that the business was a prostitution business (as that term is defined herein) is an existing circumstance. Since no culpability is specifically prescribed, the applicable state of mind that must be shown is at least "reckless," i.e., that the offender was conscious of but disregarded the risk that his business was of the type proscribed.

4. Defense

Subsection (c) provides that it is a defense to a prosecution under this section that the prostitution business and any prostitution involved were lawful under the laws of all States or localities in which the offense occurred.

The fact that the prostitution business violates State law is presently an element of the offense under 18 U.S.C. 1952. The Committee, however, determined, both in this section and section 1841, that a more equitable as well as practical allocation of the burden of going forward with the evidence was to make legality of the enterprise a defense. This will enable proof of illegality to be foregone in those cases (the overwhelming majority) where illegality of the business is clear and will require the defense to come forward with some evidence to raise the issue of legality in those instances where the defendant contends that the State or local law is not clear or permits the activity. Thereafter the prosecution will have the burden of disproving the defense beyond a reasonable doubt.107 The reason for making a defense available predicated upon the lawfulness of the activity under State law is to implement the Committee's judgment that there is no Federal interest of sufficient magnitude to warrant penal sanctions in regard to prostitution businesses which are not unlawful locally. 5. Jurisdiction

Subsection (e) provides that there is Federal jurisdiction over an offense under this section in three circumstances. The first is if the offense is committed within the special jurisdiction of the United States. The special jurisdiction is defined in section 203 and includes, in essence, Federal enclaves, various vessels on the high seas, and certain aircraft while in flight. Extending the jurisdictional scope of this section to such places will enable the present coverage of the Assimilative Crimes Act, incorporating the diverse provisions of State and local laws, as well as 18 U.S.C. 1384, to be replaced by the uniform definitional and grading provisions of this section. 108

Persons who engage in "prostitution," as defined in this section, but who do not engage in a "prostitution business," as defined in this section, and whose activities violate State or local law, can be punished under section 1863 (Violating State or Local Law in an Enclave) of the Code. Persons who merely "solicit a sexual act, as defined in section 1636(a), in a public place" can be punished (at an infraction level) under the disorderly conduct statute (section 1861 (a) (6)). The Committee does not intend to permit assimilation of State laws runishing sexual activities other than those defined in this section. (i.e., other sexual acts, or the same sexual acts not done as consideration for anything of pecuniary value).

107 See the discussion of the defenses in section 1841.

108 Some coverage in 18 U.S.C. 1384-i.e., the prohibition against setting up a house of prostitution "near" a military base-will be lost. This is not, however, deemed to be significant.

Section 1851.

The second circumstance is if the United States mail or a facility of interstate or foreign commerce is used in the planning, promotion, management, execution, consummation, or concealment of the offense, or in the distribution of the proceeds of the offense. This essentially carries forward the jurisdiction scope of 18 U.S.C. 1952.

The third circumstance is if movement of any person across a State or United States boundary occurs in the course of the planning, promotion, management, execution, consummation, or concealment of the offense, or in the course of the distribution of the proceeds of the of fense. This basically perpetuates the existing jurisdictional purview of the White Slave Traffic Act with the exception that movement of "any person" (e.g., the owner of the business) and not just that of the prostitute is deemed sufficient for Federal jurisdiction to attach. The Committee perceives no reason why the only relevant movement should' be that of the prostitute.

6. Grading

An offense under this section is generally graded as a Class E felony, carrying a three-year maximum prison sentence. Maintaining the distinction drawn in the White Slave Traffic Act, 18 U.S.C. 2423, however, the offense is raised to a Class D felony, carrying a seven-year maximum sentence, if the business involves the prostitution, or the recruitment for prostitution, of a person under eighteen years old.

SUBCHAPTER F.-PUBLIC HEALTH OFFENSES

(Sections 1851-1852)

This subchapter brings into criminal Code a number of public health offenses currently defined and punished in title 21, United States Code. Only those offenses deemed worthy of retention as felonies have been selected for incorporation into this title. Other less serious offenses relating to public health will be retained in title 21 as misdemeanors. This subchapter does not significantly alter the substantive definition of the crimes here incorporated. Rather, the principal technique adopted by the Committee is to refer to particular sections of title 21 and provide that whoever "violates" them is guilty of an offense. This preserves the content of the current offenses, while enabling the penalty to be prescribed in this subchapter.

SECTION 1851. FRAUD IN A HEALTH RELATED INDUSTRY

1. In General and Present Federal Law

This section deals with offenses involving the marking, labeling, and packaging of certain foodstuffs and adulteration or misbranding of a food, drug, device, or cosmetic, with intent to defraud.

1 Specifying the content of such offenses is seen as preferable to a general regulatory offense statute, which was seriously criticized in the Hearings. See, e.g., Hearings, 16461647, 1789-1790, 3509-3512, 6658-6661.

21 U.S.C. 458 sets forth a number of prohibited acts relating to the improper slaughter of poultry, sale of adulterated, misbranded, or uninspected poultry, improper use of trade secrets, and improper use of any official device, mark, or certificate.

21 U.S.C. 459 prohibits establishments from processing poultry or poultry products except in compliance with the requirements of chapter 10 of title 21.

21 U.S.C. 460 proscribes a variety of acts involving identification of certain poultry parts or products not intended for human consumption; the section also mandates record-keeping by persons engaged in the business of slaughtering, transporting, storing, buying, selling, processing, or packaging poultry. It also requires that anyone engaged in certain businesses associated with poultry or poultry products register with the Secretary of Agriculture; and the section regulates transactions involving transportation or importation of dying, disabled, or diseased poultry to prevent its use as human food.

21 U.S.C. 463 prohibits violation of any regulations prescribed by the Secretary of Agriculture setting forth conditions under which poultry products capable of use as human food shall be stored or otherwise handled by any person engaged in the business of buying, selling, importing, storing, or transporting them.

21 U.S.C. 466 prohibits the importation of slaughtered poultry unless they are healthful and not adulterated and unless they comply with the regulations promulgated by the Secretary of Agriculture to assure that such poultry meets the standards required of domestic poultry for human consumption.

21 U.S.C. 461(a) provides that any person who violates any of the foregoing sections shall be subject to imprisonment for not more than one year. It further provides, inter alia, that "if such violation involves intent to defraud," the offender shall be liable to imprisonment for up to three years. Carriers are excluded from liability (except under 21 U.S.C. 460) unless they have knowledge or are in possession of facts from which a reasonable person would believe that poultry or poultry products were not inspected or marked in accordance with this chapter or were otherwise ineligible for transportation.

21 U.S.C. 610 prohibits the slaughter of cattle, sheep, swine, goats, horses, mules or other equines at any establishment preparing any carcasses or food products for commerce, except in compliance with chapter 12 of title 21. The section also prohibits the sale, transportation, or receipt in commerce of any such articles which are capable of use as human food and are adulterated or misbranded, or any such articles that were not inspected as required; and it also bars the doing of any act which is intended to cause, or which causes, such articles to be misbranded.

21 U.S.C. 611 proscribes, inter alia, the misuse or destruction of any official mark or certificate or the making of any false statement in any shipper's certificate or the knowing misrepresentation that any article covered in this chapter has been inspected.

21 U.S.C. 620 prohibits the importation of carcasses or meat or food products of cattle, sheep, swine, goats, horses, mules, or other equines which are capable of use as human food unless they comply with the standards applicable to domestic products of the same kind.

2 This offense will be retained in title 21.

21 U.S.C. 642 prohibits the violation of regulations promulgated by the Secretary of Agriculture setting forth conditions under which carcasses or meat or food products of cattle, sheep, etc., capable of use as human food, may be stored or otherwise handled by any person engaged in the business of buying, selling, importing, storing, or transporting such articles.

21 U.S.C. 641 requires identification of certain parts of cattle, sheep, etc. not intended for use as human food and proscribes the purchase, sale, transportation, or receipt of such items unless they are identified. as prescribed by regulations.

21 U.S.C. 642 mandates record-keeping by persons engaged in the business of slaughtering, buying, selling, importing, preparing, or packaging cattle, sheep, etc., as well as by persons engaged in the buying, selling, importing, or transporting of any dead, dying, disabled, or diseased animals of the type specified above.

21 U.S.C. 643 requires registration with the Secretary of Agriculture of anyone engaged in various businesses associated with the parts or products of cattle, sheep, etc.

21 U.S.C. 644 regulates transactions involving the transportation or importation of dying, disabled, or diseased cattle, sheep, etc.

21 U.S.C. 676 provides that any person who violates any of the foregoing provisions shall be subject to imprisonment for not more than one year.3 It further provides, inter alia, that "if such violation involves intent to defraud," the offender shall be liable to imprisonment for up to three years. An exception is created for persons who receive for transportation any animal or article under this chapter "in good faith" unless they refuse, upon request of the Secretary, or his representative, to disclose the name and address of the person from whom it was received.

21 U.S.C. 1037 sets forth a number of prohibited acts dealing with restricted eggs, egg processing, egg inspection, adulterated or misbranded eggs, identification of eggs and egg products not intended for human consumption, keeping of records by persons engaged in the business of transporting or handling eggs, importation of eggs, improper use of any official mark, label, or certificate, or improper use of any trade secret by a Federal or State employee. In general, the prohibited acts parallel those in 21 U.S.C. 458 and 460, relating to poultry and poultry products.

21 U.S.C. 1041 provides that any person who commits any offense prohibited by section 1037 shall be subject to imprisonment for not more than one year. It further provides, inter alia, that "if such violation involves intent to defraud," the offender shall be liable to imprisonment for up to three years. Carriers and warehousemen are excepted (other than for record-keeping) for acts connected with their receipt, carriage, holding, or delivery of eggs or egg products in the usual course of business, unless they know or are in possession of facts that would cause a reasonable person to believe that such items were not eligible for transportation under, or were otherwise in violation of, this chapter, or unless they refuse to furnish, on request of the Secretary or his representative, the name and address of the person from whom such eggs or egg products were received.

3 This offense will be retained in title 21. This offense will be retained in title 21.

21 U.S.C. 331 sets forth more than a score of prohibited acts relating to food, drugs, and cosmetics. Included are the adulteration or misbranding of any food, drug, or cosmetic in interstate commerce, the manufacture, introduction or receipt in commerce of any such substance, the misuse of any mark, label, or other identification device authorized or required by regulations, trafficking in or making counterfeit drugs, misuse of trade secrets, the doing of any act with intent to cause, or which causes, any food, drug, device or cosmetic to become adulterated or misbranded, and the failure of any person who owns or operates any establishment engaged in the manufacture, preparation, propagation, compounding, or processing of a drug to register with the Secretary of Health, Education, and Welfare.

21 U.S.C. 333 (a) provides that any person who violates section 331 shall be subject to imprisonment for not more than one year.5 21 U.S.C. 333 (b) further provides, inter alia, that if any person commits such a violation "with the intent to defraud or mislead," he shall be liable to imprisonment for up to three years. Subsection (c) contains a number of exclusions from criminal liability in cases of good faith, etc., patterned upon the provisions of 21 U.S.C. 461 (a), 676, and 1041.

2. The Offense

6

Subsection (a) provides that a person is guilty of an offense if, "with intent to defraud," he violates: (1) section 9, 10, 11, 14, or 17 of the Poultry Products Inspection Act, as amended (21 U.S.C. 458, 459, 460, 463, or 466) (relating to the marking, labeling, and packaging of poultry and poultry products); (2) section 10, 11, 19, 20, 24, 201, 202, 203, or 204 of the Federal Meat Inspection Act, as amended (21 U.S.C. 610, 611, 620 624, 641, 642, 643, or 644) (relating to the marking, labeling, and packaging of meat and meat products); (3) section 8 of the Egg Products Inspection Act, as amended (21 U.S.C. 1037) (relating to the marking, labeling, packaging of eggs and egg products); or (4) section 301 of the Federal Food, Drug, and Cosmetic Act, as amended (21 U.S.C. 331) (relating to the adulteration of a food, drug, device, or cosmetic).

The term "violates" is defined in section 111 to mean engaging in conduct which is proscribed, prohibited, declared unlawful, or made subject to a penalty. Thus, the current content (including both substantive and jurisdictional elements) of the sections of title 21 referred to will be kept intact. By operation of section 303 (d) (1) (A), no culpability as to the fact that the conduct is in violation of those sections need be proved.

The phrase "with intent to defraud" states the particular purpose for which it must be established that the forbidden conduct was performed. This carries forward that aspect of 21 U.S.C. 461 (a), 676, 1041, and 333(b), discussed supra, that punishes the violation of the sections referred to in this offense at a felony level."

The brief descriptions of the sections here incorporated, contained in parentheses, are not to be construed as limiting the scope or application of the sections to which they refer.s

5 This offense will be retained in title 21.

The three-year punishment is also made available in the case of a second or subsequent violation, even if no intent to defraud is present.

721 U.S.C. 333 (b) also refers to an intent to "mislead." This term has been eliminated as synonymous with the word "defraud" and therefore redundant.

See section 112(b).