sufficient to excuse it. Two factors constrict the availability of what may seem to be a very liberal excuse; the burden of proof is imposed upon the defendant (see § 103 (3)) and a jury finding that a person of reasonable firmness would not have been able to resist the pressure is required.

Among the alternatives considered in connection with this section were: (1) to provide that the offense should not be available in the case of certain exceptionally grave offenses, e.g., murder; and (2) to provide that compulsion should reduce the grade of the offense rather than constitute a full defense.

§ 619. Definitions for Chapter 6.

In this Chapter:

(a) "force" means physical action, threat or menace against another, and includes confinement;

(b) "deadly force" means force which a person uses with the intent of causing, or which he knows to create a substantial risk of causing, death or serious bodily injury. Intentionally firing a firearm in the direction of another person or at a moving vehicle in which another person is believed to be constitutes deadly force. A threat to cause death or serious bodily injury, by the production of a weapon or otherwise, so long as the actor's intent is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force;

(c) "premises" means all or any part of a building or real property, or any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein;

(d) "dwelling" means any building or structure, though movable or temporary, or a portion thereof, which is for the time being a person's home or place of lodging.

Comment

In addition to the definitions set forth here, note should be taken of the definitions of "bodily injury," "harm" and "public servant" in § 109-General Definitions.

Chapter 7. Defenses Against Unfair or Oppressive Prosecution

§ 701. Statute of Limitations.

(1) Defense. It is a defense that prosecution was commenced after the expiration of the applicable period of limitation.

(2) Limitation Periods Generally. Except as provided in subsections (3)-(5), prosecution must be commenced within the following periods after the offense:

(a) ten years in cases of exceptionally serious felonies against the existence of the state, which are as a class unlikely to come promptly to the attention of the authorities, viz., treason and espionage. Any prosecution commenced more than five years after the offense shall be dismissed if the defendant, on a motion addressed to the court, establishes by a preponderance of the evidence that the crime and defendant's connection with it were known to responsible officials for more than one year prior to commencement of prosecution and that prosecution could, with reasonable diligence, have been commenced more than one year prior to its commencement;

(b) five years for all felonies and for all misdemeanors involving theft from or fraud against the government, breach of fiduciary duty, or betrayal of public office;

(c) two years for all other offenses.

(3) Extended Period for Murder. Murder may be prosecuted at any time. Any prosecution commenced more than ten years after the offense shall be dismissed if the defendant, on a motion addressed to the court, establishes by a preponderance of the evidence that the crime and the defendant's connection with it were known to responsible officials for more than one year prior to commencement of prosecution and that prosecution could, with reasonable diligence, have been commenced more than one year prior to its commencement.

(4) Extended Period for Organized Crime and Official CoverUps. The period of limitation shall be ten years for any felony committed in the course of the operation of a criminal syndicate involving connivance of a public servant. "Criminal syndicate" has the meaning prescribed in section 1005 (2). A prosecution which is timely only by virtue of this subsection shall be dismissed as to any defendant who, on a motion addressed to the court, establishes by a preponderance of the evidence that he was

not a leader of the criminal syndicate or a public servant conniving in any part of the criminal business charged, or that the crime and his connection with it were known to responsible officials other than conniving participants more than one year prior to commencement of prosecution and prosecution could, with reasonable diligence, have been commenced more than one year prior to its commencement. "Leader" means one who organizes, manages, directs, supervises or finances a criminal syndicate or knowingly employs violence or intimidation to promote or facilitate its criminal objects, or with intent to promote or facilitate its criminal objects, furnishes legal, accounting or other managerial assistance.

(5) Extended Period to Commence New Prosecution. If a timely complaint, indictment or information is dismissed for any error, defect, insufficiency or irregularity, a new prosecution may be commenced within thirty days after the dismissal even though the period of limitation has expired at the time of such dismissal or will expire within such thirty days.

(6) Commencement of Prosecution.

(a) A prosecution is commenced upon the filing of a complaint before a judicial officer of the United States empowered to issue a warrant or upon the filing of an indictment or information. Commencement of prosecution for one offense shall be deemed commencement of prosecution for any included offenses.

(b) A prosecution shall be deemed to have been timely commenced notwithstanding that the period of limitation has expired:

(i) for an offense included in the offense charged, if as to the offense charged the period of limitation has not expired or there is no such period, and there is, after the evidence on either side is closed at the trial, sufficient evidence to sustain a conviction of the offense charged; or

(ii) for any offense to which the defendant enters a plea of guilty or nolo contendere.

Comment

This section substantially revises existing federal law with respect to the statute of limitations, in some instances eliminating exceptions to general rules and in others making exceptional rules uniformly applicable to all or to similar offenses. In addition re-examination of basic principles has led to the development of new standards.

A basic change, accomplished in subsection (6) (a), is to stop the statute running at the time a complaint as well as an indictment or

information-is filed. Another basic change, provided in subsection (1), designates expiration of the period a defense, so that if the claim is not timely raised, it is waived, unlike under present law which permits raising the claim even after sentence.

Existing law provides for a general period of limitations of five years, with noteworthy exceptions for all capital offenses (no limitation), for certain internal security and naturalization offenses (ten years), and for revenue offenses (six years for some, three years for others).

The ten-year period for offenses against the existence of the state is carried forward in subsection (1), but applies only to those which are difficult to discover. All the six-year revenue offenses are brought into the five-year category, on the theory that the one-year distinction is unwarranted. A shorter period is provided for many minor offenses, rather than only the few minor revenue offenses presently subject to a short period.

Subsection (4) applies the no-limit provision to murder cases only, thus reviving pre-1939 law. Whether the effect of the change will be substantial will depend upon the extent, if at all, to which capital offenses are retained in the proposed Code.

Subsection (5) reflects a new concept, based both upon the seriousness with which organized crime is viewed and upon the possibility that normal law enforcement efforts have been undermined thereby. The exception provided in both subsections (4) and (5), as well as in subsection (1) (a), (to be established by a preponderance of the evidence) is designed to prevent prosecution abuse of these extended periods.

It should be noted that under this section the running of any period will no longer be tolled while the defendant is a "fugitive." The blanket exemption provided by existing law has provoked conflicting judicial interpretations; and while several resolutions have been considered, deletion of the exemption seems appropriate in view of the fact that the proposed provision explicitly recognizes special problems with respect to discovery of certain crimes and provides that the filing of a complaint within the period constitutes timely commencement of prosecution.

§ 702. Entrapment.

(1) Affirmative Defense. It is an affirmative defense that the defendant was entrapped into committing the offense.

(2) Entrapment Defined. Entrapment occurs when a law enforcement agent induces the commission of an offense, using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

(3) Law Enforcement Agent Defined. In this section "law enforcement agent" includes personnel of state and local law enforcement agencies as well as of the United States, and any person cooperating with such an agency or acting in the expectation of reward, pecuniary or otherwise, for aiding law enforcement.

Comment

This section, which represents the first federal codification of the judicially-developed defense of entrapment, changes existing federal law in several respects. The defense is treated primarily as a curb upon improper law enforcement techniques, to which the predisposition of the particular defendant is irrelevant. By divided votes the Supreme Court has, up to now, adhered to the view that the entrapment issue involves a determination whether the particular defendant was inclined, apart from solicitation by the government's undercover agent, to commit the crime. That inquiry leads to introduction of evidence of prior offenses committed by the defendant. Whether to adhere to the older approach or shift to the new is an important issue in the Study Draft.

As an "affirmative" defense, entrapment must be established by the defendant by a preponderance of the evidence. See § 103. Although entrapment is preserved as a ground for dismissal of the prosecution, its kinship to grounds for suppression of evidence illegally obtained by the prosecution could be reflected in a procedural provision that, upon election by the defendant, the issue be tried in a manner similar to that provided for suppression issues.

A possible additional standard for law enforcement behavior would be to require reasonable suspicion that a person being solicited to commit an offense or with whom an illegal transaction is initiated is engaged in or prepared to engage in such an offense or transaction.

§ 703. Prosecution for Multiple Related Offenses.

(1) Multiple Related Charges. When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.

(2) Limitation on Separate Trials. Unless otherwise ordered by the court to promote justice, a defendant shall not be subject to separate trials for multiple offenses (a) based on the same conduct, (b) arising from the same criminal episode, or (c) based on a series of acts or omissions motivated by a common purpose or plan and which result in the repeated commission of the same offense or affect the same person or persons or their property, if such offenses are within the jurisdiction of the court and known to the United States Attorney at the time the defendant is arraigned on the first indictment or information.