(18 U.S.C. § 1951), Init adds the requirement that the Attorney General author-
ize any prosecution brought on this jurisdictional l)ases. Again, the federal in-
terest could be limited, by discretionary guides, to major crimes involving
interstate organized criminal activity.
Subsection (2) establishes relatively narrow jurisdiction over the defrauding
of secured creditors. If the jurisdiction were as broad as that for theft, there
would be federal jurisdiction over all mortgage frauds (property owned by a
national credit institution — § 201 (k) ).
The detaile
an effort to incori'orate in the proposed Code the existing jurisdictional bases
for federal theft prosecutions wiiich are not covered by the common bases speci-
fied in .subsections (1) and (8). No substantial change in federal jurisdiction Is
contemplated ; thus, the list is largely an adaptation of the detailed jurisdictional
specifications of existing theft statutes. Note that some of these specific bases
refer to only one form of theft. Subsections (4) (b) and (c) deal with jurisdiction
over certain instances of theft by deception; subsection (4) (f) deals with thefts
by threat or deception, and subsection (4) (m) with thefts by threat.
See Working Papers, pp. 729, 955-57.
The major section on theft in the Code is § 1732. Report, p. 206.
"§ 1732. Theft of Property.
"A person is guilty of theft if he :
"(a) knowingly takes or exercises unauthorized control over, or makes
an unauthorized transfer of an interest in, the property of another with
intent to deprive the owner thereof ;
"(b) knowingly obtains the property of another by deception or by threat
with intent to deprive the owner thereof, or intentionally deprives another
of his property by deception or by threat : or
"(c) knowingly receives, retains or dispo.ses of property of another which
has been stolen, with intent to deprive the owner thereof."
The overlap among the three parts of this section "is intended to insure that
everytlnng which is now theft by any name will be covered." Report, p. 206-07.
With out exception, § 1732 has the .same common bases and special ba.ses of
Federal jurisdiction as § 1737. to be discussed below. The difference is § 201(g)
of the (Vxle. which may l)e used as jnn.sdictioiial l)ase for § 1732. § 201 (g), giving
the Federal government jurisdiction when the offense affects interstate or foreign
(•((mmerce. may be used when tlie theft is one in which property or services are
re(iuired or retained by threat, if the Attorney General expressly authorizes the
prosecution. As indicated l)y the comments following proposed § 1740. 18 T'.S.C.
"§ 17H7. Misapplication of Entrusted Proi)erty.
Proposed § 1737 states :
§ 1737. Misapplication of Entrusted Property.
"A person is guilty of a Class A misdemeanor if he disposes of. uses or trans-
fers any interest in. property which lias been entrusted to him as a fiduciary, or
3314
in his capacity as a public servant or an officer, director, agent, employee of, or a
person controlling a liuancial institution, in a manner that he knows is not au-
thorized and that he knows to involve a risk of loss or detriment to the owner of
the property or to the government or other person for whose benefit the property
was entrusted "'
The provisions of § 1737 would appear to be similar to those in existing law,
see e.q., 18 U.S.C. S U41 et seq.
The common jurisdictional provisions of §§ 1732 and 1737 are :
(a) special maritime and territorial jurisdiction of the United States
presently granted by 18 U.S.C. § 6(51.
(b) "piggyback' jurisdiction
(d) the property which is the subject of the offense is owned by or in the
custody or control of the United States or is being manufactured, con-
structed, or stored for the United States. Similar jurisdiction is presently
exercised under 18 U.S.C. g 041.
(e) the United States mails or a facility in interstate or foreign commerce
is used in the commission or consummation of the offense. This base con-
ceivably represents an expansion of Federal jurisdiction over present law
relative to offenses of this natui"e. The Itase appears to come from language
in 18 U.S.C. S 1952 which prohibits certain racketeering activities, among
which theft is not included. The term '•facility in interstate or foreign com-
merce" may be interpreted very broadly, and may include use of telephone,
telegraph, cashing an out of state check, etc., and would appear to give the
Federal government a base for prosecution of thefts broader than those
which are now in Title 18, U.S. Code.
(h) movement of any person across a state or United States boundary
occurs in the commission or consummation of the offense. This base may
represent an expansion of Federal jurisdiction. Sections presently codified
in Federal law and dealing with theft generally require that the goods be a
part of an interstate .shipment, c.r/.. IS U.S.C. § 659, or that the stolen goojds
be transported in interstate commerce, e.g.. 18 U.S.C. S 2312.
(i) the property which is the subject of the offense is moving in inter-
state or foreign commerce or constitutes or is part of an interstate or for-
eign shipment. This jurisdiction appears to be similar to that now exercised
under 18 U.S.C. § 659.
(j) the property which is the subject of the offense is moved across a
state or United States boundary in the commission or consummation of the
offense. This jurisdiction appears to be similar to that exercised at present.
(k) the property which is the subject of the offen.se is owned by or in the
custody of a national credit institution. IS U.S.C. § 2113 would appear to be
similar to this provision.
(1) the piracy base. This jui'isdiction presently exists under 18 I'.S.C.
§ 1651 ct eq.
§ 1740(4) provides fifteen additional special jurisdictional bases under which
violations of proposed §§ 1732 and 1737 may be prosecuted :
(a) Federal Public Servant — when the offense is committed by a public servant
of the United States acting imder color of office. Several sections in present law
appear to be this broad and would cover theft and misapplication of entrusted
property. See e.g., 18 U.S.C. § 654.
(b) Misrepresentation of Federal Interest — when the offense is committed by
a misrepresentation of United States ownership, guarantee, insurance or other
interest of the United States in property involved in a transaction. 18 U.S.C.
§ 663. which involves, inter alia, misrepresenting to a donor that a gift being
solicited is for the use of the I'nited States, would appear to be in part a basis
for this subsection. However, the subsection may still represent an expansion of
existing jurisdiction over theft and embezzlement crimes.
(c) Impersonation of Creditors — when the offense is committed bv impersona-
tion of a creditor of the Ignited States. Similar to 18 I\S.C. § 914.
(d) Indian Property — when the subject of the offense is property owned by
or in the custody of a tribe, band, or connnunity of Indians which is subject to
federal statutes relating to Indian affairs or of any coriioration. as.sociation or
group which is organized under any of such statutes. Similar to 18 U.S.C. § 1163.
(e) Kmployee Benefit Plans — when the subje<-t of the offense is property
owned by or in the custody of any employee welfare iienefit plan or employee
pension benefit plan .subject to 29 U.S.C. Ch. 10. Similar to IS U.S.C. §664.
3315
(f) Public Work Kickbacks — when any part of the compensation of a person
employed in the construction, prosecution, completion or repair of any federal
public building', federal public work, or buildinjr or work tinanced in whole or
in part by loans or grants from the United States is obtained or retained by a
threat or deception in relation to that person's employment. Similar to 18 U.S.C.
§874.
(g) Funds Insured by Department of Housing and Urban Development — when
the offense is committed in a transaction for a loan, advance of credit or
mortgage insured by the United States Department of Housing and Urban De-
velopment. Probably covered by 18 U.S.C. § 657.
(h) Small Business Investment Companies — when the offense is committed
by an officer, director, agent, receiver or employee of, or person connected in
any capacity with a small business inve.stmeut company, as defined in in U.S.C.
§ 662, and the subject of the offense is property owned by or in the custody of
such small business investment company. Probably covered by 18 U.S.C. § 657.
(i) Registered Investment Companies — when the subject of the offense is
property owned by or in the custody of a registered investment company, as
defined in 1.") U.S.C. § 80a-36. Presently covered by U.S.C. § 80a-36.
(j) Futures Commission Merchants — when the offense is committed by a fu-
tures commission merchant, as defined in 7 U.S.C. § 2, or any employee or agent
thereof, and the subject of the offense is property of a customer received by
such commission merchant. Appears to be covered in 7 U.S.C. § 13.
(k) Common Carriers — when the offense is committed by an ofl5cer, director,
manager or employee of a firm, association or corporation engaged in commerce
as a common carrier, and the .subject of the offense is property owned by or in
the custody of such common carrier. Appears to be covered in 18 U.S.C. § 660.
(I) Federal Economic Opportunity Program— when the offense is committed
by an officer, director, agent or employee of, or person connected in any ca-
pacity with, any agenc.v receiving financial assistance under 42 U.S.C, Ch. 34, and
the' subject of the offense is property which is the subject of a grant or contract
of assistance pursuant to such Chapter. Generally covered in 42 U.S.C. § 2703.
(m) Employment in Federal Economic Opportunity Program — when property
of a person is obtained or retained by a threat in relation to that person's em-
ployment under a grant or contract of assistance pursuant to 42 U.S.C, Ch. 34.
Generally covered in 18 U.S.C. §2703.
(n) Labor Organization!? — when the offense is committed by an officer, agent
or employee of a labor organization, as defined in 29 U.S.C. § 152, and the sub-
ject of the offense is property owned by or in the custod.v of such labor organiza-
tion. Tlie comments to § 1740 indicate that "[n]o substantial change in federal
jurisdiction is contemplated." It is assumed that the comments refer to § 501 ( c )
of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C.
§ 501(c)), which proscribes embezzlement, stealing and conversion of the
money, funds, securities, property and assets of a labor organization by an
officer or employee thereof.
(o) Commodity Credit Corporation — when the subject of the offense is prop-
erty mortgaged or pledged to the Commodity Credit Con^oration or is property
mortgaged or pledged as security for any promissory note or other evidence of
indebtedness which tlie Corporation has guaranteed or is obligated to purchase
unon tender. Similar to 15 U.S.C. § 741^.
The remaining theft f)ffense is § 1738 :
'■§ 1738. Defrauding Secured Creditors.
"(1) Offense. — A person is guilty of an offense if lie destroys, removes, con-
ceals, enciunbers, transfers or otherwise deals with property subject to a .security
interest with intent to prevent coUectio^n of the debt represented by the security
interest.
"(2) Grading. — The offense is a Class A mi.sdemeanor if the property has a
value exceeding $500 and a Class B misdemeanor if the property has a value
exceeding .$50. Othenvise it is an infraction. Value is to be determined as pro-
vided in section 1735(7)."
The jurisdictional bases for this offense, taken from proposed §1740(2) are:
(a) offense committed within the special maritime and territorial juris-
diction of the United States. fThis would appear to be new jurisdiction over
such an offense.
3316
(b) the "piggyback" jurisdiction.
An additional base is provided for Federal jurisdiction wlien the United States
holds a security interest in the property which is the subject of the offense.
Similar, but more restricted jurisdiction, is presently incorporated in 18 U.S.C.
§658.
5. Burglary.
Coke \Yrote that, "a burglary (or the person that committeth burglary) is by
the common law a felon, that in the night breaketh and entreth into a mansion
house of another, of intent to kill some reasonable creature, or to commit some
other felon within the same, whether his felonious intent be executed or not."
3 Coke, Institutes 63 (1809 ed.) § 1711 of the Code provides :
"§ 1711. Burglary.
"(1) Offense. — A person is guilty of burglary if he willfully enters or surrep-
titiously remains in a building or occupied structure, or a separate secured or
occupied portion thereof, when at the time the premises are not open to the public
and the actor is not licensed, invited or otherwise privileged to enter or remain,
as the case ma.v be, with intent to commit a crime therein.
'■(2) Grading. — Burglary is a Class B felony if :
"(a) the olTense is committed at night and is knowingly perpetrated in the
dwelling of another : or
"(b) in effecting entry or while in the premises or in immediately flight
therefrom, the actor inflicts or attempts to inflict bodily injury or physical
restraint on another, or menaces another with imminent serious bodily
injury, or is armed with a firearm, destructive device or other weapon the
pos.session of which under the circumstances indicates an intent or readiness
to inflict serious bodily injury.
Otherwise burglary is a Class C felony.
'•(3) .Jurisdiction. — There is federal jurisdiction over an offense defined in this
section under paragraph (a), (b), (d), (k),or (I) of .section 201."
"Present federal law defines no general offense, even for federal enclaves, which
reflects the common law burglary concept . . ." Report, p. 200. Existing federal
law is general mrire restricted in terms of jurisdiction or less demanding with
regard to the elements of the offense or Iwth. For example. Title 18 contains the
following sections which prohibit conduct similar to the proscriptions of § 1711
of the Code :
18 U. S.C. § 2113(a) —
18 U.S.C. §1153 — burglary by an Indian within Indian country
18 U.S.C. § 1991 — entering trains within the territorial or exclusive juris-
diction of the United States with the intent to commit
murder or robbery
18 U.S.C. § 2113(a) — entering a bank with the intent to commit a felony
"affecting such bank"
18 U.S.C. § 2115 — forcibly breaking into a post office with the intent to
commit larceny or "other depredation"
18 U.S.C. § 2116 — violently entering a railway or steamboat post oflBce
18 U.S.C. § 2117 — breaking or entering interstate or foreign carrier
facilities with the intent to commit larceny
18 r.S.C. § 2276 -breaking or entering a ves.sel witliin tlie special mari-
time jurisdiction of the United States with the intent
to commit a felony
Title 18 contains a number of other provisions that do not mention unlawful
entry or entry with an unlawful intent, but which outlaw conduct which "ob-
structs", "interferes with '. "impedes", "delays", "prevents", "intimidates" certain
individuals or activities. These provisions are contained in :
18 U.S.C. § 231 — Obstructing, impeding or interfering with flremen or police
performing their duties during civil disorders
18 U.S.C. § 241 — conspiracy against civil rights
18 r.S.C. § 242 — deprivation of rights under color of law
18 U.S.C. § 245 — injuring, intimidating or interfering with one exercising
federally protected rights
18 U.S.C. § 372 — impeding or injuring officers of the United States
18 U.S.C. S 593 — members of the United States armed forces preventing,
threatening or intimidating voters from exercising their
right to vote in any general or special election
3317
18 U.S.C. § 594 —intimidating, threatening, or coercing of voters in federal
elections
18 U.S.C. § 1501— obstructing, resisting or opposing a federal process server
18 U.S.C. § 1502— obstructing, resisting or opposing a federal extradition
agent
18 U.S.C. § 1503— threatening, intimidating, impeding any witness, juror or
officer in connection with a federal judicial proceeding
18 U.S.C. § 1505 — intimidating or impeding witnesses before federal admin-
istrative or Congressional proceedings
18 U.S.C. § 1509 — preventing, obstructing, impeding or interfering with fed-
eral court orders
18 U.S.C. § 1510 — obstructing, delaying or preventing the communication of
information relating to a violation of a federal criminal
statute
18 U.S.C. § 1511 — conspiracy to obstruct the enforcement of state law for
the purpose of facilitating illegal gambling
18 U.S.C. § 1652 — acts of piracy committed by citizens of the United States
18 U.S.C. § 1951 — interference with commerce by threats or violence
While most violations of these section.s would probably take the form of
threats or assaults, it seems clear that a burglary or unlawful entry could, under
the proper circumstances, amount to obstruction, intimidation or interference.
The general language of § 1711 applies when the offense is committed 1) within
the special maritime or territorial jurisdiction of the United States, 2) during
the commission or immediate flight from the commission of another offense de-
fined in the Code, 3) against proi>erty of the United States, 4) against the prop-
erty of a national credit institution and .5) under circumstances making it an
act of piracy. This is an apparent extension of the authority granted by the
more particularized statutes cited above.
6. Kidnapping
At common law, kidnapping was the forcible abduction or stealing away of
a person, from his own country, and sending him into another. The offense was
punishetl by tine, imprisoinnent, and pillory. 4 Blackstone, Commentaries 200-01
(New Edition 1813).
Under the Code, the offense and related definitions are :
"§ 1631. Kidnapping
"(1) Offense. — A i)erson is guilty of kidnapping if he abducts another or, hav-
ing abducted another, continues to restrain him, with intent to do the following :
" (a ) hold him for ransom or reward ;
"(b) use him as a shield or hostage;
"(c) hold him in a condition of involuntary .servitude :
"(d) terrorize him or a third person:
"(e) commit a felony or attempt to commit a felony ; or
"(f) interfere with the i>erformance of any governmental or ix)litical
function.
"(2) Grading. — Kidnapping is a Class A felony unless the actor voluntarily
releases the victim alive and in a safe place prior to trial, in which case it is a
Class B felony.
"§ 1639. Definitions for Sections 1631 to 1639.
"In sections 1631 to 1639 :
"(a) 'restrain' means to restrict the movements of a person iinlawfully and
without consent, so as to interfere substantially with his liberty by remov-
ing him from hjs place of residence or business, by moving him a substantial
distance from one place to another, or by confining him for a substantial pe-
riod. Restraint is 'without consent' if it is accomplished by (i) force, intimi-
dation or deception, or (ii) any means, including acquiescence of the victim,
if he is a child less than fourteen years old or an incompetent per.son. and
if the parent, guardian or i)erson or institution responsible for the general
sui;ervision of his welfare has not accpiiesced in the movement or cfmfinement ;
"(b) 'abduct' means to restrain a person with intent to pi'event his libera-
tion by (i) secreting or holding him in a place where he is not likelv to be
found, uv (ii) endangering or threatening to endanger the .safety of any
human being."
3318
The drafters of the Code comment as follows on the proposed § 1631 :
•The existing federal kidnapping statute (18 U.S.C. §1201) prohibits the
taking of another person across state lines not only for the purpose of holding
him for ransom and reward, the kind of conduct to which it originally was
addressed, but for any purpose. It is generally recognized as having too broad
a reach, particularly in light of the fact that the maximum penally is life
imprisonment. The proposed kidnapping proAision, which requires both abduc-
tion (defined in § 1639) and a specified criminal purpose, embraces only the
most serious cases of unlawful restraint." Report, p. 183.
This would seem to be a fair statement since it is manifest that the present
law 18 U.S.C. § 1201, infra, is capable of very broad interpretation and would
appear to encomijass the conduct defined in proposed § 1631 given the juris-
diction base.
"S 1201. Transportation
"(a) Whoever knowingly transiwrts in interstate or foreign commerce, any
person who has been unlawfully seized, confined, inveigled, decoyed, kndnaped,
abducted, or carried away and held for ransom or reward or otherwise, except,
in the case of a minor, by a parent thereof, shall be punished (1) by death if
the kidnaped person has not been liberated unharmed, and if the verdict of the
jury shall so recommend, or (2) by imprisonment for any term of years or for
life, if the death penalty is not imiK)sed.
"(b) The failure to release the victim within twenty-four hours after he shall
have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted,
or carried away shall create a rebuttable presumption that such person has been
transported in interstate or foreign commerce.
"(c) If two or more persons conspire to violate this section and one or more
of such persons do any overt act to effect the object of the conspiracy, each shall
be punished as provided in subsection (a ) ."
The proposed jurisdiction over kidnapping is set out in § 1634 :
"§ 1634. Federal Jurisdiction Over Kidnapping and Related Offenses.
"(1) Generally. — There is federal jurisdiction over an offense defined in sec-
tions 1(>31 to 1633 under paragraphs (a), (b), (c), (h) or (1) of section 201, or
when the victim is a member of the immediate family of : the President of the
United States, the President-elect, the Vice President, or. if there is no Vice Presi-
dent, the officer next in the order of succession to the office of President of the
United States, the Vice President-elect, or any i)erson who is acting as President
under the Constitution and laws of the United States. 'President-elect' and 'Vice
President-elect' have the meanings prescribed in section 215) (c).
"(2) Involuntary Servitude. — Federal jurisdiction over an offense defined in
sections 1631(c) or 1632(c) extends to any such offen.se committed anywhere
within the United States or within the special maritime or territorial jurisdiction
of the United States, as defined in section 210."
At present, 18 U.S.C. § 1201 basically proscribes transportation in interstate or
foreign commerce of a i)erson unlawfully .seized, abducted, kidnapped, etc. There-
fore, it would appear that broad jurisdiction over the crime itself would be an
expansion of the Federal jurisdiction.
â– The proposed jurisdictional provisions and their relationship to present juris-
diction are as follows :
(a) Special maritime and territorial jurisdiction — generally new, for this
offense.
(b) "Piggyback" jurisdiction.
(c) This .section contains parts which would give new jurisdiction to the Fed-
eral government as well as parts which are presently within the Federal juris-
diction. The broad coverage of "federal public servant [s] engaged in the perform-
ance of . . . oflBcial duties . . ." appears to be an expansion of present jurisdic-
tion. 18 U.S.C. S 1114 provides a similar protection but it api>ears to only cover
the killing of some federal employees, primarily those engaged in law enforce-
ment activities. 18 U.S.C. § 17")! presently protects the President, President-elect.
Vice President. Vice President-elect and Constitutional successors, and 18 U.S.C.
S 24r» would probably provide for punishment of the kidnapper of a candidate for
those offices but the kidnapper of a member or member-designate of the Presi-
dent's cabinet would not presently appear to be triable in the Federal courts ab-
sent some other jurisdictional base. Likewi.se. PVderal judges do not appear to be
3319
protected under present law. 18 U.S.C. § 351 presently provides a basis for Fed-
eral jurisdiction over the kidnapi)er of a Congressman, and it is conceivable that
the kidnapper of one of the foreign dignitaries would be punished under 18 U.S.C.
§112.
(h) This jurisdictional base, movement across a United States or state boun-