4. Jurisdiction Section 1712. Subsection (c) of section 1711 sets forth two bases of Federal jurisdiction for this offense. The first is where the offense is committed within the special jurisdiction of the United States as defined in section 203. It includes, among other places, the high seas, as well as Federal enclaves such as military reservations, national parks and forests, and the Indian country. Burglary offenses committed in such locations would be uniformly prosecuted under this section instead of under the diverse laws of the respective States as in the current practice under the Assimilative Crimes Act.19 Federal jurisdiction also exists if the subject of the offense is a dwelling owned by, or under the care, custody, or control of the United States. This second basis for jurisdiction, for example extends the coverage of burglary offenses to houses rented by the military services for use by servicemen and their dependents. 5. Grading Subsection (b) grades this offense as a Class C felony which carries a maximum prison term of fifteen years. This penalty reflects the seriousness of the offense and is consistent with penalties imposed for the same offense in States which have recently enacted criminal codes.20 1. In General SECTION 1712. CRIMINAL ENTRY Section 1712 is designed to provide a uniform criminal entry statute, the basic purpose of which is to protect the security of the individual. It departs from existing Federal law which focuses on specific types of property, e.g., Post Offices, credit unions. Instead of defining the offense in terms of particular types of buildings, section 1712, in line with its purpose, applies only to property where persons are likely to be or are often present. Thus under section 1712 proof of an unlawful entry into an area not used as a dwelling or place of business, with intent to commit a crime, is not punishable as criminal entry. By a similar process of reasoning, the proposed section does not encompass situations where an entry was accomplished with consent (for example, walking into a bank during business hours with intent to commit robbery). Rather, the section embraces only the non-consensual kind of entry where fear or apprehension may be generated from an encounter with the offender, and where the invasion of privacy is most pronounced. Entries into places not used as a dwelling or place of business, and consensual entries into property of any kind, if accompanied in either case with an intent to engage in conduct constituting an offense, will normally be punishable in the Code under the general attempt provision (section 1001) as an attempt to commit the intended offense. Such entries may also be punishable under the Code at a misdemeanor level as a trespass (section 1713), which does not require proof of an intent to commit another crime." In sum, it is the Committee's view that because the proposed Code, unlike present Federal law, includes a general attempt statute under which entries with an intent to engage in conduct constituting another offense can be punished, there is a need for a criminal entry statute only for entries onto property where persons would ordinarily be 10 See 18 U.S.C. 13. 20 See Working Papers, pp. 895-896. present. The separate interest of the security of the individual warrants a separate statute protecting it. 2. Present Federal Law As is the case with burglary, there is currently no uniform statute punishing criminal entry on Federal enclaves or Federal property. Several statutes, differing with one another both in basic definition and in grading, exist with respect to particular types of property.21 Thus, breaking or entering of railroad cars, vessels, trucks, airplanes, and other vehicles moving interstate, with intent to commit larcency therein, is punishable by up to ten years' imprisonment.22 Breaking or entering a vessel within the maritime jurisdiction, with intent to commit any felony, is punishable by imprisonment up to five years.23 The same punishment is prescribed for a "forcible" breaking into a Post Office with intent to commit "larceny or other depredation." 24 An entry "by violence," with no other requirement of intent, into a post office railroad car, car, steamboat, or vessel assigned to the use of the mail service is punishable by a maximum of three years in prison.25 And any entry into a federally insured bank, credit union, or savings and loan association, with intent to commit larcency or any Federal felony "affecting such bank" or institution may be punished by up to twenty years' imprisonment.26 3. The Offense A. Elements of the Offense Section 1712 is a lesser included offense of section 1711 (burglary). It requires proof of three basic elements: that a person (1) entered or remained surreptitiously within; (2) a building or vehicle which is the property of another; (3) with intent to engage in conduct constituting a crime. The first element, entering or remaining surreptitiously within, is identical to that found in the burglary provision, and the discussion there is applicable also in this context. It should be emphasized that not all persons who enter a building with the intent to commit a crime would be guilty of an offense under this section. As in the burglary provision, the entry element is qualified by the words "property of another" defined in section 111 as "property in which a person or government has an interest which the actor is not privileged to infringe without consent." Thus, a person who enters a store or other business establishment which is open to the public would not be guilty of an offense hereunder even though at the time he enters he intends to commit a crime. Similarly, a person who enters a courthouse intending to commit perjury would not be guilty of an offense under this section. Rather, the proposed Code takes the position that when a person comes onto property by lawful means, he remains criminally accountable, in terms of his liability for a completed offense, only for the acts he thereafter commits on the property.27 It is because of this philosophy that section 1712 does not carry forward the full extent of 21 See Working Papers, p. 891. 22 18 U.S.C. 2117. 23 18 U.S.C. 2276. 24 18 U.S.C. 2115. 25 18 T.S.C. 2116. 26 1S TT.S.C. 2113 (a). 27 Unless, of course, he remains surreptitiously on the premises, after his privilege to enter has expired. coverage of 18 U.S.C. 2113 (a). That statute makes it a crime, among other things, to enter a federally insured bank with intent to commit certain Federal felonies or larceny. Under section 1712, by contrast, if the entry were during regular business hours and thus consensual, there would be no crime. The entry might be punishable as an attempt to commit the intended offense (section 1001), but it would not be a completed offense in itself. On the other hand, if the actor entered the bank after business hours, or remained surreptitiously within until such time, with the requisite intent, he would be guilty under this section. The second element of the offense is that the entry must occur in a building or vehicle which is the property of another. The terms "building" and "vehicle" are defined in section 111. The definition of "building" encompasses everything from a warehouse or other structure used to carry on a business to any manner of habitation, including a vessel, camper, tent, or house. Thus, a person who enters a dwelling, other than at night, with the requisite criminal intent, while not guilty of burglary under section 1711, would be guilty of criminal entry under this section. The term "building" is not defined to distinguish between entry into a place of business during regular business hours and such entry after business hours. The fact that the building is used for business purposes is itself sufficient to create a substantial risk that persons will be present, even during non-business hours or on a non-business day. Likewise the fact that a building was abandoned at the time of a person's entry or remaining within is not a defense under this section. The definition of "building" also covers structures or vehicles used to store property, such as a railway boxcar or truck, where a risk of a personal encounter with the intruder is possible. The second part of this element is that the building or vehicle must be the "property of another." As indicated previously, this term is defined in section 111 as "property in which a person or government has an interest upon which the actor is not privileged to infringe without consent, whether or not the actor also has an interest in the property.' Under this definition it makes no difference that a person owned the building involved; if he had no authority to enter it, he could be guilty of unlawful entry. The third element of the offense requires the offender to have an intent to engage in conduct constituting another crime: The presence of this element distinguishes this offense from the lesser crime of criminal trespass under section 1713. As under section 1711, the offender does not necessarily have to intend to commit a crime; rather he must merely intend to engage in conduct which constitutes a crime. Thus, in accordance with the principles of section 303 (d) (1) (A), the prosecutor need not show that an offender knew that his intended acts would violate the law. Furthermore, unlike common law and some existing Fed. eral statutes (e.g., 18 U.S.C. 2276), the acts the defendant intended to engage in need not constitute a felony. As in the proposed burglary section, the felony requirement is eliminated. An unlawful entry within a building, coupled with an intent to commit acts constituting a further offense therein, is deemed sufficient to warrant punishment at a level above that imposable for a completed misdemeanor because in addition to the interest served by the misdemeanor offense is the interest in personal security that is threatened by an unlawful entry. The aboli tion of the felony-misdemeanor distinction also has the practical aspect of facilitating prosecutions where it is difficult to demonstrate which crime an offender's intended conduct would constitute (e.g., theft of property worth less than $500 versus theft of property of greater value).28 B. Culpability The culpability required under this section is similar to that required for burglary in section 1711. Because there is no state of mind specified in the provision as to the conduct therein, i.e., "entering or remaining surreptitiously within," the prosecution must prove, as a minimum, that the actor's state of mind for this element was "knowing" 29 that is, that he was aware that he was entering or remaining surreptitiously within property.30 The fact that the place entered or remained in surreptitiously was a building which is the property of another is an existing circumstance. Therefore, because no culpability standard is specified as to this element, the state of mind of the offender which must be shown is at least "reckless" 31 i.e., that he was aware of but disregarded a risk that the property entered or remained within surreptitiously was a building within which he had no privilege to enter or to remain. Tthe purposive element of an intent to engage in conduct constituting a crime has been discussed previously in connection with section 1711, 4. Jurisdiction There is Federal jurisdiction for offenses set forth in this section in five situations. The first arises when the offense is committed within the special juisdiction of the United States. The special jurisdiction is defined in section 203 to include, inter alia, Federal enclaves, the high seas, and certain aircraft while in flight. This branch represents an extension of current Federal jurisdiction since there is no general Federal provision covering such offenses. Thus, under the proposed Code, criminal entry offenses committed on Federal enclaves will be prosecuted under this uniform section instead of under the laws of the State in which the enclave is located, which is the current practice under the Assimilative Crimes Act, 18 U.S.C. 13.32 The Committee does not consider it desirable to perpetuate this existing state of affairs because local laws vary significantly both in definition of offense and in grading, thereby resulting in needless inequality of treatment of conduct within the Federal system.35 The second situation occurs if the subject of the offense is a building owned by, or under the care, custody, or control of, the United States even if not in a Federal enclave. For jurisdiction to exist in this second situation, the building would actually have to be owned by, or under the care, custody, or control of an agency of the United States. Thus, if the United States has rented a building to use for office space but the care, custody and control of the building is retained by a private landlord, there would be no Federal jurisdiction under this section. 28 See section 1731. 29 See section 303(b)(1). 30 See section 302 (b) (1). 31 See section 303 (b) (2). 32 See Dunaway v. United States supra note 4. 33 The criminal entry offense is not in the realm of public morals crimes where it is often rational to resort to borrowed State laws to apply on Federal enclaves. See section 1863. Section 1713. The third situation exists when the subject of the offense is a United States post office, or is a building in part of which a United States post office is located and the conduct intended would have affected the post office itself or anything therein. This provision retains the jurisdiction over such offenses found in 18 U.S.C. 2115. As under current law, the fact that a person entered the building in a part which did not contain the post office would not bar prosecution as long as the person's intended conduct would affect the post office.34 The fourth situation arises if the subject of the offense is a national credit institution, or is a building in a part of which a national credit institution is located, and the conduct intended would have affected the credit institution itself or anything therein. This provision retains the jurisdictional scope over such offenses presently found in 18 U.S.C. 2113 (a), although, as indicated before, substantive coverage is not as broad since the Code places greater reliance on a general attempt provision to consensual entries into such premises. The term "national credit institution" is defined in section 111 and includes such buildings as banks, savings and loan associations, and credit unions, as well as other financial institutions organized or operated under the laws of the United States. Finally, jurisdiction extends to vehicles containing property which is moving in interstate or foreign commerce or which constitutes or is a part of an interstate or foreign shipment. This provision retains the jurisdictional reach currently found in 18 U.S.C. 2117, although again the substantive purview of the Code provision is not nearly so broad, extending only to circumstances in which such vehicles are used as a dwelling or place of business. 5. Grading An offense under this section is a Class D felony which carries a maximum of seven years' imprisonment. While this is considerably less than the twenty-year maximum authorized under 18 U.S.C. 2113 (a) (entry into a bank with intent to commit a felony), it is an increase over the sentences imposable under 18 U.S.C. 2276 (breaking and entering a vessel with intent to commit a felony), and 18 U.S.C. 2115 (forcible breaking into a post office with intent to commit larceny). 1. In General SECTION 1713. CRIMINAL TRESPASS It is indisputable that a government, as well as a private owner, has the authority to restrict access to property under its control and to preserve it for the use to which it is lawfully dedicated.35 Adderely v. Florida.35 The purpose, then, of a Federal criminal trespass statute is to protect property from unlawful intrusions regardless of whether the offender has an intent to commit any other offense. While most trespasses are relatively minor, some are more serious. For example, a trespass into a private dwelling is a serious matter, even if the trespasser intends no other crime, for it constitutes a gross invasion of pri 34 See United States v. Gibson, 444 F.2d 275, 277 (5th Cir. 1971); United States v. Clifton. 91 F. Supp. 940 (D. Ark. 1950). 35 Adderely v. Florida, 385 U.S. 39, 47 (1966). An exception to this principle when the property exists, although governmentally owned, has been opened to the public. In such case, an absolute prohibition on access for the purpose of exercising First Amendment rights may not be enforced. See Amalgamated Food Employees Union v. Logan, 391 U.S. 308 (1968); Flower v. United States, 407 U.S. 197 (1972). |