In August 1984, the United States Attorney General and the
Secretary
of Defense signed the following Memorandum of Understanding ("MOU") between
the
Departments of Justice and Defense:
MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND DEFENSE
RELATING TO THE INVESTIGATION AND PROSECUTION OF CERTAIN CRIMES
- PURPOSE, SCOPE AND AUTHORITY
- This Memorandum of Understanding (MOU) establishes policy for the
Department of Justice and the Department of Defense with regard to the
investigation and prosecution of criminal matters over which the two
Departments
have jurisdiction. This memorandum is not intended to confer any rights,
benefits, privileges or form of due process procedure upon individuals,
associations, corporations or other persons or entities.
- POLICY
- The Department of Justice has primary responsibility for
enforcement
of federal laws in the United States District Courts. The Department of
Defense
has responsibility for the integrity of its programs, operations and
installations and for the discipline of the Armed Forces. Prompt
administrative
actions and completion of investigations within the two (2) year statute of
limitations under the Uniform Code of Military Justice require the
Department of
Defense to assume an important role in federal criminal investigations. To
encourage joint and coordinated investigative efforts, in appropriate cases
where
the Department of Justice assumes investigative responsibility for a matter
relating to the Department of Defense, it should share information and
conduct
the inquiry jointly with the interested Department of Defense investigative
agency.
- INVESTIGATIVE AND PROSECUTIVE JURISDICTION
- CRIMES ARISING FROM THE DEPARTMENT OF DEFENSE OPERATIONS
- Corruption Involving the Department of Defense Personnel.
The
Department of Defense investigative agencies will refer to the FBI on
receipt all
significant allegations of bribery and conflict of interest involving
military
or civilian personnel of the Department of Defense. In all corruption
matters
the subject of a referral to the FBI, the Department of Defense shall obtain
the
concurrence of the Department of Justice prosecutor or the FBI before
initiating
any independent investigation preliminary to any action under the Uniform
Code
of Military Justice. If the Department of Defense is not satisfied with the
initial determination, the matter will be reviewed by the Criminal Division
of
the Department of Justice. The FBI will notify the referring agency
promptly
regarding whether they accept the referred matters for investigation. The
FBI
will attempt to make such decision in one (1) working day of receipt in such
matters.
- Frauds Against the Department of Defense and Theft and Embezzlement of
Government Property. The Department of Justice and the Department of
Defense
have investigative responsibility for frauds against the Department of
Defense
and theft and embezzlement of government property from the Department of
Defense.
The Department of Defense will investigate frauds against the Department of
Defense and theft of government property from the Department of Defense.
Whenever a Department of Defense investigative agency identifies a matter
which,
if developed by investigation, would warrant federal prosecution, it will
confer
with the U.S. Attorney or the Criminal Division, the Department of Justice,
and
the FBI field office. At the time of this initial conference, criminal
investigative responsibility will be determined by the Department of Justice
in
consultation with the Department of Defense.
- CRIMES COMMITTED ON MILITARY INSTALLATIONS
- Crimes (other than those covered by paragraph C.1.) committed on a
military
installation will be investigated by the Department of Defense investigative
agency concerned and, when committed by a person subject to the Uniform Code
of
Military Justice, prosecuted by the Military Department concerned. The
Department of Defense will provide immediate notice to the Department of
Justice
of significant cases in which an individual subject/victim is other than a
military member or dependent thereof, and when one or more subjects are not
subject to the Uniform Code of Military Justice.
- CRIMES COMMITTED OUTSIDE MILITARY INSTALLATIONS BY PERSONS WHO CAN BE
TRIED
BY COURT-MARTIAL
- Offense is Normally Tried by Court-Martial. Crimes (other
than
those covered by paragraph C.1.) committed outside a military installation
by
persons subject to the Uniform Code of Military Justice which, normally, are
tried by court-martial will be investigated and prosecuted by the Department
of
Defense. The Department of Defense will provide immediate notice of
significant
cases to the appropriate Department of Justice investigative agency. The
Department of Defense will provide immediate notice in all cases where one
or
more subjects is not under military jurisdiction unless the Department of
Justice
has relieved the Department of Defense of the reporting requirement for that
type
or class of crime.
- Offense is not Normally Tried by Court-Martial. When there are
reasonable
grounds to believe that a federal crime (other than those covered by
paragraph
C.1.) normally not tried by court-martial, has been committed outside a
military
installation by a person subject to the Uniform Code of Military Justice,
the
Department of Defense investigative agency will immediately refer the case
to the
appropriate Department of Justice investigative agency unless the Department
of
Justice has relieved the Department of Defense of the reporting requirement
for
that type or class of crime.
- PROSECUTION OF CASES
- With the concurrence of the Department of Defense, the Department
of
Justice will designate such Department of Defense attorneys as it deems
desirable
to be Special Assistant U.S. Attorneys for use where the effective
prosecution
of cases may be facilitated by the Department of Defense attorneys.
- The Department of Justice will institute civil actions expeditiously in
United States District Courts whenever appropriate to recover monies lost as
a
result of crimes against the Department of Defense The Department of
Defense
will provide appropriate assistance to facilitate such actions.
- The Department of Justice prosecutors will solicit the views of the
Department of Defense prior to initiating action against an individual
subject
to the Uniform Code of Military Justice.
- The Department of Justice will solicit the views of the Department of
Defense with regard to its Department of Defense-related cases and
investigations
in order to effectively coordinate the use of civil, criminal and
administrative
remedies.
- MISCELLANEOUS MATTERS
- ORGANIZED CRIME: The Department of Defense investigative agencies
will provide to the FBI all information collected during the normal course
of
agency operations pertaining to the element generally known as "organized
crime"
including both traditional (La Cosa Nostra) and nontraditional organizations
whether or not the matter is considered prosecutable. The FBI should be
notified
of any investigation involving any element of organized crime and may assume
jurisdiction of the same.
- DEPARTMENT OF JUSTICE NOTIFICATIONS TO DEPARTMENT OF DEFENSE
INVESTIGATIVE
AGENCIES
- The Department of Justice investigative agencies will
promptly
notify the appropriate Department of Defense investigative agency of the
initiation of the Department of Defense related investigations which are
predicated on other than a Department of Defense referral, except in those
rare
instances where notification might endanger agents or adversely affect the
investigation. The Department of Justice investigative agencies will also
notify
the Department of Defense of all allegations of the Department of Defense
related
crimes where investigation is not initiated by the Department of Justice.
- Upon request, the Department of Justice investigative agencies will
provide
timely status reports on all investigations relating to the Department of
Defense, unless the circumstances indicate such reporting would be
inappropriate.
- The Department of Justice investigative agencies will promptly furnish
investigative results at the conclusion of an investigation and advise as to
the
nature of judicial action, if any, taken or contemplated.
- JOINT INVESTIGATIONS
- To the extent authorized by law, the Department of Justice
investigative agencies and the Department of Defense investigative agencies
may
agree to enter into joint investigative endeavors, including undercover
operations, in appropriate circumstances. However, all such investigations
will
be subject to Department of Justice guidelines.
- The Department of Defense, in the conduct of any investigation that
might
lead to prosecution in Federal District Court, will conduct the
investigation
consistent with any Department of Justice guidelines. The Department of
Justice
shall provide copies of all relevant guidelines and their revisions.
- APPREHENSION OF SUSPECTS
- To the extent authorized by law, the Department of Justice and the
Department
of Defense will each promptly deliver or make available to the other
suspects,
accused individuals and witnesses where authority to investigate the crimes
involved is lodged in the other Department. This MOU neither expands nor
limits
the authority of either Department to perform apprehensions, searches,
seizures,
or custodial interrogations.
October 1997
| Criminal Resource Manual 938
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