite less than a life-or-death offense.

What is more, the facts of this case demonstrate that the prospect of long-delayed prosecutions is hardly high fiction. The Government contends that Mr. McGoff entered into an oral agreement over twelve years ago to act as an agent for the Government of South Africa. Whatever the merits of the Government’s assertions, it must be apparent that a trial focusing on events that occurred so long ago presents serious practical problems; to state the obvious, witnesses may have died, memories may have faded. This is not to say that such a trial could not legitimately go forward. To the contrary, our point is much narrower. When an alternate construction is available that will avoid such difficulties, a court should eschew the interpretation that will produce absurd or unjust results and embrace the alternative, if that interpretation is consistent with the discernible legislative purpose. See, e.g., Griffin v. Oceanic Contractors, Inc,, 458 U.S. 564, 575, 102 S.Ct. 3245, 3252, 73 L.Ed.2d 973 (1982); United States v. Kirby, 74 U.S. (7 Wall.) 482, 486,19 L.Ed. 278 (1869); Transbrasil S.A. Linhas, 791 F.2d at 205-06; Government of the Virgin Islands v. Berry, 604 F.2d 221, 225 (3d Cir.1979).

Our reluctance to embrace the far-reaching implications of the Government’s position in the absence of firmer mooring in the statutory language or legislative history is reinforced by the consideration that its interpretation cannot logically be limited to the situation in which a foreign agent fails to file any statement whatsoever. Section 618(e), after all, applies to “failure[s] to file ... as is required by either section 612(a) or section 612(b).” 22 U.S.C. § 618(e). This language appears to include not only complete failures to file but also other forms of noncompliance with section 612, such as filing statements that are late, omit material facts, or contain material misstatements. Our belief that section 618(e) covers what are arguably less serious types of violations is buttressed by section 612(d), which appears to make any willful failure fully to comply with FARA prosecutable as a “willful failure to file a registration statement or supplement thereto,” precisely that which is covered by section 618(e). This logical extension of the Government’s argument would stretch the ability indefinitely to prosecute FARA violations beyond what may be considered the gravest type of violation to relatively less serious ones. It is unlikely in the extreme that this strange result reflects Congress’ intent.

In sum, the presence of the types of difficulties adumbrated above counsel against embracing the Government’s interpretation. Happily, in the circumstances of this case, an alternative interpretation is, as we have seen, both available and supported in the statutory text and legislative history. Inasmuch as we have found this construction to be consistent with Congress’ intent — indeed, to be precisely what Congress intended — we should not hesitate to give effect to that interpretation.

McGoff argues that difficulties of constitutional proportion arise if the Government’s construction is accepted. Most significantly, McGoff suggests that permitting the Government indefinitely to prosecute violations of FARA could in certain circumstances transgress the requirements of the Due Process Clause.

We need not dwell on this argument. It is sufficient for purposes of our analysis that no less an authority than Justice Jackson found the prospect “of an indefinitely continuing offense [which] would result in an indeterminate extension of the statute of limitations” to be “of doubtful constitutionality even if it were created by Congress.” Krulewitch v. United States, 336 U.S. 440, 456-57, 69 S.Ct. 716, 724-25, 93 L.Ed. 790 (1949) (Jackson, J., concurring). Cf. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977) (“[T]he ‘statute of limitations does not fully define [defendants’] rights with respect to the events occurring prior to indictment,’ ... the Due Process clause has a limited role to play in protecting against oppressive delay,”) (quoting United States v. Manon, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971)). Since it is well established that a “statute should be interpreted, if fairly possible, in such a way as to free it from not insubstantial constitutional doubts,” Lynch v. Overholser, 369 U.S. 705, 711, 82 S.Ct. 1063, 1067, 8 L.Ed.2d 211 (1962), we observe only that an interpretation the result of which Justice Jackson considered “of doubtful constitutionality” would appear to raise “not insubstantial constitutional doubts.” Accordingly, the presence of such a constitutional issue is appropriately considered as a factor counseling against the Government’s interpretation. See, e.g., United States v. Five Gambling Devices, 346 U.S. 441, 448-49, 74 S.Ct. 190, 194-95, 98 L.Ed. 179 (1953); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296-97, 76 L.Ed. 598 (1932) (Brandéis, J.).

Finally, and most importantly, our holding finds solid support in the well-established principle of interpretation of criminal statutes known as the rule of lenity. See, e.g., McNally v. United States, — U.S. -, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987); Tanner v. United States, — U.S. -, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987); Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980); Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971); see also Dixson v. United States, 465 U.S. 482, 491, 104 S.Ct. 1172, 1177, 79 L.Ed.2d 458 (1984). That rule has been only recently described by the Supreme Court as follows:

[A]mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.

Tanner, 107 S.Ct. at 2753 (quoting Rewis, 401 U.S. at 812, 91 S.Ct. at 1059 (citing Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955)); accord Lewis v. United States, 445 U.S. 55, 65, 100 S.Ct. 915, 920, 63 L.Ed.2d 198 (1980); United States v. Batchelder, 442 U.S. 114, 121-22, 99 S.Ct. 2198, 2203, 60 L.Ed.2d 755 (1979); Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958). This principle has been applied not only to the interpretation of substantive criminal provisions, but to the construction of sentencing statutes, Simpson v. United States, 435 U.S. 6, 14-15, 98 S.Ct. 909, 914, 55 L.Ed.2d 70 (1978), and statutes of limitations, Toussie, 397 U.S. at 115, 90 S.Ct. at 860.

Even the Government acknowledges the continued vitality of the rule of lenity, which would appear not in the slightest open to question in the wake of its most recent reaffirmation by a unanimous Supreme Court. See Tanner, 107 S.Ct. at 2753. The Government, furthermore, implicitly concedes the rule’s potential applicability to this case; the Government argues instead that we should not apply the rule because section 618(e), standing alone, supplies a clear and unambiguous answer to the question of when the statute of limitations commences. See Brief for Appellant at 41. If the statute were indeed clear, the Government would of course be correct; as the Supreme Court repeatedly has noted, the “ ‘touchstone’ of the rule of lenity is statutory ambiguity.” Bifulco, 447 U.S. at 387, 100 S.Ct. at 2252; accord Lewis, 445 U.S. at 65, 100 S.Ct. at 921; Batchelder, 442 U.S. at 121-22, 99 S.Ct. at 2203; Huddleston v. United States, 415 U.S. 814, 831, 94 S.Ct. 1262, 1272, 39 L.Ed.2d 782 (1974). The Supreme Court has also admonished courts not to “manufacture ambiguity where none exists.” Batchelder, 442 U.S. at 122, 99 S.Ct. at 2203; accord Bifulco, 447 U.S. at 387, 100 S.Ct. at 2252.

But we do not succumb to clever “manufacturing” temptations in concluding that the statute speaks ambiguously on the issue at hand. Indeed, the most that can reasonably be said for the Government’s position on the merits is that sections 612(a) and 618(e) do not clearly rule out its position. At the same time, our review of the text of the relevant statutory provisions, the statute as a whole, and the legislative history convinces us that Mr. McGoff s reading is correct: the statute of limitations for failing to register under FARA begins to run from the last day that an individual acts as an agent of a foreign principal. Thus, even if our analysis left us without a clear indication of Congressional intent, the rule of lenity would counsel strongly against the Government’s interpretation.

V

In summary, the District Court correctly dismissed as time-barred the criminal information filed against Mr. McGoff. Its judgment is therefore

Affirmed.

1 . Mr. McGoff waived his right to an indictment by a grand jury. See Appellant’s Brief at 3 n. 1.

2 . According to McGoffs brief, in 1979, when the Government's investigation of him began, he was the president of Panax Corporation and Global Communications Corporation, entities that then published more than 65 newspapers in eight States. McGoff owned one hundred percent of Global and enjoyed an ownership interest in Panax as well. By 1986, however, McGoffs media empire had dwindled markedly to an interest in one daily newspaper and one "shopping guide" in Michigan. See Appellee’s Brief at 11-12.

3 . Mr. McGoff was allegedly somewhat more successful in his efforts to purchase an interest in UPITN. See generally SEC v. McGoff, 647 F.2d 185, 188 (D.C.Cir.), cert. denied, 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 974 (1981).

4 . SEC v. McGoff concerned McGoffs challenge to subpoenas issued by the SEC in the course of its investigation into whether McGoffs alleged connection with South Africa violated disclosure provisions of the federal securities laws. 647 F.2d at 188-90. Aside from this factual nexus, the SEC litigation is unrelated to this case.

5 . Section 3282 provides as follows:

Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found [sic] or the information is instituted within five years next after such offense shall have been committed.

18 U.S.C. § 3282 (1982).

6 . The House Report accompanying the bill that became the original version of FARA echoed this legislative purpose a generation ago:

[T]he purpose ... is to require all persons who are in the United States for political propaganda purposes — propaganda aimed toward establishing in the United States a foreign system of government, or group action of a nature foreign to our institutions of government, or for any other purpose of a political propaganda nature — to register with the State Department and to supply information about their political propaganda activties [sic], their employers, and the terms of their contracts.

H.R.Rep. No. 1381, 75th Cong., 1st Sess. 2 (1937); see also S.Rep.No. 1783, 75th Cong., 3d Sess. 1-2 (1938) (incorporating House Report). Responsibility for administering the Act was later shifted from the Department of State to the Department of Justice. See Act of Apr. 29, 1942, ch. 263, § 2, 56 Stat. 248, 258 (1942); see also Inquiry Into the Matter of Billy Carter and Libya: Hearings Before the Subcomm. to Investigate the Activities of Individuals Representing the Interests of Foreign Governments of the Senate Comm, on the ludiciary, 96th Cong., 2d Sess. 117 (statement of Associate Deputy General Robert L. Keuch) [hereinafter Billy Carter Hearings ].

7 . The relevant provision, section 611(c), provides:

(c) Expect [sic] as provided in subsection (d) of this section, the term “agent of a foreign principal" means—

(1) any person who acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal, and who directly or through any other person—

(1) engages within the United States in political activities for or in the interests of such foreign principal;

(ii) acts within the United States as a public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal;

(iii) within the United States solicits, collects, disburses, or dispenses contributions, loans money, or other things of value for or in the interest of such foreign principal; or

(iv) within the United States represents the interests of such foreign principal before any agency or official of the Government of the United States; and

(2) any person who agrees, consents, assumes or purports to act as, or who is or holds himself out to be, whether or not pursuant to contractual relationship, an agent of a foreign principal as defined in clause (1) of this subsection.

22 U.S.C. § 611(c).

Subsection (d), in turn, shields most members of the domestic media from classification as "agent[s] of a foreign principal.” Id. § 611(d).

8 . Specifically, section 613 exempts seven classes of foreign agents from the requirements of 612(a): 1) diplomatic or consular officials; 2) officials of foreign governments; 3) staff members of diplomatic or consular officers; 4) persons engaged in various private, nonpolitical activities; 5) persons solely engaged in religious, scholastic, or scientific pursuits; 6) persons whose activities concern the defense of a foreign government the security of which is deemed vital to the United States; and 7) persons qualified to practice law on behalf of identified foreign principals before U.S. courts and tribunals. 22 U.S.C. § 613.

9 . Section 611(b) provides:

(b) The term “foreign principal” includes—

(1) a government of a foreign country and a foreign political party;

(2) a person outside of, the United States, unless it is established that such person is an individual and a citizen of and domiciled within the United States, or that such person is not an individual and is organized under or created by the laws of the United States or of any State or other place subject to the jurisdiction of the United States and has its principal place of business within the United States; and

(3) a partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country.

22 U.S.C. § 611(b).

10 . Other items required to be included in the registration statement are: (1) a description of what compensation is involved; (2) a recitation of the precise activities undertaken pursuant to the agency; (3) if the agent is acting for a principal that is in turn controlled by a foreign principal, see 22 U.S.C. § 611(c)(1), a description of the relationship; (4) any information required by the Attorney General’s regulations implementing FARA; and (5) any other information necessary to keep the registration statement from being misleading. Id. § 612(a)(5)-(11).

11 . See also 28 C.F.R. § 5.500 (1986) (specifying records to be maintained).

12 . These civil measures were added to FARA in 1966 because the pre-existing criminal sanctions were thought too harsh for the sort of activities that were prescribed by the statute. See Pub. L.No. 89-486, § 7(2), 80 Stat. 244, 248 (1966); see also Billy Carter Hearings, supra note 6, at 181 (statement of Associate Deputy Attorney General Robert L. Keuch) (using "the criminal penalties of [FARA] [is like] going after a fly with a Howitzer”). Since these civil mechanisms have been available, it appears that the Government has never, before the present case, sought criminally to prosecute anyone solely for a violation of FARA. See generally Government’s Reply Brief at 1-3.

13 . See generally Toussie v. United States, 397 U.S. 112, 134-36, 90 S.Ct. 858, 870-71, 25 L.Ed.2d 156 (1970) (White, J., dissenting) (general discussion of continuing offenses, citing "embezzlement, conspiracy, bigamy, nuisance, failure to provide support, repeated failure to file reports, failure to register under the Alien Registration Act, [and] failure to notify the local board of a change in address” as examples of continuing offenses) (footnotes omitted).

14 . Black’s defines the term “continuing offense" as follows:

Type of crime which is committed over a span of time as, for example, a conspiracy. As to period of statute of limitations, the last act of the offense controls for commencement of the period. A "continuing offense," such that only the last act thereof within the period of the statute of limitations need be alleged in the indictment or information, is one which may consist of separate acts or a course of conduct but which arises from the singleness of thought, purpose or action which may be deemed a single impulse.

Black’s Law Dictionary 291 (5th ed. 1979) (citations omitted).

15 . Justice White’s dissent in Toussie pertained to whether the offense of failing to register for the draft was a continuing offense at all. The majority did not consider the offense a continuing one and therefore had no occasion to dispute Justice White’s description of continuing offenses, a discussion that we view as clear and unexceptionable. Thus, his dissenting opinion provides a useful discussion of the general principles of continuing offenses. It should therefore be clear that we have not fallen into the embarrasing, insubordinate error of ignoring the majority opinion and embracing the dissent.

16 . Indeed, the Government acknowledges that the offense involved here does not continue indefinitely. See Reply Brief at 8. The dispute is over how long it continues. The Government maintains that the offense continues until actual registration occurs; on the other hand, McGoff argues that the offense continues only so long as the unregistered individual actually acts as a foreign agent.

17 . Needless to say, in this criminal context, we owe no deference to the Government's interpretation of the statute. Cf. Chevron USA v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); cf. also INS v. Cardoza-Fonseca, — U.S. -, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). See supra at 1077.

18 . The excisions implicit in the Government’s reading of section 618(e) can best be illustrated by the following language from the Government's Reply Brief:

The language [of section 618(e) ] is unambiguous and not limited in any way — "failure to file any such registration statement ... shall be a continuing offense” and that offense continues uninterrupted "for as long as such failure exists.”

Reply Brief for Appellant at 9-10. This formulation, however, leaves out the cross-referencing phrase, "as is required by ... section 612(a)." It is this express reference to a coordinate provision of FARA which serves to specify what "failure” is involved. It is not a mere failure to file; it is a failure to file as required by section 612(a). If section 612(a) either (1) does not require filing in the first instance or (2) no longer requires filing, then there is either (1) no failure or (2) "such failure” no longer exists.

19 . Courts have generally been willing to see if such indications can be found in the legislative history. See, e.g., Burlington N. R.R. v. Oklahoma Tax Comm’n, — U.S. -, 107 S.Ct. 1855, 1860, 95 L.Ed.2d 404 (1987); United States v. Albertini, 472 U.S. 675, 680, 105 S.Ct. 2897, 2902, 86 L.Ed.2d 536 (1985); Consumer Products Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). This is, we respectfully suggest, an odd notion in democratic and constitutional theory. Society must, after all, be governed by law, not by non-binding, historical materials that were not passed by both Houses of Congress and presented to the President. See INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). But, in any event, the Supreme Court has repeatedly instructed that “ ‘[0]nly the most extraordinary showing of contrary intentions’ in the legislative history will justify a departure from [the "plain and unambiguous”] language [of the statute].” United States v. Albertini, 472 U.S. at 680, 105 S.Ct. at 2902 (quoting Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482-83, 83 L.Ed.2d 472 (1984)); see also United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981); Burlington N. R.R., 107 S.Ct. at 1860. Because we find the language of section 618(e) clear and unambiguous (establishing termination of the section 612(a) registration obligation as the event terminating the continuing offense), we would accordingly require a persuasive showing to the contrary in section 618(e)’s legislative history. As will be seen when we reach that phase of our analysis, the record here falls far short of this standard.

20 . The Government appears to read this phrase as "clearly meaning] that nothing but actual registration by the agent will interrupt the continuing nature of the omission.” Reply Brief at 10. But as we have sought to demonstrate in the text, the phrase simply will not reasonably bear this meaning. It is the termination of the obligation to file that terminates the continuing offense.

21 . The precise options available in Young are grammatically identical to the options available with respect to section 612(a) of FARA. The modifying phrase at issue in both cases is a prepositional phrase — "to such extent as he finds necessary for the protection of the public health" in Young; "for the period during which he was an agent of a foreign principal" in the case before us. The phrase in both instances could modify either a noun and thus be an adjectival prepositional phrase — the noun being “quantity” in Young or “statement” in our case— or a verb and thus be an adverbial prepositional phrase — the verb being “shall promulgate" in Young or “to file” in our case. The two cases thus present the identical grammatical dilemma.

22 . While this conclusion led the Court in Young to the next step in the Chevron analysis — namely, deference to the agency's interpretation, see Young, 106 S.Ct. at 2365-66; see also Chevron, 467 U.S. at 843, 104 S.Ct. at 2782 — and thus the answer, it leaves us with only ambiguity. We owe, of course, no deference to the Government’s construction of a criminal statute. See supra note 17. Indeed, general principles of interpretation of criminal statutes, see Toussie v. United States, 397 U.S. at 115, 90 S.Ct. at 860 (“ ‘[Cjriminal limitations statutes are “to be liberally interpreted in favor of repose.” ’ United States v. Scharton, 285 U.S. 518, 522 [52 S.Ct. 416, 417, 76 L.Ed. 917] (1932).”) (quoting United States v. Habig, 390 U.S. 222, 227, 88 S.Ct. 926, 929, 19 L.Ed.2d 1055 (1968)), as well as the rule of lenity, see Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980); Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971); see also infra section IV-C, suggest just the opposite.

23 . It is significant that the Government's current position — that the statute of limitations trigger-point commences on the first day that a formerly unregistered agent actually registers— was not even mentioned as a possible interpretation by the Justice Department in the 1950 transmittal letter authored by Peyton Ford. Since the provisions of the statute at issue originated with, and were drafted by, the 1950 Justice Department, Mr. Ford's expression of the provision's intent is entitled to weight as a probative piece of legislative history. See International Brotherhood of Teamsters v. ICC, 801 F.2d 1423, 1428-29 (D.C.Cir.1986) (citing United States v. Rock Island Motor Transit Co., 340 U.S. 419, 431 n. 9, 71 S.Ct. 382, 389 n. 9, 95 L.Ed. 391 (1951)), rehearing granted, 818 F.2d 87 (D.C.Cir. 1987).

24 . H.R. 4386 was entitled "A bill to amend section 2(a) and section 7 [22 U.S.C. §§ 612(a), 617] of the Foreign Agents Registration Act of 1938, as amended, to make failure of registration a continuing offense, and to continue the obligation of officers, directors, and persons acting as such to comply with the act despite dissolution of a foreign agent.” See 96 Cong. Rec. 3433 (1950). Because this title was included as a part of the Act and does not conflict with the text itself, it is an indication of Congress’ intent that a continuing offense be created. See Hardin v. City Title & Escrow Co., 797 F.2d 1037, 1039 (D.C.Cir.1986); see also Habib v. Raytheon Co., 616 F.2d 1204, 1210 & n. 8 (D.C.Cir.1980).

25 . A related concern arose over a similar tactic by organizations operating on behalf of a foreign principal. The Senate Report described this tactic as follows:

[I]t might be noted that a rather recent tactic of subversive organizations in the country today has been to resist registration under the act by replying to the request from the Department of Justice to register in the following three veins:

(1) It has disaffiliated from the foreign principals;

(2) It has ceased the activity which required its registration;

(3) It has dissolved itself.

The Department of Justice is of the opinion and your committee concurs that the enactment .;. of the proposed bill will provide the Department with the proper weapon to combat this novel subversive tactic.

S.Rep. No. 1900 at 2; see also H.R.Rep. No. 1775, 81st Congs., 2d Sess. 1-2 (1950); Sen.Rep. No. 1900, 81st Cong., 2d Sess. (1950), U.S.Code Cong.Serv.1950, p. 2887. To remedy this concern, at the same time it proposed amendments to section 612, the Justice Department suggested amending section 617 to continue the liability of officers or directors of entities acting as foreign agents after dissolution of the organization. See 22 U.S.C. 617.

26 . Section 617 provides in relevant part:

Each officer ... and each director ... of an agent of a foreign principal which is not an individual shall be under obligation to cause such agent to execute and file a registration statement and supplements thereto as and when such filing is required under subsections (a) and (b) of section 612 of this title.... Dissolution of any organization acting as an agent of a foreign principal shall not relieve any officer ... or any director ... from complying with the provisions of this section.

22 U.S.C. § 617.

27 . The dissent, with all due respect, misses the point of the foregoing analysis in suggesting that our logic somehow "retroactively excuse[sj” an agent’s duty to file a registration statement "immediately upon termination of the agency relationship." Dissenting opinion at 1101. Nothing could be farther from the truth. Our interpretation vindicates the express purpose articulated by the Department of Justice in seeking to amend sections 612 and 618, which was to fill the very gap the dissent points out. The Justice Department sought to foreclose an agent from cutting off liability for failing to comply with FARA's registration requirements by simply terminating the agency, see supra at 1085-86; this the statute, as we interpret it, does. That is, under our reading, the applicable statute of limitations begins to run only at the conclusion of the agency relationship. A prosecution can thus appropriately and lawfully be brought at any time within the five-year period following the termination of that relationship. Hence, in contrast to the dissent’s groundless fears, a prosecution of Mr. McGoff could properly have been instituted at any time prior to June 1984, with the Government enjoying the full measure of running room envisioned by Congress.

28 . The Government attempts to resist the clear import of this last sentence by arguing that it is ambiguous. It suggests that the "last day on which the unregistered agent acted as such” may very well mean the last day on which the agent is unregistered. Reply Brief at 13. Considered solely as an exercise in syntax, this argument is tortuously strained. What is more, it is rendered implausible when one recognizes that it is, evidently, a paraphrasing of the Senate Report language, as to which no similar argument can be mounted. The Senate Report stated that the amendments would answer the question whether the statute of limitations commenced when the agent was first required to register or "from the last day on which such unregistered agent has acted." S.Rep. No. 1900, at 1, U.S.Code Cong.Serv. 1950, p. 2887; see also supra at 1086-87.

29 . It should be noted that a further amendment to FARA occurred without any discussion of the far-reaching result that the Government attributes to it. Compare 22 U.S.C. § 612(a) with Act of Aug. 3, 1950, ch. 524, § 1, 64 Stat. 399. The apparently minor amendment occurs in the last phrase of the section. As originally amended in 1950, section 612(a) provided in relevant part as follows:

[D]iscontinuance of such activity shall not relieve such agent from his obligation to file a registration statement for the period during which he acted within the United States as an agent of a foreign principal.

64 Stat. 399. The current version reads as follows:

[T]ermination of such status shall not relieve such agent from his obligation to file a registration statement for the period during which he was an agent of a foreign principal.

22 U.S.C. § 612(a). The change was made in 1966 for the avowed purpose of "clarifying certain ambiguities in the ... act as to the time when the obligation to file registration statements commences and terminates." H.R.Rep. No. 1470, 89th Cong., 2d Sess. 8 (1966); see also S.Rep. No. 143, 89th Cong., 1st Sess. 9 (1965) (same), U.S.Code Cong. & Admin.News 1966, p. 2403.

30 . The provision that eventually became section 618(e) was originally introduced by Senator McCarran as part of S.595. See 95 Cong.Rec. 440(1949); see also supra at 1085-86. A number of other internal security measures were being considered in Congress in 1950, and in an effort to produce an omnibus bill, Senator McCarran introduced a subsequent bill, S.4037, which incorporated S.595. See 96 Cong.Rec. 12,145-46 (1950) (introduction of S.4037); id. at 14,170, 14,177 (statement of Sen. McCarran) (describing S.4037 as incorporating S.595). While the Senate was debating S.4037, the House passed an internal security bill of its own, H.R. 9490, and sent it to the Senate. The Senate passed S.4037, and then amended H.R. 9490 by replacing its provisions with the substance of S.4037. See id. at 14,388, 14,390, 14,628. After some minor conference changes, this version of H.R. 9490 was enacted, over Presidential veto, as the Internal Security Act of 1950, ch. 1024, tit. I, § 20(b), 64 Stat. 1005, reprinted in 1950 U.S.Code Cong. Serv. 1001.

31 . McGoff points to the practical realities that make it likely the statute of limitations will never come into play. Specifically, he notes that filing a late registration statement — the only event the Government claims can start the statute of limitations period — is an admission of guilt to an offense as to which, under the Government's view, the statute of limitations has not run. Whether or not this raises concerns of due process, an issue of dispute between the parties, we can take cognizance of this practical reality and recognize that for all practical purposes, the Government’s construction of the statute results in no statute of limitations. The Government itself candidly recognizes this. See Appellant’s Brief at 14-16 (argu- - ing that Congress has the power to eliminate the statute of limitations if it so chooses).

32 . The dissent argues that the interpretation of the statute we advance precludes the Government from using the civil injunctive remedies to compel anyone to file a registration statement once the agency relationship has ended. Assuming arguendo that injunctive remedies would not lie once the individual’s agency status has terminated, the Department of Justice is nonetheless far from powerless. The Government, after all, has available a full half-decade from the termination of the agency relationship to secure an indictment for the agent's willful failure to register under the Act.