FBI Memorandum of Understanding aof3 - a8208
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FEDERAL BUREAU OF INVESTIGATION
SOUTH FLORIDA VIOLENT CRIME/FUGITIVE SAFE STREETS TASK FORCE
MEMORANDUM OF UNDERSTANDING
PARTIES
1. This Memorandum of Understanding (MOU) is entered into by and between the Federal
Bureau of Investigation (FBI) and the City of Miami Beach Police Department (LEA).
Nothing in this MOU should be construed as limiting or impeding the basic spirit of
cooperation which exists between these agencies.
AUTHORITIES
2. Authority for the FBI to enter into this agreement can be found at Title 28, United States
Code (U.S.C.), Section (§) 533; 42 U.S.C. § 3771; Title 28, Code of Federal Regulations
(C.F.R.), § 0.85; and applicable United States Attorney General's Guidelines.
PURPOSE
3. The purpose of this MOU is to delineate the responsibilities of South Florida Violent
Crime/Fugitive Safe Streets Task Force (SFVCFSSTF) personnel formalize relationships
between participating agencies for policy guidance, planning, training, public and media
relations; and maximize inter-agency cooperation. This MOU is not intended, and should
not be construed, to create any right or benefit, substantive or procedural, enforceable at
law or otherwise by any third party against the parties, the United States, or the officers,
employees, agents, or other associated personnel thereof.
MISSION
4. The mission of the SFVCFSSTF is to identify and target for prosecution criminal
enterprise groups responsible for drug trafficking, money laundering, alien smuggling,
crimes of violence such as murder and aggravated assault, robbery, and violent street
gangs, as well as to intensely focus on the apprehension of dangerous fugitives where
there is or may be a federal investigative interest. The SFVCFSSTF will enhance the
effectiveness of federal/state/local law enforcement resources through a well-coordinated
initiative seeking the most effective invest igative/prosecutive avenues by which to convict
and incarcerate dangerous offenders.
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SUPERVISION AND CONTROL
A. Supervision
5. Overall management of the SFVCFSSTF shall be the shared responsibility of the
participating agency heads and/or their designees.
6. The Special Agent in Charge (SAC) of the Miami Division shall designate one
Supervisory Special Agent (SFVCFSSTF Supervisor) to supervise the SFVCFSSTF. The
SFVCFSSTF Supervisor may designate a Special Agent to serve as the South Florida
Violent Crime/ Fugitive Safe Streets Task Force Coordinator (Task Force Coordinator).
Either the SFVCFSSTF Supervisor or the Task Force Coordinator shall oversee day-to-
day operational and investigative matters pertaining to the SFVCFSSTF.
7. Conduct undertaken outside the scope of an individual's SFVCFSSTF duties and
assignments under this MOU shall not fall within the oversight responsibility of the
SFVCFSSTF Supervisor or Task Force Coordinator. As stated in paragraph 74, below,
neither the United States nor the FBI shall be responsible for such conduct.
8. SFVCFSSTF personnel will be subject to the laws, regulations, policies, and personnel
rules applicable to their respective agencies. FBI employees will continue to adhere to
the Bureau's ethical standards, including Department of Justice (DOJ)/FBI regulations
relating to outside employment and prepublication review matters, and will remain subject
to the Supplemental Standards of Ethical conduct for employees of the DOJ.
9. SFVCFSSTF personnel will continue to report to their respective agency heads for non-
investigative administrative matters not detailed in this MOU.
10. Continued assignment of personnel to the SFVCFSSTF will be based on performance
and at the discretion of appropriate management. The FBI SAC and SFVCFSSTF
Supervisor will also retain discretion to remove any individual from the SFVCFSSTF.
B. Case Assignments
11. The FBI SFVCFSSTF Supervisor will be responsible for opening, monitoring, directing,
and closing SSTF investigations in accordance with existing FBI policy and the applicable
United States Attorney General's Guidelines.
12. Assignments of cases to personnel will be based on, but not limited to, experience,
training and performance, in addition to the discretion of the SFVCFSSTF Supervisor.
13. For FBI administrative purposes, SFVCFSSTF cases will be entered into the relevant FBI
computer system.
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14. SFVCFSSTF personnel will have equal responsibility for each case assigned.
SFVCFSSTF personnel will be responsible for complete investigation from predication to
resolution.
C. Resource Control
15. The head of each participating agency shall determine the resources to be dedicated by
that agency to the SFVCFSSTF, including personnel, as well as the continued dedication
of those resources. The participating agency head or designee shall be kept fully
apprised of all investigative developments by his or her subordinates.
OPERATIONS
A. Investigative Exclusivity
16. It is agreed that matters designated to be handled by the SFVCFSSTF will not knowingly
be subject to non- SFVCFSSTF law enforcement efforts by any of the participating
agencies. It is incumbent on each agency to make proper internal notification regarding
the SFVCFSSTF 's existence and areas of concern.
17. It is agreed that there is to be no unilateral action taken on the part of the FBI or any
participating agency relating to SFVCFSSTF investigations or areas of concern as
described in paragraph 3. All law enforcement actions will be coordinated and
cooperatively carried out.
18. SFVCFSSTF investigative leads outside of the geographic areas of responsibility for FBI
Miami Division will be communicated to other FBI offices for appropriate investigation.
B. Confidential Human Sources
19. The disclosure of FBI informants, or Confidential Human Sources (CHSs), to non-
SFVCFSSTF personnel will be limited to those situations where it is essential to the
effective performance of the SFVCFSSTF. These disclosures will be consistent with
applicable FBI guidelines.
20. Non-FBI SFVCFSSTF personnel may not make any further disclosure of the identity of an
FBI CHS, including to other individuals assigned to the SFVCFSSTF. No documents
which identify, tend to identify, or may indirectly identify an FBI CHS may be released
without prior FBI approval.
21. In those instances where a participating agency provides a CHS, the FBI may, at the
discretion of the SAC, become solely responsible for the CHS's continued development,
operation, and compliance with necessary administrative procedures regarding operation
and payment as set forth by the FBI.
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22. The United States Attorney General's Guidelines and FBI policy and procedure for
operating FBI CHSs shall apply to all FBI CHSs opened and operated in furtherance of
SFVCFSSTF investigations. Documentation of, and any payments made to, FBI CHSs
shall be in accordance with FBI policy and procedure.
23. Operation, documentation, and payment of any CHS opened and operated in furtherance
of an SFVCFSSTF investigation must be in accordance with the United States Attorney
General's Guidelines, regardless of whether the handling agency is an FBI SFVCFSSTF
participating agency. Documentation of state, county, or local CHSs opened and
operated in furtherance of SFVCFSSTF investigations shall be maintained at an agreed
upon location.
C. Reports and Records
24. All investigative reporting will be prepared in compliance with existing FBI policy. Subject
to pertinent legal and/or policy restrictions, copies of pertinent documents created by
SFVCFSSTF personnel will be made available for inclusion in the respective investigative
agencies' files as appropriate.
25. SFVCFSSTF reports prepared in cases assigned to SFVCFSSTF personnel will be
maintained at an FBI approved location; original documents will be maintained by the
FBI.
26. Records and reports generated in SFVCFSSTF cases which are opened and assigned by
the FBI SSA with designated oversight for investigative and personnel matters will be
maintained in the FBI investigative file for SFVCFSSTF.
27. SFVCFSSTF investigative records maintained at the Miami Field Office of the FBI will be
available to all SFVCFSSTF personnel, as well as their supervisory and command staff
subject to pertinent legal, administrative and/or policy restrictions.
28. All evidence and original tape recordings (audio and video) acquired by the FBI during
the course of the SFVCFSSTF investigations will be maintained by the FBI. The FBI's
rules and policies governing the submission, retrieval and chain of custody will be
adhered to by SFVCFSSTF personnel.
29. All SFVCFSSTF investigative records will be maintained at an approved FBI location.
Placement of all or part of said information into participating agency files rests with the
discretion of supervisory personnel of the concerned agencies, subject to SSA approval.
30. Classified information and/or documents containing information that identifies or tends to
identify an FBI CHS shall not be placed in the files of participating agencies unless
appropriate FBI policy has been satisfied.
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31. The Parties acknowledge that this MOU may provide SFVCFSSTF personnel with access
to information about U.S. persons which is protected by the Privacy Act of 1974 and/or
Executive Order 12333. The Parties expressly agree that all such information will be
handled lawfully pursuant to the provisions thereof. The Parties further agree that if this
access to information by SFVCFSSTF personnel requires a change in privacy
compliance documents, those changes will be accomplished prior to access being
granted.
INFORMATION SHARING
32. No information possessed by the FBI, to include information derived from informal
communications between SFVCFSSTF personnel and FBI employees not assigned to
the SFVCFSSTF, may be disseminated by SFVCFSSTF personnel to non- SFVCFSSTF
personnel without the approval of the SFVCFSSTF Supervisor and in accordance with
the applicable laws and internal regulations, procedures or agreements between the FBI
and the participating agencies that would permit the participating agencies to receive that
information directly. Likewise, SFVCFSSTF personnel will not provide any participating
agency information to the FBI that is not otherwise available to it unless authorized by
appropriate participating agency officials.
33. Each Party that discloses PII is responsible for making reasonable efforts to ensure that
the information disclosed is accurate, complete, timely, and relevant.
34. The FBI is providing access to information from its records with the understanding that in
the event the recipient becomes aware of any inaccuracies in the data, the recipient will
promptly notify the FBI so that corrective action can be taken. Similarly, if the FBI
becomes aware that information it has received pursuant to this MOU is inaccurate, it will
notify the contributing Party so that corrective action can be taken.
35. Each Party is responsible for ensuring that information it discloses was not knowingly
obtained or maintained in violation of any law or policy applicable to the disclosing Party,
and that information is only made available to the receiving Party as may be permitted by
laws, regulations, policies, or procedures applicable to the disclosing Party.
36. Each Party will immediately report to the other Party each instance in which data received
from the other Party is used, disclosed, or accessed in an unauthorized manner
(including any data losses or breaches).
37. The Parties agree that either or both may audit the handling and maintenance of data in
electronic and paper recordkeeping systems to ensure that appropriate security and
privacy protections are in place.
PROSECUTIONS '
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38. SFVCFSSTF investigative procedures, whenever practicable, are to conform to the
requirements which would allow for either federal or state prosecution.
39. A determination will be made on a case-by-case basis whether the prosecution of
SFVCFSSTF cases will be at the state or federal level. This determination will be based
on the evidence obtained and a consideration of which level of prosecution would be of
the greatest benefit to the overall objectives of the SFVCFSSTF.
40. In the event that a state or local matter is developed that is outside the jurisdiction of the
FBI or it is decided to prosecute a SFVCFSSTF case at the state or local level, the FBI
agrees to provide all relevant information to state and local authorities in accordance with
all applicable legal limitations.
A. Investigative Methods/Evidence
41. For cases assigned to an FBI Special Agent or in which FBI CHSs are utilized, the parties
agree to conform to federal standards concerning evidence collection, processing, storage,
and electronic surveillance. However, in situations where the investigation will be
prosecuted in the State Court where statutory or common law of the state is more
restrictive than the comparable federal law, the investigative methods employed by FBI
case agents shall conform to the requirements of such statutory or common law pending a
decision as to venue for prosecution.
42. In all cases assigned to state, county, or local law enforcement participants, the parties
agree to utilize federal standards pertaining to evidence handling and electronic
surveillance activities as outlined in the Domestic Investigations and Operations Guide to
the greatest extent possible. However, in situations where the statutory or common law
of the state is more restrictive than the comparable federal law, the investigative methods
employed by state and local law enforcement agencies shall conform to the requirements
of such statutory or common law pending a decision as to venue for prosecution.
43. The use of other investigative methods (search warrants, interceptions of oral
communications, etc.) and reporting procedures in connection therewith will be consistent
with the policies and procedures of the FBI.
B. Undercover Operations
44. All SSTF undercover operations will be conducted and reviewed in accordance with FBI
guidelines and the Attorney General's Guidelines on Federal Bureau of Investigation
Undercover Operations. All participating agencies may be requested to enter into an
additional agreement if an employee of the participating agency is assigned duties which
require the officer to act in an undercover capacity.
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USE OF LESS-THAN-LETHAL-DEVICES'
45. The parent agency of each individual assigned to the SFVCFSSTF will ensure that while
the individual is participating in FBI-led task force operations in the capacity of a task
force officer, task force member, or task force participant, the individual will carry only
less-lethal devices that the parent agency has issued to the individual, and that the
individual has been trained in accordance with the agency's policies and procedures.
46. The parent agency of each individual assigned to the SFVCFSSTF will ensure that the
agency's policies and procedures for use of any less-lethal device that will be carried by
the task force officer, task force member, or task force participant are consistent with the
DOJ policy statement on the Use of Less-Than-Lethal Devices.
DEADLY FORCE AND SHOOTING INCIDENT POLICIES
47. SFVCFSSTF personnel will follow their own agencies' policies concerning firearms
discharge and use of deadly force.
DEPUTATIONS
48. Local and state law enforcement personnel designated to the SFVCFSSTF, subject to a
limited background inquiry, may be sworn as federally deputized Special Deputy United
States Marshals, with the FBI securing the required deputation authorization.
49. Deputized SFVCFSSTF personnel will be subject to the rules and regulations pertaining
to such deputation. Administrative and personnel policies imposed by the participating
agencies will not be voided by deputation of their respective personnel.
VEHICLES
50. In furtherance of this MOU, employees of LEA may be permitted to drive FBI owned or
leased vehicles for official SFVCFSSTF business and only in accordance with applicable
FBI rules and regulations, including those outlined in the FBI Government Vehicle Policy
Directive (0430D) and the Government Vehicle Policy Implementation Guide (0430PG).
The assignment of an FBI owned or leased vehicle to LEA SFVCFSSTF personnel will
require the execution of a separate Vehicle Use Agreement.
51. The participating agencies agree that FBI vehicles will not be used to transport
passengers unrelated to SFVCFSSTF business.
Pursuant to Section VIII of the DOJ Less-Than-Lethal Devices Policy dated May
16, 2011, all state/local officers participating in joint task force operations must be made aware of and
adhere to the policy and its limits on DOJ officers.
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52. The FBI and the United States will not be responsible for any tortious act or omission on
the part of LEA and/or its employees or for any liability resulting from the use of an FBI
owned or leased vehicle utilized by LEA SFVCFSSTF personnel, except where liability
may fall under the provisions of the Federal Tort Claims Act (FICA), as discussed in the
Liability Section herein below.
53. The FBI and the United States shall not be responsible for any civil liability arising from
the use of an FBI owned or leased vehicle by LEA task force personnel while engaged in
any conduct other than their official duties and assignments under this MOU.
54. To the extent permitted by applicable law, LEA agrees to hold harmless the FBI and the
United States, for any claim for property damage or personal injury arising from any use
of an FBI owned or leased vehicle by LEA SFVCFSSTF personnel which is outside the
scope of their official duties and assignments under this MOU.
SALARYIOVERTIME COMPENSATION
55. The FBI and LEA remain responsible for all personnel costs for their SFVCFSSTF
representatives, including salaries, overtime payments and fringe benefits consistent with
their respective agency, except as described in paragraph 56 below.
56. Subject to funding availability and legislative authorization, the FBI will reimburse to LEA
the cost of overtime worked by non-federal SSTF personnel assigned full-time to
SFVCFSSTF, provided overtime expenses were incurred as a result of SFVCFSSTF -
related duties, and subject to the provisions and limitations set forth in a separate Cost
Reimbursement Agreement to be executed in conjunction with this MOU. A separate
Cost Reimbursement Agreement must be executed between the FBI and LEA for full-time
employee(s) assigned to SFVCFSSTF, consistent with regulations and policy, prior to any
reimbursement by the FBI. Otherwise, overtime shall be compensated in accordance
with applicable LEA overtime provisions and shall be subject to the prior approval of
appropriate personnel.
PROPERTY AND EQUIPMENT
57. Property utilized by the SFVCFSSTF in connection with authorized investigations and/or
operations and in the custody and control and used at the direction of the SFVCFSSTF,
will be maintained in accordance with the policies and procedures of the agency
supplying the equipment. Property damaged or destroyed which was utilized by
SFVCFSSTF in connection with authorized investigations and/or operations and is in the
custody and control and used at the direction of SFVCFSSTF, will be the financial
responsibility of the agency supplying said property.
FUNDING
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58. This MOU is not an obligation or commitment of funds, nor a basis for transfer of funds,
but rather is a basic statement of the understanding between the parties hereto of the
tasks and methods for performing the tasks described herein. Unless otherwise agreed
in writing, each party shall bear its own costs in relation to this MOU. Expenditures by
each party will be subject to its budgetary processes and to the availability of funds and
resources pursuant to applicable laws, regulations, and policies. The parties expressly
acknowledge that the above language in no way implies that Congress will appropriate
funds for such expenditures.
FORFEITURES
59. The FBI shall be responsible for processing assets seized for federal forfeiture in
conjunction with SFVCFSSTF operations.
60. Asset forfeitures will be conducted in accordance with federal law, and the rules and
regulations set forth by the FBI and DOJ. Forfeitures attributable to SFVCFSSTF
investigations may be equitably shared with the agencies participating in the
SFVCFSSTF.
DISPUTE RESOLUTION
61. In cases of overlapping jurisdiction, the participating agencies agree to work in concert to
achieve the SFVCFSSTF 's objectives.
62. The participating agencies agree to attempt to resolve any disputes regarding jurisdiction,
case assignments, workload, etc., at the field level first before referring the matter to
supervisory personnel for resolution.
MEDIA RELEASES
63. All media releases and statements will be mutually agreed upon and jointly handled
according to FBI and participating agency guidelines.
64. Press releases will conform to DOJ Guidelines regarding press releases. No release will
be issued without FBI final approval.
SELECTION TO SSTF AND SECURITY CLEARANCES
65. If an LEA candidate for the SFVCFSSTF will require a security clearance, he or she will
be contacted by FBI security personnel to begin the background investigation process
prior to the assigned start date.
66. If, for any reason, the FBI determines that an LEA candidate is not qualified or eligible to
serve on the SFVCFSSTF, the participating agency will be so advised and a request will
be made for another candidate.
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67. Upon being selected, each candidate will receive a comprehensive briefing on FBI field
office security policies and procedures. During the briefing, each candidate will execute
non-disclosure agreements (SF-312 and FD-868), as may be necessary or required by
the FBI.
68. Before receiving unescorted access to FBI space identified as an open storage facility,
SFVCFSSTF personnel will be required to obtain and maintain a "Top Secret" security
clearance. SFVCFSSTF personnel will not be allowed unescorted access to FBI space
unless they have received a Top Secret security clearance.
69. Upon departure from the SFVCFSSTF, each individual whose assignment to the SSTF is
completed will be given a security debriefing and reminded of the provisions contained in
the non-disclosure agreement to which he or she previously agreed.
LIABILITY
70. The participating agencies acknowledge that this MOU does not alter the applicable law
governing civil liability, if any, arising from the conduct of personnel assigned to the
SFVCFSSTF.
71. The participating agency shall immediately notify the FBI of any civil, administrative, or
criminal claim, complaint, discovery request, or other request for information of which the
agency receives notice, concerning or arising from the conduct of personnel assigned to
the SFVCFSSTF or otherwise relating to the SFVCFSSTF. The participating agency
acknowledges that financial and civil liability, if any and in accordance with applicable
law, for the acts and omissions of each employee detailed to the SFVCFSSTF remains
vested with his or her employing agency. In the event that a civil claim or complaint is
brought against a state or local officer assigned to the SFVCFSSTF, the officer may
request legal representation and/or defense by DOJ, under the circumstances and
pursuant to the statutes and regulations identified below.
72. For the limited purpose of defending against a civil claim arising from alleged negligent or
wrongful conduct under common law under the FTCA, 28 U.S.C. § 1346(b), and §§ 2671-
2680: An individual assigned to the SFVCFSSTF who is named as a defendant in a civil
action as a result of or in connection with the performance of his or her official duties and
assignments pursuant to this MOU may request to be certified by the Attorney General or
his designee as having acted within the scope of federal employment at the time of the
incident giving rise to the suit. 28 U.S.C. § 2679(d)(2). Upon such certification, the
individual will be considered an "employee" of the United States government for the
limited purpose of defending the civil claim under the FTCA, and the claim will proceed
against the United States as sole defendant. 28 U.S.C. § 2679(d)(2). Once an individual
is certified as an employee of the United States for purposes of the FTCA, the United
States is substituted for the employee as the sole defendant with respect to any tort
claims. Decisions regarding certification of employment under the FTCA are made on a
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case-by-case basis, and the FBI cannot guarantee such certification to any SFVCFSSTF
personnel.
73. For the limited purpose of defending against a civil claim arising from an alleged violation
of the U.S. Constitution pursuant to 42 U.S.C. § 1983 or Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971): An individual assigned
to the SSTF who is named as a defendant in a civil action as a result of or in connection
with the performance of his or her official duties and assignments pursuant to this MOU
may request individual-capacity representation by DOJ to defend against the claims. 28
C.F.R. §§ 50.15, 50.16. Any such request for individual-capacity representation must be
made in the form of a letter from the individual defendant to the U.S. Attorney General.
The letter should be provided to Chief Division Counsel (CDC) for the FBI Miami
Division, who will then coordinate the request with the FBI Office of the General Counsel.
In the event of an adverse judgment against the individual, he or she may request
indemnification from DOJ. 28 C.F.R. § 50.15(c)(4). Requests for.DOJ representation
and indemnification are determined by DOJ on a case-by-case basis. The FBI cannot
guarantee the United States will provide legal representation or indemnification to any
SFVCFSSTF personnel.
74. Liability for any conduct by SFVCFSSTF personnel undertaken outside of the scope of
their assigned duties and responsibilities under this MOU shall not be the responsibility of
the FBI or the United States and shall be the sole responsibility of the respective
employee and/or agency involved.
DURATION
75. The term of this MOU is for the duration of the SFVCFSSTF 's operations, contingent
upon approval of necessary funding, but may be terminated at any time upon written
mutual consent of the agency involved.
76. Any participating agency may withdraw from the SFVCFSSTF at any time by written
notification to the SSA with designated oversight for investigative and personnel matters
or program manager of the SFVCFSSTF at least 30 days prior to withdrawal.
77. Upon termination of this MOU, all equipment provided to the SFVCFSSTF will be
returned to the supplying agency/agencies. In addition, when an entity withdraws from the
MOU, the entity will return equipment to the supplying agency/agencies. Similarly,
remaining agencies will return to a withdrawing agency any unexpended equipment
supplied by the withdrawing agency during any SFVCFSSTF participation.
MODIFICATIONS
78. This agreement may be modified at any time by written consent of all involved agencies.
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79. Modifications to this MOU shall have no force and effect unless such modifications are
reduced to writing and signed by an authorized representative of each participating
agency.
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In witness whereof, the parties hereto cause to these presents to be signed on
the date specified.
AGREED TO AND ACKNOWLEDGED this day of
, 2013.
CITY OF MIAMI BEACH, FLORIDA FEDERAL BUREAU OF INVESTIGATION
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RAYMOND MARTINEZ SPECIAL AGENT IN CHARGE
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