inquiries relate to the programs, operations, or personnel of the Department of Defense."
The Memorandum of Understanding (MOU) between DOD and DOJ is contained within the
DOD directive. It may also be found at AR 27-10, paragraph 2-7. This sets forth policy for both
agencies "with regard to the investigation and prosecution of criminal matters over which the two
departments have jurisdiction." Again, joint investigative efforts are encouraged.
DOD "will refer to the FBI on receipt of all significant allegations of bribery and conflict of
interest involving military or civilian personnel of the Department of Defense." DOD will obtain the
concurrence of DOJ or the FBI before initiating an independent investigation. If the case is not
considered to be "significant," we will still coordinate the case with DOJ. This will also be done when
the suspects are neither military nor DOD civilians, but are DOD contractors or subcontractors.
In cases involving fraud against DOD and theft/embezzlement of government property, DOD
will "confer with the United States Attorney." This conference will serve "to define the respective roles
of DOD criminal investigative organizations and the FBI on a case-by-case basis." The mere receipt of
an allegation, however, does not require the conference. Sufficient evidence should first be developed
by DOD "to allow the prosecutor to make an informed judgment as to the merits of the case." Such
cases, CID will initially investigate the case, in coordination with the PFA, to determine whether there is
credible evidence to support the allegations of fraud. If so, the matter will be coordinated with DOJ.
Remember, joint investigative efforts are encouraged.
QUESTION:
IS THIS A POSSE COMITATUS PROBLEM?
ANSWER:
NO, DUE TO THE MILITARY INTEREST THAT IS INVOLVED.
QUESTION:
WHAT HAPPENS IF WE REFER A CASE TO THE U.S. ATTORNEY AND
PROSECUTION IS DECLINED? DOES THIS MEAN THE FBI FEELS THE
SUSPECT IS NOT GUILTY?
ANSWER:
NO. IT SIMPLY MEANS THE U.S. ATTORNEY HAS DECLINED PROSECUTION. WE
CAN THEN GO AHEAD AND TAKE OUR ACTION, POSSIBLY FIRING THE
EMPLOYEE OR COURT-MARTIALING HIM.
QUESTION:
WHY MIGHT THE U.S. ATTORNEY DECLINE PROSECUTION?
ANSWER:
THEIR RESOURCES MAY NOT ALLOW THE PROSECUTION OF EVERY CASE.
THUS, CERTAIN OFFENSES MAY NOT MEET THEIR MONETARY LIMITS. ALSO,
THE OFFENDER MAY NOT BE A GOOD ONE TO PROSECUTE. IF A WIFE HAS
BEEN DESERTED BY THE HUSBAND AND IS LEFT TO RAISE A HANDICAPPED
DAUGHTER, AND THE WIFE IS HERSELF HANDICAPPED, SHE DOES NOT MAKE A
VERY GOOD DEFENDANT. IN SUCH CASES, THE U.S. ATTORNEY MAY DECLINE
PROSECUTION, FEELING THAT IMPRISONMENT IS NOT A LIKELY OUTCOME, AND
PREFERRING TO
MP1022
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