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669

Prosecution of Military Personnel

The MOU between the Department of Justice and the Department of Defense was finalized in August 1984 and provides as follows:

MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND DEFENSE RELATING TO THE INVESTIGATION AND PROSECUTION OF CERTAIN CRIMES

  1. PURPOSE, SCOPE, AND AUTHORITY

    This Memorandum of Understanding (MOU) establishes policy for the Department of Justice and 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.

    This memorandum applies to all components and personnel of the Department of Justice and the Department of Defense. The statutory bases for the Department of Defense and the Department of Justice investigation and prosecution responsibilities include, but are not limited to:

    1. Department of Justice: Titles 18, 21 and 28 of the United States Code; and

    2. Department of Defense: The Uniform Code of Military Justice, Title 10, United States Code, Sections 801-940; the Inspector General Act of 1978, Title 5, United States Code, Appendix 1; and Title 5, United States Code, Section 301.

  2. 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.

    It is neither feasible nor desirable to establish inflexible rules regarding the responsibilities of the Department of Defense and the Department of Justice as to each matter over which they may have concurrent interest. Informal arrangements and agreements within the spirit of this MOU are permissible with respect to specific crimes or investigations.

  3. INVESTIGATIVE AND PROSPECTIVE JURISDICTION

    1. CRIMES ARISING FROM THE DEPARTMENT OF DEFENSE OPERATIONS

      1. 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.

        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.

      2. 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 United States 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.

    2. CRIMES COMMITTED ON MILITARY INSTALLATIONS

      1. Subject(s) can be Tried by Court-Martial or are Unknown

        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.

      2. One or More Subjects cannot be Tried by Court-Martial

      When a crime (other than those covered by paragraph C.1.) has occurred on a military installation and there is reasonable basis to believe that it has been committed by a person or persons, some or all of whom are not subject to the Uniform Code of Military Justice, the Department of Defense investigative agency will provide immediate notice of the matter 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.

    3. CRIMES COMMITTED OUTSIDE MILITARY INSTALLATIONS BY PERSONS WHO CAN BE TRIED BY COURT-MARTIAL

      1. Offense is Normally Tried by Court-Martial

        Crimes (other than those covered in 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.

      2. Crimes Related to Scheduled Military Activities

        Crimes related to scheduled military activities outside of a military installation, such as organized maneuvers in which persons subject to the Uniform Code of Military Justice are suspects, shall be treated as if committed on a military installation for purposes of this Memorandum. The FBI or other Department of Justice investigative agency may assume jurisdiction with the concurrence of the United States Attorney or the Criminal Division, Department of Justice.

      3. Offense is not Normally Tried by Court Martial

      Where 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.

  4. REFERRALS AND INVESTIGATIVE ASSISTANCE

    1. REFERRALS

      Referrals, notices, reports, requests and the general transfer of information under this Memorandum normally should be between the FBI or other Department of Justice investigative agency and the appropriate Department of Defense investigative agency at the field level.

      If a Department of Justice investigative agency does not accept a referred matter and the referring Department of Defense investigative agency then, or subsequently, believes that evidence exists supporting prosecution before civilian courts, the Department of Defense agency may present the case to the United States Attorney or the Criminal Division, Department of Justice, for review.

    2. INVESTIGATIVE ASSISTANCE

      In cases where a Department of Defense or Department of Justice investigative agency has primary responsibility and it requires limited assistance to pursue outstanding leads, the investigative agency requiring assistance will promptly advise the appropriate investigative agency in the other Department and, to the extent authorized by law and regulations, the requested assistance should be provided without assuming responsibility for the investigation.

  5. PROSECUTION OF CASES

    1. 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 United States Attorneys for use where the effective prosecution of cases may be facilitated by the Department of Defense attorneys.

    2. The Department of Justice will institute civil actions expeditiously in the 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.

    3. 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.

    4. The Department of Justice will solicit the views of the Department of Defense with regard to its Department of Defense-related cases investigations in order to effectively coordinate the use of civil, criminal and administrative remedies.

  6. MISCELLANEOUS MATTERS

    1. THE DEPARTMENT OF DEFENSE ADMINISTRATIVE ACTIONS

      Nothing in this memorandum limits the Department of Defense investigations conducted in support of administrative actions to be taken by the Department of Defense. However, the Department of Defense investigative agencies will coordinate all such investigations was the appropriate Department of Justice prosecutive agency and obtain the concurrence of Justice Prosecution or the Department of Justice investigative agency prior to conducting any administrative investigation during the pendency of the criminal investigation or prosecution.

    2. SPECIAL UNIFORM CODE OF MILITARY JUSTICE FACTORS

      In situations where an individual subject to the Uniform Code of Military Justice is a subject of any crime for which a Department of Justice investigative agency has assumed jurisdiction, if a Department of Defense investigative agency believes that the crime involves special factors relating to the administration and discipline of the Armed Forces that would justify its investigation, the Department of Defense investigative agency will advise the appropriate Department of Justice prosecuting authorities of these factors. Investigation of such a crime may be undertaken by the appropriate Department of Defense investigative agency with the concurrence of the Department of Justice.

    3. 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.

    4. DEPARTMENT OF JUSTICE NOTIFICATIONS TO DEPARTMENT OF DEFENSE INVESTIGATIVE AGENCIES

      1. 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.

      2. 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.

      3. 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.

      4. If judicial or administrative action is being considered by the Department of Defense, the Department of Justice will, upon written request, provide existing detailed investigative data and documents (less any Federal grand jury material, disclosure of which would be prohibited by Rule 6(e), Federal Rules of Criminal Procedure), as well as agent testimony for use in judicial or administrative proceedings, consistent with Department of Justice and other Federal regulations. The ultimate use of information shall be subject to the concurrence of the Federal prosecutor during the pendency of any related investigation or prosecution.

    5. TECHNICAL ASSISTANCE

      1. The Department of Justice will provide to the Department of Defense all technical services normally available to Federal investigative agencies.

      2. The Department of Defense will provide assistance to the Department of Justice in matters not relating to the Department of Defense as permitted by law and implementing regulations.

    6. JOINT INVESTIGATIONS

      1. To the extent authorized by law, the Department of Justice investigative agencies and the Department of Defense investigative agencies may agree to enter joint investigative endeavors, including undercover operations, in appropriate circumstances. However, all such investigations will be subject to Department of Justice guidelines.

      2. 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.

    7. APPREHENSION OF SERVICES

      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 apprehension, searches, seizures, or custodial interrogations.

  7. EXCEPTION

    This memorandum shall not affect the investigative authority now fixed by the 1979 "Agreement Governing the Conduct of the Defense Department Counterintelligence Activities in Conjunction with the Federal Bureau of Investigation" and the 1983 Memorandum of Understanding between the Department of Defense, the Department of Justice and the FBI concerning "Use of Federal Military Force in Domestic Terrorist Incidents."

William French SmithCasper W. Weinberger
Attorney General Secretary of Defense
United States Department United States Department
of Justice of Defense

Date: August 14, 1984 Date: August 22, 1984

PRACTICE TIP: Certain courts have held that military courts have no jurisdiction to punish service personnel for even serious offenses when they entered the service under void enlistment contracts. The memorandum of understanding is not to be read to preclude prosecution in district court of such cases simply because the defendant appeared to be in the military. In O'Callahan v. Parker, 395 U.S. 258 (1969), the Supreme Court held that a member of the armed services could not be tried by a court martial for a crime that was not "service-connected," was overruled in Solorio v. United States, 483 U.S. 435 (1987). Finally, the ability of the military to apprehend, confine and conduct trials abroad and without venue restrictions should be kept in mind when considering by whom a prosecution should be undertaken.

[cited in USAM 9-20.100; USAM 9-20.115]