concerning any method or process which as a trade secret is entitled to protection.

21 U.S.C. 842 (b) makes it unlawful for any person who is a reg istrant to manufacture a controlled substance in schedules I or II which is (1) not expressly authorized by his registration and by a quota assigned to him pursuant to 21 U.S.C. 826, or (2) in excess of a quota assigned to him pursuant to that statute.

21 U.S.C. 842 (c) (2) provides that whoever is found to have "knowingly" violated this section is ordinarily liable to imprisonment for up to one year; however, if the violation is the second such offense under this section or if the defendant had been previously convicted of any crime under the Drug Abuse and Control Act of 1970 or other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances, the penalty rises to a maximum of two years in prison.

21 U.S.C. 843 makes it unlawful for any person knowingly or intentionally:

(1) Who is a registrant to distribute a controlled substance classified in schedule I or II, in the course of his legitimate business, except pursuant to an order or an order form as required by section 828 of this title;

(2) To use in the course of the manufacture or distribution of a controlled substance a registration number which is fictitious, revoked, suspended, or issued to another person;

(3) To acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception. or subterfuge:

(4) To furnish false or fraudulent material information in, or omit any material information from, any application, report, record, or other document required to be made, kept, or filed under this subchapter or subchapter II of this chapter; or

(5) To make, distribute, or possess any punch, die, plate, stone, or other thing designed to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or device. of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as to render such a drug a counterfeit substance.

The offense in paragraph (4) is not carried forward in this section, but is subsumed within the more generic offenses in sections 1301 (Obstructing a Government Function by Fraud) and 1343 (Making a False Statement).

21 U.S.C. 843 (b) makes it unlawful for a person knowingly or intentionally to use any communication facility in committing or causing or facilitating the commission of any act constituting a felony under the Drug Abuse and Control Act of 1970. This provision is not directly brought forward under this section, but is covered by means of the broad scope of jurisdiction (i.e., whenever the offense is committed within the general jurisdiction of the United States) which applies to all the offenses in this subchapter.

The penalties for violating subsection (a) are contained in subsection (c). The maximum penalty is ordinarily up to four years in prison: however, it doubles if the offense is the second such offense under this section, or if the offender had previously been convicted of a felony under the Drug Abuse and Control Act of 1970, or under any other law of the United States relating to narcotic drugs, marihuana, or stimulant or depressant substances.

21 U.S.C. 954 provides that notwithstanding the importation and exportation offenses in sections 952 and 953 and the registration of importers and exporters requirement under section 957, a controlled substance in schedule I may be imported into the United States for transshipment to another country, to be transferred from one vessel, vehicle, or aircraft to another vessel, vehicle, or aircraft within the United States for immediate exportation, provided that such importation, transfer, or transshipment is (1) for scientific, medical, or other legitimate purposes in the country of destination, and (2) the prior written approval of the Attorney General has been obtained. In addition, 21 U.S.C. 954 renders it lawful to import, transfer, or transship a controlled substance in schedules II, III, or IV, provided that advance notice is given to the Attorney General in accordance with regulations.

21 U.S.C. 961 (2) authorizes the imposition of a sentence of up to one year in prison for any person found to have violated section 954 knowingly or intentionally. In addition, 21 U.S.C. 962 provides for double the applicable penalty in the event the offense is a second or subsequent offense under the Drug Abuse and Control Act of 1970, or the defendant had been previously convicted of a felonious violation of the laws of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances.

2. The Offense

Subsection (a) provides that a person is guilty of an offense if he violates:

(1) section 402 (a) or (b) of the Controlled Substances Act (21 U.S.C. 842 (a) or (b)) (relating to the dispensing and manufacturing of controlled substances by registered manufacturers, distributors, and dispensers of controlled substances);

(2) section 403 (a) (1), (2), (3), or (5) of the Controlled Substances Act (21 U.S.C. 843 (a)(1), (2), (3), or (5)) (relating to distribution of controlled substances by registrants and the use of labeling implements to render a drug a counterfeit substance);

or

(3) section 1004 of the Controlled Substances Import and Export Act (21 U.S.C. 954) (relating to the importation for transshipment to another country of controlled substances). The term "violates" is defined in section 111 to mean to engage in conduct which is proscribed, prohibited, declared unlawful, or made subject to a penalty. Moreover, under section 303 (d) (1) (A), no mental state need be proved as to the fact that conduct violates a statute or regulation. Thus, this offense preserves intact the elements (including culpability elements) of the crimes in current law. The descriptions of the underlying offenses contained in parentheses are not to be construed as limiting the scope or application of the statutes referred to.47

3. Jurisdiction

This section contains no subsection setting forth the extent to which Federal jurisdiction may be asserted over an offense herein. Accordingly, by the operation of section 201 (b) (2), there is Federal jurisdiction over an offense in this section if it is committed within the gen

47 See section 112(b).

42-525-75- -14

Section 1815.

eral jurisdiction of the United States, as defined in section 202. This continues present law.

4. Grading

An offense described in paragraph (a) (2) is generally graded as a Class E felony (up to three years in prison). This retains, as nearly as possible under the proposed Code's grading system, the penalty level of the offenses in existing law (four years).

An offense under paragraphs (a) (1) or (a) (3) is graded ordinarily as a Class A misdemeanor (up to one year in prison). This preserves the normal maximum penalty imposable currently.

In addition, subsection (b) provides that an offense under this section is of the class next above that otherwise specified if the defendant had previously been convicted of a Federal or State offense relating to controlled substances. This generally carries forward the increased punishment provisions under existing law, but broadens them to include State as well as Federal crimes, and contains no restriction as to felony status of the prior violation.

SECTION 1815. GENERAL PROVISIONS FOR SUBCHAPTER B

This section contains, inter alia, various definitions applicable to the offenses in this subchapter. These have been adequately explained in connection with the offenses to which they pertain, and no further discussion of them is necessary.

Subsection (b) contains a general defense to a prosecution under sections 1811, 1812, and 1813 that the actor's conduct was authorized by the provisions of the Controlled Substances Act or the Controlled Substances Import and Export Act.

This continues existing law since the statutes brought forward by sections 1811, 1812, and 1813 generally contain the clause, "except as authorized by this subchapter" or some equivalent language, and, in any event, the exception for authorized conduct is implicit.

By virtue of 21 U.S.C. 885, discussed in connection with the special defense in proposed section 1813, the existing exception for authorized conduct is made a matter of defense which the government need not negative in its pleadings or disprove at trial until the defendant has sufficiently raised the issue. Hence, classifying this exception as a "defense" serves to perpetuate current law in this regard.49

SUBCHAPTER C.-EXPLOSIVES AND FIREARMS OFFENSES

(Sections 1821-1824)

This subchapter carries forward the basic firearms and explosives offenses in current law. Except for a few relatively minor instances,

4 E.g.. 21 U.S.C. 841 (a), 844 (a).

49 See proposed Rule 25.1 of the Federal Rules of Criminal Procedure contained in the subject bill.

no effort has been made to add to or subtract from the scope of present Federal coverage. Certain offenses moved to title 15 because of their basic regulatory nature have been referred to in this title for their penalties in accordance with the general policy that all serious criminal offenses should be contained in the proposed new Federal criminal code. The offenses in this subchapter are concerned with explosives (section 1821), firearms (section 1822), using a firearm or other weapon in the course of a crime (section 1823), and possessing or placing a firearm aboard an aircraft (section 1824).

SECTION 1821. EXPLOSIVES OFFENSES

1. In General and Present Federal Law

This section brings forward offenses in chapter 40 of title 18, specifically 18 U.S.C. 842 (a) through (i) and 18 U.S.C. 844 (d) and (g). Because 18 U.S.C. 842 is primarily regulatory in nature, its provisions have been transferred to title 15 and the offenses here restated in terms of whoever "violates" those provisions.

Chapter 40 (consisting of 18 U.S.C. 841-848) was enacted in 1970. 18 U.S.C. 842 sets forth, in subsections (a) through (i), a number of unlawful acts relating to the regulation and licensing of the business of importing, manufacturing, or dealing in explosive materials.

Subsection (a) makes it unlawful for any person (1) to engage in the business of importing, manufacturing, or dealing in explosive materials without a license issued under this chapter, or (2) knowingly to withhold information or to make any false or fictitious oral or written statement or to furnish any false or fictitious identification, intended or likely to deceive for the purpose of obtaining explosive materials, or a license, permit, exemption, or relief from disability under this chapter, and (3) other than a licensee or permittee knowingly to transport, ship, receive, etc., in interstate or foreign commerce any explosive materials or to distribute explosive materials to any person (other than a licensee or permittee) who the distributor has reasonable cause to believe does not reside in the State in which the distributor resides.2

1

Subsection (b) makes it unlawful for any licensee knowingly to distribute any explosive materials to any person except (1) a licensee, (2) a permittee, or (3) a resident of the State where the distribution is made and in which the licensee is licensed to do business or a State contiguous thereto if permitted by the laws of the State of the purchaser's residence.

Subsection (c) makes it unlawful for any licensee to distribute explosive materials to any person who the licensee has reason to believe intends to transport such explosive materials into a State where the purchase, possession, or use of explosive materials is prohibited, or which does not permit its resident to transport or ship explosive materials into it or to receive explosive materials in it.

Subsection (d) makes it unlawful for any licensee knowingly to distribute explosive materials to any individual who (1) is under twenty-one years of age, (2) has been convicted in any court of a crime

1 An exception is created for a person who purchases explosive materials lawfully in a contiguous State, if the transportation, shipment, or receipt of such explosives is permitted by the law of the State in which he resides.

218 U.S.C. 841 contains elaborate definitions for chapter 40, including the terms "person," "interstate or foreign commerce," "explosive materials," "permittee," "licensee," and "distribute."

3

punishable by imprisonment exceeding one year, (3) is under indictment for a crime punishable by imprisonment exceeding one year, (4) is a fugitive from justice, (5) is an unlawful user of marihuana, or any depressant or stimulant drug, or narcotic, as those terms are defined, respectively, in 26 U.S.C. 4761, 21 U.S.C. 101 (v), and 26 U.S.C. 4731(a), or (6) has been adjudicated a mental defective.

Subsection (e) makes it unlawful for any licensee knowingly to distribute any explosive materials to any person in any State where the purchase, possession, or use by such person of explosive materials would be in violation of any State law or published ordinance applicable at the place of distribution.

Subsection (f) makes it unlawful for any licensee or permittee willfully to manufacture, import, distribute, or receive explosive materials, without making such records as the Secretary of Treasury may require by regulation.

Subsection (g) makes it unlawful for any licensee or permittee knowingly to make any false entry in any record which he is required to keep pursuant to this section.

Subsection (h) makes it unlawful for a person to receive, conceal, transport, ship, restore, barter, sell, or dispose of any explosive materials knowing or having reasonable cause to believe that they were stolen.

Subsection (i) makes it unlawful for any person (1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment exceeding one year, (2) who is a fucitive from justice, (3) who is an unlawful user of or addicted to marihuana, or any depressant or stimulant drug, or narcotic drug, as those terms are defined, respectively, in 26 U.S.C. 4761, 21 U.S.C. 201 (v), and 26 U.S.C. 4731 (a), or (4) who has been adjudicated as a mental defective or committed to a mental institution, to ship or transport any explosive in interstate or foreign commerce or to receive any explosive which has been so shipped or transported.

5

18 U.S.C. 845 sets forth various exceptions to the coverage under the foregoing subsections, including any aspect of the transportation of explosive materials via railroad, water, highway, or air, which is regulated by the United States Department of Transportation, the use of explosive materials in certain medicines and medical agents, the transportation, shipment, receipt or importation of explosive materials for delivery to any agency of the United States or to a State or political subdivision, small arms ammunition and components thereof, black powder in quantities not exceeding fifty pounds, and the manufacture, under the regulation of the military departments of

The term "crime punishable by imprisonment . . . exceeding one year" is defined in section 841 to exclude (1) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses as the Secretary of the Treasury may by regulation designate, or (2) any State offense (other than one involving a firearm or explosive) classified as a misdemeanor by the laws of the State and punishable by a term of imprisonment of two years or less.

In United States v. Hoctor, 447 F. 2d 270 (9th Cir. 1973), the court held, two to one. that a person who pleaded guilty in State courts to a felony, but whose conviction was subsequently "expunged" pursuant to a State statute because he satisfactorily fulfilled the conditions of his probation, was not to be considered, for purposes of 18 U.S.C. 844 (i), as having been previously "convicted."

5 See United States v. Illingworth, 489 F.2d 264 (10th Cir. 1973), holding that, under this exception, no prosecution under 18 U.S.C. 842 would lie for transporting explosives across State lines without a permit where the accused had carried dynamite on board an aircraft in view of a Federal Aviation Administration regulation proscribing the carrying of dynamite on passenger aircraft. Of course, the conduct at issue is otherwise prosecutable, i.e., under 49 U.S.C. 1472 (h).