249 F.3d 1010 (D.C. Cir. 2001)
United States of America, Appellantv.Robert Hitt, Appellee
No. 00-3083
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 22, 2001Decided May 8, 2001

Appeal from the United States District Court  for the District of Columbia  (No. 99cr00353-09)[Copyrighted Material Omitted]
Chrisellen R. Kolb, Assistant U.S. Attorney, argued the  cause for appellant.  With her on the briefs were Wilma A.  Lewis, U.S. Attorney, at the time the brief was filed, John R.  Fisher, Roy W. McLeese, III and Steven J. Durham, Assistant U.S. Attorneys.
Andrew L. Frey argued the cause for appellee. On the brief  were Dan Marmalefsky and Eric M. Acker.
Before:  Williams and Rogers, Circuit Judges, and  Silberman, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Rogers.
Dissenting opinion filed by Circuit Judge Williams.
Rogers, Circuit Judge:


1
On October 19, 1999, the Grand  Jury returned a sixteen-count indictment for alleged fraudulent misrepresentations made to the United States Department of Commerce in connection with the sale by the McDonnell Douglas Corporation to the People's Republic of China of  machinery that was subject to export controls.  Count One of  the indictment charged Robert Hitt, the Director of the China  Program Office at Douglas Aircraft Company, a wholly-owned  subsidiary of McDonnell Douglas, along with other defendants, with conspiring to violate the laws of the United  States, in violation of 18 U.S.C.  371 (2000), by deceiving the  United States government in the process of completing the  sale of the equipment.  The district court ruled that the  conspiracy alleged in Count One ended on September 14,  1994, when the Department of Commerce issued the export  licenses required to sell the machinery, and that the prosecution of Hitt was therefore barred by the five-year statute of  limitations.  See United States v. Hitt, 107 F. Supp. 2d 29, 30  (D.D.C. 2000);  see also 18 U.S.C.  3282 (2000).  The government appeals.  We affirm.

I.

2
The indictment states that in the early 1990s, McDonnell  Douglas closed a manufacturing plant located in Columbus,  Ohio that had produced military aircraft for the United  States.  See Count One pp 18-19.  After closing this facility,  McDonnell Douglas and Douglas Aircraft Company (jointly,  "MDC") began negotiations with the China National AeroTechnology Import and Export Corporation ("CATIC") and  some of its subsidiaries1 for the sale of various pieces of equipment from the plant.  See Count One pp 21-39.  Among  the equipment in which CATIC expressed an interest were  several "machining tools"--"large sophisticated pieces of  equipment used in the production of aircraft parts."  Count  One p 19.  These tools were subject to export controls and  required export licenses from the United States Department  of Commerce.  See Export Administration Act of 1979, 50  U.S.C. app. §§ 2401-2420 (1991);  Export Administration  Regulations, 15 C.F.R. §§ 768-99 (2001).2  Upon learning  that the Department of Commerce strongly discouraged  MDC's sale of the equipment, see Count One p 26, MDC,  through its legal department, informed CATIC that the requisite export licenses "would not be obtainable."  Count One  p 28.  CATIC, in turn, sought assistance from Robert Hitt "in  resolving the export license problem related to the sale of the  [machine tools]."  Count One p 29.  As Director of the China  Program Office, Hitt was responsible for implementing the  "trunkline program,"3 a $1 billion contract between MDC and  CATIC for the manufacture of commercial aircraft in China. See Count One p 35.  This contract gave MDC and Hitt a  vested financial interest in maintaining a favorable business  relationship with CATIC and the Chinese government.  See  Count One pp 35-36.  When CATIC encountered difficulties  in its negotiations with MDC for the Columbus equipment,  CATIC alluded to the trunkline contract.  See Count One p 35.  MDC reacted to this pressure from CATIC, at one  point admitting "that negotiations with CATIC were being  conducted due to the pending $1 billion trunkliner program. If not for the trunkliner, the slow paced negotiations ...  would be broken off in favor of auctioning equipment." Count One p 38.


3
On February 15, 1994, MDC and CATIC entered into a  Purchase Agreement, under which MDC would sell to CATIC  various pieces of equipment from the Columbus plant, including the machine tools that were subject to export controls, for  $5.4 million.  See Count One p 39.  Under the Agreement,  MDC was responsible for applying for and obtaining export  licenses where necessary, and CATIC was responsible for  shipping and exporting all machine tools that required an  export license.  See Count One p 39.  In addition, the contract specified that title to the equipment would pass from  MDC to CATIC by July 5, 1994, "[u]pon completion of  removal from the Columbus, Ohio facility, and receipt by  MDC of the final thirty-five percent (35%) payment required."  The contract also provided that the equipment must  be removed from the Columbus plant by July 5, 1994, or  MDC was required to pay for storage of the equipment at  another location.  See Count One p 39(2).


4
On or about May 26, 1994, MDC and CATIC representatives submitted ten export license applications to the Department of Commerce.  See Count One p 41.  Each application  included (1) an application form, in which MDC represented  that the end-user for the equipment was the CATIC Machining Company in Beijing;  (2) an "Export Justification" statement, indicating that the machine tools would be "used in the  trunkline program in conjunction with the production of 40  commercial aircraft in [China]," Count One p 41(b);  and (3)  an "end-user and end-use statement," prepared by CATIC  representatives, stating that the equipment would be used to  produce parts for the trunkline program.  Count One p 41(d).  Based on the information submitted by MDC and CATIC, the  Department of Commerce granted the export licenses on or  about September 14, 1994.  See Count One p 42.  The licenses authorized the export of the equipment for use at the  CATIC Machining Center in Beijing for purposes of the trunkline program.  The licenses also required MDC to verify  the equipment's location and usage by performing quarterly  inspections of the CATIC facility and submitting quarterly  reports to the United States Government for a two-year  period.


5
After MDC and CATIC obtained the licenses, CATIC  arranged, on or about November 7, 1994, to ship the machine  tools to two separate points in China (contrary to the terms of  the export license), and ultimately to ship the equipment to a  factory in Nanchang, China that is allegedly involved in the  manufacture of military equipment.  See Count One at WW 44,  47(l)-(n), 49, 51(21)-(24).  On April 4, 1995, shortly after  MDC's required quarterly inspection of the CATIC facility,  MDC reported to the Department of Commerce that the  machine tools had been diverted to four different locations,  including the Nanchang facility.  The government initiated an  investigation, which culminated in the indictment returned on  October 19, 1999.


6
The indictment charged one conspiracy Count and fifteen  substantive Counts.4  Hitt was charged only in Count One,  which charged him, MDC, CATIC, and two CATIC employees with conspiring to violate the laws of the United States, in  violation of 18 U.S.C.  371, and with aiding and abetting  such a conspiracy, in violation of 18 U.S.C.  2.  Counts Two  through Fifteen charged the corporate defendants--MDC,  CATIC, and their affiliates--with statutory violations in connection with the allegedly fraudulent acquisition of the export  licenses:  Count Two charged false statements by the CATIC  defendants;  Counts Three, Fourteen, and Fifteen charged  false statements by MDC in connection with the applications for the export licenses;  and Counts Four through Thirteen  charged all corporate defendants with false statements and  violations of various export statutes.  Count Sixteen charged  the CATIC defendants with making false and misleading  statements to the Department of Commerce after the export  licenses were issued.


7
Hitt moved to dismiss the charges against him on the  grounds that the conspiracy alleged in Count One extended  only to the United States' September 14, 1994, issuance of the  export licenses and was therefore time barred.  The government opposed the motion, arguing that the conspiracy continued until the machine tools were shipped to China in or about  March 1995.  The district court ruled as a matter of law that  the conspiracy alleged in the indictment ended when the  United States issued the export licenses, and that prosecution  of Hitt was therefore barred by the five-year statute of  limitations for conspiracy.  See Hitt, 107 F. Supp. 2d at 30; 18 U.S.C.  3282.  The government appeals pursuant to 18  U.S.C.  3731 (2000).

II.

8
"A conspiracy is a partnership in criminal purposes." United States v. Kissel, 218 U.S. 601, 608 (1910).  The  general federal conspiracy statute prohibits conspiracies "to  commit any offense against the United States" or "to defraud  the United States ... in any manner or for any purpose."5 18 U.S.C.  371.  To prosecute a defendant under  371, "the  government must prove beyond a reasonable doubt that:  (1)  two or more persons formed an agreement either to commit  an offense against or defraud the United States;  (2) the  defendant knowingly participated in the conspiracy with the  intent to commit at least one of the offenses charged or to  defraud the United States;  and (3) at least one overt act was  committed in furtherance of the common scheme."  United  States v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985);  see  also United States v. Wilson, 160 F.3d 732, 737 (D.C. Cir.  1998);  United States v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir.  1996).  The five-year statute of limitations for a  371 prosecution, see 18 U.S.C.  3282, begins running "from the last  overt act during the existence of the conspiracy."  Fiswick v.  United States, 329 U.S. 211, 216 (1946);  see also Grunewald  v. United States, 353 U.S. 391, 397 (1957).


9
For the indictment to be timely with respect to Hitt, it  must show that no more than five years prior to the filing of  the indictment (i.e., at a point no earlier than October 19,  1994) (1) the conspiracy, as contemplated by the agreement,  still existed, and (2) at least one overt act in furtherance of  the conspiracy occurred.  See Grunewald, 353 U.S. at 397. In examining whether these conditions are fulfilled, "the  crucial question ... is the scope of the conspiratorial agreement, for it is that which determines both the duration of the  conspiracy, and whether the act relied on as an overt act may  properly be regarded as in furtherance of the conspiracy." Id. at 397;  see also United States v. Bayer, 331 U.S. 532, 542  (1947).  Key to determining the scope of the conspiracy--and  dispositive in the instant appeal--is the extent to which there  was a "meeting of minds" concerning the object of the  conspiracy.  United States v. Rosenblatt, 554 F.2d 36, 38 (2d  Cir. 1977) (quoting Krulewitch v. United States, 336 U.S. 440,  448 (1949) (Jackson, J., concurring));  see also Treadwell, 760  F.2d at 336.  "This does not mean that the conspirators must  be shown to have agreed on the details of their criminal  enterprise, but it does mean that the 'essential nature of the  plan' must be shown."  Rosenblatt, 554 F.2d at 38 (quoting  Blumenthal v. United States, 332 U.S. 539, 557 (1947)).


10
To determine the scope of the alleged conspiratorial agreement, the court is bound by the language of the indictment. See generally Grunewald, 353 U.S. at 397; see also United  States v. Craft, 105 F.3d 1123, 1127-29 (6th Cir. 1997); United States v. Roshko, 969 F.2d 1, 6-9 (2d Cir. 1992). Adherence to the language of the indictment is essential  because the Fifth Amendment requires that criminal prosecutions be limited to the unique allegations of the indictments  returned by the grand jury.  See Russell v. United States,  369 U.S. 749, 768-71 (1962);  Stirone v. United States, 361  U.S. 212, 216 (1960);  United States v. Lawton, 995 F.2d 290,  292-93 (D.C. Cir. 1993).  As the Supreme Court has explained, an indictment's main purpose is "to inform the defendant of the nature of the accusation against him."  Russell,  369 U.S. at 767.  To this end, an indictment must "first,  contain[ ] the elements of the offense charged and fairly  inform[ ] a defendant of the charge against which he must  defend, and, second, enable[ ] him to plead an acquittal or  conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974) (citing  United States v. Debrow, 346 U.S. 374 (1953);  Hagner v.  United States, 285 U.S. 427 (1932)).  It is hence wellestablished that a defendant "cannot be held to answer a  charge not contained in the indictment brought against him." Schmuck v. United States, 489 U.S. 705, 717 (1989);  see also  Stirone, 361 U.S. at 215-17;  United States v. Krasovich, 819  F.2d 253, 254-55 (9th Cir. 1987).


11
Upon examining the text of the indictment, the district  court concluded that "the grand jury believed that the single  goal of the alleged conspiracy was the acquisition of the  export licenses from the Department of Commerce, which  goal was achieved on September 14, 1994."  Hitt, 107 F.  Supp. 2d at 32.  On appeal, the government contends that the  true goal of the conspiracy extended to the actual export and  delivery of the machinery to unauthorized locations in China. The government maintains that the district court failed to  construe the indictment as a whole, see, e.g., United States v.  Inryco, Inc., 642 F.2d 290, 294 (9th Cir. 1981), incorrectly  regarded portions of the indictment as surplusage, see, e.g.,  United States v. Rezaq, 134 F.3d 1121, 1134 (D.C. Cir. 1998),  and invaded the province of the jury by determining that  certain overt acts within the statutory period did not further  the goal of the conspiracy.  See United States v. Wilson, 26 F.3d 142, 159 (D.C. Cir. 1994).  Specifically, the government  maintains that the district court disregarded several key  portions of the indictment indicating that the common goal of  all defendants was to export the machinery:  (1) the latter  portion of the first sentence in Paragraph 44, which alleged  that "[a] goal of the conspiracy was to obtain export licenses  allowing the sale and exportation of machine tools to [China]" (emphasis added);  (2) the heading in Paragraph 43-"Scheme to Insure Completion of the Contract";  (3) statements of "Manners and Means" (pp 47-50) and "Overt Acts"  (p 51(21)-(25)) that refer to the shipment and delivery of the  tools to China, which occurred as late as March 1995 and thus  were within the statute of limitations period;  and (4) the  explicit reference in Paragraph 43 to March 1995.


12
We review de novo the district court's legal conclusion  concerning the scope of the conspiracy.  See United States v.  Dolan, 120 F.3d 856, 864 (8th Cir. 1997);  United States v.  United Med. & Surgical Supply Corp., 989 F.2d 1390, 1398  (4th Cir. 1993).  Consistent with our obligation to adhere to  the language of the indictment, and an indictment's primary  purpose of providing notice of the specific charges to the  defendant, we hold that the alleged conspiracy charged in  Count One ended with the issuance of the export licenses on  September 14, 1994.  The indictment's references to subsequent events do not point to acts in furtherance of the alleged  conspirators' common goal and therefore may not be relied  upon to extend the conspiracy to a period within the statute  of limitations.  See Grunewald, 353 U.S. at 405-06;  Fiswick,  329 U.S. at 216-17.


13
A. Structure of Count One.  Count One of the indictment begins with an "INTRODUCTION" that states in relevant part:


14
On or about September 14, 1994, the United States Department of Commerce granted 10 export licenses to [MDC] permitting [MDC] to export 13 large pieces of machinery ... to [China] for use by ... [CATIC].  The defendants ... made material false, fraudulent and misleading statements and material omissions on the appli cations, the end user certificates and in additional oral and written submissions upon which the Department of Commerce based its decision to issue the 10 export licenses. [The Chinese corporate defendants] caused 6 of the 13 pieces of machinery to be diverted to an unauthorized factory in Nanchang, [China], known to be used for military production.


15
Count One p 1.  Count One proceeds to review the regulatory  framework for the MDC-CATIC transaction, see Count One  pp 2-6;  describe the equipment subject to export controls, see  Count One p 7;  and identify the defendants, see Count One  pp 8-17.  After providing this context, the indictment sets  forth the "Background to the Transactions."  See Count One  pp 18-42.  The "Background" details MDC's negotiations with  CATIC for the sale of the equipment from the Columbus  plant;  MDC's vested financial interest in maintaining a favorable relationship with CATIC in light of the $1 billion trunkline program;  and MDC's and CATIC's submission of the  materials necessary for obtaining the requisite export licenses.  See id.  The background discussion ends with the United  States' issuance of the export licenses on or about September  14, 1994.  See Count One p 42.


16
Two key paragraphs follow.  Paragraph 43 describes "THE  CONSPIRACY," and is subtitled "Scheme to Insure Completion of the Contract."  Paragraph 43 states:


17
From in or about February, 1993 ... until in or about March 1995 ... the defendants ... did unlawfully, willfully and knowingly combine, conspire, confederate and agree together to commit offenses against the United States, that is:


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


19
b. to willfully and knowingly make false and misleading statements and to conceal material facts from the  United States Departments of Commerce and Defense in the course of obtaining export licenses in violation of [50 U.S.C. app.  2410(a) and 15 C.F.R.  787.5];


20
c. to use interstate wire communications, the mail and interstate carriers in furtherance of a scheme to defraud and to obtain property, that is export licenses and machine tools for delivery to [China], by means of false and fraudulent pretenses, representations and promises in violation of [18 U.S.C. §§ 1343 and 1341]; d. to possess, before on or about August 20, 1994, machine tools with the intent to export them having reason to believe that they would be exported in violation of an export control imposed under Section 5 or 6 of the Export Administration Act, in violation of [50 U.S.C. app.  2410(b)(3) and 15 C.F.R.  787.1(a)(ii)(C)];  and


21
e. to buy and sell, before on or about August 20, 1994, machine tools to be exported from the United States subject to the Export Administration Regulations with knowledge or reason to know that a violation of the Export Administration Act is intended to occur with regard to the transaction, in violation of [50 U.S.C. app.  2410(a) and 15 C.F.R.  787.4(a)].

Count One pp 43.6

22
Paragraph 44 states the "Goal" of the conspiracy:


23
A goal of the conspiracy was to obtain export licenses allowing the sale and exportation of machine tools to [China].  [The CATIC defendants'] purpose, among others, was to obtain the Columbus plant machine tools for unrestricted use at undisclosed facilities within [China].... [MDC] and Robert Hitt's purposes, among others, were:  (a) to maintain the ongoing commercial relationship between [MDC] and CATIC and to promote the prospects for existing and future business contracts between the parties;  and (b) to obtain swift approval from the United States Department of Commerce of export license applications by presenting seemingly credible and non-controversial justification and end-user information in the license applications, even if such information was not truthful, so that [MDC] could avoid the storage costs provisions and the buy-back provision of the Columbus asset sales contract between the parties.7


24
Count One then lists the "Manners and Means" that the  defendants used "in seeking to achieve the goal of the conspiracy."8  Count One p 45.  Paragraphs 46 through 48 describe the false and misleading information supplied by the  CATIC defendants regarding the machine tools' end user and  end use.  Paragraphs 49 and 50 describe the false information  to which MDC and Hitt certified in the applications and the  information that they concealed from Commerce Department  officials.


25
Finally, Paragraph 51 lists twenty-five alleged "Overt Acts"  committed by the defendants "[i]n furtherance of the conspiracy and to accomplish the objects thereof."  These include (1)  Hitt, MDC, and CATIC's false and misleading statements to  government officials while applying for the export licenses; (2) MDC's filing of the allegedly fraudulent export license applications;  and (3) CATIC's efforts to divert the machinery  to unauthorized locations.  Five of these alleged overt acts  occurred after the export licenses were issued:


26
(21) On November 2, 1994, [MDC] signed two separate delivery sheets authorizing the removal of [some licensable machine tools] to destination "red" and [some licensable machine tools] to destination "black."9


27
(22) In or about November 1994, CATIC caused cargo that had been licensed for export to Beijing to be shipped [to and unloaded at two separate locations]. (23) In or about November 1994, CATIC caused another shipment of cargo that had been licensed for export to Beijing to be shipped to and unloaded at two separate ports....


28
(24) On or about February 18, 1995, CATIC caused ... a machine tool licensed for export to Beijing[ ] to be ... [shipped] to [an unauthorized location]. (25) Between in or about November 1994 and in or about March 1995, CATIC caused six machines licensed for export to Beijing to be delivered to Nanchang.


29
Count One p 51(21)-(25).  Only Overt Act No. 25 refers to a  date as late as March 1995.  Only Overt Act No. 21 refers to  MDC.  The "delivery sheets" that Overt Act No. 21 alleges  MDC signed are not alleged to be shipping authorization  documents;  rather, they are internal MDC records of  CATIC's contractually-obligated removal of certain machine  tools from the Columbus plant.  The remaining four overt  acts within the statutory period, Overt Acts No. 22 through  25, relate solely to CATIC's efforts to ship the machine tools  to unauthorized locations after MDC obtained the requisite  export licenses.


30
From the plain language and structure of Count One, it  would follow that "The Conspiracy" envisioned by the Grand  Jury was confined to the defendants' false statements and  concealment of information from Commerce Department officials while applying for the export licenses.  The "Goal" of  the conspiracy, as described in Paragraph 44, did not encompass any event occurring after the export licenses' issuance  on September 14, 1994.  Because Count One did not allege  that MDC and Hitt shared the separate purpose of the  CATIC defendants to divert the machine tools in violation of  the export licenses, the conspiracy was, as the district court  concluded, completed once the export licenses were issued. See Hitt, 107 F. Supp. 2d at 30;  see also Krasovich, 819 F.2d  at 255-56.


31
Notwithstanding the Grand Jury's plain statement of the  one common goal of the conspiracy in Paragraph 44, and its  statement of the separate purposes of the MDC and the  CATIC defendants, the government maintains that the alleged conspiracy continued until the machine tools were  shipped and delivered to China in March 1995.  In support of  this contention, the government points to (1) Count One's  discussion of the Purchase Agreement, which, the government maintains, contemplates events occurring after the export licenses' issuance;  (2) references to "Manners and  Means" and "Overt Acts" that extended to the statutory  period;  and (3) references in Paragraph 43 to March 1995. Although the language on which the government relies may  point to possible ambiguities in the indictment, the court must  construe the indictment in light of its principal purposes of  clarity and notice.  See Russell, 369 U.S. at 769-71;  Stirone,  361 U.S. at 215-16;  Lawton, 995 F.2d at 292-93.  Consequently, we adhere to the indictment's plain language.10


32
B. Nature of the Purchase Agreement.  The government points to two factors to demonstrate that the Purchase  Agreement reflected the broader goal of exporting the machinery.  First, it contends that the title of the subheading  "Scheme to Insure Completion of the Contract" in Paragraph  43 indicates a "scheme that would culminate in the shipment  of the tools to locations selected by CATIC without regard for  the license requirements."  Appellant's Reply Br. at 13.  Insofar as the objective of the sale was to get the machine tools  to China, the government maintains, the contract would not  be completed until CATIC received the machinery and all  parties therefore received the benefits of the transaction. Second, the government points to language in the "Goal"  paragraph to indicate that, in accord with the Purchase  Agreement, the parties contemplated the machinery's export. Neither contention is convincing.


33
In the government's view, the subheading "Scheme to  Insure Completion of the Contract" refers to a Purchase  Agreement that contemplated the delivery of the machine  tools to China and that regarded the export licenses simply as  a means for completing the transaction.11  The subheading,  the government maintains, relates directly to the background  discussion of the Purchase Agreement in Paragraphs 1  through 42 of the indictment, where the Grand Jury described MDC's desire to maintain good relations with its  customer.  The government further maintains that the Purchase Agreement itself contemplated the export of the machinery:  The Agreement provided that MDC would "obtain  the [export] licenses and, in the event they failed to obtain  [them], [MDC] was required to buyback [sic] the tools." Count One p 39(1).  Moreover, the government continues, the  Purchase Agreement contemplated obligations for the parties  that arose after the export licenses were issued:  CATIC, for  example, was to assume shipping costs, and each party was  responsible for paying the taxes in its respective country.


34
There are insurmountable obstacles to the government's  reliance on the background discussion in Paragraphs 1  through 42.  Count One begins with an "INTRODUCTION,"  stating, "On or about September 14, 1994, the United States  Department of Commerce granted 10 export licenses...."  Count One p 1.  After a discussion of the regulatory framework for export controls, see Count One pp 2-6, and a description of the sensitive equipment at issue, see Count One p 7,  and the parties to the transaction, see Count One pp 8-17, the  narration of events in the "Background" section, see Count  One pp 18-42, ends with the issuance of the export licenses. These temporal limitations indicate the Grand Jury's focus on  the licensing process, not on events subsequent to the licenses' issuance.  Such subsequent events, including the payment  of taxes and inspections required by the licenses, were collateral actions that were not part of the shared scheme nor  threatening to the success of that scheme.  See Schmuck, 489  U.S. at 711-14.


35
As to the Purchase Agreement, the Grand Jury found it  relevant to refer to only three of its provisions:  (1) the sale  price of $5.4 million;  (2) MDC's obligation to obtain export  licenses where required and, "in the event they failed ...[,]  buyback [sic] the tools;"  and (3) MDC's obligation to pay for  storage if any machine tools had not received an export  license by July 5, 1994, the deadline for CATIC's removal of  the equipment from the Columbus plant.  Count One p 39. The Grand Jury alluded to no contractual provision involving  the shipment of the machine tools once the export licenses  were issued.  Indeed, under the terms of the Purchase Agreement, the contract would be completed once the licenses were issued, not when the machinery was delivered.  Title would pass after the licenses were obtained, and after  MDC received the final payment (by July 1994), not upon  the equipment's arrival in China.  Furthermore, upon issuance of the export licenses, the buy-back provision (which  was the last contingency to the sale) would be eliminated. Hence, even if the Grand Jury had incorporated all provisions of the Purchase Agreement into Count One, the government could not support its view that "issuance of the  licenses did not complete the commercial transaction."  Appellant's Br. at 18.  Moreover, as Hitt observes in his brief,  the Purchase Agreement required CATIC to export the  machine tools "in accordance with the export licenses."  A  "scheme to insure completion of the contract" would therefore contradict the government's "essential claim--that the  defendants conspired to assist CATIC's effort to violate the  licenses."  Appellee's Br. at 48.


36
Second, the government contends that the language in the  "Goal" paragraph of Count One clarifies the parties' intention  to export the machinery.  The government points to the first  sentence of Paragraph 44, which states that "[a] goal of the  conspiracy was to obtain export licenses allowing the sale and  exportation of machine tools to [China]." (emphasis added)  An analysis of Paragraph 44 as a whole, however, indicates  that the government's reliance on the emphasized phrase is  misplaced.12  The phrase on which the government relies  modifies the word "licenses," not the word "goal";  this again indicates that the focus of the conspiracy charge was the  licensing process.  More significant, however, is the language  that follows the first sentence of Paragraph 44.  The paragraph proceeds to describe the different purposes of the  American and the Chinese defendants:  "[The CATIC defendants'] purpose, among others, was to obtain the ... machine  tools for unrestricted use at undisclosed facilities within [China]."  Count One p 44.  The MDC defendants' (including  Hitt's) purposes, among others, were (1) to maintain a positive commercial relationship with CATIC and (2) to obtain the  export licenses.  See id.


37
In view of the indictment's key purpose--to provide notice  to Hitt of the charges against which he should be prepared to  defend himself at trial, see Russell, 369 U.S. at 769-71; Stirone, 361 U.S. at 216;  Lawton, 995 F.2d at 292-93--the  district court properly placed great importance on the Grand  Jury's separate statement of the purposes of each group of  defendants, and its clear statement in Paragraph 44 that the  goal of the conspiracy was to obtain the export licenses.13 See Hitt, 107 F. Supp. 2d at 32-33.  The purposes of the  MDC defendants coincided with those of the CATIC defendants only with respect to the export licensing process, which  was the only aspect of the transaction in which the MDC  defendants were involved.  The CATIC defendants' purposes,


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


39
C. "Manners and Means" and "Overt Acts."  The government also looks to the "Manners and Means" and "Overt  Acts" paragraphs of Count One for support of its broad  definition of the scope of the conspiracy.  The introductory  paragraph under "Manners and Means" states that all defendants (including Hitt) "would and did use the following manner and means, among others, in seeking to achieve the goal  of the conspiracy."  Count One p 45 (emphasis added).  The  government contends that all of the manners and means  listed in Paragraphs 47 through 50, including actions taken  and information concealed "from in or about February, 1993  ... to in or about March 1995," Count One p 46, were in  furtherance of "the" goal of the conspiracy.  See Count One  pp 47-50.  In addition, the government points to five overt  acts listed in Paragraph 51 that occurred within the statutory  period.  See Count One p 51(21)-(25).  We are unpersuaded  that the language under either of these headings expands the  scope of the conspiracy.


40
The government's reliance on the "Manners and Means"  paragraphs is misplaced.  First, the introductory sentence  refers to "the" goal of the conspiracy.  See Count One p 45. The only goal defined by the Grand Jury appears in Paragraph 44:  "to obtain export licenses."  Count One p 44.  The  Grand Jury did not state the goal in terms of ensuring  completion of the Purchase Agreement or diversion of machinery once it arrived in China.  Hence, this introductory  sentence cannot redefine or expand the scope of the conspiracy.  Second, as in the "Goal" paragraph, the "Manners and  Means" paragraphs distinguish between the activities of the  MDC and CATIC defendants.  See Count One pp 47-50. From Count One's repeated distinction between the actions  and goals of each group of defendants, it reasonably follows  that the manners and means attributed to CATIC were not in  furtherance of the alleged conspirators' common goal.  Finally, the structure of the "Manners and Means" paragraphs  indicates that the inclusion of events occurring after September 14, 1994, and of the parties' alleged concealment of  shipping information, were intended to illustrate the defendants' false statements and misrepresentations "[o]n the applications for the ten export licenses."  Count One p 49;  see  also Count One pp 47-48.  Paragraphs 47 and 48--entitled  "False Statements Regarding the End User" and "False  Statements Regarding the End Use"--include references to  actions by CATIC occurring within the statutory period and  as late as March 25, 1995.  See, e.g., Count One pp 47(l )-(n). These events, however, are submitted in support of the  contention that CATIC "well knew [its statements] to be false  and misleading at the time the applications were filed." Count One p 47.  Similarly, Paragraphs 49 and 50--entitled  "False Statements and [O]missions [R]egarding the [E]nd  [U]ser" and "False Statements and Omissions Regarding End  Use"--refer to MDC's alleged concealment of shipping information indicating an alternative delivery site for the machine  tools.  See, e.g., Count One pp 49(b), (d).  Contrary to the  government's contentions, this does not indicate that CATIC's  shipment and diversion of the machine tools furthered the  conspiratorial goal.  Rather, MDC's alleged acts of concealment support the conclusions set forth at the beginning of  Paragraphs 49 and 50:  first, that "[o]n the applications for  the ten export licenses [MDC] certified ... the end user[ ] to  be the CATIC Machining Company ... in Beijing, when in  truth and in fact, they knew, had reason to know and acted  with willful blindness to the fact that this end user designation was false and misleading," Count One p 49;  and second,  that MDC's export justification statement "identif[ied] the  trunkline program as the end use, when in truth and in fact,  [MDC] knew, had reason to know and acted with willful  blindness to the fact that this end use designation was false  and misleading."  Count One p 50.


41
The government further relies on the indictment's inclusion  of Overt Acts No. 21 through 25, which occurred within the  statutory period.  See Count One p 51(21)-(25);  supra Part  II.A.  These five overt acts, however, do not in themselves  extend the scope of the conspiracy into the statutory period  unless the acts were committed in furtherance of the alleged  conspirators' common goal.  See Grunewald, 353 U.S. at 397; Fiswick, 329 U.S. at 216-17;  Craft, 105 F.3d at 1128-29; Roshko, 969 F.2d at 6-9;  United States v. Davis, 533 F.2d  921, 926-29 (5th Cir. 1976).  Only then could a jury properly  be allowed to determine whether the overt acts in question  actually furthered the common goal of the conspiracy.  See  Wilson, 26 F.3d at 159 (citing cases).  Overt Acts No. 21  through 25 do not satisfy this threshold requirement.  Rather, they are only consistent with the purpose that the indictment attributed to the CATIC defendants:  to divert delivery  of machinery to unauthorized locations.  As previously discussed, Overt Acts No. 22 through 25 relate to CATIC's  diversion of the equipment to unauthorized locations;  Overt  Act No. 21, the only overt act within the statutory period that  refers to MDC at all, merely discusses MDC's internal documentation of CATIC's contractually-obligated removal of the  equipment from the Columbus plant.  Hence, none of these  five overt acts was in furtherance of the only common goal  stated in the indictment:  the issuance of export licenses.  As  a result, inclusion of Overt Acts No. 21 through 25 in the  indictment is insufficient to extend the conspiracy beyond the  goal stated in Paragraph 44.  See Craft, 105 F.2d at 1128.


42
D. Reference in Paragraph 43 to March 1995. The  government's final contention focuses on the introductory  sentence of Paragraph 43 under "Scheme to Insure Completion of the Contract," which states that the conspiracy  spanned from "in or about February, 1993 ... until in or  about March 1995."  Count One p 43.  Because Paragraph 43  does not provide insight as to the conspirators' common goal,  however, it cannot by itself expand the conspiracy to reach  the statutory period.


43
Paragraph 43 is the only paragraph in the indictment that  seeks to describe the agreement among the parties.  Indeed,  it is the only paragraph in which the indictment uses the word  "agree."  See Count One p 43.  The paragraph proceeds to  charge a criminal agreement among the alleged conspirators  to commit five offenses against the United States, in violation  of 18 U.S.C.  371.  See supra Part II.A.  The government contends that "[e]ach of the underlying statutory violations  subsumed within the conspiratorial agreement reflects the  conspirators' endeavor to secure the delivery of the tools to  China in accordance with CATIC's wishes."  Appellant's Br.  at 30.  This scheme, the government maintains, continues "as  long as the parties derive [its] anticipated economic benefits." Id.


44
A reading of the plain language of the indictment does not  support the government's contentions.  First, paragraphs  43(d) and (e) are expressly limited to acts that took place "on  or before August 20, 1994," and therefore refer to events  occurring outside the limitations period.14  Second, Paragraph  43(b) charges the defendants with fraudulent actions concerning the export licenses, and thus cannot be construed to  extend beyond the point when the licenses were issued. Third, Paragraph 43(c), although worded more broadly, focuses on the defendants' efforts to "defraud" the United States,  an act that, as the district court concluded, could only occur in  reference to the export licenses that the United States granted.15  See Hitt, 107 F. Supp. 2d at 35-36.  This only leaves the boilerplate language of Paragraph 43(a), which tracks the  language of 18 U.S.C.  1001.  See Hitt, 107 F. Supp. 2d at  35.  Absent specific allegations in the indictment concerning a  broader scope of the conspiracy, this cannot serve as a catchall, umbrella section for the government.  The government,  as it has been warned, "cannot simply charge an offense by  using the general language of the statute or the common law,  but must accompany the generic language 'with such a statement of the facts and circumstances as will inform the  accused of the specific offense, coming under the general  description, with which he is charged.' "16  Treadwell, 760  F.2d at 337 (quoting Hamling, 418 U.S. at 117-18).


45
Nor may the government rely on the "economic benefits"  theory, under which the "scheme" is deemed to extend until  the conspirators receive the economic rewards of the agreement.  See, e.g., United States v. Northern Improvement Co.,  814 F.2d 540, 542 (8th Cir. 1987);  United States v. Mennuti,  679 F.2d 1032, 1035 (2d Cir. 1982);  United States v. Walker,  653 F.2d 1343, 1347-48 (9th Cir. 1981).  In the instant case,  the anticipated economic benefits of the "scheme" would  extend the duration of the conspiracy only if all defendants  contemplated those benefits and agreed to receive them.  See  Girard, 744 F.2d at 1171-74.  As discussed, the plain language of the indictment indicates that only the CATIC defendants intended to divert the machinery to an unauthorized  location in China.  Under the indictment, this economic reward of the transaction was not agreed upon by all defendants and therefore may not be used as a basis to extend the  scope of the conspiracy.


46
For these reasons, we conclude that a common-sense reading of the indictment indicates that the Grand Jury defined a  conspiracy that ended with the Department of Commerce's  issuance of the export licenses.  It is clear from the indictment why MDC and Hitt participated in the fraudulent  scheme to obtain the export licenses:  They sought to maintain good relations with the Chinese government, especially in  light of the substantial financial gain represented by the  MDC-CATIC joint venture.  MDC would satisfy this objective by selling to CATIC the equipment that it desired, and  by obtaining the export licenses that would allow CATIC to  transport the machinery to China.  Under the Purchase Agreement, that would complete the transaction, as CATIC  was responsible for the machinery's removal and transportation.  Although the consequence of MDC's alleged fraudulent  acquisition of the export licenses might be CATIC's unauthorized use of the machinery, this does not indicate that  CATIC's actions upon acquiring the machine tools would be  part of the conspiratorial agreement.  As the Supreme Court  explained in Fiswick, "[t]hough the result of a conspiracy may  be continuing, the conspiracy does not thereby become a  continuing one ... '[C]ontinuous co-operation of the conspirators to keep it up' is necessary."  329 U.S. at 216 (citations  omitted);  see also United States v. Doherty, 867 F.3d 47, 6162 (1st Cir. 1989).


47
The government is hardly unaware of the inconsistency in  its attempt to expand the scope of the conspiratorial agreement beyond the plain language of the indictment.  In response to questioning during oral argument, the government  claimed that the conspiracy charge would remain valid even if  an intervening event--such as the sinking of the ship that  transported the equipment or a change of heart by the  Chinese government--impeded the actual delivery of the  machinery to the unauthorized locations.  If delivery or shipment of the machinery was unnecessary to the common goal  of the conspirators, then by definition the government cannot  extend the conspiracy past the issuance of the export licenses. Thus, the government may not rely on Overt Acts No. 21  through 25, and on Count One's sporadic references to events  within the statutory period, to expand the conspiracy or  modify its goal.17  See Grunewald, 353 U.S. at 406;  Fiswick,  329 U.S. at 216-17;  Craft, 105 F.3d at 1123;  Roshko, 969  F.2d at 6-8;  Davis, 533 F.2d at 928.  Defining the goal of the conspiracy in the broad manner that the government proposes would frustrate not only the indictment's purpose of giving  notice to a defendant, but also the purpose of having a statute  of limitations.  See Grunewald, 353 U.S. at 401-02 (citing  Krulewitch, 336 U.S. at 455-56 (Jackson, J., concurring)); Doherty, 867 F.2d at 61-62.  Count One does not allege that  the defendants had the common purpose of diverting the  machinery to unauthorized locations.  If the government envisioned a broader common goal for the conspirators, namely  "shipment of the tools to locations selected by CATIC without  regard for the license requirements," Appellant's Reply Br. at  13, it was obligated to ensure that the Grand Jury stated that  goal with certainty and thereby conformed to the "basic  principles of fundamental fairness" underlying the two key  purposes of an indictment--notice to the defendant and protection against double jeopardy.  Russell, 369 U.S. at 763,  765-66.


48
Accordingly, we affirm the order of the district court  dismissing Count One of the indictment against Hitt.



Notes:


1
  The CATIC subsidiaries named in the indictment are the  China National Aero-Technology International Supply Company  ("CATIC/Supply"), located in Beijing;  CATIC (USA) Inc., a whollyowned subsidiary of CATIC located in El Monte, California;  and  TAL Industries, Inc., a wholly-owned subsidiary of CATIC/US  located in El Monte, California.  CATIC is a People's Republic of  China government-formed corporation located in Beijing.  See  Count One p 8.  We refer to these defendants as "the CATIC  defendants," and to the People's Republic of China as "China."


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


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


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


5
  The conspiracy statute provides:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more such persons do any act to effect the object of the conspiracy each shall be fined under this title or imprisoned not more than five years, or both.
18 U.S.C.  371.


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


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


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


9
  We assume that, as alleged in Paragraph 47(b), destination  "red" referred to Shanghai, China, and destination "black" referred to Xinyang, China.


10
  Our dissenting colleague would interpret the language on  which the government relies as an indication that "the charged  conspiracy included the shipment and delivery of machine tools."  Dissenting Op. at 1.  The plain language of the indictment, however, does not support such a conclusion.  Unlike Forman v. United  States, 361 U.S. 416 (1960), where the Supreme Court interpreted  specific language in an indictment to charge a continuing conspiracy  to evade taxation, see id. at 423;  Dissenting Op. at 9, the Grand  Jury in the instant case explicitly confined the conspiracy's goal to  "obtain[ing] export licenses."  Count One p 44.  Contrary to the  view of the dissent, see Dissenting Op. at 3-4, the possible ambiguities in the indictment arise not from this clear statement of the  goal, but rather from Count One's references to events occurring  after the licenses were issued.  Although the dissent relies on the  indictment's inclusion of these events to argue that a broader  conspiracy existed, the dissent points to no action or event within  the statutory period that was agreed upon by both parties.


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


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


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


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


15
  Paragraph 43(c) states that the defendants, including Hitt,  conspired
to use interstate wire communications, the mail and interstate carriers in furtherance of a scheme to defraud and to obtain property, that is export licenses and machine tools for delivery to [China], by means of false and fraudulent ... representations ... in violation of [18 U.S.C.  1343 and 1341].
The government concedes that MDC and Hitt could not logically  have conspired to obtain "machine tools for delivery to [China],"  because MDC already owned the tools.  See Appellant's Br. at 26  n.8.  The government contends, however, that MDC and CATIC  conspired to "deprive the United States of its ability to control the  export of these tools ... by submitting false license applications." Id.  Hitt responds that the government's claim under 18 U.S.C.  §§ 1343 and 1341 is foreclosed by Cleveland v. United States, 121 S.  Ct. 365 (2000), which states that licenses "do[ ] not create a property interest."  See id. at 372.  Because Hitt sought dismissal of  Count One on statute of limitations grounds, we have no occasion to  decide whether the mail and wire fraud statutes apply or whether  export licenses constitute property under Cleveland.


16
  The government further contends that the term "conceal" in  Paragraphs 43(a) and (b) and the charged violation of 15 C.F.R.   787.5 in Paragraph 43(b) broaden the scope of the conspiracy  because they charge MDC and Hitt with failing to disclose changes  of material fact to licensing officials even after the export licenses  were issued.  As discussed infra Part II.C, in Count One the Grand  Jury alleged concealment not as independent acts in furtherance of  the conspiracy, but rather in support of its conclusion that MDC  and Hitt provided false and misleading information in the export  license applications.  Furthermore, the obligations imposed by 15  C.F.R.  787.5 are triggered upon a "change of material fact or  intention" occurring after MDC submitted the export license applications. 15 C.F.R.  787.5(a)(3).  No such change is alleged in  Count One;  rather, the false information that is the basis of the  conspiracy charge was known to the defendants before they submitted the export license applications.  Thus, Paragraph 43(b)'s reference to 15 C.F.R.  787.5 does not expand the conspiracy to actions  occurring after the licenses were issued.


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


Williams, Circuit Judge, dissenting:

49
The indictment--read  as a whole--fairly informs the defendant that the charged  conspiracy included the shipment and delivery of machine  tools and thus included the alleged overt acts committed  within the five-year limitations period.  I would reverse the  district court's dismissal of Count One.


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


51
The key issue here is whether Count One of the indictment  alleges a conspiracy continuing beyond October 19, 1994 and  is thus properly chargeable under the five-year statute of  limitations.  See Fiswick v. United States, 329 U.S. 211, 216  (1946) (statute "runs from the last overt act during the  existence of the conspiracy.").  Count One explicitly alleges  five overt actions taken after that date, see Count One p 51  (21-25), but these five acts would not count for our purposes  unless performed pursuant to the conspiracy.  "[T]he crucial  question in determining whether the statute of limitations has  run is the scope of the conspiratorial agreement, for it is that  which determines both the duration of the conspiracy, and  whether the act relied on as an overt act may properly be  regarded as in furtherance of the conspiracy."  Grunewald v.  United States, 353 U.S. 391, 397 (1957).  In fact the indictment provides ample signs that the claimed conspiracy extended not merely to the securing of export licenses (issued  September 14, 1994) but also to the shipment of the equipment to China through actions that bring the conspiracy well  within the five-year window.


52
* * *


53
An indictment need not be perfectly crafted to survive  judicial scrutiny.  "The true test of the sufficiency of an  indictment is not whether it could have been made more  definite and certain, but whether it contains the elements of  the offense intended to be charged, and sufficiently apprises  the defendant of what he must be prepared to meet."  United  States v. Debrow, 346 U.S. 374, 376 (1953) (internal quotations  omitted) (emphasis added).  It must "fairly inform[ ]" the  defendant of the charge, Hamling v. United States, 418 U.S.  87, 117 (1974), and tell him of its nature "with reasonable  certainty," United States v. Simmons, 96 U.S. 360, 362 (1877). We read the indictment "in its entirety," and construe it  "according to common sense with an appreciation of existing  realities."  United States v. Inryco, Inc., 642 F.2d 290, 294  (9th Cir. 1981).


54
Our specific task is to determine whether the alleged  actions within five years of the indictment promoted the  object of the alleged conspiracy.  The query is similar to  resolving claims that a trial court's permissive evidence rulings broadened the indictment.  While indictments cannot be  "constructively amended" outside of the grand jury (to permit  introduction of evidence), they are interpreted reasonably:


55
In order to prevail on his claim of constructive amendment, [a defendant] must show that the proof at trial "so altered an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury's indictment."  No constructive amendment occurs "where a generally framed indictment encompasses the specific legal theory or evidence used at trial."  Accordingly, we have "consistently permitted significant flexibility in proof, provided that the defendant was given notice of the core of criminality to be proven at trial."


56
United States v. Berger, 224 F.3d 107, 117 (2d Cir. 2000)(internal citations omitted).  Taken as a whole, this indictment  adequately apprises Hitt that the conspiracy extended beyond  the receipt of the export licenses and encompassed the shipment of the equipment to China.


57
A natural starting place is the language explicitly addressing the goal of the conspiracy--"to obtain export licenses  allowing the sale and exportation of machine tools to [China]."  Count One p 44 (emphasis added).  Taken alone, this  passage is susceptible of the narrow reading assigned by the  majority--that the goal was only to secure the licenses, with  the parties lacking any shared purpose as to actual export or  delivery.  But the broader meaning asserted by the government is quite plausible.  When a person says he wants to  obtain "a visa allowing travel to Beijing," the literal reading-that he is indifferent to the use of the visa--is possible but  not necessarily likely.  That depends on context.  The remainder of the indictment, as we shall see, shows that the  grand jury was asserting that the parties' jointly intended to  get the tools to China.  The written contract between McDonnell Douglas and CATIC focused on obtaining the export  licenses, to be sure, but parties can be (and often are) accused  of having a conspiratorial agreement beyond that memorialized in a legitimate sales deal.  There is no parol evidence  rule that prevents a criminal agreement from being broader  than a contract to which it is related.


58
Having chosen the narrow reading of the statement of  conspiratorial "goal," the majority then discounts everything  in the indictment inconsistent with that reading. See Maj. Op.  at 18-19 (saying that CATIC defendants' alleged purposes  "extended beyond the common goal" of the conspiracy and  thus cannot "broaden" its definition);  19 (saying that "Manner and Means" paragraphs cannot "expand" or "redefine"  scope of conspiracy because grand jury did not state goal in  broad terms);  20-21 (saying that overt acts cannot be accepted as stated because this would "extend" scope beyond stated  goal);  21 (saying that stated duration of conspiracy to March  1995 cannot be accepted because it would conflict with alleged  goal and would "expand" conspiracy);  23 (saying that Paragraph 43(a) cannot function as a "catch-all, umbrella section"  for the government because of its "generic language");  24  (saying that economic benefit to McDonnell Douglas from  completing shipment must be disregarded because only CATIC was interested in delivery of the equipment).  The more  conventional approach, when confronted with an ambiguity, is  to assume that other provisions of the document as a whole  may shed light on the meaning of the ambiguous passage. Here they do indeed--the statements of purposes, of means  and manner, of duration of the conspiracy, and of overt acts  all point to the broader meaning.  See Count One p p 1, 4350, 51(21)-(25).


59
The indictment says that the CATIC defendants--unsurprisingly--cared about shipment:  They wanted to get the  equipment for "unrestricted use at undisclosed facilities within [China], including Nanchang, a factory known for its  military production."  Id. at p 44.  And McDonnell Douglas  and Hitt are explicitly said to have purposes that would  extend beyond the issuance of the licenses:  They wanted to  "maintain the ongoing commercial relationship between McDonnell Douglas and CATIC and to promote the prospects  for existing and future business contacts between the parties."  Id.  Obviously McDonnell Douglas's purpose of maintaining a favorable commercial relationship with CATIC  would have been thwarted if the licenses were obtained but  never used;  thus McDonnell Douglas's alleged purpose fits  the broader meaning, and only the broader meaning, of the  stated goal.


60
The majority asserts that McDonnell Douglas "would satisfy its purpose ... only by performing the acts that were  under its control, namely selling the machine tools to CATIC  and applying for the export licenses necessary to complete  the sale."  Maj. Op. at 18 n.13 (emphasis added).  This  reflects a mistaken idea of what was under McDonnell Douglas's control.  In fact the indictment explicitly alleges an  affirmative post-October 19, 1994 act that was under McDonnell Douglas's control, namely filling out forms coded to get  the equipment to the two intended sites in China.  See Count  One p 51 (21) (November 2, 1994 act);  see also id. at p 47(b)  (explaining coding system).  Thus McDonnell Douglas concretely and actively helped CATIC realize the shared goal of  delivery to China.


61
Moreover, at least until the licenses were used, McDonnell  Douglas could advance the joint interests of the alleged  conspirators by keeping quiet.  The indictment includes an  allegation of "conceal[ing]" by trick, scheme or device material facts in the jurisdiction of the executive branch (Count One  p 43(a)) in violation of 18 U.S.C.  1001 and asserts that the  conspiracy went on until March 1995 (Count One  51 (25)),  when the tools were delivered to Nanchang.1  The majority nonetheless throws out the period of shipment and delivery  on the ground that inclusion of the period needed for the  conspirators to reap the full benefits could properly "extend  the duration of the conspiracy only if all defendants contemplated those benefits and agreed to receive them."  Maj. Op.  at 24.  But McDonnell Douglas's benefits included the relationship enhancement that completed shipment would bring,  and in any event the cases allow inclusion of the period  needed for each conspirator to receive his or her share of the  benefits.  See United States v. Mennuti, 679 F.2d 1032, 1036  (2d Cir. 1982) ("Similarly, even if the main objective of the  conspiracy in this case was to defraud [the insurance company], the conspiracy continued until its other objectives, including [one co-conspirator's] own payoff, were achieved.").  And,  given that the scheme of deceit and concealment is alleged to  have culminated in a specific event (i.e., the delivery occurring  in March 1995), there is no risk of defendants' being charged  with an eternal conspiracy.  Properly understood, the indictment thus falls easily on the permissible side of the line  drawn by then-Judge Breyer in United States v. Doherty, 867  F.2d 47 (1st Cir. 1989), distinguishing between receiving the  fruits of an enterprise in "one action, or a handful of actions,  taking place over a limited period of time," id. at 61, and  receiving them in the form of a "lengthy, indefinite series of  ordinary, typically noncriminal, unilateral actions, such as  receiving salary payments," id.  The former is permissible,  the latter often not.  Here the indictment is of the former  type.


62
From the government's acknowledgment at oral argument  that the indictment would remain valid even if the ship  containing the equipment sank before it reached China, the  majority concludes that "[i]f delivery or shipment of the  machinery was unnecessary to the common goal of the conspirators, then by definition the government cannot extend  the conspiracy past the issuance of the export licenses."  Maj.  Op. at 25.  On this basis, the majority simply reads out of the indictment all five post-October 19, 1994 overt acts.  Id.  But  the government did not say that the shipment was unnecessary to achieve the conspiracy's goal;  it said only that the  indictment would still be valid if the shipment were not  successful.  See Oral Argument Tr. at 10.  This reflects a  standard truth of conspiracy law:  One can be convicted of  conspiracy even if the goal is not realized, so long as there is  an overt act in furtherance of the goal.  See United States v.  Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985);  Wayne R.  LaFave, Modern Criminal Law 645 (2d ed. 1988).  The sunk  ship hypothetical is relevant only in that such a sinking  would, in all likelihood, have conclusively thwarted the parties' shared goal, thus ending the conspiracy.  If that had  occurred more than five years prior to indictment, the indictment for conspiracy would be time barred.  But no ship sank,  and indeed the equipment didn't even leave Ohio until after  the key date of October 19, 1994.


63
Most telling is the indictment's list of overt acts, expressly  stated by the indictment to be "[i]n furtherance of the  conspiracy and to accomplish the objects thereof."  Count  One p 51 (emphasis added).  Five of the listed acts--including  the shipment and diversion of the tools--plainly occurred  after October 1994, within the statute of limitations for conspiracy.  See id. at p p 51(21)-(25).  Though the majority  suggests otherwise, see Maj. Op. at 13, 14-15 n.10, it is  irrelevant (1) that Hitt did not personally perform any of  these acts, (2) that the records executed in Overt Act 21 are  internal McDonnell Douglas records, (3) that four out of five  acts relate to CATIC's shipping efforts, and (4) that the  parties did not agree specifically as to each of the acts. When parties join a scheme, they become responsible for the  entirety of its execution, "joined together by their knowledge  of its essential features and broad scope," Blumenthal v.  United States, 332 U.S. 539, 558 (1947), and either party's  ignorance of the details of the overt acts committed by the  other is of no consequence.  Id.  See also Pinkerton v.  United States, 328 U.S. 640, 646-47 (1946);  United States v.  Curry, 977 F.2d 1042, 1058 (7th Cir. 1992) ("The government  is not required to prove any overt acts with regard to a particular defendant within the limitations period;  instead,  the government is required to prove that the conspiracy  existed into the limitations period and that the defendants did  not withdraw before that period.").


64
The majority refuses to read the indictment as a whole  when it argues that these acts are not in furtherance of the  conspiracy because they do not relate to the receipt of the  export licenses.  See Maj. Op. at 21.  Although overt acts  cannot extend the scope of the conspiracy unless they were  committed in furtherance of a common goal, see id., an  indictment's allegations of overt acts can help interpret its  other language.  Accord Williamson v. United States, 207  U.S. 425, 458 (1908) (using limited character of alleged overt  acts to support narrow reading of remainder of indictment). Since only a single conspiracy is charged, the majority's  reasoning implies that the grand jury's inclusion of these acts  was unnecessary or mistaken.  But we should not excise part  of the indictment lightly.  See United States v. Rezaq, 134  F.3d 1121, 1134 (D.C. Cir. 1998) ("[A] motion to strike surplusage [from the indictment] should be granted only if it is  clear that the allegations are not relevant ... ";  "Rule 7(d)  has been strictly construed against striking surplusage.")  (internal quotations and citations omitted).


65
The Manner and Means section of the indictment is in full  accord.  The grand jury alleged that "in seeking to achieve  the goal of the conspiracy" CATIC "did ship the equipment to  locations not reflected in such export applications," and  McDonnell Douglas and Hitt concealed from the government  "that separate packing instructions, designating two ports of  delivery, were being employed for all of the licensable machine tools."  Count One p p 45, 47, 49(b)(2).  The majority  discards the allegedly false statements made to the Commerce Department and other activities after the licenses were  issued, using the now familiar argument that these couldn't  have been in fulfillment of the conspiracy's goal, as narrowly  construed by the majority.  See Maj. Op. at 19-20.  But the  indictment specifies that the conduct described under Manners and Means was to "achieve the goal of the conspiracy." The necessary implication is that the better reading of the "goal" statement is the broader one encompassing efforts to  deliver the goods.


66
Finally, the indictment states in at least three places that  the conspiracy ended in or around March 1995.  Count One  p p 43, 47(n), 51(25).  In Forman v. United States, 361 U.S.  416 (1960), overruled on other grounds, Burks v. United  States, 437 U.S. 1, 18 (1978), the Supreme Court was similarly  confronted with an ambiguous indictment that alleged its  duration in years and asserted some overt acts even in the  year of indictment.  It explicitly relied on the overt acts to  resolve the ambiguity.  See 361 U.S. at 423.


67
* * *


68
Robert Hitt may be entirely innocent of the charges.  Or  the government may in fact be unable to prove his joinder in  the broader goal of the conspiracy and thus his complicity in  the activities after issuance of the licenses.  But the indictment's unequivocal assertions of McDonnell Douglas's purposes, of the conspiracy's duration, of the manner and means  of execution that involve completion of the shipment, and of  the overt acts looking to that completion plainly resolve the  indictment's ambiguous statement of the conspiracy's goal,  making clear that it charges a conspiracy reaching into the  five-year window.  Since the indictment adequately apprised  Hitt of the scope of the charged conspiracy, the statute of  limitations defense cannot properly rest on its language.



Notes:


1
  The indictment also explicitly alleges violation of 15 CFR   787.5, which imposes a continuing obligation to disclose:  "Every  person who has made any representation, statement, or certification  must notify, in writing, the Bureau of Export Administration ... of  any change of any material fact or intention from that previously  represented, stated, or certified."  15 CFR  787.5(a)(3);  see also  55 Fed. Reg. 31,176 (1990).  Because this reference is located in a  subsection that appears to be focused on "obtaining" the licenses,  Count One  43(b), I do not rely on it.


