K' Department of Defense

DIRECTIVEJD ! C January 22, 19859LE [CTE NUMBER 5525.7

•,• GC/IG, DoD

__ SUBJECT: Implementation of the Memorandum o#-UnderstandingBetween the Department of Justice and the Departmentof Defense Relating to the Investigation and

_• Prosecution of Certain Crimes

References: (a) DoD Directive 1355.1, "Relationships with the

Department of Justice on Grants of Immunity andthe Investigation and Prosecution of CertainCrimes," July 21, 1981 (hereby canceled)

(b) Memorandum of Understanding Between theDepartment of Justice and the Department ofDefense Relating to the Investigation andProsecution of Certain Crimes, August 1984

Ž (c) Title 18, United States CodeS/(d) Title 10, United States Code, Sections 801-940

(Articles 1-140), "Uniform Code of MilitaryJustice (UCMJ)"

(e) Manual for Courts-Martial, United States, 1984(R.C.M. 704)

A. REISSUANCE AND PURPOSE

This Directive reissues reference (a), updates policy andprocedures, assigns responsibilities, and implements the 1984Memorandum of Understanding (MOU) between the Department ofJustice (DoJ) and the Department of Defense (DoD).

B. APPLICABILITY

This Directive applies to the Office of the Secretary ofDefense, the Military Departments, the Office of InspectorGeneral, DoD, the Organization of the Joint Chiefs of Staff, theDefense Agencies, and Unified and Specified Commands(hereafter referred to collectively as "DoD Components"). Theterm "DoD criminal investigative organizations," as used herein,refers collectively to the United States Army CriminalInvestigation Command (USACIDC); Naval Investigative Service(NIS); U.S. Air Force Office of Special Investigations (AFOSI);and Defense Criminal Investigative Service (DCIS), Office of theInspector General, DoD.

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C. POLICY

It is DoD policy to maintain effective working relationshipswith the DoJ in the investigation and prosecution of crimesinvolving the programs, operations, or personnel of theDepartment of Defense.

D. PROCEDURES

With respect to inquiries for which the DoJ has assumedinvestigative responsibility based on the MOU, DoD investigativeagencies should seek to participate jointly with DoJinvestigative agencies whenever the inquiries relate to theprograms, operations, or personnel of the Department of Defense.This applies to cases referred to the Federal Bureau ofInvestigation (FBI) under paragraph C.l.a. of the attached MOU(see enclosure 1) as well as to those cases for which a DoJinvestigative agency is assigned primary investigativeresponsibility by a DoJ prosecutor. DoD Components shall complywith the terms of the MOU and DoD Supplemental Guidance(see enclosure 1).

E. RESPONSIBILITIES

1. The Inspector General, Department of Defense (IG, DoD),shall:

a. Establish procedures to implement the investigativepolicies set forth in this Directive.

b. Monitor compliance by DoD criminal investigativeorganizations to the terms of the MOU.

c. Provide specific guidance regarding investigativematters, as appropriate.

2. The General Counsel, Department of Defense, shall:

a. Establish procedures to implement the prosecutivepolicies set forth in this Directive.

b. Monitor compliance by the DoD Components regardingthe prosecutive aspects of the MOU.

c. Provide specific guidance, as appropriate.d. Modify the DoD Supplemental Guidance at enclosure 1,

with the concurrence of the IG, DoD, after requesting commentsfrom affected DoD Conponents.

3. The Secretaries of the Military Departments shallestablish procedures to implement the policies set forth in thisDirective.

F. EFFECTIVE DATE AND IMPLEMENTATION

This Directive is effective immediately. The MilitaryDepartments shall forward two copies of implementing documents tothe Inspector General, Department of Defense, within 90 days.Other DoD Components shall disseminate this Directive toappropriate personnel.

William H. Taft, IVDeputy Secretary of Defense

Enclosure - 1Memorandum of Understanding Between the Departments of JusticeAnd Defense Relating to the Investigation and Prosecution ofCertain Crimes

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This enclosure contains the verbatim text of the 1984Memorandum of Understanding Between the Departments of Justiceand Defense Relating to the Investigation and Prosecution ofCertain Crimes (reference (b)). Matter that is identified as"DoD Supplemental Guidance" has been added by the Department ofDefense. DoD Components shall comply with the MOU and the DoDSupplemental Guidance.

MEMORANDUM OF UNDERSTANDING BETWEEN THEDEPARTMENTS OF JUSTICE AND DEFENSE

RELATING TO THE INVESTIGATION ANDPROSECUTION OF CERTAIN CRIMES

A. PURPOSE, SCOPE AND AUTHORITY

This Memorandum of Understanding (MOU) establishes policy forthe Department of Justice and the Department of Defense withregard to the investigation and prosecution of criminal mattersover which the two Departments have jurisdiction. Thismemorandum 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 ofthe Department of Justice and the Department of Defense. Thestatutory bases for the Department of Defense and the Departmentof Justice investigation and prosecution responsibilitiesinclude, but are not limited to:

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

2. Department of Defense: The Uniform Code of MilitaryJustice, Title 10, United States Code, Sections 801-940; theInspector General Act of 1978, Title 5 United States Code,Appendix 3; and Title 5 United States Code, Section 301.

B. POLICY

The Department of Justice has primary responsibility forenforcement of federal laws in the United States District Courts.The Department of Defense has responsibility for the integrity ofits programs, operations and installations and for the disciplineof the Armed Forces. Prompt administrative actions andcompletion of investigations within the two (2) year statute oflimitations under the Uniform Code of Military Justice requirethe Department of Defense to assume an important role in federal

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criminal investigations. To encourage joint and coordinatedinvestigative efforts, in appropriate cases where the Departmentof Justice assumes investigative responsibility for a matterrelating to the Department of Defense, it should shareinformation and conduct the inquiry jointly with the interestedDepartment of Defense investigative agency.

It is neither feasible nor desirable to establish inflexiblerules regarding the responsibilities of the Department of Defenseand the Department of Justice as to each matter over which theymay have concurrent interest. Informal arrangements andagreements within the spirit of this MOU are permissible withrespect to specific crimes or investigations.

C. INVESTIGATIVE AND PROSECUTIVE JURISDICTION

1. CRIMES ARISING FROM THE DEPARTMENT OF DEFENSEOPERATIONS

a. Corruption Involving the Department of DefensePersonnel

The Department of Defense investigative agencies willrefer to the FBI on receipt all significant allegations ofbribery and conflict of interest involving military or civilianpersonnel of the Department of Defense. In all corruptionmatters the subject of a referral to the FBI, the Department ofDefense shall obtain the concurrence of the Department of Justiceprosecutor or the FBI before initiating any independentinvestigation preliminary to any action under the Uniform Code ofMilitary Justice. If the Department of Defense is not satisfiedwith the initial determination, the matter will be reviewed bythe Criminal Division of the Department of Justice.

The FBI will notify the referring agency promptlyregarding whether they accept the referred matters forinvestigation. The FBI will attempt to make such decision in one(1) working day of receipt in such matters.

DoD Supplemental Guidance

A. Certain bribery and conflict of interestallegations (also referred to as *corruption' offenses inthe MOU) are to be referred immediately to the FBI.

B. For the purposes of this section, bribery andconflict of interest allegations are those which would, ifproven, violate 18 U.S.C., Sections 201, 203, 205, 208, 209,or 219 (reference (c)).

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C. Under paragraph C.l.a., DoD criminal investigativeorganizations shall refer to the FBI those "significant"allegations of bribery and conflict of interest thatimplicate directly military or civilian personnel of theDepartment of Defense, including allegations of bribery orconflict of interest that arise during the course of anongoing investigation.

1. All bribery and conflict of interestallegations against present, retired, or former General orFlag officers and civilians in grade GS-16 and above, theSenior Executive Service and the Executive Level will beconsidered 'significant" for purposes of referral to theFBI.

2. In cases not covered by subsection C.l., above,the determination of whether the matter is "significant* forpurposes of referral to the FBI should be made in light ofthe following factors: sensitivity of the DoD program,involved, amount of money in the alleged bribe, number ofDoD personnel implicated, impact on the affected DoDprogram, and with respect to military personnel, whether thematter normally would be handled under the Uniform Code ofMilitary Justice (reference (d)). Bribery and conflicts ofinterest allegations warranting consideration of Federalprosecution, which were not referred to the FBI based on theapplication of these guidelines and not otherwise disposedof under reference (d), will be developed and brought to theattention of the Department of Justice through the"conference" mechanism described in paragraph C.l.b. of theMOU (reference (b)).

D. Bribery and conflict of interest allegations whenmilitary or DoD civilian personnel are not subjects of theinvestigation are not covered by the referral requirement ofparagraph C.l.a of reference (b). Matters in which thesuspects are solely DoD contractors and theirsubcontractors, such as commercial bribery between a DoDsubcontractor and a DoD prime contractor, do not requirereferral upon receipt to the FBI. The "conference"procedure described in paragraph C.l.b. of reference (b)shall be used in these types of cases.

E. Bribery and conflict of interest allegations thatarise from events occurring outside the United States, itsterritories, and possessions, and requiring investigationoutside the United States, its territories, and possessionsneed not be referred to the FBI.

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b. Frauds Against the Department of Defense andTheft and Embezzlement of Government Property

The Department of Justice and the Department ofDefense have investigative responsibility for frauds against theDepartment of Defense and theft and embezzlement of Governmentproperty from the Department of Defense. The Department ofDefense will investigate frauds against the Department of Defenseand theft of government property from the Department of Defense.Whenever a Department of Defense investigative agency identifiesa matter which, if developed by investigation, would warrantfederal prosecution, it will confer with the United StatesAttorney or the Criminal Division, the Department of Justice, andthe FBI field office. At the time of this initial conference,criminal investigative responsibility will be determined by theDepartment of Justice in consultation with the Department ofDefense.

DoD Supplemental Guidance

A. Unlike paragraph C.i.a. of the MOU (reference (b)),paragraph C.l.b. does not have an automatic referralrequirement. Under paragraph C.l.b., DoD criminalinvestigative organizations shall confer with theappropriate federal prosecutor and the FBI on matters which,if developed by investigation, would warrant Federalprosecution. This "conference" serves to define therespective roles of DoD criminal investigative organizationsand the FBI on a case-by-case basis. Generally, when aconference is warranted, the DoD criminal investigativeorganization shall arrange to meet with the prosecutor andshall provide notice to the FBI that such meeting is beingheld. Separate conferences with both the prosecutor and theFBI normally are not necessary.

B. When investigations are brought to the attention ofthe Defense Procurement Fraud Unit (DPFU), such contact willsatisfy the "conference" requirements of paragraph C.l.b.(reference (b)) as to both the prosecutor and the FBI.

C. Mere receipt by DoD criminal investigativeorganizations of raw allegations of fraud or theft does notrequire conferences with the DoJ and the FBI. Sufficientevidence should be developed before the conference to allowthe prosecutor to make an informed judgment as to the meritsof a case dependent upon further investigation. However,DoD criminal investigative organizations should avoid delayin scheduling such conferences, particularly in complexfraud cases, because an early judgment by a prosecutor can

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be of assistance in focusing the investigation on thosematters that most likely will result in criminalprosecution.

2. CRIMES COMMITTED ON MILITARY INSTALLATIONS

a. Subject(s) can be Tried by Court-Martial orare Unknown

Crimes (other than those covered by paragraph C.1.)committed on a military installation will be investigated by theDepartment of Defense investigative agency concerned and, whencommitted by a person subject to the Uniform Code of MilitaryJustice, prosecuted by the Military Department concerned. TheDepartment of Defense will provide immediate notice to theDepartment of Justice of significant cases in which an individualsubject/victim is other than a military member or dependentthereof.

b. One or More Subjects cannot be Tried byCourt-Martial

When a crime (other than those covered by paragraphC.1.) has occurred on a military installation and there isreasonable basis to believe that it has been committed by aperson or persons, some or all of whom are not subject to theUniform Code of Military Justice, the Department of Defenseinvestigative agency will provide immediate notice of the matterto the appropriate Department of Justice investigative agencyunless the Department of Justice has relieved the Department ofDefense of the reporting requirement for that type or class ofcrime.

DoD Supplemental Guidance

A. Subsection C.2. of the MOU (reference (b)) addressescrimes committed on a military installation other than thoselisted in paragraphs C.l.a. (bribery and conflict ofinterest) and C.l.b. (fraud, theft, and embezzlement againstthe Government).

B. Unlike paragraph C.l.a. of reference (b), whichrequires "referral" to the FBI of certain cases, andparagraph C.l.b., which requires "conferences" with respectto certain cases, subsection C.2. requires only that"notice" be given to DoJ of certain cases. Relief from thereporting requirement of subsection C.2. may be granted bythe local U.S. attorney as to types or classes of cases.

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C. For purposes of paragraph C.2.a. (when the subjectscan be tried by court-martial or are unknown), an allegationis "significant" for purposes of required notice to the DoJonly if the offense falls within the prosecutorialguidelines of the local U.S. attorney. Notice should begiven in other cases when the DoD Component believes thatFederal prosecution is warranted or otherwise determinesthat the case may attract significant public attention.

3. CRIMES COMMITTED OUTSIDE MILITARY INSTALLATIONS BY

PERSONS WHO CAN BE TRIED BY COURT-MARTIAL

a. Offense is Normally Tried by Court-Martial

Crimes (other than those covered by paragraph C.l.)committed outside a military installation by persons subject tothe Uniform Code of Military Justice which, normally, are triedby court-martial will be investigated and prosecuted by theDepartment of Defense. The Department of Defense will provideimmediate notice of significant cases to the appropriateDepartment of Justice investigative agency. The Department ofDefense will provide immediate notice in all cases where one ormore subjects is not under military jurisdiction unless theDepartment of Justice has relieved the Department of Defense ofthe reporting requirement for that type or class of crime.

DoD Supplemental Guidance

For purposes of this paragraph, an allegation is"significant" for purposes of required notice to theDoJ only if the offense falls within prosecutorialguidelines of the local U.S. attorney. Notice should begiven in other cases when the DoD Component believes thatFederal prosecution is warranted, or otherwise determinesthat the case may attract significant public attention.

b. Crimes Related to Scheduled Military Activities

Crimes related to scheduled Military activities outsideof a military installation, such as organized maneuvers in whichpersons subject to the Uniform Code of Military Justice aresuspects, shall be treated as if committed on a militaryinstallation for purposes of this Memorandum. The FBI or otherDepartment of Justice investigative agency may assumejurisdiction with the concurrence of the United States Attorneyor the Criminal Division, Department of Justice.

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c. Offense is not Normally Tried by Court-Martial

When there are reasonable grounds to believe that aFederal crime (other than those covered by paragraph C.1.)normally not tried by court-martial, has been committed outside amilitary installation by a person subject to the Uniform Code ofMilitary Justice, the Department of Defense investigative agencywill immediately refer the case to the appropriate Department ofJustice investigative agency unless the Department of Justice hasrelieved the Department of Defense of the reporting requirementfor that type or class of crime.

D. REFERRALS AND INVESTIGATIVE ASSISTANCE

1. REFERRALS

Referrals, notices, reports, requests and the generaltransfer of information under this Memorandum normally should bebetween the FBI or other Department of Justice investigativeagency and the appropriate Department of Defense investigativeagency at the field level.

If a Department of Justice investigative agency does notaccept a referred matter and the referring Department of Defenseinvestigative agency then, or subsequently, believes thatevidence exists supporting prosecution before civilian courts,the Department of Defense agency may present the case to theUnited States Attorney or the Criminal Division, Department ofJustice, for review.

2. INVESTIGATIVE ASSISTANCE

In cases where a Department of Defense or Department ofJustice investigative agency has primary responsibility and itrequires limited assistance to pursue outstanding leads, theinvestigative agency requiring assistance will promptly advisethe appropriate investigative agency in the other Department and,to the extent authorized by law and regulations, the requestedassistance should be provided without assuming responsibility forthe investigation.

E. PROSECUTION OF CASES

1. With the concurrence of the Department of Defense, theDepartment of Justice will designate such Department of Defenseattorneys as it deems desirable to be Special Assistant UnitedStates Attorneys for use where the effective prosecution of casesmay be facilitated by the Department of Defense attorneys.

2. The Department of Justice will institute civil actions

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expeditiously in United States District Courts wheneverappropriate to recover monies lost as a result of crimes againstthe Department of Defense; the Department of Defense will provideappropriate assistance to facilitate such actions.

3. The Department of Justice prosecutors will solicit theviews of the Department of Defense prior to initiating actionagainst an individual subject to the Uniform Code of MilitaryJustice.

4. The Department of Justice will solicit the views of theDepartment of Defense with regard to its Department ofDefense-related cases and investigations in order to effectivelycoordinate the use of civil, criminal and administrativeremedies.

DoD Supplemental Guidance

Prosecution of Cases and Grants of Immunity

A. The authority of court-martial conveningauthorities to refer cases to trial, approve pretrialagreements, and issue grants of immunity under the UCMJ(reference (d)) extends only to trials by court-martial. Inorder to ensure that such actions do not precludeappropriate action by Federal civilian authorities in caseslikely to be prosecuted in the U.S. district courts,court-martial convening authorities shall ensure thatappropriate consultation as required by this enclosure hastaken place before trial by court-martial, approval of apretrial agreement, or issuance of a grant of immunity incases when such consultation is required.

B. Only a general court-martial convening authority maygrant immunity under the UCMJ (reference (d)), and may do soonly in accordance with R.C.M. 704 (reference (e)).

1. Under reference (d), there are two types ofimmunity in the military justice system:

a. A person may be granted transactionalimmunity from trial by court-martial for one or moreoffenses under reference %d).

b. A person may be granted testimonialimmunity, rhich is immunity from the use of testimony,statements, and any information directly or indirectlyderived from such testimony or statements by that person ina later court-martial.

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2. Before a grant of immunity under reference (d),the general court-martial convening auth,-ity shall ensurethat there has been appropriate consultdtion with the DoJwith respect to offenses in which consultation is requiredby this enclosure.

3. A proposed grant of immunity in a caseinvolving espionage, subversion, aiding the enemy, sabotage,spying, or violation of rules or statutes concerningclassified information or the foreign relations of theUnited States shall be forwarded to the General Counsel ofthe Department of Defense for the purpose of consultationwith the DoJ. The General Counsel shall obtain the views ofother appropriate elements of the Department of Defense infurtherance of such .onsultation.

C. The authority of court-martial conveningauthorities extends only to grants of immunity from actionunder reference (d). Only the Attorney General or otherauthority designated under 18 U.S.C.SS6001-6005 (reference(c)) may authorize action to obtain a grant of immunity withrespect to trials in the U.S. district courts.

F. MISCELLANEOUS MATTERS

1. THE DEPARTMENT OF DEFENSE ADMINISTRATIVE ACTIONS

Nothing in this Memorandum limits the Department of Defenseinvestigations conducted in support of administrative actions tobe taken by the Department of Defense. However, the Departmentof Defense investigative agencies will coordinate all suchinvestigations with the appropriate Department of Justiceprosecutive agency and obtain the concurrence of the Departmentof Justice prosecutor or the Department of Justice investigativeagency prior to conducting any administrative investigationduring the pendency of the criminal investigation or prosecution.

2. SPECIAL UNIFORM CODE OF MILITARY JUSTICE FACTORS

In situations where an individual subject to the UniformCode of Military Justice is a suspect in any crime for which aDepartment of Justice investigative agency has assumedjurisdiction, if a Department of Defense investigative agencybelieves that the crime involves special factors relating to theadministration and discipline of the Armed Forces that wouldjustify its investigation, the Department of Defenseinvestigative agency will advise the appropriate Department ofJustice investigative agency or the Department of Justice

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prosecuting authorities of these factors. Investigation of such acrime may be undertaken by the appropriate Department of Defenseinvestigative agency with the concurrence of the Department ofJustice.

3. ORGANIZED CRIME

The Department of Defense investigative agencies willprovide to the FBI all information collected during the normalcourse of agency operations pertaining to the element generallyknown as "organized crime" including both traditional (La CosaNostra) and nontraditional organizations whether or not thematter is considered prosecutable. The FBI should be notified ofany investigation involving any element of organized crime andmay assume jurisdiction of the same.

4. DEPARTMENT OF JUSTICE NOTIFICATIONS TO DEPARTMENT OFDEFENSE INVESTIGATIVE AGENCIES

a. The Department of Justice investigative agencieswill promptly notify the appropriate Department of Defenseinvestigative agency of the initiation of the Department ofDefense related investigations which are predicated on other thana Department of Defense referral except in those rare instanceswhere notification might endanger agents or adversely affect theinvestigation. The Department of Justice investigative agencieswill also notify the Department of Defense of all allegations ofthe Department of Defense related crime where investigation isnot initiated by the Department of Justice.

b. Upon request, the Department of Justiceinvestigative agencies will provide timely status reports on allinvestigations relating to the Department of Defense unless thecircumstances indicate such reporting would be inappropriate.

c. The Department of Justice investigative agencieswill promptly furnish investigative results at the conclusionof an investigation and advise as to the nature of judicialaction, if any, taken or contemplated.

d. If judicial or administrative action is beingconsidered by the Department of Defense, the Department ofJustice will, upon written request, provide existing detailedinvestigative data and documents (less any federal grand jurymaterial, disclosure of which would be prohibited by Rule 6(e),Federal Rules of Criminal Procedure), as well as agent testimonyfor use in judicial or administrative proceedings, consistentwith Department of Justice and other federal regulations. Theultimate use of the information shall be subject to theconcurrence of the federal prosecutor during the pendency of any

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related investigation or prosecution.

5. TECHNICAL ASSISTANCE

a. The Department of Justice will provide to theDepartment of Defense all technical services normally availableto federal investigative agencies.

b. The Department of Defense will provide assistanceto the Department of Justice in matters not relating to theDepartment of Defense as permitted by law and implementingregulations.

6. JOINT INVESTIGATIONS

a. To the extent authorized by law, the Department ofJustice investigative agencies and the Department of Defenseinvestigative agencies may agree to enter into jointinvestigative endeavors, including undercover operations, inappropriate circumstances. However, all such investigations willbe subject to Department of Justice guidelines.

b. The Department of Defense, in the conduct of anyinvestigation that might lead to prosecution in Federal DistrictCourt, will conduct the investigation consistent with anyDepartment of Justice guidelines. The Department of Justiceshall provide copies of all relevant guidelines and theirrevisions.

DoD Supplemental Guidance

When DoD procedures concerning apprehension,search and seizure, interrogation, eyewitnesses, oridentification differ from those of DoJ, DoD procedures willbe used, unless the DoJ prosecutor has directed that DoJprocedures be used instead. DoD criminal investigatorsshould bring to the attention of the DoJ prosecutor, asappropriate, situations when use of DoJ procedures mightimpede or preclude prosecution under the UCMJ (reference(d)).

7. APPREHENSION OF SUSPECTS

To the extent authorized by law, the Department ofJustice and the Department of Defense will each promptly deliveror make available to the other suspects, accused individuals andwitnesses where authority to investigate the crimes involved islodged in the other Department. This MOU neither expands nor

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limits the authority of either Department to perform

apprehensions, searches, seizures, or custodial interrogations.

G. EXCEPTION

This Memorandum shall not affect the investigative authoritynow fixed by the 1979 "Agreement Governing the Conduct of theDefense Department Counterintelligence Activities in Conjunctionwith the Federal Bureau of Investigation" and the 1983 Memorandumof Understanding between the Department of Defense, theDepartment of Justice and the FBI concerning "Use of FederalMilitary Force in Domestic Terrorist Incidents."

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