(s) "negligently" has the meaning prescribed in section 302(1);

(t) "offense" means conduct for which a term of imprisonment or a fine is authorized by a federal statute whether or not federal jurisdiction exists with respect to such conduct;

(u) "official action" means a decision, opinion, recommendation, vote or other exercise of discretion;

(v) “official proceeding" means a proceeding heard or which may be heard before any government agency or branch or public servant authorized to take evidence under oath, including any referee, hearing examiner, commissioner, notary or other person taking testimony or a deposition in connection with any such proceeding;

(w) "person" means a human being and, where relevant, an organization;

(x) "public servant" means an officer or employee of a government or a person authorized to act for or on behalf of a government or serving a government as an adviser or consultant. The term includes Members of Congress, members of the state legislatures, Resident Commissioners, judges and jurors;

(y) "reasonably believes" designates a belief which is not recklessly held by the actor;

(z) "recklessly" has the meaning prescribed in section 302(1);

(aa) "section" means a section of this Code; "subsection" or "paragraph" refers to a subsection or paragraph of the section in which the term is used;

(ab) "serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ;

(ac) "thing of value” means a gain or advantage, or anything regarded, or which might reasonably be regarded, by the beneficiary as a gain or advantage, including a gain or advantage to any other person. "Thing of pecuniary value" means a thing of value in the form of money, tangible or intangible property, commercial interests or anything else the primary significance of which is economic gain;

(ad) "United States", in a territorial sense, includes all places and waters, continental or insular, subject to the jurisdiction of the United States, except the Canal Zone;

(ae) "United States," when not used in a territorial sense, means government, as defined in paragraph (h), of the United States.

Comment

Words and phrases which are commonly used throughout the Code for which statutory definition is necessary or desirable are defined in this section. When a word is used in only one section or chapter, it is defined, if at all, in that section or chapter. Words used only a few times are cross-referenced.

The noteworthy feature of these definitions is that, in general, the words are not limited to federal contexts, e.g., a public servant is one who works for any government. Limitations to the federal context are made where the federal jurisdictional base is set forth, or by use of the term "federal" before the word. The approach of this Code is to distinguish the definition of harmful conduct from the designation of which government has the power to prosecute for such conduct. Separately stating the federal aspect of a word also clearly differentiates when culpability is or is not required. For example, in § 1361 (bribery), the person must know he is buying action of a public servant (culpability is required under § 302(3) (a) as to this fact); but he need not know that the public servant worked for the federal government (culpability is not required under § 302 (3) (c) as to a jurisdictional fact). Also to be noted is that, although the definition of "offense" embraces state offenses, the conduct must be such as would also constitute a federal offense if federal jurisdiction were present. The line between felonies and misdemeanors is drawn according to the manner in which comparable federal conduct would be punished.

Comment concerning definitions in this section, and references to more detailed comment in the Working Papers, will be found in the comment to the section in which the term or phrase has its principal

use.

Chapter 2. Federal Penal Jurisdiction

§201. Common Jurisdictional Bases.

Federal jurisdiction to penalize an offense under this Code exists under the circumstances which are set forth as the jurisdictional base or bases for that offense. When no base is specified for an offense, federal jurisdiction exists if the offense is committed anywhere within the United States, or within the special maritime and territorial jurisdiction of the United States. Bases commonly used in this Code are as follows:

(a) the offense is committed within the special maritime and territorial jurisdiction of the United States;

(b) the offense is committed in the course of committing or in immediate flight from the commission of any other offense over which federal jurisdiction exists;

(c) the victim is a federal public servant engaged in the performance of his official duties or is the President of the United States, the President-elect, the Vice President, or, if there is no Vice President, the officer next in the order of succession to the office of President of the United States, the Vice Presidentelect, or any individual who is acting as President under the Constitution and laws of the United States or any member or member-designate of the President's cabinet or the Supreme Court, or a head of a foreign nation or a foreign minister, ambassador or other public minister;

(d) the property which is the subject of the offense is owned by or in the custody or control of the United States or is being manufactured, constructed or stored for the United States;

(e) the United States mails or a facility in interstate or foreign commerce is used in the commission or consummation of the offense;

(f) the offense is against a transportation, communication, or power facility of interstate or foreign commerce or against a United States mail facility;

(g) the offense affects interstate or foreign commerce; (h) movement of any person across a state or United States boundary occurs in the commission or consummation of the offense;

(i) the property which is the subject of the offense is moving

in interstate or foreign commerce or constitutes or is part of an interstate or foreign shipment;

(j) the property which is the subject of the offense is moved across a state or United States boundary in the commission or consummation of the offense;

(k) the property which is the subject of the offense is owned by or in the custody of a national credit institution; (1) the offense is piracy, as defined in section 212.

Comment

Existing federal criminal laws differ from state criminal laws most markedly in the approach to jurisdiction: while a state punishes all criminal conduct within its borders, federal jurisdiction rests upon several different bases, e.g., protection of the federal government, special maritime and territorial jurisdiction. Because the extension of federal jurisdiction has been a process of accrual, spreading over many years, many sections of existing Title 18 outlaw conduct only under one jurisdictional formulation. For example, 18 U.S.C. § 1111 deals with homicide within the special maritime and territorial jurisdiction, and 18 U.S.C. § 1751 deals with assassination of various important federal officials. As a result multiple provisions deal with the same basic misconduct; the repetition is required only because there is more than one basis for federal jurisdiction over such misconduct.

A new approach is proposed in this Code. Most crimes are defined without regard to where the conduct occurs, or whether the United States has the power to prosecute, in a manner similar to that in which offenses are defined in state codes. Federal jurisdiction over the misconduct is then set forth separately. Because jurisdiction has no bearing on a person's culpability, the prosecution is not required to prove culpability as to jurisdiction. See § 204. Many crimes have more than one jurisdictional base; that is, if any one of a number of circumstances occurs, the federal government has the power to prosecute. For example, two jurisdictional bases for murder (§ 1601) are that the homicide took place in the special maritime or territorial jurisdiction and that the victim was a federal public servant engaged in the performance of his official duties or was the President, or another specified high-level official. The definition of the harmful conductmurder is the same regardless of the base. This approach permits consolidation of the many sections of existing Title 18 which are now separate only because they involve different federal interests. It also resolves difficulties in the areas of conspiracy and accomplice liability because the harmful conduct is the focus of the definition of the of fense, rather than the basis for federal jurisdiction over it.

No attempt has been made to increase or decrease the reach of federal jurisdiction across the board. However, federal jurisdiction has grown haphazardly over the years, and inconsistency has resulted. By taking a uniform approach-that similar crimes should have similar jurisdictional bases unless there is a good reason to the contrary-federal jurisdiction is changed to some extent. A special precatory provision, 8207, is proposed, providing guidelines indicating the limits within which legal jursdiction should be exercised,

The first commonly used jurisdictional base listed is special maritime and territorial jurisdiction. A consequence of defining offenses in terms of the basic misbehavior and an objective of this revisionis that a comprehensive criminal code will exist for federal enclaves, promoting uniformity among them and reducing the need to assimilate the laws of the surrounding jurisdiction on a wholesale basis. This base thus applies to virtually every offense defined in the Code.

Paragraph (b) is a "piggyback" base, providing that the commission of a federal offense is the basis for federal jurisdiction over another Code offense. It is a novel device which permits simple resolution of otherwise complex drafting problems. Such problems arise when the basic misconduct (impersonating a federal official) is not only punishable in itself, but also is the jurisdictional handle by which there might be federal prosecution for a more serious harm (kidnapping or fraud). (The states have no such problem because their territorial limits are the basis of jurisdiction for all offenses.) Existing federal treatment of this problem is unsatisfactory. Impersonation, for example, is presently a felony, with a three-year maximum penalty-treatment too severe for mere impersonation of a marshal in order to serve legal process, but not severe enough for the very serious harms which might be committed by impersonation of federal officials. Other existing provisions, e.g., civil rights, deal with this problem by aggravating the penalty when injury or death "results," not the most satisfactory way of imposing criminal liability which subjects the offender to severe penalties. Paragraph (b), on the other hand, in effect incorporates the Code offenses of injury to persons and property-with their careful attention to culpability requirements and grading differentials-into those hybrid offenses which are minor wrongs in themselves but are also grounds for federal prosecution of more serious offenses.

Title 18 U.S.C. § 1114 prohibits assaulting or murdering federal officials there described-investigators and law enforcement officers for the most part-while engaged in their official duties. This jurisdictional base, the first part of paragraph (c), would be continued for assault and homicide and would be extended to kidnapping as well. Attacks on federal public servants "on account of their official duties” are penalized as retaliation (§ 1367), which can be "piggybacked" under paragraph (b) into whatever form the retaliation took.

It is proposed that all federal public servants should be covered while engaged in their official duties, rather than merely specified officials as in 18 U.S.C. § 1114. This extension of federal jurisdiction permits federal back-up of local law enforcement efforts in protecting federal employees and will be subject to the policy as to discretionary restraint on its use expressed in § 207. A more substantial change in existing jurisdiction would be deletion even of the requirement that the federal official be engaged in the performance of his official duties, and its incorporation in § 207 as a guideline for discriminating exercise of federal jurisdiction. This treatment would avoid the occasional problems attending litigation of the issue. Proof problems, however, are minimized in any event by the Code's proposal that culpability not be required as to facts establishing jurisdiction.