which are intended to be effected in the statutes listed in S.1400 $1211 and S.1 §2-5C3, it is virtually impossible to evaluate the impact of the section.

S.1 $2-5C4, which corresponds to S.1400 $1204, supplements the other neutrality provisions by making it a felony to violate a restrictive order on departures of vessels where the order is designed to restrict the delivery of the vessels or of goods to a foreign nation engaged in armed hostilities. Under S.1 §2-5C4, a person is guilty of a Class D felony "if he knowingly causes or aids the departure from the United States of a vessel or vehicle the departure of which is in fact prohibited" by a restrictive order. This is objectionable, in the first place, because it would make a person guilty of the felony even if he did not know, and had no reason to know, that the departure was prohibited. Moreover, the inclusion of the words "or aids" is, in the view of the Committee, a mistaken over-extension of the criminal sanction. It might cover, for instance, a dock worker who frees from a cleat a line of an illegally departing ship or an air traffic controller who clears an illegally departing plane for takeoff despite the fact that neither the dock worker nor the air traffic controller is aware that he is aiding a criminal act. The requirement that the conduct be performed "knowingly" means only that the actor "be aware of the quality of his conduct" and of "attendant circumstances." (§1-2A1(1)(3)).

The Committee recommends that a clause similar to S.1 §2-5C3 (a) and S.1400 §1204(a) (requiring a specific intent to conceal and/or knowledge that one's conduct substantially obstructs a governmental function) also be included in this section.

S.1400 $1204, although it omits the "or aids" language of S.1 §2-5C4, seems to the Committee undesirable in view of its excessive complexity. The Committee finds the phrase "during a war in which the United States is a neutral nation" especially troublesome because both the terms "war" and "neutral" are undefined and are extremely elusive of definition. S.1 $2-5C4 limits the

scope of its violation to statutes, regulations and orders, and it is therefore more amenable to firm and equitable enforcement.

S.1400 $1205 ("Disclosing a Foreign Diplomatic Code or Correspondence") attempts to subject to criminal penalty conduct which jeopardizes confidential communications between foreign governments and their representatives in the United States. The section specifically prohibits the knowing communication of

(1) a diplomatic code of a foreign government, or any matter prepared in such a code; or

"(2) any matter intercepted while in the process of transmission between a foreign government and its diplomatic mission in the United States to which he obtained access as a federal public servant."

The Committee notes that the section nowhere specifies the prohibited recipients of the communication of a diplomatic code. It should be noted that S.1400 §521(a)(1) would provide a defense to a person who communicated any of these matters pursuant to his duty as a public servant or at the direction of a public servant.

S.1 $2-5C5 is a combination of sections 1122 and 1206 of the Brown Commission bill dealing with the failure of foreign agents to register with the government. This subject matter is covered by S.1400 §§1127 and 1128.

Although the offense retains Class C felony treatment, the upper-range imprisonment for a "dangerous special offender", or recidivist, could make applicable a prison term as long as 10 years, which represents a continuation of the penalty provided in 18 U.S.C. §951 rather than the shorter penalty for violation of an almost identical section in 22 U.S.C. §611 et seq. The Committee believes that, as expressed in the Working Papers, the penalty should be more in the range of the penalty provided for in the current 22 U.S.C. §611 et seq. This could be accomplished with respect to S.1 §2-5C5 by making the offense a Class D felony which, if accompanied by the aggravating or recidivist circumstances

46-437 - 75 - 5

specified in §1-4B2, could result in the maximum penalty of six

years.

S.1400 $81221 through 1226 and S.1 §§2-5D1 through 2-5D3 deal with immigration, naturalization and passports. As in the case of the provisions relating to foreign relations, these sections do not represent a fundamental substantive departure in policy. The principal changes are in the area of grading of offenses, transferring to other titles lesser offenses which are regarded as regulatory, and eliminating as duplicative existing offenses which are covered elsewhere in the general sections governing such things as bribery and forgery.

In general, the Committee approves the effort in S.1400 to distinguish between less serious offenses, which are treated as Class A misdemeanors, and those more serious, which are treated as Class E felonies. Thus, for example, S.1400 §1221 (Unlawful Entry Into the United States) combines the offense now defined in 8 U.S.C. $1325 (unlawful entry) and 8 U.S.C. §1326 (reentry after deportation). Grading, however, is changed so that felony treatment applies only if entry is accomplished by the use of false documents or if reentry occurs after previous arrest and deportation for conviction of a felony involving moral turpitude. All other offenses are given Class B misdemeanor treatment on the theory that, when combined with available administrative remedies such as deportation, any stronger criminal sanction would be inappropriate. This result seems sound. The present penalty of a maximum of two years' imprisonment for any reentry after deportation seems excessive and unnecessary in view of the fact that sentences are almost invariably suspended and the violator again deported.

The Committee is of the opinion that the punishment provided for in S.1 §§2-5D1 through 2-5D3 is unnecessarily harsh and burdensome even where the minimum penalty might be imposed. In S.1 §2-5D1(d)(2) the penalty for using forged reentry documents could be as much as ten years in prison. In light of the prevailing administrative practice of deportation in such situations, the ten

year penalty seems excessive. S.1 §2-5D1(d) (2) does provide, however, that the person using a forged reentry document must know it to be forged or counterfeit or the property of another person in order to be subject to felony treatment. This requirement of knowledge is omitted from S.1400 $1221(c)(1)(a) and should be inserted.

S.1400 §1222 and S.1 §2-5G1(a)(1) cover crimes presently made felonies under 8 U.S.C. §1234(1), but distinguish between ordinary offenses, which are treated in S.1 as Class D felonies and in S.1400 as Class B misdemeanors, and those where aliens are smuggled into the country for commercial purposes or where the immigrant intends (with the knowledge of the smuggler) to commit a felony in the United States. These more serious crimes are treated as Class E felonies in S.1400 and as Class C felonies in S.1.

The offense of hindering the discovery of an illegal entrant into the United States is covered by S.1400 §§1223 and S.1 2-5D2. The offense requires that the person act with the specific intent to hinder, delay, or prevent the discovery or apprehension of an alien who is in the United States in violation of law. Section 1223(1)(a) of the Brown Commission bill had stated that the person was guilty if he harbored or concealed the alien; the revised bill provides that the person may be guilty if he "aids, shelters, employs, or conceals" the alien. The inclusion of persons employing the alien represents a major extension of the coverage of the section, and the Committee believes the expansion to be unwise and unnecessary. Even though the section requires that a violator act with specific intent mentioned above, the section might easily be used for warrantless prosecution of employers who knowingly employ aliens.

The Committee therefore recommends that the word "employs" be stricken and that "harbors" be replaced in the text, or, if the word "employs" is ultimately retained, that language comparable to the following proviso in the Working Papers (at Vol. 1, p. 514) be placed in the statute itself:

“Effect of Mere Employment. Nothing in this section shall be construed so that, by itself, employment of the alien by the actor, including the usual and normal practices incident to employment, constitutes a violation of this section."

The inclusion in S.1 §2-5D2 of the word "aids" is also an expansion of the coverage which the Committee deems unwarranted. A person who, although acting with intent to delay the discovery of the illegal alien, merely gives directions or performs some minor service for the alien would, under this section, be subject to a term of six years' imprisonment.

S.1400 §1223(a) (4) and S.1 §2-5D2(a)(3) both make it a crime for anyone to conceal, alter, mutilate, or destroy any document or record regardless of its admissibility in evidence. This provision broadens tremendously the responsibility of citizens to preserve and make available to law enforcement officials evidence of crime. Such a provision, in our view, raises a serious question of policy as to the breadth of the obligation which the criminal law should place on individuals to preserve and make available information. (Cf. Report, p. 50)

S.1400 §§1224 and 1225 substantially duplicate S.1 §2-5D3. Although the Committee approves the sentencing provisions of S.1400 §§1224 and 1225 and believes they should be included in S.1 §2-5D3, the Committee believes that the latter section is a more succinct and a better restatement of present law.

Chapter 13

OBSTRUCTION OF GOVERNMENT FUNCTIONS

S.1400 adds a provision for obstructing a government function by fraud, Section 1301, which is not found in the other bills, and we see no objection to this provision.

The original Committee Print (Nov. 10, 1972) of the bill which became S.1 added an affirmative defense to the crime of hindering