3. Grading

An offense under this section is graded as a Class E felony (up to three years in prison). This preserves the punishment level in current law.

SECTION 1852. DISTRIBUTING ADULTERATED FOOD

1. In General and Present Law

This section deals with offenses that involve, generally, the marking, labeling, packaging, adulteration, or misbranding of poultry, meat, eggs, or products thereof. The statutes covered are the same as those encompassed in paragraphs (a) (1) through (a)(3) of section 1851 and the detailed descriptions of the offenses there should be consulted here.

The penalty provisions applicable to the sections referred to in this offense are 21 U.S.C. 461 (a), 676, and 1041 (a). Those sections provide, among other things, that violations are punishable as three-year felonies if the violation is done "with intent to defraud," or if the violation involves the "distribution" of an adulterated article. It is this latter aspect that is carried forward by section 1852.

21 U.S.C. 461 (a) provides, for example, that any person who violates 21 U.S.C. 458, 459, 460, 463, or 466 shall be subject to imprisonment for not more than three years if such violation involves, inter alia, "any distribution or attempted distribution of an article that is adulterated (except as defined in section 453 (g) (8) of this title)." 21 U.S.C. 676 provides that any person who violates, among other sections, 21 U.S.C. 610-611, 619-620, 624, or 641-644 shall be subject to imprisonment for not more than three years if such violation involves, inter alia, the "distribution or attempted distribution of an article that is adulterated (except as defined in section 601 (m) of this title)."

Finally, 21 U.S.C. 1041 (a) provides that any person who violates 21 U.S.C. 1037 is punishable by not more than three years if the violation involves, inter alia, the "distribution or attempted distribution of any article that is known to be adulterated (except as defined in section 1033 (a) (8) of this title)."

2. The Offense

Subsection (a) provides that a person is guilty of an offense if "in the distribution of an adulterated article" he violates: (A) 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 distribution of adulterated poultry and poultry products); (B) 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, 619, 620, 624, 641, 642, 643, or 644) (relating to the distribution of adulterated meat and meat products); or (C) section 8 of the Egg Products Inspection Act, as amended (21 U.S.C. 1037) (relating to the distribution of adulterated eggs and egg products).

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 essential elements (including jurisdictional elements) contained in the statutes referred to are kept intact.

By operation of section 303 (d) (1) (A), no mental state needs to be proved as to the fact that the defendant's conduct violated one of the enumerated statutes.

The phrase "in the distribution of an adulterated article" is an existing circumstance. Since no culpability level is specifically designated, the applicable state of mind that must be shown is at least "reckless," i.e., that the defendant was aware of but disregarded the risk that the circumstance existed. This carries forward, with some modification, the aspect of 21 U.S.C. 461(a), 676, and 1041 (a), discussed supra, that punishes the violation of the sections referred to in this offense at a felony level. The requirement of recklessness as to the fact that the offense involves distribution of an adulterated article represents a compromise between the provisions of 21 U.S.C. 461 (a) and 676, on the one hand, which apparently require no culpability, and those in 21 U.S.C. 1041 (a), on the other hand, which specify a culpability level of "knowing." The Committee perceives no sound reason for any distinction in this regard as between the above offenses and, accordingly, has unified the mental state required. The concept of "recklessness" rather than "knowing" has been adopted since the Committee considers that, in relation to regulatory offenses of the kind here at issue involving the distribution of adulterated articles, conscious disregard of a risk that the article is adulterated furnishes a more than adequate basis for the imposition of felony sanctions.10

Subsection (b) provides that the term "adulterated" in paragraph (1) is to be given the meaning set forth in 21 U.S.C. 453(g), except for paragraph 8 thereof; in paragraph (2), the meaning set forth in 21 U.S.C. 601 (m), except for paragraph 8 thereof; and in paragraph (3), the meaning set forth in 21 U.S.C. 1033 (a), except for paragraph 8 thereof. This carries forward the precise contours of current law under 21 U.S.C. 461(a), 676, and 1041(a), described above.11

The brief descriptions of the sections referred to, contained in parentheses, are not to be construed as limiting the scope or application of those sections.12

3. Grading

An offense under this section is graded as a Class E felony (up to three years in prison). As under the foregoing section, this is designed to preserve the penalty level in existing law.

9 See sections 303 (b) (2) and 302 (c) (1).

10 Cf. United States v. Balint, 258 U.S. 250 (1922); United States v. International Min'ls Corp., 402 U.S. 558 (1971).

11 The "paragraph 8" exceptions in each of the listed statutes are identical and relate to types of adulteration that do not pose an immediate health hazard, e.g., where a valuable constituent has been in whole or in part abstracted from the article, or any substance has been substituted in whole or in part for the article, or any substance has been added or mixed or packed with the article so as to increase its bulk or weight or make it appear better or of greater value than it is.

12 See section 112(b).

SUBCHAPTER G.- -MISCELLANEOUS OFFENSES

(Sections 1861–1863)

This subchapter contains three miscellaneous offenses not appropriate for location elsewhere in the Code. A common theme (to the extent one exists among these offenses) is their application primarily or exclusively in the special jurisdiction of the United States. The first two offenses are infractions and concern types of conduct commonly referred to as "disorderly." Section 1861 is in fact entitled "Disorderly Conduct" and punishes various kinds of behavior when done with intent to annoy, harass, or alarm another person or in reckless disregard of the fact that another person is thereby alarmed, harassed, or annoyed. The second offense, section 1862, reaches conduct involving the failure to obey an order of a public servant to move, disperse, or refrain from activity in a certain place, where the order is lawful and reasonably designed to protect persons or property. It is anticipated that it will be utilized primarily in riots and other on-the-street encounters. The final offense, section 1863, continues the policy of the existing Assimilative Crimes Act, 18 U.S.C. 13, by incorporating offenses under State or local law when committed in Federal enclaves, which are not specifically punishable under other Federal criminal statutes. In view of the virtual completeness of the proposed Code so far as felony coverage is concerned, the section will have far less scope than does current 18 U.S.C. 13 in terms of assimilating local felony laws. However, the Committee has intentionally refrained from defining in the Code certain felonies of a public morals nature, such as bigamy, in order to rely on local law, and section 1863 will operate to assimilate these offenses as well as a variety of misdemeanors and petty offenses not otherwise reached in the United States Code.

SECTION 1861. DISORDERLY CONDUCT

1. In General and Present Federal Law

This section proscribes various acts committed with intent to annoy, alarm, or harass another person or in reckless disregard of the fact that another person will be alarmed, harassed, or annoyed. The section is derived principally from New York law. A substantially identical provision was also included in the Final Report of the National Commission.2

There is presently no Federal disorderly conduct statute generally applicable to enclaves. Rather, under the Assimilative Crimes Act, 18 U.S.C. 13, Federal law currently borrows, in the main, dissimilar disorderly conduct laws of the States and localities. An exception

1 I.e.. specifically, McKinney's Rev. N.Y. Penal Law. §§ 240.20 and 240.25.

2 See Final Report. § 1861. The section adopts the recommendation of the American Bar Association. Hearings, p. 5815.

3 See United States v. Woodward, 376 F.2d 136 (7th Cir. 1967): United States v. Jones, 244 F. Supp. 181 (S.D.N.Y.), aff'd, 365 F.2d 675 (2d Cir. 1966).

5

6

exists with regard to lands under the jurisdiction of the National Park Service. Pursuant to statutory authority, the Secretary of the Interior has promulgated a disorderly conduct regulation applicable to those lands, violation of which is punishable by up to six months' imprisonment. The regulation is virtually identical to the disorderly conduct statute recommended by the Model Penal Code, which differs from the present proposal in requiring a "purpose to cause public inconvenience, annoyance, or alarm" (emphasis supplied). The proposed section in the Code, on the other hand, reaches conduct aimed at alarming, annoying, or harassing any individual and thus is somewhat broader in scope. Proposed section 1861, by its applicability throughout the special jurisdiction of the United States, unifies Federal law with regard to the content and grading of the disorderly conduct offense, and renders it unnecessary in the future to rely on the widely diverse State and local enactments in this area.

2. The Offense

Section 1861 provides that a person is guilty of an offense if, "with intent to alarm, harass, or annoy another person or in reckless disregard of the fact that another person is thereby alarmed, harassed, or annoyed," he engages in any of seven types of behavior enumerated in the succeeding paragraphs. The element of intent to alarm, harass, or annoy another person requires that the offender must consciously desire to bring about the result of alarming, harassing, or annoying such other person. The alternative requirement of reckless disregard of the fact that another person is alarmed, harassed, or annoyed by the conduct means (1) that the other person is in fact alarmed, harassed, or annoyed, and (2) that the offender must be aware of the risk that his actions might cause that reaction, and disregard that risk, and the risk must be such that its disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.s

Paragraphs 1 through 7 list the various kinds of actions that, when done with the culpability described above, constitute a violation of this section.

Paragraph (1) proscribes engaging in violent, tumultuous, or threatening conduct. Examples of such conduct include fighting and assaulting, regardless of resulting injury, as well as the communication of a threat or participation in an outburst or commotion. Where an assault or threat is made in the course of resisting an arrest or impeding some other government function, it may also be punishable under section 1302 (Obstructing a Government Function by Physical Interference). Under the general principles of section 303 (b)(1), since no state of mind is designated with respect to the conduct, the applicable state of mind is "knowing," i.e., the actor must be aware that he is engaging in violent, tumultuous, or threatening behavior.10

4 See 16 U.S.C. 1. 3.

5 36 C.F.R. 2.7. For an example of a prosecution under the regulation. see Johnson v. United States, 394 F.2d 984 (5th Cir. 1968), cert. denied, 394 U.S. 592 (1969).

6 Model Penal Code § 250.2 (P.O.D. 1962).

7 See section 302 (a) (2).

8 See section 302 (c) (2).

The term "violent and tumultuous" conduct appears in Federal law in the District of Columbia Code (22 D.C. Code 1122) in the context of a riot statute.

10 See section 302 (b) (1).

Paragraph (2) prohibits the making or causing of unreasonable noise. Conduct such as yelling or rattling garbage cans, playing a radio or television at excessively high volume, honking the horn of a vehicle, and any other form of noisemaking is included within this provision. As under paragraph (1), the applicable state of mind with respect to the conduct (i.e., making or causing noise) is "knowing," that is, the offender must be aware that he is producing noise. The element that the quantity of noise produced be "unreasonable" is an existing circumstance. Accordingly, by operation of section 303 (b) (2), the state of mind that must be shown is "reckless," i.e., that the offender was aware of but disregarded the risk that the amount of noise he was making or causing was unreasonable. The issue of reasonableness must, of course, be judged in the particular circumstances. Thus, the setting off of loud fireworks on New Year's Eve might not violate the provision whereas the use of noisemaking devices on other occasions would do so. On the other hand, the making of even a small amount of noise in a patient's hospital room or in a movie theatre may well be unreasonable.

Paragraph (3) punishes the use of abusive or obscene language or the doing of obscene acts, in a public place.11 The Committee is aware that this is an area attended by difficult constitutional issues and that a number of recent Supreme Court cases have either invalidated or cast doubt upon the validity of various State and local disorderly conduct laws purporting to penalize speech.

A critical question appears to be whether such statutes may punish utterances other than actual "fighting" words, i.e., words likely to cause an average addressee to fight or commit a breach of the peace.12 In Gooding v. Wilson 13 and Lewis v. New Orleans,14 the Court struck down disorderly conduct laws, each of which used the adjective "opprobrious" to describe, in part, the type of words whose utterance was prohibited. The Court held that, absent a narrowing construction placed upon the broad term "opprobrious" by the local courts, its inclusion rendered those laws facially invalid under the First and Fourteenth Amendments. Although the opinion in Gooding, supra, may be further read as indicating that only a statute limited to punishing "fighting" words will withstand constitutional scrutiny, the Committee believes that a proper reading of the Gooding decision leads rather to the conclusion that this issue was not there resolved and remains open. With respect to this question, it is significant that several justices of the Court, in dissenting from the subsequent remand of a New Jersey conviction for reconsideration in light of Gooding, endorsed the view that: 15

[T]he exception to First Amendment protection recognized in Chaplinsky, supra, is not limited to words whose mere utterance entails a high probability of an outbreak of physical violence. It also extends to the willful use of scurrilous language calculated to offend the sensibilities of an unwilling audience.

11 Harassing or obscene telephone calls are covered under 47 U.S.C. 223.

12 See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Cohen v. California, 403 U.S.

15 (1971); Gooding v. Wilson, 405 U.S. 518 (1972); Lewis v. New Orleans, 415 U.S. 130 (1974).

13 Supra, note 12.

14 Supra, note 12.

15 Rosenfeld v. New Jersey, 408 U.S. 901, 905 (Powell, J., dissenting, joined by Burger, C. J., and Blackmun, J.) (1972).