|9-60.020||Sentencing Enhancement—"Three Strikes" Law|
|9-60.111||Kidnapping/Missing Persons—Prosecution Policy|
|9-60.113||Prosecution Policy—"Deprogramming" of Religious Sect Members|
|9-60.200||Criminal Sanctions Against Illegal Electronic Surveillance|
|9-60.202||Illegal Electronic Eavesdropping—Prosecution Policy|
|9-60.262||Prosecutive Policy—18 U.S.C. § 2512|
|9-60.400||Criminal Sanctions Against Illegal Electronic Surveillance—The Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1809|
|9-60.700||Hostage Taking (18 U.S.C. § 1203)—Prosecution Policy|
|9-60.711||Prosecution Policy in Hostage Taking Cases When the Death Penalty is Authorized by Statute|
|9-60.800||Special Forfeiture of Collateral Profits of Crime ("Son of Sam")|
|9-60.900||Murder-for-Hire—18 U.S.C. § 1958|
|9-60.910||Prosecution Policy and the Death Penalty|
|9-60.1000||Carjacking—18 U.S.C. § 2119|
|9-60.1010||Prosecution Policy—Carjacking Cases|
|9-60.1015||Department Approval When Death Penalty is Applicable|
|9-60.1100||Violence Against Women Act|
|9-60.1112||Restriction on the Possession of Firearms by Individuals Convicted of a Misdemeanor Crime of Domestic Violence (18 U.S.C. 922(g)(9))|
|9-60.1200||Civil Disturbances and Riots|
9-60.010 - Introduction
This chapter focuses on the investigation and prosecution of a variety of crimes against individuals including kidnapping, interstate and foreign extortion, criminal solicitation, hostage taking, murder-for-hire, carjacking, and violence against women. Investigative jurisdiction is vested in the Federal Bureau of Investigation (FBI). Supervisory jurisdiction is vested in the Organized Crime and Gang Section if it is a domestic matter or a gang-related international matter and in the Human Rights and Special Prosecutions Section if it involves any other international matter.
9-60.020 - Sentencing Enhancement—"Three Strikes" Law
The Violent Crime Control and Law Enforcement Act of 1994 included a "Three Strikes" provision, which is now codified at 18 U.S.C. § 3559(c). Under § 3559(c) a defendant will receive mandatory life imprisonment if he or she:
- is convicted in federal court of a "serious violent felony" and
- has two or more prior convictions in federal or state courts, at least one of which is a "serious violent felony." The other prior offense may be a "serious drug offense."
On March 13, 1995, the Assistant Attorney General of the Criminal Division issued a memorandum to all United States Attorneys regarding the "Three Strikes" law.
[updated January 2020] [cited in JM 9-63.1200]
9-60.111 - Kidnapping/Missing Persons—Prosecution Policy
It is been the policy of the Federal Bureau of Investigation (FBI) that, except in parental kidnapping matters, every reported kidnapping in which circumstances indicate an actual abduction has taken place is afforded an immediate preliminary investigation to determine whether a full investigation under the Federal kidnapping statute is warranted.
It is the policy of the Criminal Division to review any decision made by the FBI not to conduct an investigation in those missing persons cases wherein the facts indicate possible violations of the Federal kidnapping statute. Under this policy, the FBI will refer information concerning questionable missing person cases to the Criminal Division. The Division will thoroughly review such information, and if deemed warranted, will request the FBI to commence a kidnapping investigation.
Concern as to the adequacy of the investigative guidelines in situations where much younger children are missing has prompted the FBI to adopt the practice of immediate involvement. With regard to missing children of very tender years, in many cases an abduction may be assumed, so as to warrant an immediate preliminary kidnapping investigation by the FBI.
United States Attorneys who become aware of a missing person case in their district which may involve a kidnapping should insure that such information is brought to the attention of the Criminal Division. Questions concerning this policy should be directed to attorneys of the Organized Crime and Gang Section if it is a domestic matter or a gang-related international matter or the Human Rights and Special Prosecutions Section if it involves a non-gang related international matter.
9-60.113 - Prosecution Policy—"Deprogramming" of Religious Sect Members
The Criminal Division has received a substantial number of complaints from members of various religious sects alleging that they have been abducted by their parents or persons acting on behalf of their parents for the purpose of "deprogramming."
It is a general policy of the Department not to become involved in situations which are essentially domestic relations controversies. If a parent abducts his/her adult child from a religious sect, accompanies that child throughout the "deprogramming," and there is no violence or other aggravating circumstances, these facts would weigh against Federal involvement. However, if violence or other aggravating circumstances exist, particularly where professional "deprogrammers" are involved, criminal prosecutions should be pursued if the evidence warrants.
9-60.200 - Criminal Sanctions Against Illegal Electronic Surveillance
Criminal sanctions for illegal electronic surveillance can be found in 18 U.S.C. §§ 2510 to 2513, 2701, 3121, 2232(c), 2521, 1367, and 47 U.S.C. §§ 605, 553, 502. Supervisory responsibility for these offenses rests with the Computer Crime and Intellectual Property Section of the Criminal Division.
[updated January 2020]
9-60.202 - Illegal Electronic Eavesdropping—Prosecution Policy
The criminal prohibitions against illegal electronic eavesdropping contained in Title III are part of the same act which permits federal law enforcement officers to engage in court-authorized electronic surveillance. Congress viewed the criminal sanctions and the court authorization provisions as two sides of the same coin. The retention of the government's authorization to engage in court-authorized electronic surveillance may depend on its vigorous enforcement of the sanctions against illegal electronic eavesdropping. Accordingly, it is the Department's policy to vigorously enforce these criminal prohibitions.
The Department's overall prosecutive policy under 18 U.S.C. § 2511 is to focus primarily on persons who engage or procure illegal electronic surveillance as part of the practice of their profession or as incident to their business activities. Less emphasis should be placed on the prosecution of persons who, in the course of transitory situations, intercept communications on their own without the assistance of a professional wiretapper or eavesdropper. This does not mean that such persons are never to be prosecuted, but simply that this type of prosecution is not a major thrust of the Department's enforcement program.
Most illegal interceptions fall into one of five categories: (1) domestic relations, (2) industrial espionage, (3) political espionage, (4) law enforcement, and (5) intra-business. The largest number of interceptions, more than 75 percent, are in the domestic relations category. It is the Department's policy to vigorously investigate and prosecute illegal interceptions of communications which fall within the industrial and political espionage, law enforcement, and intra-business categories. Generally such violations will have interstate ramifications which will make federal prosecution preferable to state prosecution. Nevertheless, in cases where the federal interest is slight, it may be appropriate to defer to state prosecution.
Illegal interceptions arising from domestic relations disputes generally present less of a federal interest and, therefore, local prosecution is more appropriate. However, this does not mean that federal prosecutors should abdicate responsibility for prosecuting such interceptions. Indeed, in view of the preponderance of this kind of interception, no enforcement program can be effective without the initiation of some prosecutions for deterrence purposes. United States Attorneys should develop effective liaison with local prosecutors in order to convince them to shoulder their share of the burden.
Within the category of domestic relations violations, primary attention should be given to those instances in which a professional is involved, such as a private detective, attorney, moonlighting telephone company employee, and supplier of electronic surveillance devices. United States Attorneys should feel free to pursue these cases or refer them to local prosecutors; however, no professional should escape prosecution when a prosecutable case exists.
Domestic relations violations which do not involve a professional interceptor are the lowest priority cases for federal prosecution. Although local prosecution is normally preferable, when local prosecutors are unwilling to pursue the case, resort to federal prosecution may be appropriate. Nevertheless, violations of this type will sometimes prove to be of insufficient magnitude to warrant either federal or state prosecution. In such cases, other measures may prove sufficient, for example, a civil suit for damages (18 U.S.C. § 2520), suppression of evidence (18 U.S.C. § 2515), or forfeiture of the wiretapping or eavesdropping paraphernalia (18 U.S.C. § 2513).
Disturbed persons often suspect that they are the victims of illegal interceptions. Consequently, a complaint which is based solely on suspicious noises heard on the telephone normally does not merit further investigation if the initial line check fails to produce independent evidence of a tap.
9-60.203 - State Laws
Title III does not preempt the authority of the states to legislate concerning the interception of communications. The protection of privacy is as much a matter for local concern as protection of persons and property. Accordingly, the efforts of federal law enforcement personnel should supplement, not supplant, local action.
United States Attorneys should review the applicable statutes in their states. When there is no statute or when the existing statutes are inadequate, United States Attorneys should work through their federal-state law enforcement committees to obtain the enactment of appropriate legislation. When suitable state legislation exists but is not sufficiently used by local prosecutors, United States Attorneys should make efforts to stimulate local enforcement.
9-60.262 - Prosecutive Policy—18 U.S.C. § 2512
Flagrant violators of 18 U.S.C. § 2512 should be prosecuted vigorously, especially violators who possess such devices in order to engage in electronic surveillance as a business.
Less culpable first offenders and those who violate the statute because of ignorance of the law may be appropriate subjects for more lenient disposition. In some cases a warning may be sufficient. Nevertheless, in all cases except, perhaps, for minor advertising violations, the United States Attorney's Office should require that the prohibited device either be surrendered voluntarily to the FBI or forfeited pursuant to 18 U.S.C. § 2513.
9-60.400 - Criminal Sanctions Against Illegal Electronic Surveillance—The Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1809
Supervisory responsibility for prosecutions involving Section 1809 rests with the Computer Crime and Intellectual Property Section of the Criminal Division.
9-60.700 - Hostage Taking (18 U.S.C. § 1203)—Prosecution Policy
It is the view of the Department of Justice that most hostage taking matters that arise within the United States are best handled by State and local authorities. However, there may at times be situations in which Federal involvement is appropriate (e.g., if the hostage is a Federal official or an international guest, the party against whom a demand is made is the United States, the perpetrators are international terrorists, etc.). Because of the strong preference for State and local handling of hostage taking matters within the United States, attorneys for the government should discuss a proposed prosecution with the Criminal Division prior to its initiation. In cases of hostage taking outside the United States, other factors, such as legal issues regarding the exercise of extraterritorial jurisdiction, foreign policy considerations, and costs, are involved. Therefore, in cases involving an assertion of extraterritorial jurisdiction, it is mandatory that attorneys for the government seek approval from the Criminal Division prior to the initiation of a proposed prosecution. See JM 9-2.136.
Investigative jurisdiction on hostage taking matters is with the Federal Bureau of Investigation (FBI). The Counterterrorism Section (CTS) of the National Security Division has supervisory authority.
9-60.711 - Prosecution Policy in Hostage Taking Cases When the Death Penalty is Authorized by Statute
The Federal Death Penalty Act of 1994 amended Title 18, United States Code, section 1203 to authorize imposition of the death penalty or life imprisonment when death results from a hostage taking covered by the statute. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, Tit. VI, § 60003(a)(10), 108 Stat. 1796, 1969 (1994). In any case where a defendant is charged with a hostage taking offense for which the death penalty can be imposed, the U.S. Attorney is required to follow the procedures set out in JM 9-10.000 and transmit to the Attorney General the information required by those provisions, regardless of whether he or she actually intends to seek the death penalty.
9-60.800 - Special Forfeiture of Collateral Profits of Crime ("Son of Sam")
Questions about special forfeitures of the collateral profits of crime under 18 U.S.C. §§ 3681 and 3682 should be directed to the Asset Forfeiture and Money Laundering Section (202) 514-1263.
9-60.900 - Murder-for-Hire—18 U.S.C. § 1958
The proper investigative agency on murder-for-hire cases is the Federal Bureau of Investigation. Supervisory jurisdiction is vested in the Organized Crime and Gang Section if it is a domestic matter or a gang-related international matter and in the Human Rights and Special Prosecutions Section if it involves any non-gang related international matter.
9-60.910 - Prosecution Policy and the Death Penalty
Prior approval for the initiation of a criminal prosecution under Title 18, United States Code, Section 1958, either by indictment or information, is not required. However, if the death penalty may be applicable, appropriate Department of Justice approval must be obtained. See approval guidelines at JM 9-10.000. The United States Attorney must transmit to the Attorney General the information required by that Chapter, regardless of whether he or she intends to seek the death penalty.
9-60.1000 - Carjacking—18 U.S.C. § 2119
The Federal Bureau of Investigation (FBI) has been tasked with the authority to investigate violations of the carjacking statute (18 U.S.C. § 2119). The Organized Crime and Gang Section has supervisory authority for the carjacking statute.
[updated January 2020]
9-60.1010 - Prosecution Policy—Carjacking Cases
The offense of motor vehicle theft was traditionally an offense that was prosecuted by State and local law enforcement agencies. In view of the increase of motor vehicle theft and the use of violence in connection with that offense, the Attorney General was directed by the Congress to have the Federal Bureau of Investigation (FBI) and the United States Attorneys' Offices cooperate with State and local officials to investigate carjacking, and, when appropriate and consistent with prosecutorial discretion and resources, prosecute violators in Federal court.
9-60.1015 - Department Approval When Death Penalty is Applicable
In carjacking cases in which the Federal death penalty may be applicable, the United States Attorney is required to follow the procedures set forth at JM 9-10.000. The approval of the Attorney General is necessary to seek the death penalty.
9-60.1100 - Violence Against Women Act
The Violence Against Women Act (VAWA), passed as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, Title IV, § 40221(a), 108 Stat. 1926, created Federal statutes to prosecute domestic violence in certain situations involving firearms or interstate travel or activity. While domestic violence remains primarily a matter of State and local jurisdiction, prosecutors are encouraged to use the criminal provisions of VAWA in appropriate cases. Factors to be considered are 1) the adequacy of State penalties for domestic violence; for example, out-dated statutes or early parole may provide an inadequate remedy; 2) the interstate nature of the particular offense may make it difficult for local law enforcement to gather evidence from another State; and 3) the potential release of the defendant on bond since some States do not have pre-trial detention statutes. Prosecutors are reminded that 18 U.S.C. § 2263 requires that at any detention hearing held pursuant to 18 U.S.C. § 3142, the "victim shall be given an opportunity to be heard regarding the danger posed by the defendant."
Essential to the effective implementation of the VAWA provisions is coordination with and education of State and local officials. Efforts should be made through your violent crime working groups or Law Enforcement Coordinating Committees to educate state and local counterparts on these provisions, as their assistance, particularly in working with local judges to fashion domestic violence protective orders, is critical.
Violations of the Violence Against Women Act (VAWA), 18 U.S.C. §§ 2261 et seq., are investigated by the Federal Bureau of Investigation (FBI). The Department of Treasury's Bureau of Alcohol, Tobacco and Firearms (BATF) has primary investigative jurisdiction for offenses under the Federal firearms statute (18 U.S.C. § 922); however, the FBI may exercise investigative jurisdiction over violations of this statute when such violations are ancillary to investigations within its jurisdiction. The Organized Crime and Gang Section exercises supervisory authority over the criminal enforcement aspect of the Violence Against Women Act (VAWA) statutes.
9-60.1112 - Restriction on the Possession of Firearms by Individuals Convicted of a Misdemeanor Crime of Domestic Violence (18 U.S.C. 922(g)(9))
In the fall of 1996, Congress enacted an amendment (the Lautenberg Amendment) to the Federal Gun Control Act of 1968 which banned the possession of firearms by individuals convicted of a "misdemeanor crime of domestic violence," as defined in the statute. This new provision was codified at 18 U.S.C.§ 922(g)(9) and does not contain an exemption for law enforcement or military personnel.
In determining whether a particular case merits federal prosecution under 18 U.S.C. § 922(g)(9), prosecutors should consider the following factors:
- the date of the previous conviction;
- under what circumstances the firearm was obtained;
- whether there are indications of current potential for violence (i.e., recent incidents of domestic violence would be a stronger argument for prosecution than if a number of years had passed since any domestic problems had occurred);
- alternatives available to federal prosecution (state prosecutions, voluntary removal of the weapons);
- whether the potential defendant was "on notice" that his/her possession of a firearm was illegal;
- whether the potential defendant had made any false statements in obtaining the firearm.
Even if a determination is made that prosecution is not warranted, steps should be taken to assure that the firearm is removed from the possession of the individual prohibited from possessing firearms.
9-60.1200 - Civil Disturbances and Riots
United States Attorneys are required to consult with the Counterterrorism Section of the National Security Division prior to instituting grand jury proceedings, filing an information, or seeking an indictment of a violation of 18 U.S.C. §§ 231-233, 2101, 2102.
[updated May 2012]