The second part of paragraph (c) is taken from 18 U.S.C. § 1751 which deals with assassination, kidnapping and assault of certain highlevel officials. Paragraph (c) embodies a legislative determination that certain officials should always be federally protected. This draft extends such protection to members of the President's cabinet and the Supreme Court. Members of Congress could also be added to this list. Protection of foreign diplomatic personnel, required of the federal government by the law of nations, is now found in 18 U.S.C. § 112 and is continued in paragraph (c).

Paragraph (d) is a base for property crimes against the United States, consolidating notions of ownership, custody, control, and "in preparation for," now dealt with in separate statutes. Title 18 U.S.C. §2112, for example, limits robbery to property belonging to the United States, while § 2114 deals with the mail. Present coverage of federal burglary is spotty, including banks (§ 2113), post offices (§ 2115), certain vehicles (§ 2116) and certain common carrier facilities (§ 2117). Paragraph (d) would apply federal law to any burglary of any federal building, whether or not in a federal enclave, and also any burglary, whether or not of a federal building, where the target property was federal.

Paragraph (e) substantially restates the present jurisdiction over fraud (18 U.S.C. §§ 1341 (mail) and 1343 (wire, radio or television in interstate or foreign commerce)), obscenity (18 U.S.C. §§ 1461 (mail) and 1462 (use of common carrier to transport)), and organized crime (18 U.S.C. § 1952-use of any facility in interstate or foreign commerce, including the mail), among others. The phrase "in the commission" includes planning or attempting the crime. Îssues that this base raises include:

(1) to what extent should this base be used for crimes of violence? Title 18 U.S.C. § 1461 prohibits use of the mails to incite arson, murder or assassination. If this jurisdiction is appropriate, jurisdiction might well extend also to situations in which the mail is used to carry out those offenses. Cf. 18 U.S.C. § 876 (mailing a kidnap threat or demand for ransom). Alternatively this base could be limited to specific offenses where the use of the mails or facilities of commerce are preferred means of carrying out the offense and to those offenses most likely to be engaged in by organized criminals;

(2) should there be another more limited base for extortion or threat crimes? Title 18 U.S.C. § 875 limits federal jurisdiction to situations in which a facility of commerce was used to transmit the communication containing the threat, but does not cover other uses of those facilities to carry out the crime, e.g., telephoning an accomplice.

Paragraph (f) is necessary to lay the basis for federal intervention to protect vital, quasi-public national facilities even if they are "privately" owned. For the scope of existing law, see 18 U.S.C. §§ 3135 (dangerous tampering with airplanes and interstate motor transport), 18 U.S.C. §§ 2271 et seq. (destruction of vessels); 18 U.S.C. § 832 (transportation of explosives and other dangerous substances), and 18 U.S.C. § 2117 (burglary of interstate or foreign vehicles or pipelines).

Paragraph (g), the broadest base listed, presently appears in 18 U.S.C. § 1951 (robbery or extortion), 18 U.S.C. § 231 (teaching use

of firearms, explosives or incendiaries; obstructing firemen or law enforcement officers in civil disorders affecting commerce), and 18 U.S.C. § 245 (b) (3) (injuries during a riot to a person engaged in a business affecting commerce). This base requires proof that the particular conduct affected commerce and should not be confused with the situation in which Congress finds that certain conduct necessarily affects commerce, so that the federal government has jurisdiction over all such conduct within the country. In the latter situation, no base is stated and no proof of a particular effect on commerce, or other jurisdiction is necessary. See 18 U.S.C. §§ 891 et seq. (extortionate credit transactions). For a proposal limiting exercise of jurisdiction under this base to cases certified by the Attorney General, see § 1740 (3).

Examples of present law which use the base set forth in paragraph (h) are 18 U.S.C. § 1201 (kidnap victim transported), 18 U.S.C. 82421 (prostitute transported), and 18 U.S.C. § 1952 (racketeer travels). The growth of the concept can be seen from these sections. In the earlier statutes, the "victim" had to be moved, whereas, in the later statute, that the offender travelled is enough. It is difficult to see a rational policy line in this distinction. If interstate transportation of a kidnap victim suffices for federal intervention, interstate movement of the kidnapper to commit the offense should also suffice.

Paragraph (i) will be a base for theft. It should be compared with paragraph (f), which protects the facilities of commerce.

While paragraph (1) describes what the character of the property must be at the time the offense is committed in order to make an offense against it a federal offense, e.g., theft, arson, paragraph (j) describes what must be done with the property in the course of commission or consummation of the offense if federal jurisdiction is to exist. This base, too, will be used in theft, particularly with respect to disposition of stolen property. See, e.g., 18 U.S.C. § 2312 (transporting stolen motor vehicles or aircraft).

Paragraph (k) is similar to paragraph (d) (protection of federal property), and is used in 18 U.S.C. §§ 1006 and 2113, which protect bank property from robbery, theft, embezzlement, misapplication and burglary. However, since existing federal law does not extend to protecting bank property from arson and other forms of criminal destruction, this base is not used for all the crimes for which paragraph (d) is used and therefore it must be stated separately.

Property of nonfederal agencies other than national credit institutions is also protected by existing law, but only against depredations by its employees, e.g., funds of agencies supported by OEO (42 U.S.C. § 2703). Also, the operations of such agencies, as well as those of national credit institutions, are protected from certain conduct, such as false statements by employees (18 U.S.C. § 1006). Specialized bases to cover these situations appear with the crimes themselves.

Incorporating the notion of piracy as a jurisdictional base, (paragraph (7)) constitutes an approach which is more realistic and workable than is the attempt to define unique crimes of piracy, as in present law. Except for jurisdictional facts, crimes constituting piracy consist of conduct which is murder, robbery, kidnapping, etc. Section 212 defines the circumstances which must exist, e.g., ship to ship, to make the offense piracy and thus subject to federal prosecution.

See Working Papers for general survey of federal jurisdiction.

§ 202. Jurisdiction Over Included Offenses.

If federal jurisdiction of a charged offense exists, federal jurisdiction to convict of an included offense likewise exists.

Comment

This section contemplates a situation in which the offense charged has a jurisdictional base which an included offense does not have. An included offense, as defined in § 703, is one, for example, which is established by proof of the same or less than all the facts required to establish the offense charged. That jurisdiction should exist for the charged offense and not for the included offense should be viewed as an accident of legislative drafting rather than the result of different policies. Such occasions should not arise under the proposed Code, where an attempt has been made to anticipate the problem. For example, offenses included in murder, such as assault and aggravated assault, are expressly given the same jurisdictional bases as murder. But there may be situations in which a minor offense outside the Code constitutes the included offense. For example, introducing a misbranded fur product into commerce (15 U.S.C. § 69a) might be an included offense to theft by deception; but the jurisdictional base relied upon for the theft, e.g., use of the mails, is not specified for the misbranding.

§ 203. Prospective Federal Jurisdiction.

(1) Inchoate Offenses. Federal jurisdiction exists with respect to attempt, solicitation or conspiracy when a circumstance giving rise to federal jurisdiction over such inchoate offense has occurred or would occur if the principal offense were committed.

(2) Completed Offenses. Federal jurisdiction over a completed offense exists, although no circumstance otherwise giving rise to federal jurisdiction has yet occurred, if the actor took a substantial step in connection with such offense designed or likely to establish federal jurisdiction.

Comment

Subsection (1) establishes the rules for jurisdiction over the offenses of attempt, solicitation and conspiracy.

There are two situations in which there is federal jurisdiction over inchoate crimes. One is where a circumstance which gives rise to federal jurisdiction over the completed offense has already occurred (even though unintended culpability is not required as to a fact which gives rise to jurisdiction-see § 204), e.g., a racketeer has moved across a state border. Another is where there would be federal jurisdiction

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over the offense if it were completed or committed as intended. That is, if a thief intends to steal certain diamonds which are, in fact, part of an interstate shipment, an attempt to steal them is a federal crime. Note that he need not intend that the federal government have jurisdiction, but must intend only to engage in conduct which would give rise to a jurisdictional circumstance.

Subsection (2) applies the Code approach to jurisdictional circumstances to situations in which the substantive criminal conduct has been completed but the jurisdictional circumstance has not. In such situations the crime is complete. No change of substance in present law is effected, as attempts are now generally included in the section prohibiting the completed crime, and are subject to the same penalty. Subsection (2) provides that there is federal jurisdiction over the completed offense if the jurisdictional circumstances would occur because of conduct engaged in or intended to be engaged in. For example, if a person has committed a fraud and has deposited in his bank a check (the proceeds of the fraud) on an out-of-state bank, he has committed the completed federal crime of theft by deception even though federal agents seize the check before it is cleared through the mails. The conduct which has occurred (depositing the check) would cause the existence of the jurisdictional circumstance (movement of the check through the mail).

§ 204. Culpability Not Required As to Jurisdiction.

Except as otherwise expressly provided, culpability is not required with respect to any fact which is solely a basis for federal jurisdiction.

Comment

This section is also set forth at § 302(3) (c), infra, with the other provisions dealing with culpability and is repeated here for emphasis. Since jurisdiction is only a question of which sovereign has the power to punish certain harmful conduct, it follows that, in general, the degree of an offender's culpability does not depend upon whether he does or does not know when he commits the offense which sovereign will be able to prosecute him. This view is supported by such cases as United States v. Licausi, 413 F. 2d 1118 (5th Cir. 1969) (defendant need not know deposits of the bank robbed were insured by FDIC); McEwen v. United States, 390 F. 2d 47 (9th Cir.), cert. denied, 392 U.S. 940 (1968) (defendant need not know person assaulted was federal officer); and United States v. Allegrucci, 258 F. 2d 70 (3d Cir. 1958) (receiver of stolen goods need not know they were stolen from interstate commerce.)

§ 205. Multiple Jurisdictional Bases.

The existence of federal jurisdiction may be alleged as resting on more than one base but proof of any one base is sufficient. The existence of multiple jurisdictional bases for an offense does not increase the number of offenses committed.

Comment

This section clearly differentiates between multiple criminality and multiple bases for federal prosecution. Under existing federal law, which defines many crimes in terms of the jurisdictional base, e.g., using the mails to further a scheme to defraud, the fact that there are multiple bases, e.g., multiple mailings even to the same person, means that there are multiple crimes. This Code defines crimes in terms of the harmful conduct involved, e.g., theft by deception. That there were two mailings and three interstate telephone calls in the course of one theft does not multiply the harmful conduct.

§ 206. Federal Jurisdiction Not Pre-emptive.

The existence of federal jurisdiction over an offense shall not, in itself, prevent any state, any territory or possession of the United States, or the District of Columbia from exercising jurisdiction to enforce its own laws applicable to the conduct in question.

Comment

While there are few areas in which the enactment of criminal laws by Congress results in federal occupation of the field, out of an abundance of caution Congress in recent years has added provisions to a number of its criminal enactments making it explicit that such a result is not intended. This section sets forth that proposition in a provision of general applicability. But see § 707 barring prosecution by a state in most instances after the federal government has prosecuted the offense.

§ 207. Discretionary Restraint in Exercise of Concurrent Jurisdiction.

Notwithstanding the existence of concurrent jurisdiction, federal law enforcement agencies are authorized to decline or discontinue federal enforcement efforts whenever the offense can effectively be prosecuted by nonfederal agencies and it appears that there is no substantial federal interest in further prosecution or that the offense primarily affects state or local interests. A substantial federal interest exists in the following circumstances, among others: (a) where an offense apparently local in its impact is believed to be associated with organized criminal activities extending beyond state lines; (b) where federal intervention is necessary to protect civil rights; (c) where local law enforcement has been corrupted so as to undermine its effectiveness. Where federal law enforcement efforts are discontinued in deference to local prosecution, federal agencies are directed to cooperate with