PROPOSED REFORM OF FEDERAL CRIMINAL CODE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP76M00527R000700080009-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 16
• Document Creation Date: December 19, 2016
• Document Release Date: July 20, 2006
• Sequence Number: 9
• Publication Date: December 18, 1974
• Content Type: OPEN

S 090 -
Approved F
This approach
that it provides f
et submissions (
tures Trading C.
President and the specified committees
of the Congress. However, this language
does not contain what appears to be a
necessary element of such transmissions
by an independent regulatory commis-
sion?the preclusion of any changes at
the direction of the President, the Of-
floe-of Management and Budget, or any
other agency of the executive branch.
Nor does the language in this law require
the President to include the Commis-
sion's original budget submission in his
budget when it is submitted, as would
be required by S. 704.
? The President specifically opposed the
Inclusion in the commodity commission
legislation of the simultaneous budget
transmission?as well as a provision for
simultaneous transmission of legislative
recommendation. He submitted draft
legislation on 18 November to amend the
Commodity Futures Trading Commission
Act of 1974 to "eliminate (the) pro-
visions which encroach on the separation
of powers." This draft has not been intro-
duced as legislation in the Senate. How-
ever, on 11 December, the House Agri-
culture Committee reported HR. 17507,
In a manner designed to meet the Presi-
dent's objections. Essentially, this legisla-
tion would leave untouched the simul-
taneous transmission of legislative rec-
ommendations, but negate any accom-
plishments In the area of simultaneous
budget submissions. No report has been
filed, and no floor action scheduled.
Third. The first major legislation con-
taining language similar to S. 704 was
the Consumer Product Safety Act, Pub-
lic Law 92-573. Section 27(k) (1) of that
act provides that:
Whenever the (Consumer Product Safety)
Commission submits any budget estimate or
request to the President or the Office of
Management and Budget, it shall concur-
rently transmit a copy of that estimate or
request to the Congress. ,
lease -2006f09/WMaa4k11/MAR0076t
lar to S. 104 in rect budget submissions to the Congress
concurrent budg- by the regulatory commissions. However,
Commodity Fu- this was compromised to avoid a con-
sion t6 both the frontation with the executive branch
concerning the "independence" of- the
regulatory commissions from the execu-
tive branch. Additionally, both Justice
and OMB agreed that such provisions
would effectively destroy two key ele-
ments of Presidential responsibility, first,
preparation of a comprehensive unified
budget reflecting overall policies and de-
cisions based on limited resources and,
second, coordination of government pol-
icy through the budget. While the Gov-
ernment Operations Committee did not
defer to the OMB and Justice views, it
nevertheless? agreed to follow precedent
and provide for simultaneous transmis-
sion.
VARIATIONS COM-TRIM/0 THE TRANSMISSION OF
LEGISLATIVE RECOMMENDATIONS-
First. S. 704 provides that whenever
an independent regulatory commission:
. . . submits any legislative recommends-
'tions, or testimony, or comments on legisla-
tion to the President or the Office of Man-
agement and Budget, it shall concurrently
transmit a copy thereof to the Congress. No
officer or agency of the United States shall.
have any authority to require the Commis-
sion to submit Its legislative recommenda-
tions, or testimony, or comments on legisla-
tion, to any officer or agency of the United
States for approval, comments, or review,
prior to the submission of such recommen-
dations, testimony or comments to the Con-
gress. This section would not preclude any
communication between the commission or
any agency, the President or the Office of
Management and Budget.
Second. The Consumer Product Safety
Commission has language identical to
that proposed in S. 704, except that the
language is silent regarding communica-
tion between the Commission and any
other agency or OMB. This flexibility is
considered necessary to insure that agen-
.
. cies may communicate on possible over-
lapping legislation and coordinate the
submissio-n and consideration- of legisla-
This language enacted the heart of the
S. 704 approach, but stops short of:
? (a) including the estimates submitted
by the Commission in the President's
budget, and
(b) clarifying?interms of the legisla-
tion?the role of the Office of Manage-
ment and Budget vis a vis the traditional
role of 0M:13 in budget preparation. S.
704 makes clear that the requests must
be the independent views of the agency
concerned, and cannot be changed at the
direction of any agency of the govern-
ment. However, consultation with other
agencies is recognized as a necessary
factor, and is not prohibited.
Fourth. On December 10, the House
passed an amended version of S. 1149, the
Surface Transportation Act of 1974.
Title VI of the House amendment pro-
vides that the Interstate Commerce Com-
mission budget shall be treated in the
same manner as that of the Supreme
Court and the legislative branch, that, is,
not subject to any change by the Presi-
dent. The President's budget must con-
tain only the original requests of the ICC
with respect to its budget estimates.
? Third. Public Law 93-495 (amendments
to and, extensions of provisions of law
? relating to Federal regulation of deposi-
tory. institutions) provides yet another
approach to the limitations of OMB con-
trol on legislative recommendations. Sec-
tion 111 of that act provides that:
Na officer or agency of the United States
shall have any authority to require the Se-
curities and Exchange Commission, the
Board of Governors of the Federal Reserve
System, the Federal Deposit Insurance Cor-
poration, the 'Federal Home Loan Bank
Board, or the National Credit Union Admin-
istration to submit legislative recommenda-
tions, or testimony, or comments on legisla-
tion to any officer, or agency of the United
States for approval or comments prior to the
submission of such recommendations . . to
the Congress, if such recommendations, tes-
timony, or comments to the Congress include
a statement indicating that the views ex-
pressed are those of the agency submitting
them and do not necessarily represent the
views of the President.
This is a unique provision concerning
the transmission of legislative recom-
mendations.
This approach is similar to the origi- Fourth. The Commodity Future Trod-
ncApproveti PoPRelfetisef2006/09/25n:g11195.12R131176M005213R0007000800139Q7RD. This extremely helpful
TE - December 18 ; -
009-7
? Whenever the Commission tran,smi
legislative recommendations, or testim
comments on legislation to the Presic
the Office of Management and Budget,
concurrently transmit copies thereof
House (and Senate) Agriculture Coma
No officer or agency of the United Stat.(
have any authority to require the Cc
&Ion to submit its legislative recomi
tions . . . to any officer or agency
United States for approval, comments
view, prior to the submission of such
mendations .. to Congress. In insta:
which the Commission voluntarily st
obtain the comments or review of any
or agency of the United States, the Cc
sion shall include a description of s-t
tions in its legislative recommendatic
which it transmits to the Congress."
The italic sentence is similar
provision in S. 704 which permits
munications between agencies. Ho
this language requires an identifi
of such voluntarily undertaken e
included in the recommendation
mitted to the Congress.
VARIATIONS ON CONTROL OF LITIGAI
S. 704 permits the independent
latory commissions discretion to
civil court in their own name
through their own attorneys. Alt
? agencies have varying degrees of
pendence, no new legislative alters
to this proposal have been ena.cte
der the Alaskan Pipeline bill (P.
153) the Federal Trade Commis:
given the authority to appear
civil proceeding in its own narr
through its own attorneys, after to
notifying and consulting with and
the Attorney General 10 days to ti
action proposed by the Commissic
This provision has not caused di
eral Trade Commission undue ha:
Although it has been operating
this provision for only a short tim
feels that the language in S. 704
remove this needless restriction.
Justice Department refused to c
the litigation under the "Pipeline
vision FTC-could use its own atts
_If Justice refused to conduct lit
mi. ? the "S. 704" provision, th
cou d us' own attorneys. If
.agr ed\ ts n(
conduct the litigation
i
et 4 's vision, he FTC would
, ,'
own at or eys.
SEDiREFORM OF FEDI
CMMINAL CODE
Mr. HART. Mr. President, earl:
month I inserted in the RECOR)
important testimony given befc
Subcommittee on Criminal Law
corning the proposed reform of ti
oral Criminal Code.
As I indicated then, I did so bee
the long delay expected In the p
of the last srolume of hearings in
that testimony appears and the i
expressed by many Senate (etc
other interested parties in studyi
massive proposal with the benefit
best available commentary.
For the same reason, I ask una
consent that following these
testimony presented to the subcs
tee on July 19, 1974, regarding S
S. 1400 and prepared by the C
Watch organization, be printed
December 18, .1074
_
ApproveEMMgm2AT6,HaliSIA-?2WAIT0527R000700080009-7s 2209/
r 'and= was presented to the committee
by Mr: Ralph Nader, and it provides a
detailed, informed analysis of the most
troublesome issues and the most im-
portant differences among the several
proposals before the subcommittee. It
repays careful study, and I am sure it
will prove very useful to my colleagues
in their review of the many areas
in-
volved in criminal code revision.
There being no objection, the . mate-
rial was ordered to be printed in the -
REcoso, as follows:
MEMORANDUM ON PROPOSED FEDERAL '
CRIMINAL CODE
1. Background
A. The National Commission on Reform
of Federal Criminal Laws was established
by Congress in 1966 (P...L. 89-901, 80 Stat.
1516) to undertake a complete review of fed-
eral criminal law and to propose a new
Title 18 of the United States Code, The real
starting point-, however, was the Model Penal
Code, drafted by the Council ot the Ameri?
can Law Institute in. Ion. The National
Commission on Reform of Federal Criminal
Laws was chaired by former Governor Ed-
mund G. Brown and is most often referred
to as the Brown Commission. The Com-
mission was composed of 12 members. They
'were: Gov.- Brown, Congressman Richard
pofr, U.S. Circuit Judge George C. Edwards,
Jr., U.S. District Judges A. Leon Higgin-
botham, Jr., and Thomas J. MacBride, Sen-
ators Sam Ervin, John L. McClellan and
Roman, Hruska, Congressman Abner Mikva
and Donald Scott Esq. and Theodore Voor-
hees Esq._ Also serving for a period were
Congressman Don Edwards and U.S. Circuit
Judge .Janses--M.- Carter. The Advisory Corn-
mittee was chaired by Hon., Tom C. Clark
and the Staff Director was B. Schwartz.
The work product of the Commission in-
cludes a Study Draft' pubished in June
1970, three volumes of Working Papers and
the Find Draft, submitted in January 1971.
B. Si. The Criminal Justice Codification,
REVISIOIL and Reform Act of 1973. was -in-
Ltroducei by Senators McClellan, Ervin and
Hruska on January 4. 1973. Senator McCiel-
lan's introductory remarks and analysis ap-
pear or-page S. 558 of -tha Congressional
Record of January 12, 1973 (Vol. 119). Sen.
McClellan stated that, ". . (S.1) is far
from a final penal Code for the United
.States.. . . we view it only as the prelimi-
nary and intermediate work product of 2
years. of efforts - be. the Subcommittee on
Criminal Laws and Procedures . . :'. Title
1 of Si is the revision of Title 18, contain-
ing the basic criminal law. 'Title 2 transfers
procedural rules, of the present Code into
the Federal Rules of Criminal. Procedure.
Title 3 contains .conforming amendments,
transferring Title 18 offenses to-other more
appropriate Titles and amending other Titles
in. line with Title 18 sentencing scheme.
Title 4 includes a severability and effective
data cla.use. Beginning in February of 1871,
the Senate Judiciary Committee's Subcom-
- mittee on Criminal Laws and Procedures
held hearings oa the propoencl_legislation.
" ? . C. B. 1400 was introduced by Senators
. Flruska.. and McClellan on March 27, _1973,
and. is entitled ,the--Criminal Code ? Reform
-Act- of -1973. Following -the submission of
the Brewn Commission. Final Report to the
President on January 7, 1971, ? President
_Nixon rastructed the Deprctment of 'Jus-
tice to undertake an. evaluation and to
- ? =
make recommendations-. This evaluation re-
sulted in S. 1400-Senator. Hruska's intro-.
ductory comments are found on page S. 6777
of the Congressional Record, March 27, 1973
ISSUe. _
D. All the proposals contain the same
basic features: jurisdictional elements. are
separated. from the definitions of the of-
fenses and- are deleted as elements of the
offense, defenses are defined and affirma-
tive defenses for which the defendant has
the burden of proof are established, stand-
ards of criminal culpability, are established
and the sentencing scheme is created. The
Codes as proposed reach every facet of fed-
eral criminal law. Among the topics treated
by the proposals are: Federal jurisdiction
for criminal offenses, federal jurisdiction as
an element of the offense, creation of affirm-
ative defenses, death penalty, insanity
defense, immunity of witnesses, wiretapping,
entrapment, intoxification, execution of-
public duty, conspiracy, protection of na-
tional security and classified information,
espionage, sabotage, bribery and graft, bail,
probation, parole, civil commitment, ob-
struction of a government function both
physically and by fraud, rioting, obscenity,
inciting the overthrow of the government,
civil rights, para-military conduct, various
offense relating to elections, corporate lia-
bility, unfair commercial practices, securi-
ties law, bankruptcy, regulatory offenses,
income tax evasion, extortion, loansbarking,
theft, fraud, environmental spoliation, etc.
Both S. 1 and S. 1100 and Brown. classify
sentences within the broad classes of felony
and misdemeanor. Future memos will refer
to these classes. They are presented here for
later referral.
Brown S., 1 t
S. 1400
. .
iie1011teS: - ,- , ,. ?- ,
ClaaS A 30 yr-510,000s.... 30/2a yr-$1,000___ Life-5100,00e ?
rtes 8 15 yr.410.00a 20/10 yr-51,000_ 30 yr-3100,000.
Class C 7 yr-35,000 10/ yr-3500 15 yr-3100,000.
Class fr 6/3 yr-4500. - 1 yr-S50,00(t
Class E 1 yr-3100..............._ 3 3r-S25,000.. . .
_
Brows
5.11
S. 1400
Misdemeanors:
Class A.. I yr-$1,000 -
Class 13 30 days-$500
Class C 30 days-$2,500,
Infraction (violation) ,.- $500 30 days-$55 5 days-$500.
6 mo-450_-__f_J___ lyr-$10,000.
? 6 nio-$5,000.
'The number to the left of the slash (lis the term authorized for "dangerou special offender." et 31,009 per day for class A felony, for example, would-amount to31,09S,000 maximum fine.
The term to the right is toren others. The fines are on a per diem basis for up to years (1?095 days .
_
2. Congress watch. -
Congress Watch Is a -non-profit organiza-'
Um], organized by Ralph Nader in 1973, and
funded by Public Citizen, Inc. Public Citizen,.
Inc. supports a number of public Interest
projects including a retired professionals
group, tax reform group and a litigation unit.
It is supported by voluntary contributions
freer several thousands ? of. contributors.
While the process of reform and codifica-
tion has been progressing for several years-
it was only this January and later in March,
that legislative proposals were developed and
introduced. At that time the importance of
the proposals became clear, reflecting as they
de, society's evolving standards of public
duty. Also, the proposals are not mere codi-
fications but represent the creation of new
offenses and the changing of old ones. The
concern of Congress Watch is based on sev-
eral considerations. First, that the crim-
inal laws must adequately and effectively
Protect the citizens in their personal and
economic interests. Secondly, the public
mu.,t be protected against government ac-
t05 which are not in the public interest
Or which are directed against legitimate citi-
zen activity. Thirdly, -the criminal laws must
not upset or deter Constitutional principles,
such as, separation of powers.
Because of the lack of information on the
effect that these proposals will have, Con-
gre s Watch is undertaking toAdayt 1.0?p?h,p4
flifininate research memorarMokih?Jitff
Proposals over the next several months and
to express, where appropriate, preferences
or olsjestions. The research project, already
begun, involves lawyers, law school profes-
sors arid law students from across the coun-
try. Theso memoranda will, he available to
rnembei s of Congress and their staffs, the
-relevant committees, interested organiza-
tions and persons and the press.
Congress Watch is located at 133C Street,
&E., Washington, D.C. 20003. Telephone
[phone].
On 1Varch 22, 1973, H.R. 5046 was intro-
duced.. t is identical to S. 1400.
On September 5, 1973, H.R. 10047 was in-
troduced. It contains the majority report
of the Brown Commission. It numbering
System corresponds to the Brown Final Re-
port.
General :bibliography
Wechrler, Codification of Criminal Law in
the U.S.: The Model Penal Code, 68 Colum.
L. Rev. 1425 (1968).
McClellan, Codification, Reform & Revi-
sion: The Challenge of a godern Federal
Crimina Code. 71 Duke L.J. 663 (1971).
Econemic Crimes: The Proposed New Fed-
eral Criminal Code. 27 Business Law 177
(1971).
Extra-territorial Jurisdiction. 13 Harvard
Intl. L.. 346 (1972) .
New Crime: Criminal Facilitation. 18
Loyola Rev. 346 (1972).
Dobb in, Proposal for Changing the Juris-
dicfl"n, aPertiv
Foriaele tortal9d1,4,',Tale44F
Propcsed New Federal Crirolnal Code. R.A.
Givens. 43 NYSBJ 488 ( 1971 )
Proposed Federal Penal Cede. _47 NYU L.
Rev. 320 (1972). . ? _
Assimilative Crimes Act 7. U. _Rich. L..
Rev. 116 (1972). , _
Piggyback Jurisdiction in the Proposed
Federal Criminal Code. 81 Yale- L.J. 1209
(1972). _
Proposed. new Federal Criminal Code: A
Constitutional and Jurisdictional analysis.
39 Brooklyn. L. Rev. 1, (1972). -?
Comments on Reform of the Federal Crim-
inal Laws?a Comparative Analysis. 34 Re-
vista Del Colegio Abogada de Puerto Rico.
107 (1973).
Scope of Federal Criminal Jurisdiction.
under the Commerce Clause 72 U. Ill. L.P.
805 (1972).
Study Draft of a New Federal Criminal
Code, the National Commission on Reform
of Federal Criminal Laws.
Working Papers, Vol. 1,11, III, the National
Commission on. Reform of Federal Criminal
Laws.
Hearings, Reform of the Federal Criminal ?
Laws, before the Subcommittee on Criminal
Laws and Procedures of the Committee on
the Judiciary, 'U.S. Senate, 92nd Congress, 1st
sessions, Parts I, II, MA, B, C, D and IV.
MEMORANDUM OH PROPOSED FEDERAL CRIMINAL
CODE No. 2
SCHEME TO DEFRAUD
6 ivips,52.*04-0404.414
ion de-
leted the existing mail and wire fraud
statutes, leaving prosecution of fraud cases
Approved For Release 2006/09/25 : CIA-RDP76M00527R000700080009-7
S 22092 CONGRESSIONAL RECORD ? SENATE
to be done under the general theft section
(1732). Many consumer groups criticized
that approach as making prosecution of mall
fraud schemes more difficult, since there
would be no offense unless the scheme were
successful and since the felony/misdemeanor
grading of the offense would depend on the
amount of the victim's loss rather than
focusing on the defendant's conduct. (See
the statements by consumer representatives
in Hearings on Reform of the Federal Crimi-
nal Laws, Part-Ill-B).
Both S. 1 and S. 1400 follow the sugges-
tions of the consumer groups that a section
covering schemes to defraud be added to the
Code. The language of both 2-8)35 and 1734
follows that of the present mall and wire
fraud statutes (18 usc 1341, 1343), so judi-
cial construction can be carried forward.
Elements of the offense?Sections 1341 and
1343 use the following language: "Whoever,
having devised or intending to devise any
scheme or artifice to defraud, or for obtain-
ing money or property by means of false or
fraudulent pretenses, representation's or
promises," uses the mails (1341) or wire,
radio or TV (1343), "for the purpose of ex-
ecuting such scheme or artifice," is guilty
of mail (or wire) fraud. Thus, there are two
elements; (1) devising or intending to devise
a scheme, and (2) using the mails or wire.
Both S 1 and S 1400 use virtually the same
language as 1341 in defining the first element
of the offense. Both - retain the language
about a scheme and that about obtaining
property by false pretenses.
Since S 1 and S 1400 are intended to cover
a broader range of schemes to defraud than
just mail or wire fraud, the language re-
gardingethe second element of the offense is
broader. The second element in S 1400 is en-
gaging in conduct with intent to execute
the scheme. S 1 appears to cover more of-
fenses. A person who has (1) devised a
scheme is guilty if (2)' he or an accomplice
engages in or cause's performance of conduct
to effect the scheme. Thus S 1 takes the ap-
proach of most conspiracy laws and allows
prosecution of all those involved in devising
-the scheme.
Comment?The difference may not be
crucial, since the cases applying 1341 have
repeatedly held that a defendant is guilty
of mail fraud if he devised a scheme and If
his conduct would normally be expected to
lead to use of the malls, even though the
actual mailing was done by someone else.
Thus, since S. 1400 would carry forward the
judicial construction of 1341, its coverage
could be held to be as broad as that of S. 1.
(S. 1 is preferable since the language is
clearer).
Jurisdiction?S. 1400 covers schemes to
defraud that ,use the mails, interstate corn-
merce (including wire, radio or TV), or
those that induce persons to travel in inter-
state commerce. Both bills extend jurisdic-
tion to cover, the use of instrumentalities of
interstate - commerce?without necessitating
proof of actual interstate phone calls as re-
quired by the present wire fraud statute.
This is desirable because fraudulent
schemers often avoid making interstate calls
to escape federal jurisdiction under current
law. (See Vincent Broderick, testimony be-
fore the Criminal Law- Subcommittee, June
13, 1073).
S. 1 covers the same jurisdictional bases
that S. 1400 covers, plus (I) cases arising
within federal special maritime, territorial or
aerospace jurisdiction; (2) cases in which
the U.S. owns the property that is the sub-
ject of the offense; and (3) cases in which
a financial institution owns the subject prop-
erty.
Comment?It is not clear why S. 1100 is Summary?The key issue in the entrap
not as broad jurisdictionally as S. 1. But ment defense is whether the test of entrap-
from a consumer int _ po o.f view a, .11,9 ment should focus on the conoxalfois to
tiAppcomeaikor Kelease020,061119/ 25) csiGlik-ROP7t6R1 005 27 RO 00e7
to add much. Also, it might be useful to position of the defendant to commit the of-
amend both sections to cover extraterritorial fense (a subjective test). The more subjec-
jurisdiction (S. 1 section 1-1A7, S. 1400 Sec-
tion 204), so as to cover schemes operated
from outside the U.S. that don't fall under
one of the enumerated jurisdictional cate-
gories.
Penalties?The maximum fine is greatly
increased:
18 USO 1341, 1343: $1,000 or 5 years.
S. 1400: Claes D felony; $50,000 or 7 years.,
S. 1: Class D felony; up to roughly $500,-
000 (when the day fine is applied to its full-
est limits) or 6 years. -
Civil Bemedies?Many consumer represent-
atives suggested (1) giving the judge dis-
cretion to order restitution to victims as part
of a judgment of conviction for mail fraud
and (2) permitting a preliminary injunc-
tion against mail fraud as is now done with
stock fraud cases. The advantages of an in-
junction are that it-is specific and that it can
be Imposed rapidly, before a criminal trial
can be concluded.
S. 1 provides for permanent or temporary
injunctions in 3-13A1; S. 1400 in 3641. The
S. 1 provision is preferable in that it allows
"any aggrieved party," as well as the Attor-
ney General, to apply for an injunction.
S. 1 3-13A2(c) provides that a person in-
jured by a scheme to defraud may bring a
civil action for damages to recover treble his
actual damages plus punitive damages plus
attorney's fees. Under S. 1, the judge may
require the defendant to make restitution
to the victims (section 1-4A1(c) (5)) and/or
require him to give notice of his conviction
to the persons affected by the conviction (1-
4A1 (c) (7). S. 1400 appears to have no resti-
tution or damages section, unless restitution
can be ordered under the court's authority
to impose civil penalties (section. 2001(d)).
Section 2004 provides a notice sanction.
Comment?S. l's damages section is good,
since it can be used for consumer class ac-
tion suits. But since a class action, requires
initiative by the victims, the provision that
the judge be able to order restitution is also
useful. (However, there might be a problem
in identifying the victims if there are many
victims.)
Culpability?The cases cOnstrued section
1341 to mean that a defendant was guilty if
he was "recklessly indifferent" to whether a
statement was true or false. Corporation
unions end other organizations are liable
also.
The general culpability standards of both
S. 1 and S. I400 makes the scheme to de-
fraud sections at least as broad as 1341, since
one who is recklees or criminally negligent
is culpable, as well as one who acts inten-
tionally or knowingly.
Organization Liability?S. 1 section 1-2A7
would make an organization. guilty of any
offense engaged in by an agent within the
scope of his employment.
S. 1400 section 402 also covers conduct
within the scope of the agent's action, im-
plied, or apparent authority, and which he
intended would benefit the organization.
General bibliography
R. A. Givens, "Consumer Fraud Litigation,"
Case Western Reserve LR 24:144.
Assoc. of the Bar of NYC, "The Proposed
New Federal Code and Consumer Protection,"
Subcommittee Hearings, Pert p. 1827.
George Gordin, National Consumer Law
Center, Statement in Subcommittee hearings,
Part III-B, p. 1008.
MEMORANDUM ON PROPOSED FEDERAL
CRIMINAL CODE No. 3
F.NTRAPNIENT
a 1 section 1-3B2, S. 1400 section 531,
Brown section 702
December 18,
tive the test, the less will prosecute
police- see entrapment as a hindrar
the more will civil libertarians objec
Brown uses the most objective test,
the most subjective. 13. 1 falls somew
between the other two.
Objective v. subjective tests: the 1
of the entrapment defense.?The t
Supreme Court cases in this area we
relis v. US 287 U.S. 435(1932) and She:
US 356 U.S. 369(19128). The test tl
evolved out of those cases is a subjecl
that focuses on whether the clefench
predisposed to coramit the offense. 'I
suggested In Brown, on the other he
quires an objective look at the con,
the police to see whether that condi
"likely to cause normally law-abide
sons to commit the offense." This al
sees the entrapment defense as sor
that will regulate the conduct of pol
related to due process notions a'
Frankfurter "shock the conscience" ti
character and past criminal record of
fendant are thus irrelevant.
Some critics of the Brown test arg
the "normally law-abiding persons"
slips a subjective element in tarot
back door, in that proof might fc
whether the defendant is a normal
abiding person. If that criticism is va
perhaps takes care of it by taking
g-uage from the Model Penal Code
than from Brown. The test in S. 1 is-%
the police conduct created a "sub;
risk that the (prohibited) conduct w
committed by persons other than the
are ready to commit it."
However, S. 1 then introduces a lar
jective element into its test by- addi
the "risk is less substantial where
sort has previously engaged in similes
hibitecl conduct and such conduct is
to the agent." (Note that this sa:
gaged in", not, "was convicted for e:
in." The. inclusion of this- subject;
ment won't affect the person who
criminal record, but it may lead to
timn of a person who has a record
less of his innocence on this partici
casion. The overall effect will be t
much less of a restraint on police
than the Brown test would.
S. 1400 is even less desirable in. t
test is even more subjective. It says
tense is available only where (1)
fendant was not predisposed to corn
.offense and (2) he did so solely as
of active inducement by police.
Affirmative defense v. Bar to prosec
Brown and- S. 1400 follow current c
and establish entrapment as an ail].
defense. 8. 1 calls it a bar to prose
The comments to Brown suggest i
affirmative defense formulation woul
the issue a jury matter, as is usual
now, whereas the bar formulation
leave entrapment for the court. The
tags of leaving it to the jury appeal
that the jury has a chance to evalu
conduct and acquit the defendan
police conduct shocks the communit3
ards of propriety. Much scholarly
has favored making entrapment a ma
the court, so that the courts can giv
better and more explicit standards t
their conduct in the future. The de
should have a choice as to whether 't1
Is heard by the jury or the court. It
case, the defendant must meet a
derance of the evidence standard o
Other issues?The statute should
greater detail on burden of proof, w:
the issue, the focus of the proof (
live v. objective), the meaning of
,,covaragenient," and probable caus
Udielittitit standards on these issues
guide police conduct more effective
protect defendants.
Approved _F_orteil8sTxZOitt/eNti_gwmmoo527R000moos000?-32093
)ecern,ber 18, 1974 CONURE
S. 1 exception?S. I says entrapment is not p
bar when the offense involves bodily in- c
iry. This exception does not appear major s
sccorcling to the Working Papers, entrap-
rent Is usually Involved in vice and nar- d
and only rarely in violent
enalty scheme for regulatory laws that carry . 1 re a n.ed the regulatory offense
riminal penalties, such as the Meat In- idea in section 2-8F6, but changed it very
pection Act or the Hazardoue Substances significantly: the penalties_ are made much
Act. It is not a new substantive crime, nor stronger. The wording in. 2-8F6 is subetan-
oes It mike violation of every regulatory tially the same as that in Brown, but the
tatute or rule a crime. It would apply only to milaxoinmeuumipapbeineavlitolelastarionebo,ut $50,000
and!
or 30 days in jail. .
Reckless?$50,000/6 months.
Knowing?$100,000/1 year...
Flouting Regulatory Authority-8500,000/
6 years.
Dangerous?$500,000/6 years.
Thus. while a knowing violation under
Brown. carried a penalty that is often slightly
less than under existing law, a knowing vio-
lation under S 1 carries, a maximum fine that -
is almost always much greater than present
law. The S 1 approach is certainly preferable,
in that the fines at least- begin to be sub- .
stantial enough to deter large organizations
from violating the law. However, the con-
forming amendments to S 1 here drafted on
the basis of the Brown, guidelines, and due
to the increase in the penalties under S 1,
the effect is precisely the opposite to what
the guidelines intended? That Is, the "Group
A" statutes (the ones which permit imposi-
tions of criminal penalties on. violations osf
rules and regulations), to which Brown
wanted to attach lesser penalties, would re-
ceive under S -1 penalties that are greater
than Group B (Statutory Violations) and
greater than Group A has under existing law.
The penalties for Group B statutes are main.-
tabled at current (low) levels.
A possible -alternative?One can criticize
Brown's idea that a regulatory offense should
not be penalized too stiffly because it Is hard
to keep track of what is right and wrong
when right and wrong are defined by a body
of changing rules and regulations. However,
most such laws are aimed at organizations, .
rather than at individuals, and organizations
at least have the resources to become famil-
iar with the laws and rules. Further, the
more relevant criteria for grading such of-
fenses are, as with other laws, the degrees
of culpability and the gravity of resulting
harm?not the source of the rule. This sug-
gests a two dimensional grid approach for
grading the regulatory offense. For instance:
- GRAVITY OF HARM'_
hose regulatory statutes that specifically in-
corporate it. The best way to understand its
use, is to look first at the comparable section
offered by ;he Brown CommLesicn's Proposed
Criminal Code, on which the S. IS provision
s based. That approach will highlight some
of the problems involved and w:11 offer some
starting paints for modifying the section.
Brown?Brown ? 1006 provided:
(1) The section was to govern the use of
sanctions to enforce a penal regulation
(only) to the extent that another statute
so provides. "Penal regulation" means "any
requirement of- a statute, regulation,rule
or order which is enforceable by criminal
sanctions, forfeiture, or civil penalty."
(2) ? General Scheme of Regulatory Sanc-
tions: '
(a) Nommlpable Violations-- -
Culpability as to conduct or the existence
of the penal regulation need not be proved,
unless required by the regulation. Penalty:
a fine of up to WO: no jail sentence. -
(b) Reckless or knowing violation?Cul-
pability DE to both conduct and existence of
the regulation Is required. Penalty: up .to
30 days in jail and/or a $500-ftne.
(c) Fins ding Regulatory Authority?Will-
ful and persistent disobedience of a body
of regulatory laws. Penalty: 1 year/$1000.
(d) Dangerous Violations?a reckless or
knowing violation that creates, in- fact, "a
substantial .likelihood of harm to life,
health, or property, or of any other harm
against Wiloh the penal regulation was di-
rected." Penalty: 1 year/$1000.
Note that -the section would apply only
when in_vcked by another regulatory statute.
And, it it were invoked, the section would
usually set the penalty for violation of any
"penal regulation"- contained in, or issued
-under, the statute.
The purposes of the section were to achieve -
consistency in penalties among various regu-
latory lana, and to have penalties set by a
Congressional Committee with criminologi-
cal, rathe: than regulatory, expertise. It is
Important to note that Brown designed the
regulatory penalty to be incorporated in reg-
ulatory statutes which attach eriminal pen- Culpability -- Tertiary Secondary Primary
alties not only to violations of black-letter
sections In the statutes but also to violations
.or rules or regulations issued thereunder. The
apparent theory was that such malum pro-
hibitum conduct which is proscribed in a
body of rules and regulations, rather than in
a black-letter statute, is not so clearly cog-
nizable as "wrong" to the potesitial offender,
so it should not be punished severely. Thus,
the Brow-a. provision carried penalties that
are weaker than many of the penalty provi-
sions authorized by existing statutes. (Many
existing regulatory laws, for instance carry
1 year/$5000 penalties. Even the "dangerous"
violation in Brown 1D006 has a much smaller
maximum fine.) With that in mind, Brown's
guidelines to be used In drafting the con-
forming omendments suggested the regula-
tory offenses section-be incorporated only in
those stasutes (labeled here as Group A for
simplicity) where the statutory penalty ap-
plied to v. olations of rules and. segulations, as
well as. to violations of black-letter statutory
commandments. The guidelines suggested
that the penalties prescribed in provisions of
other statutes (call them Group fl)?those
in which crimhial penalties attached only to
violation: of provisions in the statute itself,
not to subsequently issued rules?simply be some proscriptions and prescriptions in each
relabeled to mesh with the Code labeling of the three categories. The idea is to leave
scheme rud if necessary, downgraded to a it to the court (a matter for judge or for
misdesneenor, in acsordance with Brown's ? ?
tor Raeasee2U06i09125e :eCiAeRDP70160ttikikria UnttrrY.
only in title 18 of the U.S. Code (and thus - no ells-
not scattered in a number of other sections
of the U.3. Code.)
.-ime cases (p..309). Nevertheless, present t
use law does not make this exception..
A
A Plea of not guilty should not. be incon-
tstent with the defense of entrapment. The
,sr to prosecution approach of S. 1 suggests
hat not guilty plea is not inconsistent.
U. S. v Russell?The most recentSupreme
:ourt entrapment case, U. S. v Russell, 93
=set. 1637, 41 US 4538 (1973),. does not
sfect these proposals. In that -case, the
Smrt held that the Sorrells and Sherman
jective focus on the predisposition of the
asiendant should still be used. However, the
:oust rejected all suggestions of a constitu-
Sinai basis for the entrapment defense and
:elect on the notion that "Congress could
sit have intended criminal punishment for
defendant -who has committed all the
elements of a prescribed offense, but .who
sas induced to commit them by the gov-
srnment.7' Thus, the holding does not affect
longress' ability to establish a statutory en-
ssyment defense.
.1.1a1MORANDInat ON PROPOSED FEDERAL
Caroms% Cons No. 4 -
MISAPPLICATION Or ENTRUSTED PROPERTY ?
1. 1 1 2-8D6,. S. 1400 (none), Brown ? 1737
Summary?This provision covers a mis-
application of entrusted property by a Fidu-
!lary, or in the capacity as a Federal Public -
:Servant, or as an Agent or person controlling
financital institution which was unau-
thorized and which involved a risk of loss,
'out which was not done with the intent. to
-Leal that is necessary to constitute theft
under the general theft provision (2-8D3).
an example of this Is a person borrowing,
without authorization,. $4,000 from.organiza-
sion funds to use for his honeymoon. The
actor need not lose control of .the property
to be guilty of this offense. The S. 1 provi-
sion is taken directly from Brown. The pris-
vision to be desirable as it is written.
8. 1400 has no similar provision. A prose-.
cutor would have to resort to the general
theft section (1731), built is inadequate
for this kind of offense in, that it covers
only situations in which there as an intent
to deprive the- owner of his rights with re-
spect to the property or to appropriate the
property to the actor's or another person's
use. This is a serious deficiency in S. 140.
n. 1400 would fail, for example, to cover
some existing offences, such as unauthorized
loan of public funds (18-USC 653) and will-
ful misapplication of bank_ funds (18 USC
C:16).
Jurisdiction--Pederal jurisdiction under
2-8D6 is extremely broad. It is cotermi-
nous with jurisdiction over theft under ? 2- .
503, which covters federal property, finan-
cial institutions, affecting commerce, malls,
or property connected to employee benefit
Vans, public works kickbacks, HUD-insured
land
n
s, common carriers, 050, labor unions,
or oe of several other jurisdictional bases.
lalties?This is a class n felony. which
Per
carries a six-year maximum term. Brown
collect this a Class A misdemeanor, which
would have a one-year maximum.
Cont-ment?The comments to Brown in-
e that this section fits into the second
(Hast
oi? threo tiers of property offenses. The most
,,,?,/,:ro tier is theft, where the offender in-
n1 permanently to acquire the prop-
erty. Misapplication, forgery, fraud, etc., form
the :o.cond tier, regulatory offenses are the
MFMORA NOMA OR PROPOSED FEDERAL
CaLM IN AL LAW No. 5
. .
'tint RFC CLATOR V' OFFENSE raikpiEtroved
S. 1: 2-8F6: Brown: ? 1006
SiiinMary?The regulatory offense section
1,1 1. 1 it designed to provide a consistent
Nonculpable Violation Misdemeanor,
Reckless Violation Misdemeanor. Class D felon,
Knowingly Misdemeanor, Class E felony. Do.
Flouting - do Class D felony. Class G felon,
regulation
authority
Under this tentative scheme, the culpa-
bility standards would be defined as they
are in S 1 and Brown. The' gravityof harm
standards are more difficult to define. Ter-
tiary rules would be those whose purpose is
merely administrative convenience, 1.e.,
housekeeping rules. Primary rules are
basically safety regulations, whose purpose
Is protection of life, health, the environ-
ment, and possibly some kinds of economic
interests (e.g. anti-trust). Secondary rules -
are those that don't. fit in either of the two
extreme categories, like rules designed to
provide information to consumers and rules
protecting other kinds of property. Defining
a workable and reasonable set of categories
is clearly the most difficult part of drafting
such a scheme. Note that any given regula-
tory law and its accompanying rules and
regulations (if any) might well include
For notes at end of article.
S 4?-61914oved For Release 20060109MRONWERAAMIORW-OlgRWV-7
tinction between "Group A" and "Group B"
statutes. Both would be governed by the Reg-
ulatory Offense section.
Another problem is whether, to constitute
a knowing offense, culpability as to the exist-
ence. of the penal regulation, as well as to the
actor's conduct, should be required. One
ergument In favor of such a requirement is
that regulatory offenses are malum prohibi-
turn; one argument against is that ignor-
ance of the law is generally no excuse, so it
should not mitigate the offense here. A pos-
sible middle ground on this issue LS sug-
gested by the Brown Study Draft, which
created a presumption 'that a professional's
violation is willful. Slightly modifying the
Study Draft Idea, one could establish a pre-
sumption that culpability as to the exist-
ence of the penal regulation is presumed in
.the case of a person engaged, whether as
owner, employee, or other wise, in a busi-
ness,. profession, or other Calling subject to
licensing or pervaeively, regulated; when
charged with violating a penal regulation
applicable to him in that capacity.
? Footnotes
1. An example of Group A is the Truth in
Lending Act, Its current penalty provision
provides that a violator of a statutory pro-
hibition or of a rule or regulation "shall be
fined not more than $5,000 or imprisoned
not more than one year, or both." Under the
S 1 conforming amendment, a violator of a
'provision of the statute or of a rule issued
thereunder, "shall be guilty of a regulatory
offense under section 2-8E6." The maximum
penalty in the severest regulatory offense
category is $500,000/6 years. ,
An example of Group B Is the Robinson-
Patman Act. The existing maximum penalty
for a violation is 1 year and/or $5,000. Under
the S I conforming amendment, a violator
"shall be guilty of a Class E felony, except
that the maximum fine shall be $5,000." A
Class E felony normally carries a 1 year/
$100,000 maximum penalty.
2. The maximum penalties under S 1 are:
Violation?$54,750.
Misdemeanor?$54,750/6 months.
Class E felony?$109,500/1 year.
Class D felony?$547,500/6 years. ?
Class C felony?$547,500/10 years.
Alternatively, the judge may impose a
fine, of twice the benefit derived or twice the
loss caused.
Other available sanctions include corpo-
rate or individual probation, restitution,
disqualification of an individual from hold-
ing organizational office, requiring an of-
fender to give notice (such as by adver-
tising) of his confliction to the class of
persons affected, and suspension of the right
to engage in interstate commerce.
ADDENDUM TO REGULATORY OFFENSE
Another possible way to approach viola-
tions of regulatory laws is the S 1400 ap-
proach or a variant thereof. S 1400 has no
regulatory offense section comparable to
that of S 1. It does, though, incorporate
certain regulatory law felonies into the
criminal code in sections 1765 and 1766. The
felonies incorporated consist primarily of
adulterated food and drug product viola-
tions. Under the S 1400 scheme, these sec-
tions are necessary in order to preserve the
felony grading of those violations since S
1400 adopts the Brown Commission principle
of downgrading any offense in a title out-
side Title 18 to a misdemeanor. This prin-
ciple Is put into effect through section 2002,
Classification of Offenses outside Title 18.
Offenses outside title 18 are classified and
labeled according to the term of imprison-
ment they carry under existing law. If the
term is more than six months, the offense
is classified a Class A misdemeanor. The
fense, or 2) the maximum fine for an offense
of that classification under the Code, which-
ever is greater.
That scheme could be modified in the
following way: 1) Offenses outside title 18
would be classified according to their maxi-
mum jail terms, as- done in S 1400, but the
idea of putting all felonies in title 18 would
be dropped. Thus, they would be reclassified
as felonies if the existing term is sufficiently
high. 2) The maximum fine for such an
offense would then be the fine under the
original provision, or the fine for an of-
fense of that classification under the Code.
Such a change would bring into play the
advantages of the new sanction proposed In
all three versions?higher fines, notice and
dl
S 1400's scheme also includes section 1615,
Reckless Endangerment. This section makes
it an offense if a person recklessly engages
in conduct which places or may place an-
other person in danger of death or serious
bodily injury. Federal jurisdiction exists
when the reckless endangerment occurs dur-
ing the commission (or during the night
from the commission) of any other offense
over which federal jurisdiction exists, wheth-
er defined in title 18 or elsewhere. Thus, if
a person or corporation violates the Flam-
mable Fabrics Act, which conduct may place
another in danger of serious injury, the actor
may be guilty of reckless endangerment,
S 1400 makes this offense a Class D felony
if the circumstances manifest extreme In-
difference to human life, and a Class E felony
in any other case. A possible modification of
this section would be to include other sorts
of endangering conduct, such as serious
danger to the environment or to habitation,
in the definition of the offense.
If this offense is to be .used as a major
vehicle in regulatory violations, it is im-
portant that the language defining the of-
fense continue to read "conduct which places
or may place another person in danger."
Otherwise, the reach of the section would be
unreasonably limited. For instance, viola-
tion of the Flammable Fabrics Act occurs
during the manufacture or distribution proc-
ess. Jurisdiction under section 1615 depends-
on the reckelss endangerment occurring
"during the commission of" the Flammable
Fabrics offense. The danger that victim is
actually placed in at that point is less than
immediate. But as long as it suffices that the
first offense may place another person in
danger. section 1615 has a broad reach.
It may be objected that this approach is
undesirable because the penalties are not
clearly enumerated along with the statute
defining the offense. This argument has some
merit, but it should not be accepted too
quickly. With regard to the penalty levels
(especially the tines), one would expect that
the U.S. Code would be updated and anno-
tated in such a way the fine levels and other
sanctions of the criminal code would appear
along with the statutes defining offenses.
That could be achieved even If the regu-
latory laws were not formally amended to re-
flect the title 18 penalties. As for the Reck-
less Endangerment Offense, it should be
pointed out that this tends to be more of a
common law type offense than a regulatory
provision. To require that a violator know
that endangering a person's life or safety Is
an offense does not conform to the tradi-
tional jurisprudence of criminal law.
MEMORANDUM ON PROPOSED FEDERAL
CRIMINAL LAW No. 6
DEATH PENALTY
S. 1 section 141E1,2 S. 1400 section 2401,2,
Brown section 3601-05
OFES,NSES (3) knowingly created a great risk
maximum fine that may then be imposed 1. The Brown Commission authorized the death to at least several persons,
authozft.c43b5) VW, slEaOrt
for such c:fLe..ssie 11.43rail4p odi?p9*.srait. . remtlea327R6907000808094mitted the murder in an especi:
TfliMer ni-areaa heinous, atrocious, cruel, manner or me
December 18, .
2. S. 1 also limits it to these offens
3. S. 1400 authorizes It for
(a) treason, sabotage, espionage ii
(1) the defendant has been convie
"another offense involving treason, sal
or espionage, committed before the t
the offense for which a sentence of 11
prLsonment or death was imposable"
(2) the defendant knowingly cree
grave risk of subatantial danger to nf
security, or
(3) the defendant created a grave I
death and
(b) for murder if?
(1) the defendant committed durb
offense or in connection with it tr
sabotage, espionage, escape, kidnappin
craft hijacking, or arson or
(2) the defendant has been convic
another federal or state offense for ad
sentence of life imprisonment or death
have been imposed or
(3) the defendant had been convicte
or more federal or state felonies inv
serious bodily injury to another or
(4) the defendant had knowingly ci
a grave risk or death to another person
dition to the victim or
(5) or committed the offense in an
daily heinous, cruel or depraved mann
(6) had procured the murder by mor
other benefit or had received money I
Or
(7) had murdered the President, a si
sor, a foreign dignitary in the U.S. or E
official, law enforcement officer, employ
U.S. penal institution or diplomat. ,
Exclusion
1. Under Brown the death sentence
not be imposed if the defendant was
than 18 years old at the time of the off
or if the defendant's physical or rn
condition calls for leniency or there are
or substantial mitigating circumstance
"although the evidence suffices to su
the verdict, it does not foreclose all d
respecting the defendant's guilt."
? 2. S. 1 does not provide any excli
standards. Sa 1 does provide mitigating
aggravating circumstances as a guide fo
court or jury. The mitigating factors
murder and treason) are that the defen
(a) was under extreme mental or I
tional disturbance
(b) was under unreasonable pressms
under the domination of another parse
(c) the mental capacity was impaire
a result of mental illness, defeat or in-
cation
(d) was emotionally immature
(e) was an accomplice whose particips
was relatively minor
(f) had no significant history of 1
criminal activity and
(g) the crime was, committed under
curnstances which the offender believe
provide a moral justification or extentia
Which is plausible by ordinary standard
mortality and intelligence. ,
The aggravating circumstances in c
of treason axe that the defendant:
(1) knowingly created a great risk of di
to another person or of substantial 1mI
men t of national security
(2) violated a legal duty concerning ,
tectiomi of the national security
(3) committed treason for securing bf
fit.
In cases of murder the aggravating
curnstances are that the defendant
(1) was previously convicted of anol
murder or crime involving the use or tha
of violence to the person or has a snbetan
history of serious assaults or terrorb
criminal activity
(2) committed a double murder
)ecember 18, 1974 AppremLFROVwg.L2C088R:_%?1Alyell00527R0007000800CR42095
_need exceptional depravity.. by ordinary
nandards of morality and intelligence
(5) the violator was a public servant who
,:AS holding the defendant or another in of-
keel detention.
(6) the violator was a law enforcement
lacer or
(7) the victim was the President or other
igh public servant, .
f'parate proceeding to determine sentence
All three bills provide for a separate hear-
er on the death penalty for which a jury
lay be waived or impaneled regardless of
:silty plea or Jury trial. Any evidence tele-
ant to sentencing may be admitted. Brown
spllcitly states any evidence inadmissible
uder the exclusionary rule would be ad-
iissable.
a 1 simply states the evidence must be
!levant. S. 1400 provides that the court
lost provide the presentence report to the
wernment and defendant. The standards
selarding the admissibility of evidence ap-
ly except for that evidence relevant as to
hy the death sentence should not be irn-
need. .
la Brown and 8:- 1 the burden of proof
ecessary to expose death penalty is not
mated. Under S. 1400 the jury- returns a
necial verdict setting forth its findings as
) existence of the factors specified by the
satute (see above). Under S. 1400 if the
ourt or jury finds by a "preponderance of
is information" that one or more grievousctors exist and none of the precluding
tctors exist,- the court must sentence the
',ferment to death. If none or even if some
f the grievous factors exist but one or
-tore of the mitigating factors also exists
ne defendant is sentenced to any other
) tence authorized (life Imprisonment).
inter S. 1 the defendant would be sentenced
s life imprisonment also.
Comment-
Furman v. Georgia, 408- U.S: 238 (1972),
; the most recent death penalty decision by
he Supreme Court. There was no single ma-
)rity opinion. Justice Brennan and Mar-
.hall reached the result: that the death
analty, irrespective of the _mechanics of
nt application, is cruel and unusual punish-
lent. Justice Douglas' po,sition is not as
tear but it may be safe to assume that he
'ould not favor mandatory imposition on
eniviction nor jury discretion In deciding
240 death penalty. There is no clear indi-
ntdon. how Justices Stewart and White
-euld respond to this legislation, if en-
cted. Justice Burger, Blackmun, Rhenquist
nd Powell dissented. Generally both Ss 1
_rid S. 1400 respond to the due process-
nirness objection to the death penalty. The
roponents of the death penalty cite is de-
nrrence effect as the most important ground
sr its existence. However the deterrence
actor in S. 1 and S. 1400 is not as substan-
lel as it would be under a mandatory sys-
ent clue to the ambuity of some of the
covisions (e.g. moral justification, extreme
motional or mental disturbance, unusual
?reesures, heinous, astrocious, cruel manner,
)latively minor participation. As an arid-
le by Daniel Poisby. The Death of Capital
'itnishment? (1972 Supreme Court Review
973) points out the existing evidence makes
sis deterrence justification untenable. The
vidence is inconclusive on the general de-
essence effect of capital punishment but
ersuasively suggests that there is usually no
oh deterrent, effect. The question that must
e answered by the proponents of the legisla-
ion before such sections are enacted is: Can
he death penalty statute be justified on
round3 of deterrence when it cannot be
hown that the death penalty is a greater
eterrent than prison for major crimes?
MEMOLANDITM ON PROPOSED FEDERAL
CRIMINAL CODE NO. 7
.,ARA-IVIILITAIIY OFFENSE
5.1 I 2-9D1, S.1400 1104, Brown I 1104
Summary
Basically all three drafts make it a crimi-
nal activity to engage in or facilitate the ac-
quisition, caching, use, or ,training in the use
of dangerous weapons by or on behalf of a
group of 10 or more persons with the intent
.of influencing the conduct of governmental
affairs. The offense is not of an individual
acquiring, caching or training bat only if it-
Is done:
(a) in connection with a group and
(b) if that group has. political motives
vis a vis the government.
? This raises a question whethen under the
First Amex iciment, groups activity can be
outlawed which would be lawful for in-
dividuals or groups with non-political ob-
jectives. The Brown draft speaks of acquiring
or, trainins in weapons "for political pur-
poses or on behalf of an association of 10
or more persona. 8.1.- requires intent "to
influence the conduct of government
public affairs in the United States through
the use or threat of the use of such weep-
-ons". S.140) requires that the organization
or group have as a- purpose the taking over
of, the control of or the assumption of the
function of an agency of the U.S. government
or of any este or local government by force
or threat ' of force. Organizations as dis-
similar as the National Rifle Association,
-Black Panthers and a neighborhood associa-
tion of armed citizens who have a need for
group protection would come under the
scope of this section. The- Working Papers
(at p. 436) note, "the activities prohibited
by the drat; are limited neither to those with
_armed insurrection as the object. nor those
_carried' on by organizations under foreign
control . . . the Commission should how-
ever, consic er whether the-limitation of the
proscription to groups with "political pur-
poses" presents a constitutional or policy
danger by permitting wide latitude in ex-
_ecutive and judicial discriminations as to
what .constitutes a "political- purpose".
Constitutional problems
Supreme Court cases have strongly indi-
cated that it is highly suspect under the
-First Amelicirnent to place restrictions on
an indivicit els right of advocacy and associ-
ation without the strongest showing by the
government of imminent violence. These
cases tend to indicate that a blanket pro-
hibition of acquiring firearms in conjunc-
tion with a politically-oriented organi-
zation, without some further requirement
' that imminent danger results to the com-
munity fro:n this action is unconstitutional.
In Brandenburg v Ohio 395 U.S. 444(1969)
the court eaid, "the constituticnal guaran-
tees of free speech and free press do not
permit a State to forbid or proscribe advo-
cacy of the use of force or of law violation
except where such advocacy is directed to
Inciting or producing imminent lawless ac-
tion and is likely to incite or produce such
action" (395 'U.S. at 447) and, "(A) statute
which by Us own words and as applied, pur-
ports to punish mere advocacy or to forbid
on pain of criminal punishment assembly
with. ?Mel s merely to advocate, the de-
scribed type of actions within the condem-
nation of the First and Fourteenth Amend-
ments" 391, U.S. at 449 (emphasis added).
Brandenbuv seems to cast real doubt on
the constitutionality of a statute which is
aimed clire )tly at political assembly, aimed
at the right: to associate in an activity which,
if done sin fly, would be perfectty legal. The
proposed s stutes, however do not prohibit
advocacy tut actions which are deemed to
be per se dangerous. The problem is one of
legislating such a description or in looking
at the threat on a case by case basis. The
offense does not amount to assault, rebel-
aion, sabotage or obstructing a government
function by physical force. Presumably it
allows the government to protect itself from
feeling intimidated by an irate band of armed
citizens who have yet to take any overt
action which is otherwise illegal. Without
any sort of legislative fact finding it is dif-
ficult to see what compelling need there is
to outlaw what has heretofore been non-
criminal association conduct. Both S.1 (? 3-
1002) and S. 1400 (? 3127) authorize govern-
ment wiretapping to acquire evidence on
which can be used for a prosecution under
this section or any other section of the law.
MEMORANDUM ON PROPOSED FEDERAL CRIMINAL
Lew No. 8 -
CRIMINAL COERCION
Brown 1.1617, S. 1400 ? 1723, S. 1 ? 2-9C4
Summary
The coercion offense falls with the black-
mail-extortion type of offense. It holds a per-
son liable for threatening certain specific
acts either with an intent to compel action
or to obtain property. The "threatening" as-
pect raises serious First Amendment ques-
tions concerning free speech and the acts
which are the subject of the threats raise
questions of consumer actions and other le-
gitimate disputes.
S. 1400. provides that:
? "A person is guilty of an offense if he
knowingly obtains property of another by
threatening or placing another person in fear
that any person will:
(1) commit any crime;
- (2) accuse any person of a crime;
(3) procure the dismissal of any person
from employment, or refuse to employ or
renew e contract of employment of any per-
son;
(4) wrongfully subject any person to eco-
nomic loss or injury to his business or pro-
fession;
. (5) expose a secret or publicize an asserted
fact, whether true or false, tending to sub-
ject any person, living or dead, to hatred,
contempt, or ridicule, or-unjustifiably to im-
pair his personal, professional or business
reputation or his credit; or
(6) unjustifiably take or withhold official
action as a public servant, or unjustifiably
-cause a public servant to take or withhold
official action."
This offense is graded as a Class D felony
if the property which Is the subject of the
offense has a value in excess of *500 or is a
firearm, or a U.S. government document or
engraving equipment or mail. It is a Class
A misdemeanor, if the property has a value in
excess of $100. In all other cases it is a Class
B misdemeanor.
. There is federal jurisdiction if the fear is
of a federal crime, or involves federal official ,
action or if committed within the special
jurisdiction of the U.S. or concerns property
owned or under the care of the U.S. or is
owned or under the care of a national credit
institution, or in any way affects interstate
or foreign commerce or involves movement of
a person across a state or U.S. boundary or
if a facility of interstate commerce is used.
The Brown Commission had a similar of-
fense (11517) the gravaxnen of which is
"with intent to compel another to engage in
or refrain from conduct". The Commission
provided the affirmative defense for which
the defendant would have the burden of
proof, that the actor believed the primary
purpose of the threat was to cause the other
to act in his own best interests, behavior
from which he could not lawfully abstain or
to make good a wrong done by him or re-
Approved For Release 2006/09/25 : CIA-RDP76M00527R000700080009-7
S 220 December 18, 192
* 96
Approved For Release 2CaidgfittgrilcaLAIDIP7ISVAZ052:3ROCE0760.08Q009-7
frain from taking any action Or responsibility treatment by the Secretary of KEW until Also, the mandatory hearing for the /
for which he was disqualified. (a) he regains competency or- (b) charges fenclant who recovers prior to the termir
S. I, ? 2-904, provides that it Is an offense are disposed of pursuant to 5 3V11C7 or (c) tion of the maximum sentence does not p]
If a person intentionally compels or induces a petition for civil commitment is flied by vide due process. At this hearing, the jut
another person to engage in conduct from the Secretary of HEW. Detention Is not may order the defendant to serve the :
which the other person has a lawful right Indefinite and must expire at the end of the mainder of the sentence or a portion then
to abstain, or to abstain from conduct in time of a maximum sentence for the most in prison, reduce the sentence or place t
which he has a lawful right to engage by serious offense charged. Judicial review is individual on parole. This is, in effect.
means of instilling a reasonable fear that if . required no later than one year after deten- second sentencing hearing, yet the propos
the demand is not complied with, the per -Wm commenced. If found not likely to regain statute does not require the court to g1
sort or another will cause bodily injury, cause competency within a reasonable time, he notice to the defendant, provide counsel,
damage to property or subject anyone to must be released within a reasonable time, govern the presentation of evidence.
physical confinement. This is a Class al fel- unless within sixty days BasW flies a peti- 4. Civil Commitment: (4 3-11C8)--Und
ony (up to 1.- year and $100 per day.) Federal tion for civil commitment. If found corn- S. 1 (I 3-11C8) civil commitment may
jurisdiction is established when the offense petent, he is released and reenters the sought for three kinds of people: (1) the
is committed in the special jurisdiction, con- criminal process. Only if he is not yet corn- deemed incompetent to stand trial and foui
cerns a high public official, invokes the pira- petent, but likely to regain comptency within likely to regain competency, (2) those who
cy jurisdiction or affects commerce. a reasonable time can a person be corn- official detention is pursuant to a senten
Comments?S. 1 and Brown both establish mitted for more than one year. In S. 1, after which is about to expire, and (3) those WI
the intent in terms of compelling another the first year review, there is no further have been acquitted by reason of mental Ii
to do, or refrain ? from, an act. S. 1400 pro- requirement for judicial review. nese or defect. The decision to seek ce
vides that the intent is to obtain. This is Procedures for Psychiatric Examination on commitment is made by HEW after examin
an improvement but S. 1400 defines prop- Issue of Sanity: In S. 1 (1 3-11C2) the court tion of the individual to determine wheth
erty to include intellectual property or in- . must refer the defendant for a psychiatric the person could create a likelihood of serios
formation. Secondly it should be noted that examination if he or counsel give notice . of harm by reason of mental illness or dere
S. 1 has limited the threats to e well defined his intention to raise the defense. If the unless hospitalized. A hearing is then he
area of traditionally considered criminal ac- defendant objects to -the exsanination, the at which the defendant xnay be committed i
tivity. and lute a more limited jurisdiction court issues an order prohibiting use of such official detention, 4 3-1101 (4) defines '
than does S. 1400. . evidence at trial. likelihood of serious harm." The comma
The activity in these proposed statutes The examination must be performed ex-
rnent "shall continue only during such tin
reaches not only conduct but speech as wen, peditiousiy and copies of the report sub- as the. Secretary is not able to find for th
In that regard First Amendment issues must mit-ted to the court and copies given to the treatment or care of such person" or tint
e
be considered. Various consumer groups and government attorney, the court, and the failures to hospitaliz the person no longk
others expressed the fear that this section defendant. Restraint on the liberty of the would create a likelihood of harm (I 3-11C
(as proposed in the Brown Draft) would person must be minimal. If the panel finds (f)). S. 1 also provides for annual review b
deter legitimate conduct. Richard E. Israel, hospitalization is needed, the court may HEW and notice of the annual report to tb
Legislative Attorney of the American Law order temporary detention. S. 1400 requires person and his counsel and provides the rip
Division of the Library of Congress wrote the defendant who wishes to invoke the in-
to petition for a hearing. It can be main
(Hearings, supra, at p. 3373): "The issue sanity defense to give written. notice either tamed that given the effects of comenitmew
as to constitutionality on First Amendment at the time the not-guilty plea is entered or annual review is not sufficient. Also, the rule
grounds thus centers on the adequacy of within 10 days thereafter, The court then of -evidence are suspended for the hearin,
the affirmative defense- provision to limit may order the defendant confined for not and the burden of proof is unarticulateS
what is conceded to be a "broad" prohibition more than sixty days for psychiatric, 5% There is no Fifth Amendment protection fostatements made to psychiatrists that ma
-
Involving not only "conduct" but "speech". Copies of the study as to whether the defend
be used against them. Nor is there an incli
ant was insane at the time of the offense
ero be a real limitation, the affirmative de-
cation that an individual ha a a right to Iris
must be provided to the court, government
fens? provision would have to be read as'an.
and defense prosecutors. It is not clear in by jury.
Integral part of the statute as it is to be
applied rather than a justification to be
S. 1400 who pays for this. There is no time 3. 1400 (4 4225) sets forth procedure:. fa
-
raised after the fact in a court proceeding. limit stated to ensure that the reports are civil commitment for persons who have fin
There are also, as has been noted, problems filed promptly. S. 1400's sixty-day examine-
1sheci serving the full term of their sentena
of vagueness which are raised by the affirma- tion period is four times as long as ars, after conviction. If the person is still suffer
live defense provision." There Is no burden on. the peyehlatrist to lag at the conclueion of his sentence from e
S. 1400's restriction of the coercion pro- demonstrate a need for hospitalization. to -mental disease or defect such that his releast
posal to intent to obtain "property". as 0P- the court. would create a substantial danger to himself
posed to intent to compel "activity", is an 3. Disposition of Mentally Ill After Con- or to the person or property of others, th.
Improvement. However the expansion of the viction: S. 1 (4 3-1102) provides that the A.G. notifies the court to schedule a hearine
court may have the individual referred to the to determine whether the defendant is suflis
mention of defense or affirmative defenses
kinds of threats and the exclusion of any
panel of psychiatrists for examination- who ciently dangerous to warrant further cus-
continues the constitutional problems, then report back within fifteen days after todY. LI other arrangements are not avail
-
S. 1400's use of the term "unjustifiably" In examination with Copies for the court, govt. able. There is no provision which prohibits
relation to both threats to impair personal, emment, and defendant. This report should detention of the defendant after expiratioe
professional or business reputation or credit include sentencing recommen.dations. of the sentence without an immediate hears
In
-
and to the taking or withholding of official 3. 1400 (1 4224) hospitalization of a lug (S. 1 provides that the hearing is to becon.-
action 13 similar to the term "wrongfully" victed person suffering from a mental disease held at least ninety days prior to the date
in the Hobbs Act (18 U.S.C. 5 1951) which. or defect requires the court to hold a hear-
of the offender's release). Nor is there a pro-
has been construed to apply only to huller- Ing on motion by either party when there is vision of warning that statements made to
ently wrongful methods. S. 1400 also Ira-reasonable cause to believe the defendant is psychiatrists during their examination may
proves the Brown formula by requiring that "presently suffering from mental disease or be used against him at the commitment
the threatened party be placed "in fear", defect for the treatment of which he is in hearing. Nor is there a provision respecting
This would seem to exclude the tenseness- need of custody, care, or treatment in a men- the right to trial by jury for civil consumercommit-
bona fide disputes which were tha tal institution." The court may order a proceedings, 5 4225(e) designates a
basis of much criticism of the Brown draft. chiatric examination. If the defendant is "preponderance of the evidence" as the bur-
found to be suffering from a mental disease den of proof standard. In re John Dailey
Mzemeeeetrivr 0/S PROPOSED FEDERAL or defect, the court may commit the do.. ( F, 21 ?, U. S. Cir. May 31, 1973, S. A.
Crtnetteee CODE #9
fondant to the A.G.'s custody for treatment No. 71-2023) held that proof must be este,b-
in a suitable facility. This commitment is liehed beyond a reasonable doubt in civil
MENTAL ILLNESS
equivalent to a provisional sentence of int-. commitment proceedings. Concerning ' the
Insanity Defense---,s. 1 5 1-302; S. 1400
prisonment for the maximum term- h[kehihq of causing harm, Judge Sprecher
S 502; Brown S 503
ized for the offense for which the defendant in Tessard v. Schmidt 349 F. Supp, 1073 .(ED.
1. Insanity?S. 1 and Brown follow the far- Is found guilty. It is not clear whether the Wes.1972) (at p. 1093) said, "the state must
1-fellation of the American. Law Institute court must consider whether there i3 actually bear the burden of proving that there is an
which denies the defense to sociopath& any treatment available at federal facilities extreme likelihood that If a person is not
S. 1400 eliminates the defense except insofar or if the non-dangerous defendant would confined he will do immediate harm to him-
as it negates an element of the offense prefer prison. Until the head of the facility , '
charged,
to which the defendant is committed decides self or others. Moreover, the dangerousness
2. Incompetency to Stand Triat?S.1 allows that he Is no longer In need of the institu- must be based upon a finding of it recent
an Individual to bypeese criminal trial If tional services of custody, care, or treatment, overt act, attempt, or threat to do substantial
found to be incompetent Under 8.1400 one the defendant is stuck with the maximum herrn to oneself or another." Additionally.
cannot avoid trial. fender S.1 4 3-1104 a per- sentence, with no guaranteed periodic review there is no provision for periodic judicial re-
son found incompetent may be detained for_ and.?.ire I.t.re 4alized patients.
Approved For Rele 20
ase 06/0 A ItINI6M00527R000700080009
-Jecember 18, 1974.
Approved For Release 2006/09/A?: CIMpEr00527R00070008000?722097
CONGRESSIONAL RECunu
IEMORANDUIVI ON PROPOSED FEDERAL CRIMINAL.
Corm #10 .
,IGANIZATION LIABILITY; INDIVIDUAL LIABILITY
-,oft CoNDLICT ON BEHALF OP AN ORGANIZATION
I; I. ?? 1-2A7, 1-2A8, S 1400 li 402, 403, Brown
S3 402, 403
Summary?This memo will discuss an or-
smization's liability for its conduct and li-
ability of agents for an organization's con-
Inca Generally speaking, S. 1400 provides for
iroader liability in both instances than does
,
; 1:
I. Definitions-3 1, ? 1-1A4 (51) definesarganization broadly to include corporations,
ither sorts of business organizations, non-
srotit organizations, governments, govern-
ment agencies and "any other groups of per-
sons organized for any purpose." S 1400 (sec.
ill) uses a similar definition, but excludes
;overtiments and government agencies.
(Those opposed to governmental liability ar-
nue that it is pointless, in that a fine is
aorne by the taxpayers and in that a "notice"
sanction may be unnecessary since the press
aarierally monitors governments better than
it does corporations. They also fear .politi-
cally motivated prosecutions such as a federal
prosecution of a local government for the
political ambitions of the U.S. Attorney. On
tile other hand, some argue for at least ex-
tending. governmental liability to such crimes terms
as regulatory and civil rights offenses, etc: authority'' interchahgeably. In that case. The minority alternative of 1(a) in Brown
The Working Papers (p. 175) note that cur- which involved payment of shipping rebr tes provides greater liability. It covers any of-
rent federal law generally does not exclude to sugar companies, using them interchange- fense committed in "furtherance of the cor-
. . ably cresnmd- no problem since the agent's potation's affairs" that was "done, author-
aovernments or agencies.)
The definition of agent appears sufficiently acts were covered by either term. In later ized, requested, ratified, or recklessly toter-
. cases ? the courts sometimes refer to scope _ated in violation of a duty to maintain effec-
broad in both S 1 and S 1.400.- -- -
II. Organization Liability?Before discuss-
ing the provisions on corporate liability,, it
will be useful- to discuss two concepts?the
name of a, servant's employment and the
scope of an agent's authority?which - are
used in various definitions of organization
liability. Subsequent.discussion will focus on
the development of existing case law on the
subject, and then the -provisions of the two.
bills. . 3
(a) "Scope of employment" is a tort law
concept relating to master-servant relations)
Under the doctrine of respondeat superior,
a. master is vicariously liable for a tort com-
mitted by his servant if it was committed.
within the scope of the servant's employ-
ment.. It is not necessary that the master
authorized, had knowledge-of, or consented
to the servant's act for him to be held liable.
In fact, the doctrine of respondeat superior
is most useful where the act was unauthor-
ized. Generally speaking, an act is committed
within. the ? scope of employment if it was
of the same general nature as the conduct
authorized or incidental to that authorized,
and if it was intended to benefit the master's the agent's power to bind the corporation,
b whereas if the crime is theft of trade secrets,
business. A master is usually held liable even
Is a matter of whether the act was within
if the servant's tort was willful or even if the it
servant violated or misunderstood the mas- the Lagen 'Ss scope of employment.
ter's clear instructions. However, the doe- The following cases give some idea of the
trine of respondeat superior does not apply bounds of corporate liability under existing
to the acts of independent contractors. law. A corporation is not liable if it was
not the intended beneficiary of the agent's
lb) The "scope of an agent's authority" criminal acts. Standard Oil Co. of Texas V.
Is a contract law concept relating to prin- U.S. 307 F 2d 120 (5th Cir., 1962), It is the
cipal-agent relations. The scope of a princi- intent tnat the corporation benefit, not bene-
pal's liability for acts of his agent Is more fit in feat, that is material. 0W Monastery
narrow than the scope of a master's liability Co. v. U.S., 147 F 2d 905 (4th Cir. 1945). The
for a servant's acts. A principal gives power status or the agent in the corporate bier-
to an agent in a contractual manner that an archy is immaterial; he need not be a person
offeror makes an offer?consent is esaential, in high authority. U.S. v. George F. Fish,
The power of an agent can be given with Issc., 151 P ad 798, (2d Cir.). cert. den., 328
any conditions or limitations. Whereas the U.S. 869 (1946) . A corporation may be round
acts of a servant are acts committed within guilty even though the actor whose conduct
the course of performing duties for his mass is imputed to the corporaticn as the basis
ter, the acts of an agent are acts of consent of Hata' ity is found not guilty. Magnolia
that the principal shall be bound in a legal Motor asid Logging Co. v. U.S., 264 F 2d 950
A (Oth 1959), A ti be held
or apparent authority." Express authority is LTI. Current Proposals on Organizational
that given to an agent orally or in writing by Liability? _ ? .
the princis al. Implied authority is authority (A) The Brown version ? 402 greatly cuts
implied by conduct, or authority to do acts back on the scope of corporate liability for
that would reasonably be expected to ac- felonies, since it would make the Organize-
company tots performed under express au- tion liable only if the conduct was author-
thority. At parent authority is the authority ized, requested, or commanded by persons in
that a reasonable third person would under- certain categories of control of the orga-
stand an agent to have, nization. Brown subsection 1(a) provides
that a corporation is liable for "any offense
, (t) Existing law?Historically, the s-cope
committed by an agent of the corporation
of corporale criminal liability has progressed
within the scope of his employment on the
toward br 'ader liability. Lord Holt, in an
basis of conduct authorized, requested or
anonymous case, 12 Mod. 559 (1701),- said
commanded, by any of the following or a
that a cor 'oration was not ind-ctable at all,
combination of them." -
though its members were. The reason for this
view was that a corporation, a fictional 1) the board of directors, _
entity, is rot capable of acting anti cannot be ii) an executive officer or comparable_
imprisoned. Fletcher, 10 Cyclopedia Corpora- policy-maker or supervisor,
tions, section 4942. It was said that any ille- iii) any person who controls the corpo-
gal act len a corporate agent was without ration or is "responsibly involved Informing
authority and ultra vires. its policy."
That geberal proposition has been modified iv) any other person for whose act or
over time. The landmark federal case was omission the -statute defining the offense
N. Y. Central and Hudson R.B. v. U.S., 212 provides corporate responsibility.
U.S. 481 (.909). in which the Supreme Court Brown does provide for liability for an
held that a- corporation may be held liable agent's misdemeanors and nonciapable of-
for the criminal acts of its agents and ern-, lenses. regardless of authorization, if the
ployees- if the acts are done within the scope conduct was within the scope of employment
of the agt nt's employment and, on behalf of (1 (c) and (d)). Subsection 1(b) provides
the corprination. The court seems to use the liabili+,y for failure to discharge an affirms?
" f employment" and "scope of tive duty imposed on. the corporation.
n
of emploment, sometimes to scope of au- time supervision of corporate affairs, by a
thority, sometimes to .both. U.S. V. Armour person in one of the foot enumerated policy-
and Co., 168 F 2d 342 (3rd Cir., 1948). U.S. v. making categories. The "furtherance of af-
American Radiator and Stand. San. Corp.,-fairs" phrase may appear to be broader than
483 F 2d 174 (3rd Cir.), cert. den. 401 U.S. ?scope of employment," but it's difficult to
948 (197C). U.S. v. Parfait Polvder Puff Co., ? imagine an act that "furthers affairs" and is
163 F 2d 1008 (7th Cir.) cert. den. 332 U.S. , authorized or tolerated by highers-up that
851 (1947). U.S. V. Emmett, 53 F 2d219. A . would not-be- within- the simple "scope of
recommended . jury instruction shows how employment'? or "scope of authority" con-
corporate liability is often defined: A eor- cept. The "reckless toleration" -idea goes well
potation is criminally responsible for "all beyond the standards of the original -1(a)
unlawful -acts of its directors, or officers, or in, Brown, but it is doubtful that it is broader -
employee 3, or . other agents, provided such than the basic scope of employment/author-
unlawful . acts are done within-the scope h
-of- 1
her concept of existing law,- especially' 'since
their ant aority, as-would usually be the case simple scope :or employment ' may be easier -
If done in the ordinary course of their em- to prove at trial. -: - -., . .-- - -
ploymenl, or in the ordinary course of the. = (B)-5-1 section 1-2A7 ( a ) (1) provides that
corporati'n's business." Mathes and Devitt,
an organization is guilty of "any offense cons_
Federal Zany Practice and Instructions, sec-
slating of conduct engaged In by an agent
tion 19.03' (1965). It would appear that the- of the organization within the scope of his
legal consept used to determine the scope of.
employment." Unlike -Brown, S 1 appears to
corporate liability properly depends-on the.:
be a codification of the core ?of existing case
nature oS the crime?i.e., if the case involves.
law. But if the language were narrowly con-
e fradul ml contract, ,"scope of authority"
strued, it could be held not to be as broad
applies,since corporate lia.bility depends on
as existing law; which often uses the "scope
of authority" concept. For that -admittedly
limited reason, the language of S. 1400 (see
below) is preferable. Another problem with
S. 1 is its coverage of failure by the corpora-
tion to act. "Conduct" is defined in section
1-1A4(13) to include omissions as well as
acts; therefore 1-2A7(a) (I) ?would cover a
failure to act if the prosecutor could point
to a specific corporate agent who should have
acted. However, (a) (1) does not seem to cover
casee in which an affirmative duty is imposed
on "the corporation" and in which the cor-
perm Lon put no one in charge of discharging
cli
the duty,
Subsection
.
tion (a) (2) in S I says an orgaai-
zation is also-guilty of "any offense for which
'a human being mar-be convicted without
proof of culpability, consisting of conduct
engaged in by an agent of the organization
within the scope of his employment." That
subsection appears to be only an elaboration,
since it covers no acts that (a) (1) does not
transaction. such as a contract. p.-u".Cir., co rpora on may
ts generally liab'e for those acts of an agent liable for the criminal act of an independent already cover.
that fall within the agent's "express, implied contractor, even though the contractor's act (C) S 1400 ? 402 is broader than S. 1. The
- was col; trary to the corporation's instrue- core of S 1100 is the same as that of S. 1?an
eiple3 of Agency. See also Restatement of F 2d 101)8 (7th Cir.) cert. den ;.ffrirf?
1. This discussion is based on loeppeaved ForiReleaser20061039125 P
7 MINN
sit I
. .
ttont conduct
Agelicy 2d Section 229. (1947). of nis,tters within the scope of the agent's
rforrnance
228
Approved For Release 2oactiNkPe.?AciRthtstiMMteemaitaxgo9-7 December 18 1(
employment" (? 402(a) (1) (A)), But the standard, holding him responsible would tive supervision, by putting legal reap(
second part of (a) (1) (A) acids the phrase work a deterrent effect in the future?hope- batty where the operating responsibilit
"or (matters) within the scope of the agent's fully by causing him to blow the whistle on Critics argue that this provision will r
actual, implied, or apparent authority." Thus, corporate practice, if he knew they were executives afraid to delegate responsib,
it codifies existing law well. The inclusion of illegal. There is, though, a potential problem However, it would seem more likely to
both phrases insures that attempts to deny here with strict liability offenses; If the to more clearly defined lines of a.uthi
corporate liability when the agent's conduct law says that anyone who mislabels a drug where needed. In addition It would c
is a question. of "authority," rather than is liable without regard to his awareness of management which seeks results withou
"scope of employment," will be unsuccessful, the result of his conduct or of the existence gard to how those results were obtal
Subsection (a) (1) (13) says an organiza- of the law, will the assembly line worker who Most importantly, it would mean that c
tion is also liablerelating to unknowingly puts the wrong label on every gation cannot be mindless, that those
matters for which the organization "gave jar, in accordance with his instructions, be delegate and benefit shall share the bit:
the agent responsibility," and which is "in- held liable? Is he "responsible"? However, When delegation results in criminal acti
tended by the agent to benefit the organize.- there are few such offenses. Practically V. Should Corporations Be Criminally
-Lion." Generally, any situation that (B) speaking, the problem is likely to be taken able at All?
covers is already covered by (A), but the care of just as it is now?by prosecutorial (A) To some persons, the concept
additional formulation might be useful in discretion and the good sense cif juries. corporate entity being criminally liabl
insuring corporate responsibility for the (C) S 1400, following Brown, extends in- unclear. Most crime stories and law
acts of independent contractors--provided dividual liability to the same extent as 3. 1 order speeches tell of individuals, llowc
the definition of "agent" were construed to and further. Subsection (a) (2), patterned corporate crime cannot be overlooked,
include independent contractors, very closely on Brown, provides that an inch- extensive; it is done with impunity ant
Subsection (a) -(1) (E) provides that an vidual who has "primary responsibility" for coat to victims and society is virtually
organization is liable for an agent's conduct a duty imposed on the organization by law is measurable. As the corporate form of
that involves a nondelegable duty of the liable for an omission to perform that duty ganizetion is the most prevalent form of
organization, where the. organization is to the same extent as if it were imposed oration, it lends itself easily to use by
otherwise legally accountable for the of- directly upon him. This appears to be an law-abiding and law-breaking alike. A t
_tense. The impact of this extension of the extension of existing law. It is desirable in look at how a corporation, as opposed tc
provision's scope is unclear, but it may refer that it places responsibility for performance agents, commits a crime may be useful.
to such cases as a financial statement pre- of the duty at the best point?on the person principal operative function Is delegat
pared by an outside accountant, or a lawyer's with primary responsibility for the area of Take for an example the scandal of Ece
opinion, the duty. However, critics claim that the Funding Corp. of America?one of the far
Subsection (a) (2) provides liability for a phrase "primary responsibility" Is unclear, white-collar crimes in the history of Am
failure to discharge a specific affirmative Does it mean the "actor", officers, board of can business. In this case, (which is too o
duty imposed on the organization by law, directors, etc.? Presumably, to have the hest plea to fully explain here) various ernplo;
For example, section 1762 requires a person deterrent effect, the phrase should be defined were delegated jobs?each part of which
to report certain dealings in foreign cur- to apply to someone in the chain of command an element of the crime?but each empic
rency. An organization, like a human being, who is close to the point of physical per- did not necessarily know that nor ben
is liable for a failure to do so. forrnance of the duty, or perhaps better, to from the offense. A printer made phony
S. 1400 covers In (b) (1) what subsection the point of decision as to whether the duty curities, another employee drew up ph
(a) (2) in S. 1 partly covers, It precludes a is performed, since holding a mere operative life insurance papers, another progranu
defense that the organization does not be- liable may be undesirable. Also, when Mark all of this into a computer, another sold
long to the olass of persons who by definition Silbergeld testified on the Brown Draft, phony policies to other insurance compes
are the only persons capable of committing (Hearings, at p. 3013), Silbergeld proposed, while another used phony securities as
the offense directly. Both bills also prechides amending this section to read: lateral on business loans. It was the corps
a defense that the person for whose conduct Except as otherwise provided, whenever a tion itself that committed several alle
the organization is being held liable has been duty to-act is imposed upon an organization crimes and that reaped the benefits,
acquitted or cannot be prosecuted, by a statute or regulation thereunder, any course some top executives appear to h
IV. Personal Liability for Conduct on Be- officer, employee or agent of the organization also committed crimes. But this doee
half of an organization--(A) Existing law: who has or shares primary responsibility for negate the fact that the corporations-act
An agent is responsible for acts he does on the subject matter of the duty or for ap- as a corporation in the usual course of
behalf of a corporation, and he may be - propriating or disbursing funds necessary for business--apparently committed a mase
found guilty even if the corporation is not. performance of the duty is guilty of an of- frand.
U.S. v. Dotterveich, 320 U.S. 277 (1934). fense which is based upon an omission. to Some critics of the imposition of mind'
Congress may exculpate individuals and hold perform the duty or to approgrriate or dis- liability on corporations argue that hold
only the corporation liable, but such an in- burse funds necessary to perform the re- a corporation liable for crimes is ineffect
tent is not to be Imputed to Congress with- quired act to the same extent as if the duty
as a deterrent because a corporation ea
out clear compulsion. were imposed directly on himself,
go to jail and any fine that is imposed
U.S. v. Dotterweich, supra. The Working Not only is the amendment desirable for borne in the end by innocent sharehold
Papers (p. 177) note that only in exceptional extending the reach of the section; it also
or passed along to consumers. These arE
circumstances has Congress established a law may help clarify that the purpose of the
ments overlook several crucial factors, Ph
under which only the corporation is liable.' section is to reach those with some decision- to the extent the offending corporation fa,
In U.S. v. Wise, 370 U.S. 405, the Court re- making power, not workers.
competition in itsindustry, it won't be a
jected the defendant individual's reading Subsection (3) of Brown, on accomplices to pass the burden of the fine along to cc
of the Sherman Act that the acts of an of. of organizations, is not carried forward into sumers. Secondly, holding stock is 'a hi
ficer, however illegal, are chargeable to the s. 1400. The subsection does not seem risk investment and that the corporation f
corporation but not to the individual. important, since the general complicity pro- gages in crime is one of the risks. Sha
The above general rule applies to activb vision would seem to cover those situations, holders should be protected but overlooki
conduct by the individual. The Working The final extension of individual liability crime is not protection. It is allowing bells
Papers note that it is a question in existing is the subsection 4 providing for liability for tor to one group that is denied to anoth
law whether an individual may be held "reckless default in supervising conduct of Thirdly, shareholders have no right to pro
liable for knowing but passive acquiescense, organization." It says that "a person re- by someone's crime or some corporatice
unless the law either imposes an affirmative sponsible for supervising particular activities crime. Fourthly, the more a corporatioi
duty of supervision on him or says that cer-
who, by his reckless default in supervising fines bite into dividends, the more the mark
tain officers are guilty of a crime if the cor- those activities, permits or contributes to will move away from that corporation's sto
poration is found guilty,
the occurrence of an offense by the orgs.niza- and the more pressure will be exerted on t
(B) S 1 section 1-2A8 provides for what tion is guilty of an offense of the same class," corporate managers to deter future corpora
appears to be a- codification of existing law, though his offense may be no higher than a criminal activity.
It holds a human being criminally liable for misdemeanor. This in effect puts an affirms- In fact though, fines are inadequate to d
any conduct he performs or causes to be tive duty on supervisors; it Is not a vicarious ter or sufficiently punish corporate clan'
performed for the organization to the same
liability provision. It should have a desir-
Prosecutor offices are hampered by the coy
extent as if he performed it for himself,
able deterrent/prophylactic effect by promot- plexity of many cases, the high burden
Some persons have criticized this section
proof, the expert testimony all for a ft
lag effective supervision. The provision is
as being so broad that it might reach the highly desirable, in that it encourages en'ec- thousand dollar fine. Fine levels theniselv
assembly line worker who puts a misleading-
are inadequate. Corporations can feel fr
label on a Jar. They say that he may be the
to
'actor," butns that imposing sanctions on bins E.g., Sherman v. U.S., 282 U.S. 25 (1930), In break laws when the cost of so doing
works no coercive or deterrent effect and which the Court held that the criminal pen-
slight, but the rewards?such as avoldli
.,
;eeins plainly unfair. In general, though, he alties of the Safety Appliance Act did not bankruptcy, increasing value of stock me
won't be liable, since the prosecutor must apply to officers who were state officials re- ger, etc. are great.
prove all elements of the offense?o
action, pprowe ooRe
ulpalit4,610S1ridArtIttitsetorobr2fRotiolinniukSAtthwonre, corporate liability makes evE
--wre sense if the new, effective and logic
AdflteaseaU
December -18, 1974 Approve6M113351165101/KKE/ MRIK-RaRNM-Q952.7R000700080009-7 s 2269
sanctions are provided for as in S 1?restitu-
tion, periods of suspension from interstate
commerce, notice, and probation with some
pewers over corporate behavior?are avail-
able. Richard Givens, formerly with. the U.S.
Attorney's office, Southern District of New
Vork, argues against those who say corporate
liability serves no purpose (Hearings, page
1553 ) : "My . experience Is that is does. In
numerous cases corporate liability was . bit-
terly contested because of the deterrent ef-
fect of publicity of the fact that misconduct_
has been established." He also argues (p_
1556): 1) Corporations are often taken over
organized crime, 2). a more lenient atti-
tude would directly injure the public?es-
pecially the public as taxpayers where fraud
against the government is involved not to
mention the public as consumers where con-
sumer frauds are involved, and 3) a lenient
attitude towards corporations encourages tits-
reepect for the law, by fostering the image
that the criminal law does not involve the
wealthy and powerful. .
7,..rEMERANDLIM ON REFORM OF FEDERAL GRIM-
twat. Law No. 11
LIA3ILITY OF MEMBERS OF CONGRESS AND STAPES
FOP, LEGISLATIVE ACTIVITY 'UNDER. PROPOSED
CODES
S. rt, and S. 1400
1. Congressional immunity ?" ?
Congressional immunity from prosecution
derives from Article I, section 6 of the U.S.
Constitution which .provides ". . . They
(Senators and Representatives) shall in all
cases,. except Treason, Felony and Breach of
the Peace, be privileged from arrest. during
their attendance at, the session of their re-
spective-Houses, and in going to and return-
ing front the same; and for any Speech or
Debate in either House, they shall not be
questioned in any other place?' Thus, the
Constitution provides that Senators and
Representatives are free from arrest except
for ordinary criminal activity and that. their
respective Houses are the only places where
they can be questioned, by their peers, for
their "Speech or Debate." This provision has
reeently been interpreted by the Supreme
Court in the cases of U.S. V. Brewster, 408
11.S. 501,33 L. Ed. 2d 507(1972); and Gravel
v. U.S., 408 U.S. 606, 33 L. Ed. 2d 583 (1972);
and Doe v. McMillan, 41. L.W. 4752 (5-29-73).
'the questions presented are: (a) what is the
scope of the Speech and Debate' clause, i.e.
what are protected activities, and (b) did, or
can. Congress delegate to the Executive the
power to question Members of Congress in
another place, and (c) what are the passible
effects or the proposed new federal criminal
code on Members of Congress.
'The various sections of the proposed bills
have serious implications for the press, for
citizens and for Congressmen and Senators.
While they may attempt to deter or punish
unlawful conduct, they appear to provide
authority to completely close off sources of
information about government activity to
citizens and their representatives. The pro-
S 22100 CONGRESSIONAL RECORD ? SENATE December 18, 16
Approved For Release 2006/09/25 : CIA-RDP76M00527R000700080009-7
privilege lvas not meant to apply broadly to authorized by law unless he acts in reckless communications information (e) knowi
suits brought by citizens to protect their disregard of the risk that the conduct was
civil rights from invasion by Congressmen not required or authorized by law to carry
or Congressional committees. Rather it was out his duty as a public servant or as a
designed primarily to be invoked by Congress- person acting at the direction of a public
men in order to prevent executive intim-11de,- servant.
tion and harassment." That, of course, is It may well be that the proposals if en-
precisely what the Brewster case author- acted would not be enforced against Mem-
ized?the initiation of criminal charges bars of Congress and their staffs. However,
against a disfavored legislator arising out of Senator Ervin is instructive when he writes,
the conduct of his duties. "Pears are not allayed by the knowledge
The caveat that evidence of his legislative that until ,now most Administrations have
activity not admissable is a question since exercised great restraint in hauling legisla-
the Department of Justice had claimed in tors they do not like into court. Effective sep-
the District Court that the performance of a aration of powers between branches of gov-
legislative function was the issue. The Court ernment must rest not only on good faith
said the illegal promise, not the act itself, Was and great expectations but also on the firm
important. Justice White, in dissent, noted---bedrock of the Constitution. The past is no
a difficulty here in connection with ca tfarantee of the futaire,-(supra, at p. 181)
A. SECTIONS AFFECTING INF aRMAT/ON
(1. Espionage...!
The Brown Commission- (? 1112) limited
this offense to cases where national security
information is revealed with intent to harm
the U.S. Under 5.1 (? 2-5B7) the informa-
tion has to be gathered, for or, revealed to a
"foreign nation" however friendly with
knowledge that it may be used to the in-
jury of the U.S. or to the advantage of a
foreign power. National security informa-
tion is defined (5 2-5A1(10) in S.1 and
? 1112(4) (a) in Brown) as information re-
garding military capability of the 'U.S. or a
nation at war with a nation which the U.S.
is at war; military or defense planning or
operations, military communications re-
search or development, communication's in-
formation; in time of war any other in-
formation which if revealed could be harm-
ful to national defense and which might be
useful to the enemy; defense intelligence re-
lating to intelligence operations, activities
plans, estimated, analyses, seurces and meth-
ods, and restricted AEC data. It is a Class A
offense (death or up to. 30 years) if corn-
nutted in time of war or if the information
directly concerns means of defense or re-
taliation against attack by a foreign power,
war plans or defense strategy. Otherwise, it
is a Class B felony (up to 20 years imprison-
ment).
Professor Louis B. Schwartz, former .Staff
Director of the Brown Commission, in a
memo to Senator John McClellan (D-Ark.)
of February 20, 1973, wrote:. "To scoop in all
such information within an espionage of-
fense that embraces non-hostile communica-
tion with friendly governments is to clamp
a total censorship on such communication."'
(Note that "war" is not defined either as a
state of being at war or as having been legis-
latively declared.) The S. 1400-definition of
national defense information includes the
above definition and also includes informa-
tion regarding military installations and the
conduct of foreign relations affecting the
national defense. Detailed discussions of the
espionage and related provisions appear at
Congressional Record, S. 6329 of April 2, 1973,
and S. 8508 of May 8, 1973. The Administra-
tion's definition of Espionage (? 1121) pro-
legislative function (as defined by the Su- vides that the intent necessary Is that the
Prerne Court to mean floor debates and Information be used or may be used to the
committee meetings) and their "political prejudice-orsafetYThr- interest of the
activity", such as preparing for committee
and floor debates, communicating with U.S. o( tettlie; advantage of a foreign-pTver.
'.e 1
gov-
ernment employees and Informing their con-
',,National defens information
stituents and the public of government ac- In S. 1 (V2-5B8) it is an offense, if/in a
tivities. Several proposals are redrafts of manner harmful to-the- safety...of -the UB.,
existing statutory and case law; others are a person (a) knowingly reveals national de-
new. These sections in all probability were fense information to a person not authorized
drafted with activities other than those of to receive it, (b) is a public servant and with
Congressmen in mind. However, there is no criminal negligence violates a known duty
exemption of Members from their enforce- as to custody, care or disposition, (c) know-
inent. The defense of "Execution of Public ingly having unauthorized possession of a
Duty" () 1-3C3 in S. 1; ? 521 in S. 1400) pro- document or thing containing national de-
vides in S. 1 that it is a defense if conduct Louse information, fails to deliver it on de-
engaged in by a public servant in the course /nand to a federal public servant entitled
of his official duties and that he believes to receive it, (d) communicates, uses or
in good faith that the conductds required or makes available to an unauthorized _pereon
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pitign contributions. "A Member of Congr
becomes vulnerable to abuse each time
makes a promise to a constituent on a matter
over which he has some degree of legislatiVe
power and the possibility of harassment can
inhibit his exercise of power as well as his
relation with constituents. In addition, such
a prosecution presents the difficulty of defin-
ing when money obtained by a legislator is
destined for or has been put to personal use.
For the legislator who uses both personal
funds and campaign contributions in office
the choice of which to draw upon may have
more to do with bookkeeping than bribery;
yet an interchange of funds would certainly
render his conduct suspect."
4. ". . in any other place."
The problem is not one of allowing a
guilty congressman to go free. The Constitu-
tion gives to each House the responsibility
of establishing rules and disciplining mem-
bers. Chief Justice Burger in the Brewster
case allowed the Congressman to be prose-
cuted in the Judiciary. He said (at 525,
supra), "Depriving the Executive of the
power to investigate and prosecute and the
Judiciary of the power to punish bribery of
Members of Congress is unlikely to enhance
legislative independence. Given the disin-
clination and limitations of each House to
police these matters it is understandable
that both Houses deliberately delegated this
function to the courts, as they did with the
power to punish persons committing, con-
tempts of Congress." Whether an individual
member can be bound by what may be an
unconstitutional _delegation? of power was
not discussed (but see Reinstein and Silver-
gate, supra). This delegation of power, it
was argued, arose from the fact that e.?
Member of Congress was specifically a sub-
ject of prosecution in the statute. This is the
case in the proposed codes (S. 1 and S. 1400)
where public servant is defined to include
legislators. Also, "official conduct" in both
bills includes "vote" which is not the case
under the existing bribery law.
5. Sections of proposed cod-es of-possible -use
against Members of Congress..
There are many sections of the proposed
codes (5.1 and 8.1400) which may affect
Congressmen in the performance of their
uses communications information, or
communicates national defense informs
to an agent of a foreign power or a mer
of a ? Communist organization. In tim
war it is a Class C felony (up to 10 yes
otherwise it is a Class D felony (up ?
years). The persons authorized to re(
national defense information are not deli
In S. 1400 (? 1122), a person is guilt
an offense if he knowingly communic
information relating to the national def
to a person not authorized to recelvi
Note here the word "communicates" vs
S. l's "reveals". The Brown Commission
draft felt that "communicates" would a
to information already in the public dot
Whereas "reveals" means information not
in the public domain. ? 1123 would mal
an offense, if being in possession or cot
of such information, a person reckh
permits its loss, theft, destruction or c
munication to a person not authorize(
receive it or being in authorized possesf
intentionally falls to deliver it on deman
falls to report to the agency its loss, or c
munication or recklessly violates a duty
posed upon him by a statute, or execu
order or regulation or rule of the agency
thorizing him to possess or control such
formation. This is a Class E felony if it
valves the reckless violation of a duty (u
3 years); otherwise it is a Class D felony
to 7 years). Under ? 1122, the defendant f
not be shown to have intended to harm
safety or interests of the U.S. or benef
foreign nation. It Is no defense that the
formation was not harmful to the U.S.
Supreme Court has not decided if "c
municate" is equivalent to "publish",
York Times V. U.S. 403 713 (19
? 1126 of the propoaecl- bill provides 1
communicate- meane to make -available
any means to a person or the general-pul
3. Disclosing or receiving classified
information
In S. 1400,.3 1121, it is an off or
having been in atithorized poasession w
a public servant (includes a Member
Congress) to knowingly communicate ole
fled information to a person not author.
to receive it. Persons receiving the infor;
tion are not subject to prosecution ur
this section. It is a defense if the infor
tion was communicated only to a regul
constituted committee of the Senate or
House or to a joint committee pursuant-
lawful demand, presumably a litigat:
question. Under this section. all class!
information is covered. The prosecul
need only prove that the document
classified without revealing the cont(
thereof. It is specifically not a defense t
the information was improperly classil
Classified information is defined in ? 1126
as any information, regardless of or.
which is marked or designated pursuant
-the provisions of a statute or execu
order, or a regulation or rule thereundei
information requiring a specific degree
protection against unauthorized discioe
S.' 1 contains a similar provision, ? 2-(
In which it is an offense if in violatior
his duty as a public servant under a stet
or rule, regulation, or order issued um
such statute, he knowingly discloses any
formation which he has acquired as a pu
servant and which had been provided to
government in compliance with the requ
ments of an application for a patent, co
right, license, employment, benefit, or
connection wtth the regulation, study or
vestigation of an industry or a duty
posed by law. Existing law applies only
members of the executive branch, dere
merit or agency (18 USC 1905) and perto
to any information coming to him in
course of employment or official du'
". . . which information concerns or rein
to trade secrets, processes, operations, si
of work or apparatus or to the identity, c(
80009-7
December 18, 1974 ApprovWPicnrdialiataggITIATAPIAR/n1
...,,0527R000700080009-7 S-2210I
fetential satistical data, amount or source of
any income, profits. losses or expenditures
of any person, firm, partnership, corporation
or association or income return or any book
containing abstract. thereof."
4. Theft
S. 1400, ? 11/, defines property as "intel-
lectual property or information, by. whatever
means preserved, although only the means by
which it is preserved can have a physical -
location." S. 1 does not define property to in-
clude information. However, both S. 1 and
S. 1400 make it an offense if the object of
the theft is a government file, record, docu-
ment or other government paper stolen from
any government office or from any public
servant. Intent to steal can be established
by proof - of converting the property to
another's use (I 2-803(d) (2) (111) in S. 1;
and / 1731(c) (b) (iii) in S. 1400). / 1732 and
2-8D4 cover the offense of receiving stolen
property,
5. Criminal coercion (See also Memo No. 8)
In S. 1400, / 1723 provides that it is an of-
fense for one to obtain property of 'another
by threatening or placing a. person in fear
that a person will (a) commit acrime, (b)
accuse any person of a crime, (c) procure
the dismissal of any person from employ-
ment or refuse to employ or renew an em-
ployment contract, (d) wrongfully subject
any person to economic loss or injury to his
business or profession, (e) expose a secret or
publicize an- asserted fact, whether true, or
false, tending to subject any person living or
dead to hatred, contempt or ridicule or un-
justifiably to impair his personal, profes-
sioual or business reputation or his or credit
or unjustifiably take or withhold official ac-
tion as a public servant. Under S. l's pro-
vision the threats are of bodily Injury, dam-
age to property or physical confinement.
(/ 2-9C4).
The Brown Commission had a similar pro-
vision (/ 1617) but provided defenses of the.
actor's belief, whether mistaken or not, that
tho primary purpose of the threat was to
cause the person to conduct himself in his
own best interests or to desist from mis-
behavior, to engage in behavior-from which
he could not lawfully abstain, make good a
wrong done by him or refrain from taking
any actions or responsibility for which he
was disqualified. The threats subject of the
offense were to commit a crime, accuse any-
one of a. crime, expose-a secret or publicize a
fact (as above) or to take or withhold official
action as a public servant or. cause a public
servant to take or withhold official action.
The intent in the Brown Draft was to com-
pel another to engage in or refrain from con-
. duct as opposed to knowingly obtain prop-
erty in S. 1400. The constitutionality of the
Brown formulation, providing as it did for
the defendant to prove the above defenses
by a preponderance of the evidence, was
doubtful. (See Hearings, Reform of Federal
Criminal Laws, before the Subcommittee on
Criminal Law and Procedure of the Commit-
tee on the Judiicary, U.S. Senate, Part III,
subpart D, p. 3362.) Richard E. Israel, Legis-
lative Attorney, American Law Division of
the Congressional Reference Service, Library
of Congress wrote of the Brown formulation,
"The issue as to the constitutionality on
First Amendment grounds thus centers on
the adequacy of the affirmative defense pro-
vision which would have to be read as an
integral part of the statute as it is to be ap-
plied rather than a justification to be raised
alter the fact in a court proceeding." The
Administration proposal not only expands
the kinds of threats but removes the de-
fenses that Israel considered vital for the
section's constitutionality.
U. OFFENSES RELATING TO PUBLIC SERVANT
ACTIVITIES
is an o Tense for a person to offer or give a
public servant, or as a public servant to
solicit or accept anything of value in return
for an agreement or understanding that the
reciplert's official action as a public servant
will be influenced or that the recipient will
violate a legal duty as seputlic servant. This
is punishable by up to 5 years in S. 1 and
up to 15 in S. 1400. S. 1 establishes a prima
facie csse exists upon woof that the defend-
ant knew that a pecuniary benefit was
conferred by or accepted from a person hav-
ing an interest in an irnmiaent or pending
examination, investigation, arrest or official
proceeding or bid, contract, claim and that
-the interest could be affected by the person's
performance or non-performance of his
official conduct. A Member of Congress is
such a public servant and-:he definition of
official sonduct includes voti ag.
. 2. Graft
S. 1 i 2-6E2); S. 1400 ($ 1.352). S. 1 makes
an offense of knowingly conferring a pecu-
niary benefit (a) upon a public servant for
employment as a public servant, (b) upon
another for exerting special influence
(throu ;II kinship or by reason of post in a
politica party) upon a public servant with-
respect to official conduct or (c) upon a
public servant as compensation for advice-
or other assistance in preparing or promoting
a bill, sontract, claim or other matter which
is or is likely to be before the public servant.
A public servant as compensation for advice
or other assistance en preparing or promot-
ing a bill, contract, claim or other matter
which is or is likely to be before the public
servane A public servant is guilty for
e.cceptmg a pecuniary benefit for the above'
activit es. This is punishable by up to 3 years.
S. 140) defines the offense as offering or
accept ng any-rung of pecuniary value for or
because of an official action or a legal duty
performed or to be performed or a legal duty
violated or to be violated by the public ser-
vant er former public fervent.. This is
punist able by up to 3 years, also.
3. Prading in Government assistance
S. 1900 (1353) makes it a misdemeanor for-
a persen to offer a public servant, or for a
public servant to solicit or accept compensa-
tion fcr advice or other assistance in promot-
ing or preparing a bill, "contract, claim, or
other matter which is or may become subject
to the public servant's official action.
.
4. Trading in- special influence
.. S. 1400 (I 1354) makes it an offense for a
person to offer or solicit or accept anything
of value for exerting or caueing another per-
son to exert special influence upon a public
servant with respect to his official action or
legal c.uty as a public servant. Special influ-
ence refers to influence by common ancestry
or marriage or position as a public servant
or as a political party official. This is punish-
.
able b-s up to 3 years.
5. Trading in public office
S. 1100 (? 1355) parallels the employment
aspect of S. l's graft section. and provides for
Imprieonmeflt up to one year. - -
6. Speculating on official action or
in/in-mations
S. 1400 (I 1356) makes it an offense pun-
ishable by up to one year imprisonment if as
a pulite servant or within one year there-
after, or in contemplation of his official ac-
tion cr action by the agency with which he
has been serving, or in reliance on informa-
tion to which he has or had access to only
in his capacity as a_public servant he know-
ingly acquires a pecuniary interest in any
prope:?ty transaction or enterprise which may
be ail ected by such official action or infor-
mation or provides information with intent
7. Threatening a. public -servant
S. 1400 (1 1367) makes it an offense to
knowingly use force, threat, intimidation or
deception to influence a public servant in
the exercise of his official action. S.. 1 2-
6E3) changes the threat to that of commit-
ting a creme against a person or property. -
-8. Retaliation
Both S. 1 (I 2-6E4)- and S. 1400 (/ 1358)
make it an offense to injure a public servant
or property because of official action.
9. Nondisclosure 0/ retainer
S. 1 (I 2-6E2) makes it an offense for a
person, if, employed or retained for compen-
sation or not to influence another person's
conduct as a public servant, he privately
addresses without disclosing such employ-
ment or retainer, to such public servant any
representation, entreaty or argument or other
communication with intent to influence such
person's conduct as a public servane.This
Is punishable by up to 1 year. -
10.1Viretap authority ?
Under S. 1 and S. 1400, federal investiga-
tors could obtain authority to wiretap Con-
gressional office phones or private lines for
some of the above offenses. S. 1 (I 3-10C2)
provides for wiretap authorization for the
following offenses, inter alia:
Espionage.
Bribery. _
Graft.
Theft.
ReCeiving Stolen Property.
S. 1400 (? 3127) provides for authorization
for the following offenses:
Disclosing National Defense Information.
Mishandling National Defense Informa-
tion. " -
Disclosing Classified Information.
Unlawfully Obtaining Classified Informa-
tion.
Bribery------------
Criminal Coercion.
Theft.
Receiving Stolen Property.
Any personal offense against a Member of
Congress. '
The above sectionsare noted merely to in-
form what activities of Congressmen and-
Senators are being proposed to be included
In the Federal Criminal Code. Options avail-
. able to--Congress concerning legislative im-
munity include:
(1) Prohibit grand jury investigations and
criminal proceedings ".... in -any other
place" of legislative activity defined. to in-
, chide any activity relating' to the due func-
tioning of the legislative process and the
carrying out of a member's obligation to
his House and his constituents including
speeches, debates, votes, conduct in commit-
tee, receipt of information for use in legisla-
tive proceedings and speeches made outside
Congress to inform the public on matter of
national or local importance and the deci-
sion-making process behind each of the above
activities. Such a provision, as suggested by
Reinstein and Sileerg,ate (supra) would pro-
vide for a motion to quash a subpoena on
these grounds, invoking an automatic stay
and requiring the prosecutor to show why
the motion should not be quashed.
(2) Establish as a defense to a prosecution
the above conduct.
(3) Provide that such offenses (specifically
enumerated) are only subject to prosecu-
tion in the member's House,
(l) Limit the Specific offenses to exclude
stash legislative activity.
A discussion of the problems of immunity
of Members of Cone-seas is round at Hearings
1. Bribery to all another person to acquire such an Constitutional Immunity of Members o/
S. 1 (1 2-i1) and S. 1400A pprovoctiPo rt4gteleatel 20 I .109/26 WiaRDP7-6N100827R0007,00080009 7
eengressional
nrown Commission Final Draft (11361). It Fil011 !xi titled Conflict of I aterest. Operations, March 21, 27, 28, 1973.
S 22102
CONGRESSIONAL RECORD ?SENATE December 18, 1974
Approved For Release 200%/Optgp:11RWRIMM00527R000700080009-7-
Provision
S. 1 S. 1400
Brown final
draft
General purposes
1-1112 102
102
Construction
1-1A3 103
Civil remedies and powers unimpaired
104
601
General definitions
1-1114 111
109 '
Classification of offenses
1-1A5 105 -
Federal jurisdiction
201
General Jurisdiction
1,-1116 202
201
Special jurisdiction
1-4116 203
210,11,12
Extraterritorial jurisdiction
1-1A7 204
208
Assimilated offenses
1-1A8 1881 ?
209
federal jurisdiction not preemptive
205
Anneal reports on exercise of jurisdiction
21.1
Culpability
1-2AI 301
301
Kinds of culpability, defined
302
302
Application of culpability
303
Causal relationship of conduct and result
1-2112
305
Criminal solicitation
1-2113 1003,1731
1003
Criminal conspiracy
1-2A5 1002
1004 -
Criminal attempt
1-2114 1001
1001
Complicity
I-2116 401
- 401
Liability of organization for conduct of agent
1-2A7 402
402
Liability of agent for conduct of organization
1-2118 403
403
liars to criminal liability
1-3A1 . -
Bars to prosecution
3821
703, 4, 5, 6, 7,
89
Time limitations
1-301
701,
Entrapment
1-3132 531
702
immaturity
1-303
501
Defeoses
Ch. 3, sub. C Pt. I, ch. 5.
-Intoxi fication
1-301 503 ?? .
502 ?
Insanity
1-302 ? 502
503
Ignorance or mistake of law
I-3C6 501
609 -
Ignorance or mistake of fact
1-305 501
608
Public duty
I-303 521
602
Duress -
1-307 511
610
Protection of persons
I-3C4 522 ?
601, 603' 604,
605,607
Protection of property
I-3C4 523
601,606
Consent
I-308
Official misstatement of law
I-3C6 532
Definitions, effect of mistake as to force
1-304 524
Offenses
Pt. II, special- Pt. II
pt.
Offenses of general applicability:
. Criminal attempt ?
I-21141001
- 1001
Criminal facilitation
Criminal conspiracy
I-2A5 ' 401 -
1002 -
1001
? .1004
Criminal solicitation
. I-2A3 ? -1003
. 1003 ?
General provisions for chapter
Offensesinvolving the Nation (national security):
1004 -
1005
Definition
2-5A1
Jurisdiction
2-5A2
Treason2-501
1101
1101 '
Armed rebellion or insurrection
2-583. 1102 ?
- 1103
Military activity against the United States
2-502 -
1102
[belting overthrow or destruction of the Govern-
meet.
1103
Paramilitary political activities
2-901 1104'
1104
Sabotage
.
2-564 . 1111
1105
Impairing military effectiveness i.
1112
' 1106, 7 '
Avoiding-military service obligation
Violating emergency regulations concerning
vessels.
2-505 1115
1113
- 1108
state-
Impairing military effectiveness by false state-
ment
Obstructing military service
2-5136 1114
1111
1109
Obstruction military recruitment or induction
1116
Inciting or aiding mutiny, insubordination or
desertion.
2-51310 - 1117 ..
1110
Aiding escape of a prisoner of war or an enemy
alien.
2-5811 1118
1120
Espionage ?
2-587 1121
1112
Misuse (disclosure) of national defense informa-
tine.
2-5138 1122
Violation of wartime censorship
Mishandling of national defense information
2-589 ?
1123
11 17
1113.4
Disclosing classified information
Unlawfully obtaining classified information
1124
-
' 1125 -
11411165
'
Definitions for S. 1121 to 1125
. 1126
Offenses relating to vital materials
2-5812
.1121
Failing to register ass person trained in a foreign
espionage system. -
1127
1122
Failing to register as, or acting as, a foreign agent
1128
Offenses relating to atomic energy
1131
Harboring national security offenders, deserters
1118, 9
Foreign relations
Ch. 12
Chs' ?eflch.
Ch. 12
Military attack against a foreign power..
C.
2-501 1201
1201
Conspiracy against a foreign power
- 1202
torei en armed forces
2-BC2 1203
11220023
Departure of vessel or aircrail
2-504 1204
12115
International transactions
Foreign agent
2-503
2-505 1211
11220?64 '
4 Disclosing foreign diplomatic codes or corres-
liondence.
1205
Unlawful entry into the United States
2-501 1211
1221
Smuggling an alien into the United States
1222
1222
Hindering discovery of illegal entrant
2-502 1223
1223
Fraudulently acquiring naturalization or evidence
of citizenship.
2-503 1224,1225
1224, 5
General provisions for chapter
1226 '
1229
Offenses involving the Government process
Ch. 6 Ch. 13
Ch. 13
Definitions
2-6111
Obstructing a Government function by fraud
1301
Physical obstruction of Go zernment function
7-681 1302
1301
Hindering law enforcement
2-603 . 1311
1303
Approved
Provision
Brown final -
- Ss 1 S. 1400 draft
Preventing arrest, search, or discharge of other 2-6132
duties.
Bail jumping 2-664 1313
Escape 2-665 1314
Providing or possessing contraband in an official 2-686 1315
detention facility.
Flight to avoid prosecution or givingtestimony__ 2-687 1316
Witness bribery 1321
Corrupting a witness or informant 2-601 1322
Tampering wills a witness or informant 2-602 1323
Retaliating against a witness or informant 1324
Tampering with physical evidence 1325
-Aiding consummation of crime
Communicating with a juror 2-603 1326
Monitoring jury deliberations 2-6C5 1327
Demonstrating to influence a judicial procedure... 2-604 1328
Criminal contempt 2-606 1331
Perjury 2-601 1341
Failing to appear, to produce information, or be 1332
sworn.
False statement 2-602 1343 (3632)
Refusing to testify 1333
Tampering with a public record - 2-603 1345
Certification for prosecution, S. 1332-1333 in
which a congressional proceeding is involved 1334 1349
Obstructing a proceeding by disorderly coded_ 1335 1344,1346-
Disobeying a judicial order_ ? 1336 -1345,1346 .?
False swearing 1342
Making a false report 1344(3632) 1354 ' .
General provisions for chap . 1346 1355.;
Bribery 2-6E1 1351 1361 -
Graft. 2-6E2 1352 1362 ..-
Trading in Government assistance 1353 1363 - --
Trading in special influence 1354 1365 '-
Trading in public office_ 1355 1364
Speculating on official action or information 1356 1372 .
Tatnpering (threatening) a public servant 2-6E3 1357 1366
Retaliating against a public servant 2-6E4 ? 1358 1367
Misuse of personnel authority 2-6E5 .1533 -
Definitions for S. 1351-58 1359 1368,69 s ."
Impersonating an official 2-614 1361 1381 -.. - :-
,
Disclosure of confidential information 2-6F1 1371 ?-
Nondisclosure of retainer 2-6F2 1327 .
Conflict of interest 2-613 9301, p. 177
Internal revenue and custom offenses Subch. G Ch. 14 Ch. 14 _
Tax evasion 2-601 1401 1401 -.
Disregarding a tax obligation of falsely claiming 2-602 1402 1402' f
an exemption. _
Trafficking in taxable object 2-603 1411 1403, 4 ?-;
Definitions for 1401-1402 1403 1009 ,.' ."'
Smuggling 2-604 1421; 1422 1411 "'. "
General provisions 1423 1405; -
Protection of the political process Ch. 6 sub. H Ch. 15
(seep. _
273)
Election fraud 2-661 1531 .
Wrongful political contribution 2-662 1534
Foreign political influence 2-663 1541 -
Troops at polls 1535. ,,,-
Interfering with Election, Federal activity 1511
Obstructing an election 1521
Oshtructing registration 1522
Interfering with a Federal benefit for a political 2-7F2 1523
purpose.
Soliciting a political contribution from a Federal 1525
employee or in 3 federal building.
Political contribution by an agent of a foreign 1526
principle.
Definitions for Secs. 1521-1526 - 1527
Interfering with civil rights 2-711 1501
Interfering with civil rights under color of law._ 2-715 15112
Discriminating 13 public assistance, State activi- 2-7F2, 1512
ties employment, public accomodations, hous-
ing, or travel.
Interfering with speech or asiembly related to
to civil rights activities 2-714
Interference with activities of employees and 2416
employers.
Unlawful acts under color of Federal law
Intercepting mail
Intercepting a wire or oral communication
1302
1305
1306, 1307_
1309
1310
1321
1322
1323
1304
1324
1326
1325
1341 ';
1351
1342,1346
1352,1353. -
1343,1346.
1356
Trafficking in an intercepting device
Definitions
Offenses dgainst the person
Definitions
Murder
Reckless homicide
Manslaughter
Negligent homicide
Aiding suicide
Maiming
Aggravated assault
Assault
Aggravated battery 1612
Battery - 1613
Menacing 2 704 1614
Terrorizing 2-705 1616
Reckless endangerment 1615
Criminal harassment 1617
1511,1532'
1501
" 1502
3 1512 '
?
,
1513 1513;"14,15,
(1516),
' 1551, ss,
. _ s
1521 ?
2-703 1531 1564.,
2-701 1532 (ch. 1561 .
206, p.
231)
2-702 1533 1562'
15.34 1563
Ch. 7 Ch. 16
2-7A1 1624
2-7131 1601
2-7132 1601(3X2)
2-7133 1602
2-7134 1603
2-7135
2-701 1611
2-702 1612--
2-703 1611
2-7C2
1601
1602
, 1603
Threatening a successor to, or the President 1618
Kidnaping2-7132 1621
Aggravated kidnaping 2-70 l
Aggravated restraint 2-701 1622
For Release 2006/09/25 : CIA-RDP76M00527R000700080009-7
1616
1614
1613
1618
1615
1631 (1630-
1632
, -
%wed For RelwaggiMi itteM6MIRM00700050009-7
December 18 S 22103
Provision
S. 1
Brown final
S. 1400 draft
Unlawful imprisonment .2-703
Skyjacking 2-704
Mutiny and commandeering 2-705 1626
Restraint - - _1623
Page. 2-7E1 - 1631
Statutory rape 2-7E2 -- - 1631
(eX3)
Sexaul assault (imposition) 2-7E3 - 1632 -
sexaul abuse of 3 minor _ 1633 ?
Sexual abuse Of 3 ward ;1634
irelawful sexual contact _ 1635
Definitions _ 1636
Consent defense
General provisions for chapter__
(Menses against property Ch. 8 Ch. 17
Detentions 2-8A1 1764
Arson 2-8132 ? 1701
Viluation 2-842
Aggravated arson 2-8131
Aegravated property destruction 1702
release of destructive forces 24133
Failure to control or report dangerous fire 2-884
Property destruction ._ 1703
Ageravated malicious mischief 2-8135
Malicious mischief consent defense 2-886
Possession of burglar's tools 2-803
burglary 2-8C2 1711
. Armed burglary 2401 _
Criminal trespass 2-8C5 . 1712 -
Aegravated criminal trespass 2-0C4
Stowing away 1713
Definitions 1714 -
Armed robbery .. 2-801
Robbery 2-802
Provision
S. 1 & 1400
Brown final
draft
1633 Criminal forfeiture 1-4A4 . 3621-3634 3204
1635 Joint sentence 1-445 3204
Persistent misdemeante .1-4A5 3003
Presentence report and committment 2003
1641 Classification of offenses outside title 2002 3006
Notice sanction 1-4A1(cX7) 2004 3007
Duration of imprisonment . 1-463 3201
1642,47 Sentence of probation 1-401 2101 . 3101
1645 Terms and Incidents of probation - ?- 2102 3102
1646 Conditions 1-402 2103 3103
1643,44 Duration 1-403 2104 - 3104
-- 1639, 1649 Response to noncompliance with condition of 1-404
1619 release.
1648 Unconditional discharge split sentence 3105, 3106
Ch. 17 Sentence of death 1-4E1 P. 153 - 3601, 02, 03, 04
1709 Separate proceeding to determine sentence of 1-4E2
1701 death.
Fines__ 1-401 . 2201 3301
1702 Imposition of fines 2202 3302'
Response to nonpayment of fine 1-402 2204 3304
1704 Modification or remission of fine _ 2203 3303
1703 Law enforcement Ch. 10
General provisions Sub. A
1706 Obligations of the Attorney General 3-10A1
1708 Rewards and appropriations for rewards 3-10A2
Conviction records 3-1443
1711 Collection of fines 3-10A4
Interned belligerent nationals - 3-10A5
1712 Protected facilities 3-1046
Government agencies Sub 78
1714 Federal Bureau of Investigation 3-10E31
U.S. marshals 3-1082
1719 Secret Service 3-10133 ...... - . ..-e...-.....;
1721 1721, 3 Postal Service 3-10134
Federal Probation Service -
3-1065
Bureau of Corrections 3-1086
Use of likeness of the great teal of the United Sec. 4.3, p. 281 P. 163, sec, -.
States.
Use of likeness of seals of President and Vice- P. 164, sec, ,
1722 president. . 171
1732 Official badges, ID cards, other insignia Sec. 151, P. 164, sec,
1734
p.278 172
1723 1617 Misuse of names by collecting agencies or Sec. 152. p. - --.
1735 1738 private detective agencies to indicate Federal 278, 281
agency.
- - 1736 Officer failing to make returns er reports P. 165,
1771 .
? sec. 2955
Acceptance or solicitation to. obtain appointive P. 165,
1751 public office. - ? -sec. 3111
1753 False or withheld report concerning Federal P.166,
1752 employees compensation. . sec. 8151
1754 Solicitation of employment and receipt of un- P. 166,
approved fees concerning Federal employees sec. 8152
compensation. ? ., . r
Conflicts of interest - P 284
Theft 2-803
Extortion_ 2-903
Receiving- stolen property 2-804
Scheme to defraud 2-805
Criminal coercion 2-904
-Misapplication ? of entrusted property-Inter- 2-806
ference with a security interest.
Joyriding 2-808
tnansnarking 2-902 1724
Proof required under 1731, 1732 1733
Counterfeiting, forgery 2-8E1,2412 1741
Unauthorized use of a writing.. 1742
Counterfeiting.paraphernalia 2-8E3 1741, 3622
Definitions
2-8E4 .. 1744
Trafficking in specious securities
Making or possessing slugs 2-8E5
Commercial bribery 28F2 1751
-
Labor bribery 1752
Sports bribery 2-8F4 1753
issuance of written statement without authority_._ 2-806
Securities violations - 2-8F5 1761
-
Bankruptcy fraud
2-8F1 .
Unfair commercial practices 2-814 - 1764
-
Environmental spoilation 2-8F3
Regulatory offenses 2-816
Failure to report currency or foreign transactions
Commodity exchange violations
Adulterated food product violations
Food stamp coupon offenses
banking violation
Offenses against the public order
Definitions
Inciting riot 1308, 1801
Arming rioters 1802
Eneaging in a riot 1803
Failing to obey a not control order 1 1804
Mutiny 36
1805
Racketeering activity 2-901
Explosive violations 2-903
Firearms violations 2-903
Procuring or supplying dangerous weapon for 2-902
criminal activity.
Using or possessing a weapon in the course of a 2e906 1813
crime.
Trafficking in and receieing limited use firearms_ 2-904 1813 -
Possessing a weapon aboard an aircraft . 1814
Possession of explosives and destructive devices 2-905 - 1814
in structures.
Oleg trafficking Of possession 2-9E1 . 82
Possessing drugs - .. 118232
Trafficking in heroin or morphine ..--1321 _
Violating a drag violation .... 1824
Definitions - . 1825 1821, 1829
Defense& jurisdiction, judgment 1825, 26,27
Engaging in a gambling business 2-9E1 1831 1831
Protecting State anti-gambling policies 2-912 1832
Feciiitating or profiting from gambling 1832
of medals or decorations.
prestdution 2-9F3
Protecting State antiprostituion policiee 2-9F4
Diseenenating obscene material 2-915 1851
(Jading a continuing criminal syndicate ..
Facilitating an organized crime activity by violence .. 118632
Disniderly conduct _ 1871
Indecent exposure
e_
_ 1351
Violating State or local law in an enclave 1381
reisiete of American flag 2-9G1
Sentencing Ch. 4 P. 16284 Pt. III
Imprisonmen 1-4131 t _
...
Upper range imprisonment, seecial offenders._ _1-462
Gen pproved _ForRelease_201)
eral sentencing provision-A
Authmized sentences 1-4A1 2001
1731
(3632)
1731, 32, 33,
34, 35,118,
40, 41
1755
1758
1757
1772
1756
Ch. 9
2-941
2-9B1
2-982
2-9133
2-984
1765,6 1006
--; 1762
1763
... 1766
1771
1771 1773
Ch. 18
1805
1805
1802
1803
1804
Compensation to Members of Congress, officers P. 235
and others in matters alfecting the Government.
Practice in Court of Claims by Members of Con- P. 287
gri11554
_ --
Activities of officers and employees in claims
against and other matters affecting the Govern-
ment.
.
ion of retired officers of the uniformed P. 288
services. - P. 171 ? 9105
Disqualification of former officers and. employees P. 228 ?'_ : - P.-171 99106
in matters connected with former duties or
official responsibilities: of partners. .
Acts affecting a personal financial interest P. 290, 291 P. 173 ? 9107
Salary of officials payable by United States only.... Ft 290 . P. 174 ? 9108
Officers and employees 2Cti ng as agents of foreign ..- P. 175 8 9110
principles.
Contracts by M.0 P. 175 I 9111
Exemptions with respect to certain contracts P. 175 59112
1861 Convict labor contracts_ P.176 ? 9113
1811 1811 Indian contracts for goods and supplies P. 176 9 9114
Lobbying with appropriated moneys P.176 99615
1812 1812 Disclosure of information
Disclosure of information, generally 9P3.01.177 ch. 93
Disclosure of crop information and speculation 9302
thereon.
Subpart H-standards of conduct P. 178
Amendments relating to agriculture 7 U.S.C. P.294
(207-210). P. 178
Ame.ndments relating to aliens and nationality P.304 P. 179
?
8 U.S.C. 211 10 214.
1022,23 Amendments: ?
1824 Relating to the Armed Forces 10 U.S.C. 215 P. 309 P. 181
. ch. 3.
Use of Army and Air Force as possecomitatus 127
Discrimination against persons wearing uniform P.310 774
of Armed Forces.
Unauthorized use of uniform of Armed Forces.... P. 310
Unauthorized wearing, manufacture, or sale
1727257
1841, 42,4:1, 48 Cremation urns for military use
P. 1st, Sere
1849
774
1851 Amendments relating to bankruptcy, title it, P:312 P. 132
United States Code.
Amendments relating to hanks and banking, P.313 P. 183
title 12, United States Code.
Amendments relating to commerce and trade, P. 325 P. 190
title 15, United States Code.
Amendments relating to conservation, title 16, P. 340
Secret Service powers Pp.. 222209. sec.
United States C,ode.
A4RDFA7n6M0052i7a10/17000.8100,09-7t.3015.
.V eh
munications. -206, (p.
23t).
Definitions 3-1001 3125
P. 168,
sec. 1901
P.169,
sec. 9102
, P.170,
sec. 9103,
P.170,. sec. 9104
1361
1352
Pt. C ch. 30
I25:
3PA)1
Pesentence 1-4A2 ? --- 3005
Disqualification 1-4A3 3502, 03, 01, 05
? S 22104
December 18, L? 74.
_NAL RECORD ? SENATE
Approved For k2t*NnW6909/25 : CIA-RDP76M00527R000700080009-7
CONTENTS COMPARISON S. 1 AND S. 1400?Continued
Provision
S. 1
S. 1400 -
Brown Final
draft
Exception to applicability 3126
Authorizatimi for interception of private corn- 3-10C2 3127
inseication.
Authorization for disclosure and use of inter- 3-10C3, 5 3120
copied wire or oral communication. (see 3-
11E1)
Procedure for interception of private communica- 3-10C4
lion.
Recovery of civil damages authorized .
Appeal 3-11E1
Forfeiture of security for failure to appear 3150(1313)
Definitions for 3146-3150 . 3152
Applicability of chapter 3153
tin rnunity of witnesses Sub. 0, 3-
1.001
Immunity generally 3-10112
Court or grand jury proceeding 3-1003
Administrative proceeding 3-10E14
Congressional proceeding 3-1005
Rendition 3-10E1, 2 3201, 3202,
Interstate agreement on detainers 3-10E3 Ch. 210, sec.
3200, p. 245.
Fugitive from State-to State 3-10E4
Enforcement and cooperation 3203
Regulations, fames, and instructions 3204
Reservations of right to alter, amend, or repeal. 3205
Indian cominitting certain offenses, acts on P. 388 3242
-
reservations.
Prohibition of use as evidence of intercepted.wire, 3505 .
oral cam m iinications: .
Presidential remissioe as affecting unrernitted 3-1103 3570
part.
Extradition. Sub. F
General provision 3-10FL
Extradition of fugitive.. - 3-10E2
Procedure for extradition 3-10E3
Sentencing Ch. 4 Pt. 111
- Revision of 18 U.S.C. ch. zza, secs. 3611, 3612, P. 257
2613, 3614, 3615, 3620.
Voiding transactions resulting from bribery. graft, - 3621, p. 2,58
or conllict of interest; recovery by United States.
Forfeiture of counterfeit 3022
Forfeiture of relanded and-smuggled goods 3621'
Forfeiture of merchandise fraudulently concealed, 3624
removed etc. in bonded warehouses.
Forfeiture far making false claims for refund of 3625
duties.
Forfeiture of explosive material 3626
Forfeiture of firearms 3627
Forfeiture of vessel or aircraft ... .. 3628
Disposal of obscene material transported for sale 3629
or distribution.
Forfeiture of property used in a gambling business - 3630
Foil eiture of racketeering income- 3631
Forfeiture of office for tampering with a govern- 3632
inent record (1343, 1344) and 1731.
Forfeiture of a misused vessel 3633
Confiscation of a wire or. oral communication. 3634
interception devices, ? . .
Civil remedies Ch. 13 sub A
Injunctions 3-130I
Definitions
Civil remedies against racketeering activities
Damages 3-13112
Venue and p r o c es s
3130
3131
Civil forfeiture 34303.
Procedure 3-I3A4
Expedition of actions. 3645
3646
Provision S. 1
Brown final
S. 1400 draft
Expunging records 5101 (b).
Arnendmeut of rule 18 FR. Grim. P. re: place of P. 287
prosecution for conspiracy. ?
Amendments relating to custom duty, title 19, P.365 P. 287
United States Code.
Amendments relating to Education, title ? 20, . P. 368 P. 287
United States Code.
Amendments relating to Food and Drug, title 21, P.369 P.288
United States Code.
Amendments relating to foreign relations and P.373 P.2801
intercourse, title zz, United States Code.
Amendments relating to Indians, title 25, United P.3811 P. 295
Stales Code. .
Amendments relating to lateral Revenue Code, P. 395 P. 297
title 26, United States Code.
Amendments relating to intoxicating liquors. P.439 P. 298
title 27, United States Code.
Amendments relating to the judiciary and judicial P. 442 P.299
procedure, title 23, United States Code.
Amendments relating to Labor, title 29, United ' P. 455 P. 301
States Code.
Amendments relating to money and finance, P. 302
title 31, United States Code.
Amendments relating to patriotic societies and P.461 P. 306
observances, title :36, United States Code.
- Amendments relating to veteran's benefits, title P. 461 P. 307
- 38, United States Code.
Amendments relating to. Postal Service, title 39, P. 463 P. 3117
. United States Code. . . ?
Postal offenses P. 464 P. 308
Foreign divorce information through mail P. 312
Firearms P.313
Letter and writing urging treason, etc P. 315
Sexually oriented ads P. 318 .
-Manufacture of sexually related mail matter P. 313
Amendments relating to Public Contracts, title 41, P. 478 P. 319
United States Code (war contracts, mutilation). _ i
Amendments relating to public health and welfare P. 479 P.320
title 42.
Amendments relating to public lands, title- 43, P. 484' P. 323
United States Code.
..Amendments relating to public printing and P.488 P. 324
documents, title 44, United States Code.
Amendments relating to telegraphs, telephone P. 505 P. 328
and radio-telegiaphs, title 47.
Amendments relating to transportation, title 49, P. 510- ' P.329
United States Code. .
Amendments relating to war and national de- P. 524 _ P. 334
tense, title 50, United States Code.
Gnarls-----'
Ch. 11
Rules 3-1101
Appointment of counsel 3-I1112
Foreign documents 3-11A3
Admissibility of confessions 3-11A4
Admissibility ot eyewitness testimony - - 3-11A5
3501 Execution of sentence of death_ _ 3-1IA6
Power of courts and magistrates - 3-11E11
Jurisdiction outside United States 3-1102
District courts 3-1183
U.S. magistrates 3-11B4
Ch. 230 Offense involving 2 districts ? 3-11135
3641 Offense not committed in ally district 171186
3642 New district or division 3-11E17
3643 Place of commission of certain offenses 3-11138
Appellate review Sub. E
Appeal by United States 3-11E1
Appeal from conditions of releese 3-11E2
Review of sentence 3-11E3
Corrections Ch. 12
Definitions 3-12A1
Duties of probation officers 3-1281
Dbties of Administretive Office of U.S. Courts 3-12E12
Transportation of offenders 3-12 B3
Bureau of correction, Sub. C
4087 Organization, director, etc 3-1201
Ch. 311 Ch. 34 Character of correctional facilities 3-12C2
4701 Contracting 3-1203
4202 3401 Federal institutions in States without appropriate 3-12C4
4203 3402 facilities.
4204 3403 Appropriations and-acquisitions ._ 3-12C5
4206 3404 Offenders Sub. D
4206 3405 Official detention .. 3-1201
2048. 3406. Transfer to State facility. 3-1202
4209 -franspertation of offenders _ 3-12003
Discharge 3-1204
4210 Federal correctional industries Sub. E
Organization 3-12E1
Administration 3-12E2
Purchase of goods and services 3-1284
Criminal Law Reform Commission Sub. 0
Establishment . 3-13CI
Duties 3-1302
Powers 3-1303
Compensation and exemption of members 3-1304
Staff. 3-I3C5
Expenses and authorization 3-13C6
Title It Amendments to F. R. Crim. P P. 240
Rule 3.1 P. 240
Rule 4_ P. 210
Rule 5.1 P. 240
Rule 6.1 P.282
Rule 15 P. 245
Rule 16.1 P. 247
Rule 16.2 P.244
Rule 23.1 P. 213
Rule 23.1 _ p.204 ______________ .
3644
Evidence
Civil investigative demand__ - 3-13115 3647
Probation procedures 3-12131, 2, 3 Ch. 231
Community treatMent centers 3-1281, 2,3 3651
Bureau of Corrections - 4041
Discharee
Parole_
Parole Commission 3-12E1
Discretionary release on parole_ 3-12E2-
Mandatory release on parole 3-12E3
Terms and incidents of parole 3-12E6
Conditions of parole; modification -3-1214
Duration of parole 3-12E5
Finality of P m
Parole Comission.determination 3-12E7
Parole studies; rules and regulations of Parole
Commission. ?
Community treatrhent centers
Mental incapacity/determination and effect of Ch. II, Ch. 312
insanity. sub. C
Definitioos 3-1101 4223
Procedure to (lateral-me existence of insanity at 3-11C2 4221
the time of tne offense.
Determination of competency to stand trial 3-11C3 -
hospitalization of a convicted person suffering 4224
From mental disease or defect.
Iloepitalization of a person acquitted by reason 4222
by insanity.
Pretrial commitment of incompetent defendant._ 3-1104.
Determination of defense of mental disease or 3-1105
defect.
Committinent following expiration of sentence _ _ . _ _ 4225
Competency of offender 3-1106
Disposition or criminal charge 3-1 tC7
Civil commitment _ ______ _______ 3-1108
Juvenile, defined_ __
Persons subject to delinquency proceedings
3 13 Ill
5031
5032
Jurisdiction,m !y trial ____ . 3-13112,3 5033
l'arole. 56:17
Sentencin mm
g recoentIA
Pla Me as
d;rrmeBlee.2006/09/25 : C
Psychiatric examination . 3-1102
Special procedures Inc initial pessession of drugs_ 5101, p. 286
Wfditaff2aiiiiiii8MOO8 (t0 P. 2499-7
6.2
Approved For Release 2006/09/25 : CIA-RDP76M00527R000700080009-7
Decembr 18, 194 CONGRESSIONAL RECORD?SENA
Provision
S. 1
Brown fir al
S. 1400 draft
Rule 28 1 P. 253
Rule 32 P. 254
Rule 32.2 P. 256
Rule 32.3 P. 257
Rule 40
Rule 4? P. 257
P.258
Rule 44.1 P. 259
Rule 46.1 P. 265
Rule 463 P. 269
Pule 46.4 P. 269
Title ill conforming amendments P. 273
S 22105
_ Provision
S. 1
Brown final
5. 1400 draft
Amendments relating to title 2 United States Code. P. 273
Amendments relating to title 9
Amendments relating to title 13
Amendments relating to title 14
Amendments relating to title 24
Amendments relating to title 30
Amendments relating to title 33
Amendments relating to title 35
Amendments relating to title 46
Amendments relating to title 48
P. 322
P. 324
P. 387
P. 448
P. 452
P. 460
P. 491
P. 509
P.157
Approved For Release 2006/09/25 : CIA-RDP76M00527R000700080009-7