knowing, having reason to know, or intending that the same will be unlawfully employed to further a civil disorder which may in any way or degree obstruct, delay, or adversely affect commerce or the conduct or performance of any federally protected function shall be subject to a maximum penalty of five years' imprisonment.

18 U.S.C. 231 (a) (2) provides that whoever transports or manufactures for transportation in interstate or foreign commerce any firearm, explosive, or incendiary device, knowing, having reason to know, or intending the same to be used unlawfully to further a civil disorder shall be subject to a maximum penalty of five years' imprisonment. The term "civil disorder as used in these provisions is defined in 18 U.S.C. 232(1) to mean “any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual."

24

These statutes have been upheld against various constitutional challenges, including the contention that they permit prosecution for the dissemination of ideas without a showing of clear and present danger. The culpability standard in these provisions-i.e., "knowing, or having reason to know"-has also been sustained as not indefinite and as requiring those prosecuted "to have acted with intent or knowledge" that the information disseminated would be used in the furtherance of a civil disorder.25

3. The Offense .

Section 1832 makes it an offense for a person, "with intent to promote a riot," to supply or teach the preparation or use of a firearm, destructive device, or other dangerous weapon.

The term "riot" as used herein is defined in section 1834. This definition has been explained in connection with section 1831 and need not be discussed here. Notably, however, by making the section 1834 definition applicable, the Committee has eliminated the disparity in current law between the definition of "riot" in 18 U.S.C. 2102(a) and the definition of "civil disorder" in 18 U.S.C. 232 (1). Although quite similar, the two definitions differ in that a "civil disorder" apparently requires acts of violence and by more than one person, whereas a "riot" requires merely a single act of violence. Since the statutes, and their present counterparts in this Code, seek to prevent like occurrences, the Committee perceived no reason for different treatment, and particularly no reason to require an intent that multiple acts of violence be performed.26

It is also significant to note that this section can be violated (as can 18 U.S.C. 231) by teaching the preparation or use of a firearm,

24 See United States v. Featherston, 461 F. 2d 1119 (5th Cir.), cert. denied, 409 U.S. 991 (1972), National Mobilization Comm. to End War in Viet Nam v. Foran, 411 F. 2d 934 (7th Cir. 1969); United States v. Hoffman, 334 F. Supp. 504 (D.D.C. 1971); see also United States v. Mechanic. 454 F. 2d 849 (8th Cir. 1971), cert. denied, 406 U.S. 929 (1972), upholding 18 U.S.C. 231 (3) punishing whoever commits an act to obstruct. impede, or interfere with a fireman or law enforcement officer lawfully engaged in the performance of his official duties incident to and during a civil disorder which affects interstate or foreign commerce. This offense is encompassed within the obstructing of a government function offenses in the proposed Code (sections 1301, 1302). 25 United States v. Featherston, supra note 24, at 1122.

26 See Working Papers, p. 1002.

destructive device, or dangerous weapon, even if the weapon is not present, e.g., by the use of instructive drawings or diagrams.

The terms "firearm," "destructive device," and "dangerous weapon" are defined in section 111 and further explained in this report in connection with subchapter C of this chapter.

This section contains a general purposive element of "intent to promote a riot." The concept of intent connotes a conscious purpose to further a riot.27 Thus, this section carries a more stringent culpability standard than exists under 18 U.S.C. 231.

The conduct in this section is supplying or teaching the preparation or use of some kind of weapon or device. As no culpability level is specifically designated, the applicable state of mind that must be proved is "knowing," i.e., that the offender was aware that he was supplying or teaching the preparation or use of a weapon or device.28 The element that the item supplied, for example, was a firearm, destructive device, or dangerous weapon is an existing circumstance. As no culpability standard is stated, the applicable state of mind is "reckless," i.e., that the offender was aware of but disregarded the risk that the circumstances existed.29 Hence, a person who, intending to promote a riot, supplied another with a Molotov cocktail would be guilty of an offense under this section even if he did not know to a certainty that the object was a destructive device as defined in this Code but disregarded a recognized risk as to its dangerous character. 4. Jurisdiction

Under subsection (c), jurisdiction for this offense is the same as under section 1831, discussed above, with the exception that jurisdiction also attaches if the firearm, destructive device, or other dangerous weapon moved across a State or United States boundary in the commission or consummation of the offense. This changes and probably narrows the current jurisdictional scope of 18 U.S.C. 231. That statute applies whenever the civil disorder "in any way or degree" might obstruct, delay, or adversely affect commerce, the movement of any article in commerce, or the performance of any federally protected function. The general affecting commerce jurisdiction is here dropped since this would needlessly federalize virtually every such offense.30 On the other hand, Federal jurisdiction will exist where either a person or weapon involved in the offense moves in commerce, or where a facility of commerce is used in connection with various phases of the offense specified in section 1831 (c). It is worthy of note that the final jurisdictional branch under section 1831 (c), relating to the obstruction of a Federal government function, does not represent an expansion of jurisdiction in the present context, since 18 U.S.C. 231 currently reaches the obstruction of any Federally protected function (defined broadly in 18 U.S.C. 232 to mean any function, operation, or action carried out under the laws of the United States by any department, agency, instrumentality, or officer or employee of the United States).

5. Grading

An offense under this section is graded as a Class D felony (up to seven years in prison) where the offense involves supplying a firearm

27 See section 302 (a).

28 See sections 303(b)(1) and 302(b) (1). 29 See sections 303 (b) (2) and 302 (c) (1). 30 See Final Report, Comment, p. 243.

or destructive device; otherwise (i.e., where the offense involves teaching, or the supplying of a dangerous weapon) the offense is Class E felony (up to three years in prison). These distinctions are felt to represent a more rational grading structure than the uniform five-year penalty provided in 18 U.S.C. 231.

SECTION 1833. ENGAGING IN A RIOT

1. In General and Present Federal Law

This section punishes engaging in a riot. Participating in a riot in a Federal penal or correctional institution is currently punishable under 18 U.S.C. 1792 (which reaches, among others, anyone who "assists" a riot); 31 as previously noted, engaging in a riot in a Federal enclave is presumably covered by the Assimilative Crimes Act. There is, however, no general Federal statute prohibiting taking part in a riot. This section will furnish such a provision, thus making it unnecessary in the future to rely upon the disparate riot and disorderly conduct statutes of the States.32

Through its utilization of the definition of "riot" in section 1834, section 1833 is quite similar to the existing riot statute applicable in the District of Columbia, 22 D.C. Code 1122, which, however, uses the culpability term "willfully." The courts have interpreted "willfully" as apparently not requiring a conscious purpose to engage in the riot, but merely as knowingly participating therein.34

2. The Offense

The conduct in this offense is "engaging in" some kind of public disturbance or violent demonstration. As no culpability standard is specifically designated, the applicable state of mind is "knowing," i.e., the offender must be aware that he is engaging in a public disturbance or demonstration. Thus, merely being swept up in a riot does not constitute an offense under this section. Moreover, a peaceful protester in a large group is not guilty of an offense hereunder simply because a part of the group riots; there is no vicarious liability for this crime. The element that the activity engaged in in fact constitutes a "riot” as defined in section 1834 is an existing circumstance. Therefore, since no culpability level is specifically prescribed, the applicable mental state is "reckless," i.e., the offender must be shown to have been aware of, but to have disregarded, the risk that the disturbance or demonstration was a riot. As under section 1831, it is necessary to show that a riot actually occurred for conviction under this section. 3. Jurisdiction

Federal jurisdiction over an offense under this section exists if the offense is committed in the special jurisdiction of the United States, in a Federal facility used for official detention.35 or if the riot obstructs a Federal government function. As indicated above, the purpose of

13 See United States v. Farries, 459 F. 2d 1057, 1063-1064 (3d Cir.), cert. denied, 409 U.S. 888 (1972).

32 See Working Papers. pp. 987-988. 992-993.

This statute and the elements of the definition of "riot" are discussed in connection with section 1831 above.

24 See United States v. Matthews, supra note 7, at 1184 and n. 11; United States v. Jeffries, supra note 9, at 119.

It could happen, e.g., in darkness that a person engages in a riot aware only, without being clear on the matter, that he seems to be allied with a large number of persons and that the tumult and violence seem to be posing grave risks of injury to persons or property. 35 The term "official detention" is defined in section 111 and is discussed in detail in connection with section 1313 (Escape) in this report.

Section 1834.

the first jurisdictional base is primarily to furnish an appropriate definition and grading for riot offenses in Federal enclaves. The second branch carries forward the jurisdictional scope of 18 U.S.C. 1792. The third branch represents an extension of present jurisdiction, but is warranted because of the strong Federal interest in safeguarding its governmental functions against hindrance or obstruction by riotous activity.

4. Grading

If the riot takes place in a facility used for official detention, the offense is graded as a Class A misdemeanor (up to one year in prison); otherwise, it is graded as a Class B misdemeanor (up to six months in prison). This is in general accord with the grading of the offense under the District of Columbia Code and the recommendation of the National Commission.36

SECTION 1834. DEFINITIONS FOR SUBCHAPTER D

This section contains the definition of "riot" applicable to the offenses in this subchapter. This definition has been discussed in connection with section 1831 herein, and that discussion need not be repeated here. One aspect of the definition not touched upon previously, however, is the meaning of the phrase "grave danger of injury or damage to persons or property." A grave risk of personal injury arises under this formulation when the violent and tumultuous conduct embodied in a riot carries a present or imminent risk of causing serious bodily harm to any person. The term "grave" therefore concerns both the immediacy of the danger-e.g., a threat of future injury not imminent would involve danger too remote to be considered "grave"-and also the seriousness of its consequences. With respect to property, as a rule of thumb the Committee considers that the seriousness of danger may be measured in terms of value of the property endangered. If the value were in excess of $100, for example, the amount required to make theft punishable by imprisonment up to one year under section 1731, the danger could well be deemed "grave." Apart from value, however, the danger may be grave if the property threatened with damage is of special importance, such as utility wires or facilities used to enforce the laws or minister to the sick or injured.

37

SUBCHAPTER E.-GAMBLING, OBSCENITY, AND PROSTITUTION OFFENSES (SECTIONS 1841-1843)

This subchapter contains offenses that are not particularly related by subject matter but that have been treated in a similar manner by the Committee-i.e., gambling, obscenity, and prostitution. In all three instances, the Committee has curtailed the scope of the offenses as compared to existing law, in order to confine them to the sphere

Final Report. § 1803.

Tnited States v. Jeffries, supra note 9, at 118.

of legitimate Federal interest. Gambling and prostitution are proposed henceforth to be Federal offenses only when carried on as a business. Isolated acts are deemed more appropriately the subject of State regulation since no connection with organized crime is likely to be present. The obscenity offense has been recast to conform more closely to the latest pronouncements of the Supreme Court and includes, for the first time, a definition of obscene material. Current coverage insofar as dissemination among consenting adults is concerned has been eliminated and left to State regulation. A common theme throughout the offenses herein is that they are, in whole or in part, linked to a violation of the applicable State law, the Committee viewing the Federal role in these areas as primarily one of assisting the States in the enforcement of their laws and policies.

SECTION 1841. ENGAGING IN A GAMBLING BUSINESS

1. In General

Gambling was not an offense at common law, unless so conducted as to constitute a nuisance.1 However, most States now outlaw some forms of gambling.2

The Federal interest in prohibitions against gambling stems in the main not from enforcing the moral considerations relied on by State legislatures, but rather from the by now well-documented fact that illegal gambling proceeds are the principal source of revenue for persons engaged in organized crime.

3

Section 1841 is, therefore, directed at the management of gambling businesses of sufficient size as are likely to be under the domination of the organized criminal element and to have an impact on interstate commerce. Because of the fact that gambling enterprises normally operate across State lines, local law enforcement has not been able effectively to cope with the problem. The assistance of the Federal Government is also required because of the corruptive influence of persons involved in large-scale gambling businesses.

2. Present Federal Law

Current Federal criminal laws with respect to gambling are scattered through the United States Code. Although the most commonly invoked provisions are contained in title 18, additional statutes are included in title 15 and title 26.

18 U.S.C. 1082 makes it a crime punishable by up to two years in prison, to "set up, operate, or own or hold any interest in" a gambling ship or gambling establishment on such a ship, or to conduct any gambling game or device, or to entice, induce, solicit, or permit any person to bet or play at a gambling establishment on such a ship, "if such gambling ship is on the high seas, or is an American vessel,” or otherwise is within the jurisdiction of the United States and not within the jurisdiction of any State. This statute also provides for forfeiture

1 See 3 Wharton, Criminal Law Procedure, p. 4 (1957 ed., Supp. 1974); 38 C.J.S. Gaming, & 80 (1943).

23 Wharton, supra note 1, at 6.

See Working Papers, pp. 1172-1173.

1 See 3 Wharton, Criminal Law Procedure, p. 4 (1957 ed., Supp. 1974); 38 C.J.S. e.g., United States v. Meese, 479 F.2d 41 (8th Cir. 1973); United States v. Hunter, 478 F.2d 1019 (7th Cir.), cert. denied, 414 U.S. 857 (1973); United States v. Iannelli, 477 F.2d 999 (3d Cir. 1973), cert. granted, 417 U.S. 907 (1974); United States v. Thaggard, 477 F.2d 626 (5th Cir.), cert. denied, 414 U.S. 1064 (1973); United States v. DiMario, 473 F.2d 1046 (6th Cir.), cert. denied, 412 U.S. 907 (1973).

5 The terms "gambling ship" and "gambling establishment" are defined in 18 U.S.C. 1081.