nation. No prosecution shall be instituted pursuant to this subsection unless the Attorney General certifies that a substantial federal interest, as described in section 207, exists.

Comment

The jurisdiction prescribed by subsection (1) derives from the inherent power of the federal government to regulate and protect its own employees, functions and proceedings. The extension of federal jurisdiction in subsection (2) to bribery and intimidation of local officials recognizes a federal interest in preserving the effectiveness of local law enforcement, particularly against subversion by organized criminals. Broad federal jurisdiction in this area might be rested on Article 4, Section 4 of the Constitution, under which the federal sovereign guarantees to the states a republican form of government. This responsibility could be construed as a power to preserve the states from any intrusion of nonpolitical pecuniary influences into government. The scope of this constitutional power is as yet untested, and might be limited to elective and representative character of state government. Paragraph (b) is drawn to fall within the limited construction. Paragraph (a) incorporates the conventional bases of federal jurisdiction, e.g., use of the mails, upon which reliance may be placed with confidence.

Violations of state bribery and extortion laws are federally penalized under 18 U.S.C. § 1952, which deals with interstate and foreign travel and use of interstate facilities to further unlawful activity related to racketeering enterprises. The draft carries forward this provision and extends the policy to all of the coercive and retaliatory conduct covered by §§ 1366 and 1367. Use of the federal definitions of the crimes allows uniform treatment for federal prosecutions, and permits discriminations in grading not now possible under 18 U.S.C. § 1952, particularly when these provisions are used as jurisdictional bases for prosecuting more serious crimes under § 201(b). Note that under subsection (2)(b) proof of interstate activity will not be necessary when the public servant involved is an elected local official.

The requirement of certification by the Attorney General recognizes the need to impose high political responsibility for the exercise of jurisdiction which constitutes intervention in local government affairs. No such requirement now exists for offenses of this character, although authorization is required for prosecutions under the Fugitive Felon Act, dealing with state felons, and for some civil rights prosecutions. See comment to § 207, supra. Such certification is intended to be conclusive, as provided in the last sentence of § 207.

1369. Definition for Sections 1361 to 1368.

In sections 1361 through 1368 "thing of value" and "thing of pecuniary value" do not include (a) salary, fees and other compensation paid by the government in behalf of which the official action or legal duty is performed, or (b) concurrence in official

action in the course of legitimate compromise among public servants.

Comment

The limitation on the meaning of "thing of value" and "thing of pecuniary value" is necessary here because of the broader general definitions prescribed in § 109. Although not explicitly dealt with in the existing bribery statute (18 U.S.C. §201), the matters covered here would probably be excluded by judicial construction of the term "corrupt" in existing law.

OFFICIAL MISCONDUCT REGARDING CONFIDENTIAL INFORMATION

AND SPECULATION

§ 1371. Unlawful Disclosure of Confidential Information.

A person is guilty of a Class A misdemeanor if, in knowing violation of a duty imposed on him as a federal public servant, he discloses or makes known in any manner any confidential information which he has acquired as a federal public servant. "Confidential information" means information made available to the United States government under a governmental assurance of confidence.

Comment

This section is principally derived from 18 U.S.C. § 1905, which prohibits disclosure by a federal official of confidential information relating to trade secrets and other business matters. Numerous other provisions in the United States Code deal with prohibitions as to similar and other matters. The draft consolidates these provisions under the general definition of "information made available to the United States government under a governmental assurance of confidence." The scope of criminal liability under this section is somewhat narrower than liability under 18 U.S.C. § 1905; the latter permits disclosure as "authorized by law," whereas in this section disclosure "in knowing violation of a duty" is prohibited, allowing consideration of the propriety of the disclosure apart from the authority of law. Such treatment does not preclude other sanctions or the promulgation of regulations regarding specified information defining the duty more rigorously.

A major issue raised by the draft is whether there should be such a broad criminal statute at all; one alternative would be to place outside Title 18 a number of narrow provisions, specifying the protected material and the public servants subject thereto.

§ 1372. Speculating or Wagering on Official Action or Information. (1) Speculating During and After Employment. A person is guilty of a Class A misdemeanor if during employment as a fed

eral public servant, or within [one year] thereafter, in contemplation of official action by himself as a federal public servant or by an agency of the United States with which he is or has been associated as a federal public servant, or in reliance on information to which he has or had access only in his capacity as a federal public servant, he:

(a) acquires a pecuniary interest in any property, transaction or enterprise which may be affected by such information or official action;

(b) speculates or wagers on the basis of such information or official action; or

(c) aids another to do any of the foregoing.

(2) Taking Official Action After Speculation. A person is guilty of a Class A misdemeanor if as a federal public servant he takes official action which is likely to benefit him as a result of an acquisition of a pecuniary interest in any property, transaction or enterprise, or of a speculation or wager, which he made, or caused or aided another to make, in contemplation of such official action.

Comment

This section, as a conflict-of-interest and self-dealing offense applicable to all public servants, is new to federal law, although there are a few existing prohibitions of similar import applicable to specific employees speculating with respect to specific matters (Agriculture Department, 7 U.S.C. § 1157; Small Business Administration, 15 U.S.C. § 645 (c); Internal Revenue Service, 26 U.S.C. § 7240). Subsection (1) is based on the view that, during a person's federal service and for a period thereafter, he should be barred from making the prohibited acquisitions and speculations, or helping another to do so, regardless of whether the official action occurs. It is derived from the A.L.I. Model Penal Code § 243.2. The suggestion of a one-year period is derived from provisions of 18 U.S.C. § 207, which deals with disqualification of former officials from certain activities.

Subsection (2), which overlaps subsection (1), is intended primarily to reach the person who has made the acquisition or speculation (or helped another to do so) prior to entering federal service but in contemplation of something he intends to do as a public servant. Because there is no federal connection at the time of the acquisition or speculation, the focus of the proscription is on proceeding with the official action when benefit therefrom is likely to occur. A principal issue, similar to the issue raised by § 1371, is whether the conduct covered should be the subject of a general criminal proscription or of narrower specific prohibitions.

IMPERSONATING OFFICIALS

§ 1381. Impersonating Officials.

(1) Offense. A person is guilty of an offense if he falsely pretends to be:

(a) a federal public servant or foreign official and acts as if to exercise the authority of such public servant or foreign official; or

(b) a federal public servant or a former federal public servant or a foreign official and thereby obtains a thing of value. (2) Defense Precluded. It is no defense to prosecution under this section that the pretended capacity did not exist or the pretended authority could not legally or otherwise have been exercised or conferred.

(3) Definition. In this section "foreign official" means an official of a foreign government of a character which is customarily accredited as such to the United States, the United Nations or the Organization of American States, and includes diplomatic and consular officials.

(4) Grading. An offense under subsection (1)(a) is a Class A misdemeanor. An offense under subsection (1)(b) is a Class B misdemeanor.

Comment

The existing laws regarding impersonation of officials to be replaced by this provision (18 U.S.C. §§ 912, 913, 915) attempt unsatisfactorily to encompass both the injury, in itself relatively minor, to the federal government which occurs when the credentials of federal officials are undermined, and the harm which impersonation of an official may cause to another. The existing felony treatment of the former is too severe; and the arbitrary maximum of three years is too low for the latter if the harm is kidnapping or a major fraud. Under the proposed Code, by virtue of the jurisdictional "piggyback" provision (§201(b)), the minor, undifferentiated impersonation can be classified as a misdemeanor, but remain a vehicle for prosecution of the more serious crimes. Present coverage of employees of a few semi-official organizations, e.g., Red Cross (18 U.S.C. § 917), 4-H Clubs (18 U.S.C. § 916), is continued in the proposed Code through a special jurisdictional base for theft, when committed by impersonation of such employees (§ 1740(4) (c)). The draft expands the definition of "foreign official" to include the officials of the U.N. and O.A.S. Subsection (2) codifies a judicial construction of current law.

Serious aspects of offenses presently in Chapter 33 of Title 18, which deals largely with petty offenses involving unlawful wearing of a uniform and use of official emblems, insignia and names, can be prosecuted under this section. It is contemplated that the balance will be transferred from the Criminal Code, and perhaps made subject to the regulatory offense provision (§ 1006).

Chapter 14. Internal Revenue and Customs Offenses

Introductory Note

Pursuant to the policy of integrating into the proposed Code all serious federal offenses, the present Chapter incorporates the principal tax offenses now located in Title 26, with the exception of those relating to firearms, which are incorporated in Chapter 18. Many minor offenses, especially of a regulatory character, will remain in the revenue title. The serious customs offenses are presently located in Title 18; and they are consolidated here in a single section or covered by other provisions of the proposed Code.

INTERNAL REVENUE OFFENSES

§ 1401. Tax Evasion.

A person is guilty of tax evasion, a Class C felony, if :

(a) with intent to evade any tax, he files or causes the filing of a tax return or information return which is false as to a material matter;

(b) with intent to evade payment of any tax which is due, he removes or conceals assets;

(c) with intent to evade payment, he fails to account for or pay over when due taxes previously collected or withheld, or received from another with the understanding that they will be paid over to the United States;

(d) with intent to evade any tax, he removes, destroys, mutilates, alters or tampers with any property in the custody, control or possession of the United States or any agent thereof;

(e) with intent to evade any tax, he knowingly fails to file an income, estate or gift tax return when due; or

(f) he otherwise attempts in any manner to evade or defeat any income, estate or gift tax.

Comment

This section is principally derived from the existing broadly-defined tax evasion offense, 26 U.S.C. § 7201. That provision itself is substantially re-enacted as a "catch-all" in paragraph (f) of the draft. Exploration of the possibility of replacing the broad definition with specific proscriptions of conduct which constitutes tax evasion led to the formulations of the other paragraphs, taking into account, as well, some aspects of 26 U.S.C. § 7202 (here embodied in paragraph (c)) and 26 U.S.C. § 7206, which deals with material false statements, aid and assistance, and removal and concealment of property. Inclusion of both general and specific formulations in the draft recognizes