AMONG
THE SECRETARY OF THE TREASURY
THE ATTORNEY GENERAL AND
THE POSTMASTER GENERAL
REGARDING MONEY LAUNDERING INVESTIGATIONS
This Memorandum of Understanding (MOU) constitutes an agreement among the
Secretary of the Treasury ("the Secretary"), the Attorney General and the
Postmaster General as to the investigatory authority and procedures of
Treasury
and Justice bureaus and the Postal Service under 18 U.S.C. sections 1956 and
1957, as amended by the Anti-Drug Abuse Act of 1988, Pub. L. 100-690 (Nov.
18,
1988). This replaces a previous MOU on this subject between the Secretary
and
the Attorney General effective May 20, 1987.
Section I.Purpose
The Attorney General, the Secretary and the Postmaster General have entered
into
this MOU in order to encourage effective and harmonious cooperation by
Treasury
and Justice bureaus and the Postal Service in the development of cases by
bureaus
with appropriate experience, to reduce the possibility of duplicative
investigations, to minimize the potential for dangerous situations which
might
arise from uncoordinated multi-bureau efforts, and to enhance the potential
for
successful prosecution in cases presented to the various United States
Attorneys.
As clearly stated in the legislative history of the Act, this MOU does not
confer
any rights on any third party, including a defendant or other party in
litigation
with the United States. The fact that a bureau investigates a violation of
section 1956 or section 1957 that should have been investigated by another
bureau
under the terms of this MOU, or that an agency not a party to this MOU
investigates a violation of section 1956 or section 1957, confers no rights
and
provides no defense to any party.
While this MOU allocates jurisdiction to investigate violations of sections
1956
and 1957, nothing in this MOU is intended to augment or diminish the
investigatory authority of any Justice or Treasury bureau or the Postal
Service
over violations of any Federal criminal law, independent of the money
laundering
statute, or to alter the existing allocation or delegation of such
authority.
This MOU governs all investigations involving 18 U.S.C. 1956 and 1957 and is
intended to be used together with MOU's presently existing between the
bureaus.
This MOU does not supersede the provision of 26 U.S.C. 6103 (confidentiality
and
disclosure of returns and return information).
Section II.Definitions
1. "Bureau" includes the Postal Inspection Service.
2. "Treasury bureaus" mean the Internal Revenue Service (IRS), the
United States Customs Service, the Bureau of Alcohol, Tobacco, and Firearms
(ATF), and the United States Secret Service.
3. "Justice bureaus" means the Drug Enforcement Administration (DEA)
and
the Federal Bureau of Investigations (FBI).
4. "Violations of section 1956" refers to both civil and criminal
violations.
5. "Specified unlawful activities" has the definition set forth 18
U.S.C. section 1956(c)(7).
6. "Justice Department attorney" means the appropriate Assistant
United
States Attorney or designated Justice Department attorney assigned to the
prosecution of the case.
Section III.Investigatory Jurisdiction
A bureau's investigatory actions in pursuit of a section 1956 or 1957
violation
shall be conducted only in those areas in which the investigating bureau has
existing jurisdiction, independent of the money laundering statutes, as set
forth
in this Section.
- Treasury Bureaus
- Internal Revenue Service
- The Internal Revenue Service will have investigative jurisdiction
over all violations of Section 1956 and 1957 where the underlying conduct is
subject to investigation under Title 26 or the Bank Secrecy Act.
- United States Customs Service
- The United States Customs Service will have investigatory
jurisdiction over violations of section 1956 or section 1957 involving the
following specified unlawful activities: criminal offenses under 18 U.S.C.
section 542 (relating to entry of goods by means of false statements),
section
545 (relating to the smuggling of goods into the United States), section 549
(relating to removing goods from Customs custody), section 659 (relating to
theft
from foreign shipment), sections 1461-63 and 1465 (relating to illegal
import or
export of obscene matter), sections 2251-52 (relating to imports or exports
of
material involving sexual exploitation of children), section 2314 (relating
to
foreign transportation of stolen property), and section 2321 (relating to
the
import or export of certain motor vehicles or vehicle parts); 19 U.S.C.
section
1590 (relating to aviation smuggling); 21 U.S.C. section 857 (relating to
the
illegal import or export of drug paraphernalia); criminal offenses under
section
11 of the Export Administration Act of 1979 (50 U.S.C. App. section 2410);
criminal offenses under section 206 of the International Emergency Economic
Powers Act (50 U.S.C. 1705); criminal offenses under section 16 of the
Trading
with the Enemy Act (50 U.S.C. App. 16); and criminal offenses under section
38(c)
of the Arms Export Control Act (22 U.S.C. section 2778) (relating to
exportation,
intransit, temporary import, or temporary export transactions).
- The United States Customs Service will have investigatory jurisdiction
over
violations of section 1956(a)(2)(B)(ii), involving the international
transportation of monetary instruments or funds which are proceeds of some
form
of unlawful activity and where the defendant knew that the transportation
was
designed in whole or in part to avoid a transaction reporting requirement
under
31 U.S.C. 5316 (Reports on exporting and importing monetary
instruments).
- United States Secret Service
- The United States Secret Service will have investigatory jurisdiction
over
violations of section 1956 or section 1957 involving the specified unlawful
activity of an offense under 18 U.S.C. sections 471-473 (counterfeiting of
obligations or securities of the United States), sections 500-503
(counterfeiting
of blank or postal money orders, postage stamps, foreign governments postage
and
revenue stamps, and postmarking stamps), section 657 (involving theft,
embezzlement or misapplication by employees of the FDIC), and section 1029
(fraud
and related activity in connection with access devices).
- Bureau of Alcohol, Tobacco and Firearms
- The Bureau of Alcohol, Tobacco, and Firearms will have investigatory
jurisdiction over violations of section 1956 or section 1957 involving the
specified unlawful activity of an offense under 18 U.S.C. sections 2341-2346
(trafficking in contraband cigarettes); section 38(c) of the Arms Export
Control
Act, 22 U.S.C. section 2778 (relating to the importation of items on the
U.S.
Munitions Import List, except those relating to exportation, intransit,
temporary
import, or temporary export transactions); and 18 U.S.C. 1952 (relating to
travelling in interstate commerce, with respect to liquor on which Federal
excise
tax has not been paid and arson); or any act or activity constituting an
offense
listed in 18 U.S.C. 1961(1), with respect to any act or threat involving
arson,
which is chargeable under State law and punishable for more than one
year.
- Justice Bureaus
- Federal Bureau of Investigation
- The Federal Bureau of Investigation will have investigatory jurisdiction
over
violations of section 1956 or section 1957 involving the specified unlawful
activities of an offense under 18 U.S.C. section 152 (relating to
concealment of
assets; false oaths and claims; bribery), section 215 (relating to
commissions
or gifts for procuring loans), section 513 (relating to securities of States
and
private entities), section 641 (relating to public money, property, or
records),
section 656 (relating to theft, embezzlement, or misapplication by bank
officer
or employee), section 657 (relating to lending, credit, and insurance
institutions), 658 (relating to property mortgaged or pledged to farm credit
agencies), section 666 (relating to theft or bribery concerning programs
receiving Federal funds), sections 793, 794, or 798 (relating to espionage),
section 875 (relating to interstate communications), section 1201 (relating
to
kidnapping), section 1203 (relating to hostage taking), section 1344
(relating
to bank fraud), or section 2113 or 2114 (relating to bank and postal robbery
and
theft), section 2319 (relating to copyright infringement); 21 U.S.C. section
830
(relating to precursor chemicals), section 857 (relating to transportation
of
drug paraphernalia) and, with respect to a financial transaction occurring
in
whole or in part in the United States, an offense against a foreign nation
involving the manufacture, importation, sale, or distribution of a
controlled
substance (as such term is defined for the purposes of the Controlled
Substances
Act); and any act or acts constituting a continuing criminal enterprise, as
that
term is defined in section 408 of the Controlled Substances Act (21 U.S.C.
848);
or any act or activity constituting an offense listed in 18 U.S.C. 1961(1),
with
respect to any act or threat involving murder, kidnapping, gambling, arson,
robbery, bribery, extortion, dealing in obscene matter, or in dealing in
narcotics or other dangerous drugs which is chargeable under State law and
punishable for more than one year; 18 U.S.C. 201 (bribery); 18 U.S.C. 224
(sports
bribery); 18 U.S.C. 659 (theft from interstate shipment); 18 U.S.C. 664
(embezzlement from pension and welfare funds); 18 U.S.C. 891-894
(extortionate
credit transactions); 18 U.S.C. 1029 (fraud and related activity in
connection
with access devices); 18 U.S.C. 1084 (the transmission of gambling
information);
18 U.S.C. 1341 (mail fraud); 18 U.S.C. 1343 (wire fraud); 18 U.S.C.
1461-1465
(obscene matter); 18 U.S.C. 1503 (obstruction of justice); 18 U.S.C. 1510
(obstruction of criminal investigation); 18 U.S.C. 1511 (the obstruction of
State
or local law enforcement); 18 U.S.C. 1512 (tampering with a witness, victim
or
informant); 18 U.S.C. 1513 (retaliating against a witness, victim or
informant);
18 U.S.C. 1951 (interference with commerce, robbery or extortion); 18 U.S.C.
1952
(racketeering, except with respect to untaxed paid liquor and arson); 18
U.S.C.
1953 (interstate transportation of wagering paraphernalia); 18 U.S.C. 1954
(unlawful welfare fund payments); 18 U.S.C. 1955 (the prohibition of illegal
gambling businesses); 18 U.S.C. 1958 (use of interstate commerce facilities
in
the commission of murder-for-hire); 22 U.S.C. 2251-52 (sexual exploitation
of
children); 18 U.S.C. 2321 (trafficking in certain motor vehicles or motor
vehicles parts); 18 U.S.C. 2312 and 2313 (interstate transportation of
stolen
motor vehicles); 18 U.S.C. 2314 and 2315 (interstate transportation of
stolen
property); 18 U.S.C. 2421-24 (Mann Act); any act which is indictable under
29
U.S.C. 186 (restrictions on payments and loans to labor organizations) or 29
U.S.C. 501(c) (embezzlement from union funds); any offense involving fraud
connected with a case under title 11, fraud in the sale of securities, and
the
felonious manufacturer, importation, receiving, concealment, buying,
selling, or
otherwise dealing in narcotic or other dangerous drugs, punishable under any
law
of the United States.
- Drug Enforcement Administration
- The Drug Enforcement Administration shall have investigatory
jurisdiction
over violations of sections 1956 or 1957 involving the specified unlawful
activities of, with respect to a financial transaction occurring in whole or
in
part in the United States, an offense against a foreign nation involving the
manufacture, importation, sale, or distribution of a controlled substance
(as
such term is defined for the purpose of the Controlled Substances Act)
including
21 U.S.C. 830 (relating to precursor and essential chemicals) and 857
(relating
to transportation of drug paraphernalia); or any act or acts constituting a
continuing criminal enterprise, as that term is defined in section 408 of
the
Controlled Substances Act (21 U.S.C. 848); or any of the predicate offenses
enumerated in 18 U.S.C. 1961(1) dealing in narcotics or other dangerous
drugs
which are chargeable under State law and punishable for more than one year,
or
the felonious manufacture, importation, receiving, concealment, buying,
selling,
or otherwise dealing in narcotics or other dangerous drugs, punishable under
any
law of the United States.
- United States Postal Service
- The investigative jurisdiction of the Postal Inspection Service is
limited
by 18 U.S.C. 3061 to offenses regarding property in the custody of the
Postal
Service, property of the Postal Service, use of the mails, other postal
offenses,
and offenses for which the Postal Service has been delegated investigative
authority pursuant to 18 U.S.C. 3061 (b)(2). Subject to these limitations,
the
Postal Inspection Service shall have investigative jurisdiction over
violations
of sections 1956 and 1957 involving the specified unlawful activities of 18
U.S.C. 201 (bribery of public officials and witnesses); 18 U.S.C. 500-503
(counterfeiting of money orders, post cards, indicia of postage and
postmarking
stamps); 18 U.S.C. 641 (theft of public money, property or records); 18
U.S.C.
1029 (fraudulent activity in connection with access devices) with respect
to
violations involving postal employees, fraud against the Postal Service or
where
the primary focus of the offense is mail fraud or a violation of 18 U.S.C.
2114
(postal robbery); 18 U.S.C. 1341 (mail fraud); 18 U.S.C. 1343 (wire fraud)
where
the primary focus of the offense is mail fraud; 18 U.S.C. 1461 and 1463
(mailing
of obscene matter); 18 U.S.C. 1503, 1510-1513 (obstruction of justice); 18
U.S.C.
1952 (mailing in aid of racketeering enterprises); 18 U.S.C. 1961 (1)(A)
(organized crime); 18 U.S.C. 2114 (robbery of mail, other property); 18
U.S.C.
2251, 2252 (sexual exploitation of minors); any 18 U.S.C. 1961 (1) offense
dealing in narcotics and other dangerous drugs which are chargeable under
state
law and punishable for more than one year, or by the felonious manufacture,
importation, receiving, concealment, buying, selling, or otherwise dealing
in
narcotics or other dangerous drugs punishable under any law of the United
States,
or any act or acts constituting criminal enterprise, as that term is defined
in
section 408 of the Controlled Substances Act (21 U.S.C. 848); 21 U.S.C. 843
(b)
(use of mails to violate Controlled Substances Act); and, Section 1822 of
the
Mail Order Drug Paraphernalia Control Act (21 U.S.C. 857) (transportation of
drug
paraphernalia).
Section IV.Undercover Operations
This MOU will govern the conduct of all money laundering investigations
under
sections 1956 and 1957 in that all parties hereto agree that all undercover
operations will be reviewed using each bureau's internal guidelines, the
objectives of which are consistent with existing Attorney General Guidelines
on
undercover operations.
Section V.Seizure and Forfeiture
Any property involved in a violation of section 1956 or 1957 that a Treasury
or
Justice bureau or the Postal Service has authority to investigate under
Section
III of this MOU may be seized by that bureau or the Postal Service, if that
property is subject to forfeiture to the United States under 18 U.S.C.
981(a)(1)(A) or 981(a)(1)(B).
Where a Treasury or Justice bureau or the Postal Service would have
authority to
seize property under the authority stated in the preceding paragraph is not
present to make the seizure, any Treasury or Justice bureau or the Postal
Service
that is present may seize the property and shall immediately turn over that
property to the bureau having section III investigatory jurisdiction, where
the
forfeiture processing shall occur.
Any property seized under this Section shall, upon forfeiture under 18
U.S.C. 981
or 982, be apportioned among the appropriate Treasury or Justice bureaus or
the
Postal Service in accordance with their respective contribution to the
overall
efforts expended in the investigation, seizure, or forfeiture.
Pursuant to 18 U.S.C. 981(e) and, where appropriate, the Justice Department,
the
Treasury Department or the Postal Service forfeiture guidelines,
apportionment
may include equitable transfers to any other Federal agency or State or
local
authorities, which participated directly in any of the acts which led to the
seizure or forfeiture.
Any dispute regarding the seizure, forfeiture, apportionment, or disposition
of
property under this section shall be governed by the disputes resolution
procedure in Section IX of this MOU.
This MOU does not affect Treasury or Justice bureaus' or the Postal
Service's
authority to seize property or the disposition of such property under
statutory
seizure and forfeiture provisions not based on section 1956 and 1957
violations.
A. Seizure of Attorney Fees: Treasury and Justice bureaus and the Postal
Service will follow DOJ guidelines in reference to the seizure and
forfeiture of
any money or property that is held by an attorney for payment for the
defense of
a client. See United States Attorneys Manual 9-111.000, et
seq.
Section VI.Prosecution
A bureau that conducts an investigation under the authority of this MOU
shall
coordinate with Justice Department attorneys.
Section VII. Notice, Coordination, and Lead Bureau
- Notice
- If, during the investigation of a section 1956 or 1957 violation,
a
bureau discovers a specified unlawful activity or a transaction reporting
violation over which another bureau has investigatory jurisdiction, that
bureau
shall give notice to the bureau which has investigatory jurisdiction over
the
specified unlawful activity or to the Internal Revenue Service or Customs,
as
appropriate, in the case of a transaction reporting violation, and to
consult
prior to taking any investigative actions impacting on the other bureau's
jurisdiction.
- If a bureau discovers transactions involving the proceeds of a
specified
unlawful activity conducted with intent to engage in a violation of section
7201
or 7206 of the Internal Revenue Code, that bureau shall give notice to the
Internal Revenue Service and coordinate the subsequent investigation with
the
IRS. To the extent that any IRS money laundering investigation requires the
acquisition of evidence concerning an underlying specified unlawful
activity, the
IRS shall notify the bureau having jurisdiction over the specified unlawful
activity and coordinate the subsequent investigation with that bureau.
- Notice under this section will ordinarily be made at the supervisory
field
level and will, at a minimum, require a complete summary of the facts and
circumstances of the investigation. However, in those instances where a
bureau
undertakes an investigation in which it determines that field level
disclosure
would be detrimental to the investigation, the required notice will be made
at
the headquarters level and dissemination restricted to selected individuals
consistent with the need to maintain security of the investigations.
- Coordination and Determination of Lead Bureau
Investigatory actions which involve areas outside the investigating bureau's
existing jurisdiction, independent of the money laundering statute, shall be
conducted only in coordination with the bureau(s) which do have existing
jurisdiction independent of the money laundering statute. Coordination
requires,
at a minimum, a determination of the degree of cooperation necessary between
the
coordinating bureau(s) and includes continuing dialogue as the case
develops.
At the request of any coordinating bureau, at any time as the case develops,
there shall be a determination of the lead bureau for the Section 1956 or
1957
investigation. The determination of lead bureau does not preclude a
subsequent
request by a coordinating bureau for redetermination of the lead as
compelling
facts and circumstances warrant.
The determination of the lead bureau will be made at the supervisory field
level
by the bureaus involved and will be governed by which bureau has the
paramount
investigatory interest. In determining which bureau has the paramount
investigatory interest, the factors to be considered shall include, but not
be
limited to:
- Likely impact on major criminal enterprises;
- Likelihood of successful prosecution;
- Existence of a specified unlawful activity, as defined in section
1956(c)(7);
- Jeopardy to informants, undercover agents, or third parties;
- Commitment of investigatory resources; and
- Any other matter of substantive investigative interest.
Section VIII. Jointly Conducted Investigations
Treasury and Justice bureaus and the Postal Service are encouraged to enter
into
joint investigatory endeavors in circumstances that may necessitate or
justify
the use of skills and resources or more than one bureau. The specific
details
of each joint investigation, including the role of each bureau in the
endeavor,
will be formulated at the onset of the investigation and will be provided to
each
bureau's headquarters by each bureau's established procedures. While
differing
circumstances will result in varied arrangements from project to project,
certain
conditions will always apply:
- Participating personnel will be supervised by their respective
bureaus.
This does not alter any other concerning supervision of investigatory
personnel.
- Only one evidentiary document, such as a record of interview will be
prepared, and a copy will be furnished to the other bureau at the time the
document is prepared.
- Resources and investigatory expertise will be provided to the requesting
bureau when the investigatory matter meets the criteria of the requested
bureau
and when available resources allow.
- Any contact with the news media, such as press releases, will be
coordinated
and agreed to in advance by the bureaus involved.
Section IX.Dispute Resolution
The Secretary, the Attorney General and the Postmaster General contemplate
that
in cases of overlapping jurisdiction, the appropriate bureaus will work in
concert to the extent authorized by law. Any disputes between bureaus
should be
resolved at the field level. When this cannot be accomplished, the matter
will
be referred to the respective headquarters' point of contact. In the event
that
disputes cannot be resolved by the bureau headquarters, the matter will be
expeditiously referred to the Assistant Attorney General, Criminal Division,
Department of Justice, and the Assistant Secretary for Enforcement,
Department
of the Treasury, and in disputes involving the Postal Service, to the Chief
Postal Inspector, whose decisions shall be final.
Section X.Extraterritorial Jurisdiction
Treasury and Justice bureaus and the Postal Service must immediately notify
the
appropriate prosecuting attorney or other designated Department of Justice
official if, in the course of a section 1956 or section 1957 investigation,
it
becomes likely that extraterritorial jurisdiction under section 1956(f) or
section 1957(d) will be invoked. See United States Attorneys Manual 9-105.100.
Section XI.Amendment
This MOU may be amended be deletion or modification of any provision
contained
herein, or by addition of new provisions, after written concurrence of all
the
parties to the MOU.
Section XII. Termination
This MOU will remain in effect until terminated by the Attorney General or
the
Secretary or the Postmaster General upon 30 days' written notice.
Section XIII. Approval
This MOU becomes effective when approved by the parties identified below.
[Original Signed]
Peter K. Nunez
Assistant Secretary (Enforcement)
U.S. Department of Treasury
JUL 31 1990
Date
[Original Signed]
William P. Barr
Deputy Attorney General
U.S. Department of Justice
8/11/90
Date
[Original Signed]
Charles R. Clauson
Chief Postal Inspector
8/16/90
Date
[cited in USAM 9-105.750; USAM 9-119.600] |