Karen Lehman Haas Clerk of the U.S. House of Representatives Office of the Clerk U.S. Capitol , Room Hl54, Washjngton , DC 20515-6601

04/15/13

Article V.org 25-180 Pukana La St.

Hilo, I-Il 96720

Subject: Requesting verification and tabulation of State applications for an Article V convention to propose amend­

ments.

Greetings Ms. Haas,

I spoke with Kirk Boyle in your office and Tom Wickham, House Parliamentarian, and have been instructed to deliver this information to the Clerk of the House of Representatives. I am providing you with the attached documentation of 42 legal

and standing State applications for an Article V convention for determination of their validity. The collection of all known applications on record may be found here: http: //foavc.org/file.php/ I I Amendments

We, involved with ArticleV.org, acknowledge the fact that the States have satisfied the required two-thirds numerical threshold to call for an Article V Convention under Article V of the US Constitution and Congress should call an Article V Convention to order. We make formal request for the Clerk of House of Representatives to verify and inform Congress of

this ma.tter.

The Congressional Research Service arrived at a similar conclusion. "With well over a century of experience in proposing

an Article V Convention, the states have arrived at certain precedents f or the consideration of these applications. " from the Congressional Research Service Report by Thomas H. Neale, The Article V Convention for Proposing Constitu­tional Amendments: Thstorical Perspectives for Congress, October 22, 2012. http://www.fas.org/sgp/crs/misc/R42592.pdf

Those advocating for an Article V Convention from various groups often find ourselves in debate about what the current count is today. As the Congressional Research Service pointed out, there has never been an official tabulation to indicate which state applications would be valid toward the two-thirds threshold, and which would not. We truly desire an official verification and tabulation of these applications and any others we may have overlooked so there is an official number we may all reference.

Thank you for your time and diligence in this matter.

Article V.org 808-345-3990

CONGRESSIONAL RECORD — HOUSE H6775 October 24, 2013 granted to Congress in the Constitu-tion to enact the accompanying bill or joint resolution.

By Mrs. ELLMERS: H.R. 3338. Congress has the power to enact this legis-

lation pursuant to the following: The authority to enact this bill is derived

from, but may not be limited to, Clause 1 of Section 8 of Article I of the United States Constitution.

By Mr. KINGSTON: H.R. 3339. Congress has the power to enact this legis-

lation pursuant to the following: Amendment X The powers not delegated to the United

States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

By Mr. KINGSTON: H.R. 3340. Congress has the power to enact this legis-

lation pursuant to the following: Article I, Section 8, Clause 3 The Congress shall have Power * * * To

regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

By Mr. KINGSTON: H.R. 3341. Congress has the power to enact this legis-

lation pursuant to the following: This bill is enacted pursuant to the power

granted to Congress under Article I, Section 8, Clause 18.

By Mr. KINGSTON: H.R. 3342. Congress has the power to enact this legis-

lation pursuant to the following: Article I, Section 8 To lay and collect Taxes, Duties, Imposts

and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States

To regulate Commerce with foreign Na-tions, and among the several States, and with the Indian Tribes

f

ADDITIONAL SPONSORS

Under clause 7 of rule XII, sponsors were added to public bills and resolu-tions as follows:

H.R. 207: Mr. MESSER.

H.R. 366: Mr. UPTON. H.R. 647: Mr. HUDSON and Mr. LONG. H.R. 681: Mr. WITTMAN. H.R. 1020: Mr. YODER and Mr. BILIRAKIS. H.R. 1094: Mr. ROYCE. H.R. 1281: Mr. LIPINSKI. H.R. 1518: Mr. ROSS, Mr. WOLF, Mrs. LOWEY,

Ms. BASS, Mr. MEEKS, Mr. FRELINGHUYSEN, Mr. GENE GREEN of Texas, and Mr. OLSON.

H.R. 1661: Mr. CLAY. H.R. 1696: Mr. AMODEI. H.R. 1814: Mr. LARSEN of Washington and

Mrs. WAGNER. H.R. 2286: Mr. LOEBSACK. H.R. 2457: Ms. BASS. H.R. 2663: Ms. JENKINS. H. Res. 301: Ms. WILSON of Florida.

f

PETITIONS, ETC.

Under clause 3 of rule XII, 55. The SPEAKER presented a petition of

Dan Marks, Hilo, HI, relative to a letter re-garding methods for proposing amendments; which was referred to the Committee on the Judiciary.

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5 USC3331

NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.htmlj.

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES PART Ill - EMPLOYEES

Subpart B - Employment and Retention CHAPTER 33-EXAMINATION, SELECTION, AND PLACEMENT

SUBCHAPTER II -OATH OF OFFICE

§ 3331. Oath of office

An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: "I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God." This section does not affect other oaths required by law.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 424.)

Derivation

5 u.s.c. 16.

May 13, 1884, ch. 46, §§ 2, 3, 23 Stat. 22.

Historical and Revision Notes

U.S. Code Revised Statutes and Statutes at Large

R.S. § 1757.

All but the quoted language in R.S. § 1757 is omitted as obsolete since R.S. § 1757 was originally an alternative oath to the oath prescribed in R.S. § 1756 which oath was repealed by the Act of May 13, 1884, ch. 46, § 2, 23 Stat. 22. The words "An individual, except the President, ... in the civil service or uniformed services" are substituted for "any person ... either in the civil, military, or naval service, except the President of the United States". The second sentence of former section 16 is changed to read, "This section does not affect other oaths required by law.".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

- 1 -

2

may, in consultation with the Minority Leader-

(1) postpone the time for recon­vening within the limits of clause 4, section 5, article I of the Constitu­tion and notify Members accordingly; or

(2) reconvene the House before the time previously appointed solely to declare the House in recess within the limits of clause 4, section 5, arti­cle I of the Constitution and notify Members accordingly. (d) The Speaker may convene the

House in a place at the seat of govern­ment other than the Hall of the House whenever, in the opinion of the Speak­er, the public interest shall warrant it.

RULE II OTHER OFFICERS AND OFFICIALS

Elections 1. There shall be elected at the com­

mencement of each Congress, to con­tinue in office until their successors are chosen and qualified, a Clerk, a Sergeant-at-Arms, a Chief Administra­tive Officer, and a Chaplain. Each of these officers shall take an oath to sup­port the Constitution of the United States, and for the true and faithful ex­ercise of the duties of the office to the best of the knowledge and ability of the officer, and to keep the secrets of the House. Each of these officers shall appoint all of the employees of the de­partment concerned provided for by law. The Clerk, Sergeant-at-Arms, and Chief Administrative Officer may be removed by the House or by the Speak­er. Clerk

2. (a) At the commencement of the first session of each Congress, the Clerk shall call the Members, Dele­gates, and Resident Commissioner to order and proceed to record their pres­ence by States in alphabetical order, either by call of the roll or by use of the electronic voting system. Pending the election of a Speaker or Speaker pro tempore, the Clerk shall preserve order and decorum and decide all ques­tions of order, subject to appeal by a Member, Delegate, or Resident Com­missioner.

(b) At the commencement of every regular session of Congress, the Clerk shall make and cause to be delivered to each Member, Delegate, and the Resi­dent Commissioner a list of the reports that any officer or Department is re­quired to make to Congress, citing the law or resolution in which the require­ment may be contained and placing under the name of each officer the list of reports required to be made by such officer.

(c) The Clerk shall-(1) note all questions of order, with

the decisions thereon, the record of which shall be appended to the Jour­nal of each session;

(2) enter on the Journal the hour at which the House adjourns;

(3) complete the distribution of the Journal to Members, Delegates, and

RULES OF THE

the Resident Commissioner, together with an accurate and complete index, as soon as possible after the close of a session; and

(4) send a copy of the Journal to the executive of and to each branch of the legislature of every State as may be requested by such State offi­cials. (d)(l) The Clerk shall attest and affix

the seal of the House to all writs, war­rants, and subpoenas issued by order of the House and certify the passage of all bills and joint resolutions.

(2) The Clerk shall examine all bills, amendments, and joint resolutions after passage by the House and, in co­operation with the Senate, examine all bills and joint resolutions that have passed both Houses to see that they are correctly enrolled and forthwith present those bills and joint resolu­tions that originated in the House to the President in person after their sig­nature by the Speaker and the Presi­dent of the Senate, and report to the House the fact and date of their pre­sentment.

(e) The Clerk shall cause the cal­endars of the House to be distributed each legislative day.

(f) The Clerk shall-(1) retain in the library at the Of­

fice of the Clerk for the use of the Members, Delegates, Resident Com­missioner, and officers of the House, and not to be withdrawn therefrom, two copies of all the books and print­ed documents deposited there; and

(2) deliver to any Member, Dele­gate, or the Resident Commissioner an extra copy of each document re­quested by that Member, Delegate, or Resident Commissioner that has been printed by order of either House of Congress in any Congress in which the Member, Delegate, or Resident Commissioner served. (g) The Clerk shall provide for the

temporary absence or disability of the Clerk by designating an official in the Office of the Clerk to sign all papers that may require the official signature of the Clerk and to perform all other official acts that the Clerk may be re­quired to perform under the rules and practices of the House, except such of­ficial acts as are provided for by stat­ute. Official acts performed by the des­ignated official shall be under the name of the Clerk. The designation shall be in writing and shall be laid be­fore the House and entered on the Journal.

(h) The Clerk may receive messages from the President and from the Sen­ate at any time when the House is in recess or adjournment.

(i)(l) The Clerk shall supervise the staff and manage the office of a Mem­ber, Delegate, or Resident Commis­sioner who has died, resigned, or been expelled until a successor is elected. The Clerk shall perform similar duties in the event that a vacancy is declared by the House in any congressional dis­trict because of the incapacity of the person representing such district or

other reason. When acting as a super­visory authority over such staff, the Clerk shall have authority to termi­nate employees and, with the approval of the Committee on House Adminis­tration, may appoint such staff as is required to operate the office until a successor is elected.

(2) For 60 days following the death of a former Speaker, the Clerk shall maintain on the House payroll, and shall supervise in the same manner, staff appointed under House Resolution 1238, Ninety-first Congress (as enacted into permanent law by chapter VIII of the Supplemental Appropriations Act, 1971) (2 U.S.C. 311:r5).

(j) In addition to any other reports required by the Speaker or the Com­mittee on House Administration, the Clerk shall report to the Committee on House Administration not later than 45 days following the close of each semi­annual period ending on June 30 or on December 31 on the financial and oper­ational status of each function under the jurisdiction of the Clerk. Each re­port shall include financial statements and a description or explanation of cur­rent operations, the implementation of new policies and procedures, and future plans for each function.

(k) The Clerk shall fully cooperate with the appropriate offices and per­sons in the performance of reviews and audits of financial records and admin­istrative operations. Sergeant-at-Arms

3. (a) The Sergeant-at-Arms shall at­tend the House during its sittings and maintain order under the direction of the Speaker or other presiding officer. The Sergeant-at-Arms shall execute the commands of the House, and all processes issued by authority thereof, directed to the Sergeant-at-Arms by the Speaker.

(b) The symbol of the Office of the Sergeant-at-Arms shall be the mace, which shall be borne by the Sergeant­at-Arms while enforcing order on the floor.

(c) The Sergeant-at-Arms shall en­force strictly the rules relating to the privileges of the Hall of the House and be responsible to the House for the offi­cial conduct of employees of the Office of the Sergeant-at-Arms.

(d) The Sergeant-at-Arms may not allow a person to enter the room over the Hall of the House during its sittings and, from 15 minutes before the hour of the meeting of the House each day until 10 minutes after ad­journment, shall see that the floor is cleared of all persons except those priv­ileged to remain.

(e) In addition to any other reports required by the Speaker or the Com­mittee on House Administration, the Sergeant-at-Arms shall report to the Committee on House Administration not later than 45 days following the close of each semiannual period ending on June 30 or on December 31 on the fi­nancial and operational status of each function under the jurisdiction of the

4

on request of a Member, Delegate, or Resident Commissioner by card or in writing, may be admitted to the Hall of the House.

4. (a) A former Member, Delegate, or Resident Commissioner; a former Par­liamentarian of the House; or a former elected officer of the House or former minority employee nominated as an elected officer of the House shall not be entitled to the privilege of admission to the Hall of the House and rooms leading thereto if such individual-

(!) is a registered lobbyist or agent of a foreign principal as those terms are defined in clause 5 of rule XXV;

(2) has any direct personal or pecu­niary interest in any legislative measure pending before the House or reported by a committee; or

(3) is in the employ of or represents any party or organization for the purpose of influencing, directly or in­directly, the passage, defeat, or amendment of any legislative pro­posal. (b) The Speaker may promulgate reg­

ulations to carry out this rule includ­ing regulations that exempt ceremo­nial or educational functions from the restrictions of this clause.

5. A person from the staff of a Mem­ber, Delegate, or Resident Commis­sioner may be admitted to the Hall of the House or rooms leading thereto under clause 2 only upon prior notice to the Speaker. Such persons, and per­sons from the staff of committees ad­mitted under clause 2, may not engage in efforts in the Hall of the House or rooms leading thereto to influence Members with regard to the legislation being amended. Such persons shall re­main at the desk and are admitted only to advise the Member, Delegate, Resi­dent Commissioner, or committee re­sponsible for their admission. A person who violates this clause may be ex­cluded during the session from the Hall of the House and rooms leading thereto by the Speaker. Gallery

6. (a) The Speaker shall set aside a portion of the west gallery for the use of the President, the members of the Cabinet, justices of the Supreme Court, foreign ministers and suites, and the members of their respective families. The Speaker shall set aside another portion of the same gallery for the ac­commodation of persons to be admitted on the cards of Members, Delegates, or the Resident Commissioner.

(b) The Speaker shall set aside the southerly half of the east gallery for the use of the families of Members of Congress. The Speaker shall control one bench. On the request of a Member, Delegate, Resident Commissioner, or Senator, the Speaker shall issue a card of admission to the family of such indi­vidual , which may include their visi­tors. No other person shall be admitted to this section. Prohibition on campaign contributions

7. A Member, Delegate, Resident Commissioner, officer, or employee of

RULES OF THE

the House, or any other person entitled to admission to the Hall of the House or rooms leading thereto by this rule, may not knowingly distribute a polit­ical campaign contribution in the Hall of the House or rooms leading thereto.

RULEV BROADCASTING THE HOUSE

1. The Speaker shall administer, di­rect, and control a system for closed­circuit viewing of floor proceedings of the House in the offices of all Members, Delegates, the Resident Commissioner, and committees and in such other places in the Capitol and the House Of­fice Buildings as the Speaker considers appropriate. Such system may include other communications functions as the Speaker considers appropriate. Any such communications shall be subject to rules and regulations issued by the Speaker.

2. (a) The Speaker shall administer, direct, and control a system for com­plete and unedited audio and visual broadcasting and recording of the floor proceedings of the House. The Speaker shall provide for the distribution of such broadcasts and recordings to news media, for the storage of audio and video recordings of the proceedings, and for the closed-captioning of the proceedings for hearing-impaired per­sons.

(b) All television and radio broad­casting stations, networks, services, and systems (including cable systems) that are accredited to the House Radio and Television Correspondents' Gal­leries, and all radio and television cor­respondents who are so accredited, shall be provided access to the live cov­erage of the House.

(c) Coverage made available under this clause, including any recording thereof-

(!) may not be used for any par­tisan political campaign purpose;

(2) may not be used in any commer­cial advertisement; and

(3) may not be broadcast with com­mercial sponsorship except as part of a bona fide news program or public affairs documentary program. 3. The Speaker may delegate any of

the responsibilities under this rule to such legislative entity as the Speaker considers appropriate.

RULE VI OFFICIAL REPORTERS AND NEWS MEDIA

GALLERIES

Official reporters 1. Subject to the direction and con­

trol of the Speaker, the Clerk shall ap­point, and may remove for cause, the official reporters of the House, includ­ing stenographers of committees, and shall supervise the execution of their duties. News media galleries

2. A portion of the gallery over the Speaker's chair as may be necessary to accommodate representatives of the press wishing to report debates and proceedings shall be set aside for their

use. Reputable reporters and cor­respondents shall be admitted thereto under such regulations as the Speaker may prescribe from time to time. The Standing Committee of Correspondents for the Press Gallery, and the Execu­tive Committee of Correspondents for the Periodical Press Gallery, shall su­pervise such galleries, including the designation of its employees, subject to the direction and control of the Speak­er. The Speaker may admit to the floor, under such regulations as the Speaker may prescribe, not more than one representative of each press asso­ciation.

3. A portion of the gallery as may be necessary to accommodate reporters of news to be disseminated by radio, tele­vision, and similar means of trans­mission, wishing to report debates and proceedings, shall be set aside for their use. Reputable reporters and cor­respondents shall be admitted thereto under such regulations as the Speaker may prescribe. The Executive Com­mittee of the Radio and Television Cor­respondents' Galleries shall supervise such gallery, including the designation of its employees, subject to the direc­tion and control of the Speaker. The Speaker may admit to the floor, under such regulations as the Speaker may prescribe, not more than one represent­ative of each media outlet.

RULE VII RECORDS OF THE HOUSE

Archiving 1. (a) At the end of each Congress, the

chair of each committee shall transfer to the Clerk any noncurrent records of such committee, including the sub­committees thereof.

(b) At the end of each Congress, each officer of the House elected under rule II shall transfer to the Clerk any non­current records made or acquired in the course of the duties of such officer .

2. The Clerk shall deliver the records transferred under clause 1, together with any other noncurrent records of the House, to the Archivist of the United States for preservation at the National Archives and Records Admin­istration. Records so delivered are the permanent property of the House and remain subject to this rule and any order of the House. Public availability

3. (a) The Clerk shall authorize the Archivist to make records delivered under clause 2 available for public use, subject to clause 4(b) and any order of the House.

(b)(l) A record shall immediately be made available if it was previously made available for public use by the House or a committee or a sub­committee.

(2) An investigative record that con­tains personal data relating to a spe­cific living person (the disclosure of which would be an unwarranted inva­sion of personal privacy), an adminis­trative record relating to personnel , or a record relating to a hearing that was

BERNARD SANDERS Vill'MONr

Mr. Steve Moyer 42 Hall Road South Hero~ Vennont 0548.6

Dear Mr. Moyer:

tinittd ~tatts ~matt WASHINGTON, DC 2051o-4502

March 22, 2007

t:Oli!Mln'~

BUDGET

ENERGY ANO NATlJAAL AES<!

ENVIRONMENT ANO PUBLIC\

HEALTH., EDUCAT,ION. LAB ANO Pll:r.S10NS

vmAANS' AFFAIRS

Senatcr Sanders has asked me to sendyou a copy of the letter we recently received ftom the National Archives and Records Administration (NARA) in response to the inquiry that we had made on your behalf.

As you can see, Mr. Rodney Ross at the Center for Legislative Archives has responded to the questions you had raised regarding petitions submitted to Congress for an Article V convention. Mr. Ross has infonned our office that a:ltho·ugb NARA is the likely repository for thls information,. there is, no single storage facmty or category for such petitions, He has, however, provided websites regarding the current, defined processing for archiving such documents.. The enclosed letter is self-explanatory and provides further details regarding this matter. . .

In our initial conversation and in your e-mail correspondence to our office, you also suggested that we contact the Secretary of the Senate about this matter as welt Per your request, our office called the United S"tates Senate Library, an office within the Secretary of the Senate which maintains a collection of Senate documents:. The reference librarian with whom we spoke indicated that the Senate Library does not hold the reques1ed petitions. She explained that NARA would be the office most able to respond to your request.

Although we understand that the enclosed may not be the response you had anticipated, we hope that this infomiation will.be helpful. Please note that Mr. Ross has provided his phone number and has indicated that he would be happy to speak with you if you have remaining questions or need further clarification regarding this issue.

Enc.

Please let us know if you hav~ questions or if Bernie may be of_further assistance in the future.

Sincerely.

4 A/ ~tf~/ lr-r-oeoffrey T. Pippenger Constituent Advocate

National Archives and Records Administration

The Honorab1e Bernard Sanden United S11te1Senate I Cbmch Stl1M, t'4 Floor 8urliDatoa, VT 05401

Dear Se.nator Sudm:

700' PeJlll.f)'lWJ11ia Al'lllu~ NW Woshington, DC2lHOUOOJ

Thank you. foi your inquiry ofFebnlM:y 28, 2007, on behalf of Mr. SIOVeMOF, who socb iaimnation on pcdtiODS sent to Congress uekin,g amcmJmmm to the Coasticuti.on-by the convention pmee&

Of M:r~ MoFS three ~<ms, tho ~to -.wcrin bjj.11lif<l. ACC'C&IS to HOUl'ie .a4Scure recoxds .flt the Na1iolW Alcbivea ii govmmd for the HC>USO bJ &ulc Vll-1 for the s.att by Smale llaohdion 474 (9f!'t ~). 1'heso ea be MD ·on b Omtir's web site at Jmir.f/www.mNvt1.a>Ylltlillliiylfgmrrd)lholl!S1JllMji,html ad baJ;lfntw,Gli!m112ylloaU1ativtlfeaan#8DMt:1Wlmim:474,)lmd • The Conner gplidttyhal .a scCtion cm "Amhi'Ving."

Tbo C.- for Lcplalive .Ambivee probatlly bol4' 0. iind ofpctitiom m ·whidl Mc. Moyer is ~ ~ ldlo aro .ablll to pinpoint file citatiaman rcquat el~ copies of Home and Smale recimm hel4 by tho ecr=r~ ·tho-. is 50 caars per page; with minimum mil md.ma ors10.oo..

' Uilfortunatcly there is no sing)e cate_gory for petitions ukins for amendmenJa to ate Omsti~ ?« al<>~ for ~..ts. by the c;oaventioo l'Ollf.c.

The Center has muth 'better' iJdcllcctoal eontro.l over House .mcotds than over Scaato neoids. For House rcootdl, t 789-1946. them is a s11..,.. Preliminaty ~. In the back oflbat volume thero isaindax. f'orComei~ of..J>ctiliom, thme are liltinp011 ~84.106. Ul, 165. 167, 1'73, 180. 194+ .2Dl.,207t 253, 254, .260, 26lt26t 27~, 284. 290. 324, 333; 334,3S4,360i 367. 382. 387. 392., 391, 408.,413. 4214 431 and ,437_

.. For a partic.Wlr file category111 one would lbainetd to go to th8 page in questia& For page 14,. from the24• ~ (IW .. 1835) under~ select commitlool,"'~•asometbiag forHR24A· 022 .. 1 ~ For pap 437~ from dJc 19e Collg'nU (l94S.1946},. under pditiam 1efem:d to the Cmmnitteo on th Judiciary ·there is a callgory fOr "CODStitutional llDClldmalti' under Hll79A..B9.6.

~y. an such categories a for the pneric; roquest. for amemling She Con&titutioD. &ch imli:vi4wd ·pelitic:m, wifbm e:adi, catepy,, would need. to be nl!ad. to :see. i.f a paniDU.far document ~ lhe coavcntion pmceu. ·

I hope this information is of assistance. Should Mr. Moyer seek further clariticationt 1 would be pleased to help. My address is; Rod Ross, Center for Legislative Archives - Room 20Si National Archives Building, Washingtont DC 20408-0001. My direct phone number is 202-357-5253.

l?~A.1?~

Rodney A. Ross Center for Legislative Archives

NARA 1s web site is http://www.archives.gov

44 USC2109

NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http:llwww.law.cornell.edu/uscode/uscprint.html).

TITLE 44 - PUBLIC PRINTING AND DOCUMENTS CHAPTER 21 - NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

§ 2109. Preservation, arrangement, duplication, exhibition of records

The Archivist shall provide for the preservation, arrangement, repair and rehabilitation, duplication and reproduction (including microcopy publications), description, and exhibition of records or other documentary material transferred to him as may be needful or appropriate, including the preparation and publication of inventories, indexes, catalogs, and other finding aids or guides to facilitate their use. He may also prepare guides and other finding aids to Federal records and, when approved by the National Historical Publications and Records Commission, publish such historical works and collections of sources as seem appropriate for printing or otherwise recording at the public expense.

(Pub. L. 90-620, Oct. 22, 1968, 82 Stat. 1288, § 2105; renumbered§ 2109 and amended Pub. L. 98-497, title I, §§ 102(a)(l), 107 (a)(3), Oct. 19, 1984, 98 Stat. 2280, 2285.)

Historical and Revision Notes

Based on 44 U.S. Code, 1964 ed.,§ 397(c) (June 30, 1949, ch. 288, title V, § 507, as added Sept. 5, 1950, ch. 849, § 6(d), 64 Stat. 583; July 12, 1952, ch. 703, § l(o), 66 Stat. 594).

Prior Provisions

A prior section 2109 was renumbered section 2113 of this title.

Amendments

1984--Pub. L. 98-497, § 107(a)(3), substituted "Archivist" for "Administrator of General Services" and inserted "and Records" after "National Historical Publications".

Effective Date of 1984 Amendment

Amendment by Pub. L. 98-497 effective Apr. 1, 1985, see section 301 of Pub. L. 98-497, set out as a note under section 2102 of this title.

Ex. Ord. No.11440. Supplemental Use of Exhibits and Displays Created in Furtherance of Authorized Programs of Executive Departments and Agencies

Ex. Ord. No. 11440, Dec. 11, 1968, 33 F.R. 18475, as amended by Ex. Orel No. 12608, Sept. 9, 1987, 52 F.R. 34617, provided:

WHEREAS the executive departments and agencies of the Government, in discharging their various responsibilities, create a large volume of materials (including books, correspondence, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, motion pictures, sound recordings, and other objects of historical or commemorative value) which from time to time are incorporated into or reproduced for use in exhibits or other types of visual displays needed for use in carrying out their programs; and

WHEREAS under Chapter 21 of Title 44, United States Code, the Archivist of the United States is authorized to accept for deposit in the National Archives of the United States the records of any Federal agency or of the Congress of the United States that are determined by the Archivist to have sufficient historical or other value to warrant their continued preservation by the United States Government, as well as the papers and other historical materials of any official or former official of the Government, and to make provisions for the exhibition of materials transferred to him; and.

WHEREAS many of the exhibits and displays so prepared, produced, or otherwise created by the executive departments and agencies possess historical significance which warrants their preservation and exhibition as part of the archival and cultural heritage of the United States:

NOW, THEREFORE, by virtue of the authority vested in me, as President of the United States, it is hereby ordered as follows:

Section 1. The heads of all executive departments and agencies are directed-

- 1 -

44 USC2109

NB: This unofficial compilation of the U.S. Code is current as of Jan. 4. 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).

(a) when initiating plans for the preparation, production, or other creation of exhibits and displays in furtherance of their program missions, to confer with the Archivist of the United States, or his designee, for the purpose of assuring that any such exhibits or displays which the Archivist finds appropriate for supplemental exhibition as part of the archival and cultural heritage of the United States are prepared, produced, or otherwise created in a manner which assures, to the maximum possible extent, their appropriateness, after they have served their primary program purpose, for such supplemental exhibition, and

(b) to transfer to the Archivist, without reimbursement, such exhibits or displays as he determines are appropriate for such supplemental exhibition after they have served their primary program purpose, subject to such conditions requiring return to the department or agency of all or any of the materials incorporated in the exhibits or displays as may be mutually agreeable.

Sec. 2. The Archivist of the United States is directed to--

(a) provide advice, counsel, and assistance to the heads of executive departments and agencies in the preparation, production, or other creation of exhibits and displays which he finds will have future value for exhibition as part of the archival and cultural heritage of the United States; and

(b) accept any such exhibit or display when it has served its primary program purpose and (1) arrange for its supplemental exhibition as appropriate, (2) preserve any such exhibit or display which possesses sufficient historical or other value to warrant continued preservation, or (3) dispose of any such exhibit or display when, in his judgment, the reasons for its continued preservation or exhibition cease to exist, all subject to the conditions agreed upon incident to transfer to the Archivist of the United States of the exhibit or display.

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923 18 U.S.C. § 371-Conspiracy to Defraud the United States

The general conspiracy statute, 18 U.S.C. § 371, creates an offense "[i]ftwo or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose. (emphasis added). See Project, Tenth Annual Survey of White Collar Crime, 32 Am. Crim. L. Rev. 137, 379-406 (1995)(generally discussing§ 371).

The operative language is the so-called "defraud clause," that prohibits conspiracies to defraud the United States. This clause creates a separate offense from the "offense clause" in Section 371. Both offenses require the traditional elements of Section 3 71 conspiracy, including an illegal agreement, criminal intent, and proof of an overt act.

Although this language is very broad, cases rely heavily on the definition of" defraud" provided by the Supreme Court in two early cases, Hass v. Henkel, 216 U.S. 462 (1910), and Hammerschmidt v. United States, 265 U.S. 182 (1924). In Hass the Court stated:

The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . .. (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.

Hass, 216 U.S. at 479-480. In Hammerschmidt, Chief Justice Taft, defined "defraud" as follows:

To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.

Hammerschmidt, 265 U.S. at 188.

The general purpose of this part of the statute is to protect governmental functions from frustration and distortion through deceptive practices. Section 371 reaches "any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government." Tanner v. United States, 483 U.S. 107, 128 (1987); see Dennis v. United States, 384 U.S. 855 (1966). The "defraud part of section 371 criminalizes any willful impairment of a legitimate function of government, whether or not the improper acts or objective are criminal under another statute." United States v. Tuohey, 867 F.2d 534, 537 (9th Cir. 1989).

The word "defraud" in Section 371 not only reaches financial or property loss through use of a scheme or artifice to defraud but also is designed and intended to protect the integrity of the United States and its agencies, programs and policies. United States v. Burgin, 621F.2d1352, 1356 (5th Cir.), cert. denied, 449 U.S. 1015 (1980); see United States v. Herron, 825 F.2d 50, 57-58 (5th Cir.); United States v. Winkle, 587 F.2d 705, 708 (5th Cir. 1979), cert. denied, 444 U.S. 827 (1979). Thus, proof that the United States has been defrauded under this statute does not require any showing of monetary or proprietary loss. United States v. Conover, 772 F.2d 765 (11th Cir.

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1985), aff'd, sub. nom. Tanner v. United States, 483 U.S. 107 (1987); United States v. Del Toro, 513 F.2d 656 (2d Cir.), cert. denied, 423 U.S. 826 (1975); United States v. Jacobs, 475 F.2d 270 (2d Cir.), cert. denied, 414 U.S. 821 (1973).

Thus, ifthe defendant and others have engaged in dishonest practices in connection with a program administered by an agency of the Government, it constitutes a fraud on the United States under Section 371. United States v. Gallup, 812 F.2d 1271, 1276 (10th Cir. 1987); Conover, 772 F.2d at 771. In United States v. Hopkins, 916 F.2d 207 (5th Cir. 1990), the defendants' actions in disguising contributions were designed to evade the Federal Election Commission's reporting requirements and constituted fraud on the agency under Section 371.

The intent required for a conspiracy to defraud the government is that the defendant possessed the intent (a) to defraud, (b) to make false statements or representations to the government or its agencies in order to obtain property of the government, or that the defendant performed acts or made statements that he/she knew to be false, fraudulent or deceitful to a government agency, which disrupted the functions of the agency or of the government. It is sufficient for the government to prove that the defendant knew the statements were false or fraudulent when made. The government is not required to prove the statements ultimately resulted in any actual loss to the government of any property or funds, only that the defendant's activities impeded or interfered with legitimate governmental functions. See United States v. Puerto, 730 F.2d 627 (11th Cir.), cert. denied, 469 U.S. 847 (1984); United States v. Tuohey, 867 F.2d 534 (9th Cir. 1989); United States v. Sprecher, 783 F. Supp. 133, 156 (S.D.N.Y. 1992)(pit is sufficient that the defendant engaged in acts that interfered with or obstructed a lawful governmental function by deceit, craft, trickery or by means that were dishonest"), modified on other grounds, 988 F.2d 318 (2d Cir. 1993).

In United States v. Madeoy, 912 F.2d 1486 (D.C. Cir. 1990), cert. denied, 498 U.S. 1105 (1991), the defendants were convicted of conspiracy to defraud the government and other offenses in connection with a scheme to fraudulently obtain loan commitments from the Federal Housing Administration (FHA) or Veterans Administration (VA). The court held that the district court had properly instructed the jury that:

the Government must prove beyond a reasonable doubt the existence of a scheme or artifice to defraud, with the objective either of defrauding the FHA or the VA of their lawful right to conduct their business and affairs free from deceit, fraud or misrepresentation, or of obtaining money and property from the FHA by means of false and fraudulent representations and promises which the defendant knew to be false.

Madeoy, 912 F.2d at 1492.

Prosecutors considering charges under the defraud prong of Section 371, and the offense prong of Section 371 should be aware of United States v. Minarik, 875 F.2d 1186 (6th Cir. 1989) holding limited, 985 F.2d 962 (1993), and related cases. See United States v. Arch Trading Company, 987 F.2d 1087 (4th Cir. 1993). In Minarik, the prosecution was found to have "used the defraud clause in a way that created great confusion about the conduct claimed to be illegal," and the conviction was reversed. 875 F.2d at 1196. After Minarik, defendants have frequently challenged indictments charging violations of both clauses, although many United States Courts of Appeals have found it permissible to invoke both clauses of Section 371. Arch Trading Company, 987 F.2d at 1092 (collecting cases); see also United States v. Licciardi, 30 F.3d 1127, 1132-33 (9th Cir. 1994)(even though the defendant may have impaired a government agency's functions, as part of a scheme to defraud another party, the government offered no evidence that the defendant intended to defraud the United States and a conspiracy to violate an agency regulatory scheme could not lie on such facts).

In summary, those activities which courts have held defraud the United States under 18 U.S.C. § 371 affect the government in at least one of three ways:

1. They cheat the government out of money or property;

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Criminal Resource Manual 923 18 U.S.C. 371 -- Conspiracy to Defrau ... http://www.justice.gov/usao/eousa/foia _reading_room/usam/title9/cr ...

2. They interfere or obstruct legitimate Government activity; or 3. They make wrongful use of a governmental instrumentality.

[cited in USAM 9-42.00l ]

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