state and local agencies, by providing them with evidence already gathered or otherwise, to the extent that this is practicable without prejudice to federal law enforcement. The Attorney General is authorized to promulgate additional guidelines for the exercise of discretion in employing federal criminal jurisdiction. The presence or absence of a federal interest and any other question relating to the exercise of the discretion referred to in this section are for the prosecuting authorities alone and are not litigable.

Comment

This section affords Congress the opportunity to recognize explicitly and to have its say as to a principle basic to federal law enforcement: that establishment of federal jurisdiction by Congress does not mean that it must be exercised to its fullest extent. Although a policy statement similar to this section may be found in existing provisions dealing with violators of federal laws who are under 21 (18 U.S.C. § 5001the United States Attorney may defer to local authorities, if they will take the offender and "it will be to the best interest of the United States and of the juvenile offender"), it is not customary for the Congress to provide precatory guidelines for the exercise of federal jurisdiction.

In some instances arbitrary limitations have been incorporated in the definition of the offense, e.g., transporting across state lines stolen property valued at $5,000 or more (18 U.S.C. § 2314). In other instances, where such lines are virtually impossible to draft, the exercise of federal jurisdiction is curbed-or, at least, responsibility is pin-pointed-by requiring certification by the Attorney General himself before a federal prosecution can proceed, e.g., fugitives from state prosecution (18 U.S.C. § 1073), civil rights violations (18 U.S.C. $245).

Absent such statutory limitations, federal jurisdiction is sometimes exercised to an extent not anticipated when legal jurisdiction was established. For example, when bank robbery jurisdiction was extended to all banks insuring deposits with the FDIC, it was intended to permit federal aid in cases where gangs moved from state-to-state robbing small-town banks; today bank robbery is regarded as primarily a federal crime, regardless of whether there are interstate aspects. While this section does not compel reassessment of pragmatic judgments such as the foregoing as to the primacy of the federal law enforcement effort in a particular area, it does invite reconsideration in terms of stated congressional policies, permits deletion of arbitrary lines, such as the $5,000 minimum for the stolen property offense, and provides a basis of inquiry in appropriation hearings as to the rationality of the allocation of federal law enforcement appropriations.

8 208. Extraterritorial Jurisdiction.

Except as otherwise expressly provided, extraterritorial jurisdiction over an offense exists when:

(a) the President of the United States, or the Presidentelect is a victim or intended victim of a crime of violence;

(b) the offense is treason, or is espionage or sabotage by a national of the United States; or

(c) the offense consists of a forgery or counterfeiting, or an uttering of forged copies or counterfeits, of the seals, currency, instruments of credit, stamps, passports, or public documents issued by the United States; or perjury or a false statement in an official proceeding of the United States; or a false statement in a matter within the jurisdiction of the government of the United States;

(d) the accused participates outside the United States in a federal offense committed in whole or in part within the United States, or the offense constitutes an attempt, solicitation, or conspiracy to commit a federal offense within the United States;

(e) the offense is a federal offense involving entry of persons or property into the United States;

(f) the offense is committed by a federal public servant who is outside the territory of the United States because of his official duties or by a member of his household residing abroad or by a person accompanying the military forces of the United States;

(g) jurisdiction is conferred upon the United States by treaty; or

(h) the offense is committed by or against a national of the United States outside the jurisdiction of any nation.

Comment

Although the issue of the extraterritorial applicability of the federal criminal law is one which does not arise frequently, the problems it generates when it does are serious. There has never been a clear and simple statement of the circumstances under which the federal government will prosecute for crimes committed abroad. Moreover, there are gaps which only legislation can cover.

Paragraphs (a), (b) and (c) of this section deal with protection of the federal government and its instrumentalities. The list of crimes in paragraph (c) might well be expanded, e.g., to reach the person who bribes a federal public servant abroad. Paragraph (d) covers conduct outside the United States involved in commission or intended commission of crimes within the United States. Paragraph (e) makes federal sanctions available against foreign breach of our laws on the movement of persons and property over the borders.

Paragraph (f) is a response to two Supreme Court cases holding that civilians accompanying the armed forces and former soldiers are not triable by court-martial. When the crime involves only Americans, the host nation may be reluctant to take action against the per

petrator. Also, status of forces agreements often limit the jurisdiction of a host nation over United States personnel. This paragraph also closes a gap in jurisdiction with regard to diplomatic personnel, who have immunity in the host country and yet cannot be prosecuted in the United States for acts abroad. Paragraph (f) covers those people abroad for whom the federal government is responsible, as well as members of their households who are abroad to be with them. The notion of who "accompanies" American military forces abroad is well established in military law.

Paragraph (g) incorporates all jurisdiction conferred on the United States by treaty. Paragraph (h) covers crimes by or against nationals outside the jurisdiction of any nation, e.g., in Antarctica or on the

moon.

§ 209. Assimilated Offenses.

(1) When Assimilated. A person is guilty of a federal offense if he engages in conduct within an enclave which, if engaged in within the jurisdiction of the state in which the enclave is located, would be punishable as an offense under the law of the state then in force, except that this section does not apply when federal law penalizes or immunizes the conduct. Inapplicability under this subsection is a matter of law.

(2) Grading. If the maximum confinement authorized by the law of the state exceeds 30 days, the assimilated offense is a Class A misdemeanor; if such confinement is 30 days or less, a Class B misdemeanor; if there is no such confinement, an infraction. Notwithstanding the classification here provided, the term of imprisonment or fine imposed shall not exceed the maximum authorized by the state law, and the offense shall not be deemed a crime if state law provides that it is not a crime.

(3) Definitions. In this section:

(a) "state" includes not only a state of the United States but also a territory, district or possession of the United States; (b) "enclave" means a place in the special maritime and territorial jurisdiction of the United States.

Comment

This section would replace 18 U.S.C. § 13. The major change it would effect would be to limit the grading for assimilated crimes to Class A misdemeanors. The policy expressed, which is similar to that of § 3007 (no crime outside of Title 18 is more than a Class A misdemeanor), is that serious federal consequences should occur only in response to conduct which is outlawed following legislative consideration by those committees in Congress with expertise in penal legislation. The limitation is justified in the context of this Code, which attempts to define all serious crimes, including those whose principal incidence is limited to federal enclaves. With a more comprehensive federal law applicable

to enclaves, it is prudent to minimize the consequences of the wholesale purchase of not only the grossly disparate existing state laws and penalties, but also those which may be enacted by state legislatures in the future. Offenses which are assimilated become federal offenses, and are governed by federal rules of procedure.

There are state offenses, sometimes heavily penalized, which are not now defined in federal law and which are not included in the proposed Code. Two, bigamy and incest, define unlawful relationships. A third, abortion, is highly controversial, and the law is in great flux. The principal federal concern is that federal enclaves do not become havens for such conduct when outlawed by the surrounding state. The misdemeanor penalty should provide sufficient deterrence for this purpose.

§ 210. Offenses by Indians or on Indian Territory.

[Reserved for such special provisions relating to offenses by Indians against Indians or on Indian reservations as may be necessary. See 18 U.S.C., Ch. 53 and § 3242.]

§ 211. Jurisdiction in the Canal Zone.

[Reserved for a list of provisions of the Code to be applied to the Canal Zone, similar to those now listed in 18 U.S.C. § 14.]

§ 212. Piracy.

(1) Piracy in Violation of the Law of Nations. For the purposes of section 201 (1) the offense is piracy if it is committed for private ends by the crew or the passengers of a private ship or a private aircraft, or committed by the crew of a warship or government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft, and is directed:

(a) on the high seas, against another ship or aircraft or against persons or property on board another ship or aircraft;

or

(b) against a ship, aircraft, persons or property in a place outside the jurisdiction of any nation or government.

(2) Definitions. In this section:

(a) "high seas" means all parts of the sea that are not included in the territorial sea or in the internal waters of any nation or government;

(b) "aircraft" includes spacecraft.

Comment

This section describes the circumstances which establish federal jurisdiction over crimes because they constitute piracy. The definition

has been derived from the Convention on the High Seas adopted by the United Nations Conference on the Law of the Sea, ratified by the United States Senate in 1960.

§ 213. Definitions for Chapter 2.

In this Chapter:

(a) "special maritime and territorial jurisdiction of the United States" includes:

(i) the high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular state, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any state, territory, district, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of any particular state;

(ii) any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, or any of the waters connecting them, or upon the Saint Lawrence River where the same constitutes the International Boundary Line;

(iii) any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof; or any place purchased or otherwise acquired by the United States by consent of the legislature of the state in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building;

(iv) any island, rock, or key containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the United States;

(v) any aircraft or spacecraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any state, territory, district, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular state, or while such spacecraft is in flight; and

(vi) any aircraft while in flight in air commerce as defined in 49 U.S.C. § 1301(4);