§ 1222. Unlawfully Bringing Aliens Into the United States.

(1) Offense. A person is guilty of an offense if he intentionally brings into or lands in the United States another who is an alien, including an alien crewman, not admitted to the United States by an immigration officer or not lawfully entitled to enter or reside within the United States.

(2) Grading. The offense is a Class C felony if the actor engages in the prohibited conduct as consideration for a thing of pecuniary value or with knowledge the alien intends to engage in conduct in the United States which would, in fact, constitute a felony. Otherwise it is a Class A misdemeanor.

Comment

This section carries forward the provisions on smuggling of aliens found in 8 U.S.C. § 1324 (a) (1). The significant change is with respect to grading. Under existing law all such conduct is felonious. The draft distinguishes between those less serious cases in which no more than ordinary complicity in unlawful entry is involved, such as with a family member, and cases which warrant felony treatment: smuggling for gain or aiding entry of a person who intends to commit a felony. Class C felony treatment for aiding aliens who intend to commit felonies is intended to cover the most serious aspects of 8 U.S.C. §§ 1327 and 1328 (aiding subversives and prostitutes). Note that felony treatment is accorded to the procurement of prostitutes, whatever their origins, under § 1841.

§ 1223. Hindering Discovery of Illegal Entrants.

(1) Offense. A person is guilty of an offense if, with intent to hinder, delay or prevent the discovery or apprehension of another who is an alien, including an alien crewman, and who has unlawfully entered or is unlawfully within the United States, he:

(a) harbors or conceals such alien;

(b) provides such alien with a weapon, money, transportation, disguise or other means of avoiding discovery or apprehension;

(c) conceals, alters, mutilates or destroys a document or thing; or

(d) warns such alien of impending discovery or apprehension.

(2) Grading. The offense is a Class C felony if the actor engages in the conduct:

(a) as consideration for a thing of pecuniary value;

(b) with intent to receive consideration for placing such alien in the employ of another;

(c) with intent such alien be employed or continued in the employ of an enterprise operated for profit; or

(d) with knowledge such alien intends to engage in conduct in the United States which would constitute a felony. Otherwise the offense is a Class A misdemeanor.

Comment

This section carries forward what are essentially accessory-afterthe-fact provisions concerning illegal aliens now contained in 8 U.S.C. §§ 1324 (2) and (3). The formulation is similar to the general hindering law enforcement provisions of the proposed Code's § 1303. There is no change in substance; but the grading represents a departure from existing law in line with the grading principles proposed in § 1222. Consideration has been given to including in the draft a statement explicitly excluding "mere employment" of an alien from the scope of the offense, as is contained in existing law; but "mere employment" is not covered by the definition of the offense in any event.

§ 1224. Obtaining Naturalization or Evidence of Citizenship by Deception.

A person is guilty of a Class C felony if he intentionally obtains by deception United States naturalization, registration in the alien registry of the United States, or the issuance of a certificate of United States naturalization or citizenship for or to any person not entitled thereto.

Comment

This section consolidates a number of existing provisions, 18 U.S.C. §§ 1015 (a), 1424, 1425 (a) and (b), and carries forward the policy of existing law, treating as a serious matter the obtaining of citizenship or evidence of citizenship by deception. This is an instance in which making false statements, otherwise a misdemeanor in the proposed Code (§ 1352), is upgraded to a felony. Note that obtaining the result by deception requires that the deception be material.

§ 1225. Obtaining Passport by Deception.

A person is guilty of a Class C felony if he intentionally obtains the issuance of a United States passport by deception.

Comment

This section carries forward the policy of 18 U.S.C. § 1542, treating fraudulent acquisition of passports as a serious offense. Like § 1224,

it is one of the instances in which making false statements, otherwise a misdemeanor (§ 1352), is upgraded to a felony. This offense is also similar to § 1224 in the implicit requirement that the deception be material.

§ 1229. Definition for Sections 1221, 1224 and 1225.

In sections 1221, 1224 and 1225, "deception" means:

(a) creating or reinforcing a false impression as to fact, law, status, value, intention or other state of mind by false written statement, impersonation or the presentation of a forged or counterfeit writing; or

(b) preventing a public servant from acquiring information which would affect his official action.

Comment

This definition is derived from the definition (§ 1741) developed for use in the theft provisions and is adapted to the special needs of this Chapter.

878-219 0-70-11

Chapter 13. Integrity and Effectiveness of Government

Operations

PHYSICAL OBSTRUCTION OF GOVERNMENT FUNCTION AND RELATED OFFENSES

§ 1301. Physical Obstruction of Government Function.

(1) Offense. A person is guilty of a Class A misdemeanor if, by physical interference or obstacle, he intentionally obstructs, impairs or perverts the administration of law or other government function.

(2) Applicability to Arrest. This section does not apply to the conduct of a person obstructing arrest of himself; but such conduct is subject to section 1302. This section does apply to the conduct of a person obstructing arrest of another. Inapplicability under this subsection is a defense.

(3) Defense. It is a defense to a prosecution under this section that the administration of law or other government function was not lawful; but it is no defense that the defendant mistakenly believed that the administration of law or other government function was not lawful. For the purposes of this section the conduct of a public servant acting in good faith and under color of law in the execution of a warrant or other process for arrest or search and seizure shall be deemed lawful.

(4) Jurisdiction. There is federal jurisdiction over an offense defined in this section when the government function is a federal government function.

Comment

This section, a general prohibition of physical interference with governmental functions, replaces several existing statutes covering narrow aspects of the general problem (18 U.S.C. §§ 1501, 1502, 2231). The doubt as to the kind of culpability necessary under present law is removed; proof of intent to interfere with a government function is specifically required. Note that since culpability need not be proved as to purely jurisdictional facts under § 204, proof that the government function intended to be obstructed was in fact federal, regardless of what the actor thought it was, would suffice to establish jurisdiction under subsection (4).

In addition to making physical obstruction of a government function an offense in itself, this section will serve as a jurisdictional base for prosecuting more serious offenses, such as murder where homicide is the consequence of the violation. See § 201(b) (the piggyback jurisdictional provision). It should also be noted that physical inter

ference situations which are too serious to warrant the misdemeanor

treatment authorized by this section are dealt with elsewhere in the Code. See, e.g., § 1321 under which assaulting a witness is a Class C felony.

Only physical interferences are covered; interposition of physical barriers, destruction of property, the introduction of a stench or persistent noise would violate the section, but an attempt to persuade by verbal means would not. Obstruction by threats has not been included in this general offense in favor of more precise definition in other sections. See, e.g., draft sections 1321 (witnesses), 1366 (public servants), 1617 (criminal coercion). Provisions similar to the proposed section appear in recent state code revisions. The possibility that minor conduct might be swept within the reach of the proscription suggests adding a requirement that either the force applied or the obstruction be substantial.

§ 1302. Preventing Arrest or Discharge of Other Duties.

(1) Offense. A person is guilty of a Class A misdemeanor if, with intent to prevent a public servant from effecting an arrest of himself or another or from discharging any other official duty, he creates a substantial risk of bodily injury to the public servant or to anyone except himself, or employs means justifying or requiring substantial force to overcome resistance to effecting the arrest or the discharge of the duty.

(2) Defense. It is a defense to a prosecution under this section that the public servant was not acting lawfully; but it is no defense that the defendant mistakenly believed that the public servant was not acting lawfully. A public servant executing a warrant or other process in good faith and under color of law shall be deemed to be acting lawfully.

(3) Jurisdiction. There is federal jurisdiction over an offense defined in this section when the public servant is a federal public servant or the official duty is a federal official duty.

Comment

This section singles out and treats specially physical interference with a government function by resisting arrest. The conflicts in present federal law on the right to resist arrest are resolved under §§ 1301 and 1302 and under § 603 (a), which deals with self-defense; these sections provide a consistent pattern of affording protection from risk of serious injury to an officer engaged in his duty in good faith and under color of law. Execution of official duties other than arrest is also covered, so that the public servant is protected against risk of bodily injury by reason of conduct which may not constitute "physical interference" under § 1301 or an assaultive offense under §§ 1611 et seq. The draft reflects the view that slight reflexive action such as a push or the closing of a door should not be an offense. The