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REPAGE1989383ISSUESUnder The Financial Institution ReformAnd Enforcement Act Of 1989FIRREAOn November21 1989 Michael Zeldin Director Asset Forissuedfeiture Office Criminal forcementActof1989coveryofthatisatcriminal forfeiture achedAppendixMoneyThe Assetviously issuedsee VolJuly 15Bulletin371989LaunderingForfeiture Office of the Criminal Divisionpreproposed jury instruction for 31 U.S.C 53243UnitedStates Attorneys BulletindatedNorevision is attachedat the Appendix of thisasExhibit Balso preparedlaunThe AssetForfeiture Officemoneylistofforfeimoney launderingdering case law update andofthis Bulletinasat the Appendixtures which is attachedExhibitIfyouhaveany 0AdoptiveForfeituresreauthorizationbill containsDepartment of Defensethat orfeituresincludedrestrictionsontheadoptivetively repealsin the 1988 Anti-DrugAbuse ActDisagreement between the Houseadoptive forfeiture forand Senate over RepresentativeHughesfinalmulation3550 whichpassage of H.RH.R 2550 rbegin in thetransfers may not begin until the end of FY 1990The

ationthe Housefour drug billspasseddealing respectively with the Department of Health and Humanasset forfeitureServiceseducationforeign assistance andmattersThese bills roughly correspond to the provisions ofand are intendedbill that passed the Senate in October1735It isto implement the Presidents 1990 national drug strategybetweenunclear how Congress will reconcile the differencesbills1735and the four House-passedOnNovember131989SenateDrugHearingOn December12 1989 the Senate Judiciary Committee heldWitnesses includedhearing on drug use in the nations citiesof New York City the Mayor of Kansas City thethe Mayor-electDEA Agent in Charge in New York City and the Chief of Police inDallasSenator Joseph Biden noted that the Office of NationalDrug Control Policy is scheduled to designate five high intenareastHe also unexpectedlysity drugtraffickingshortlyintroduceddrug bill1972 that appears to incorporate manyindividual provisions in the Senate-passed drug bill includingwouldthe creationofarea relief plan whichdrug disasterlocalitiesauthorize up to 300 million for designatedMayor-elect David Dinkins supported SenatorBidens proposaland urged that future monies be granted directly to the citiesBoth he and Kansas City Mayor Richard Berkley indicated that intheir opinions too much money sent to the states is spent at theThis direct fundstate level and not passed on to the citiesissueandtobecame up repeatedlymajor concerningappearscitiesboththatfederal asof theIn additionMayors urgedsistancebe substantiallybothincreased although theyrecognized that the states need to do their parts alsothat Congress not loseSenator Grassley expressed concernsight of the fact that drug abuse isproblem in rural areas aswell as cities Senator Biden noted that1711 containsprovisionestablishing 20 million of rural drug enprogramthatit isforcementSenator Biden said repeatedlygrantsmistake to target one part of the drug problem at the expense ofat onceother partsIn his view we have to do everything

VOL37 NO12DECEMBER151989PAGE385Special Agent in Charge Robert Stutnian of the Drug EnforceAdministrationsummarized his view of the drug problem ininentof theHe said that an increasing percentageNew York Cityandthatthiscouldultiaddictsin NewYork City are femalelastofof thevestigefamilymately lead to the destructionlife in our inner citiesInternationalNarcoticsControlon November22 1989 CongressShortly before adjourningH.Randclearedforthe President3611 the InterpassednationalNarcoticsControl Act of 1989majority of theeconomic and other assistance toprovisions of this bill concernAndeancountries in the fight againstillegal drugsencourageto the Department wouldOne provision of particularimportanceMansfield Amendment whichrevise and clarify the so-calledlaw enforcementspells out the authority of DEA and other U.Sforeign police officers and assist in makingagents to accompanythis provision beThe Department strongly supportedarreststo authorize DEA agentscause it would permit U.S Ambassadorsin makingin foreign posts to accompanyforeign police officersarrestsUnder current law such requests must be referred toWashingtonViennaConventionOn November21 1989 the Senate ratified the United Nain NarcoticConventionDrugs andAgainst Illicit onsentDepartment objectionsThis treaty which the United States took theinlead in negotiatingwill improve copy of the Guideline Sentencing Update Volumeat the Appendix ofber 16 dated november 22 1989 is attachedthis Bulletinas Exhibit

VOL37 NODECEMBER12EffectiveDate151989Of SentencingPAGE386GuidelinesOn November29 1989 JoeBrownChairman SentencingGuidelinesSubcommittee Attorney Generals Advisory Committeeadvised all UnitedStates Attorneysthatnumber of questionshavebeenraised concerningwhat guideline shouldbe used nowthatnew set of guidelines was issued effectiveNovember1989 The original discussion of this issue is contained at page65 of the Prosecutors Handbookon Sentencing Guidelinesthe redbookGenerally because of the ex post facto considerationsof Millerthe Department takesFlorida 482 U.S 423the positiontothethat where there are substantivechangesdetriment of the defendantin the guidelines the guidelinesineffectat the dateof the g offense the guidelines inThus ifeffectfor the date of the offense would be the guideline to usethe Novembereven1989thoughguidelinesmight providestiffer punishment1986Wheredefendantcontinuesto commit substantivedrugadditionalsales after an effectivedatecan hardly complainif prior sales arein determininghis sentence for the substantiveactaggregatedUnited StatesYkema No.8821136th Cir Oct 12 1989In that situation the defendant by conunittingsubstantiveactafter the effectivedate ofguideline cannot complain if earlier conductis broughtforwardThe key to being able to uselater guideline which has an increased punishmentis whethercommitted eitheror not the defendantsubstantiveact or incase ofan overt act after the date of the newconspiracyamendmentIf he did then you should be able to get the benefitof the increased punishmentof the newer guidelineIf he didharsher guidenot we believe that Miller will prohibit use ofoffenses i.e makesofthe guidelinehelineIn those situations where the guidelines have decreasedthedefendantwill get the benefitFor point acceptanceresponProcedural changeswhichor changessibility reductiononlyfor allexplain or clarify existing guidelines will be effectiveWe believethat thesentencingtakingplace after Novemberanswerto this questionisviolationof18U.S.Cbeconvictedsimply requires that the defendantfelonfrom justiceetc and that he possessfirearmItfugitivedoes not require an element of violencein the offenseitselfit does not appear that this wouldThereforetrigger Section4Bl.1 career offenderstatus922cNo

VOL37 NODECEMBER12151989PAGE387convictedfelon in possessionSimilarlyby itself wouldSection 924c penaltyfor use offirearm innot triggerofcrime of violenceTo argue that the simple possessioncrime of violencewouldfirearm byfelon isseemconvictedinintendtobebootstrapargument whichCongress did ptingfelon in possessionactually used the weapon in violent fashionexcellent argument forwellhaveandeparture based onyou maythecourtSeeGuidelineSection 4A1.3specificfindings 989 Rule 32 of the Federal Rules ofCriminal Procedure was amended to allow federal criminal prosecutors to retainReportcopy of the Presentence InvestigationFormer Rule 32Cwhich required that all copiesof nReportofficer was abrogated by the amendment to Rule 3232C3states that the court shall providethewithofthedefendants counselcopyreporthas been interpreted to require the court also toprovidecopy of the report to the attorney for the governmentsince past practice has dictated that generally whatever is provided to defense counsel must also be provided to the prosecutorOffice of the UnitedStatesand vice versaThe Administrativeoffices thatCourts has advised the court and probationcopyof the PresentenceInvestigationReport is to be provided to thefederal criminal prosecutorNew RuledefendantandThis provisionSectionof the PresentenceInvestigationReport containsfinancial data about the defendantPlease advise your criminalto transmit the Presentence InvestigationReport toprosecutorsOffice for United Statesthe Financial Litigation Unit ExecutiveAttorneys so this financial information may be used to enforcefines and restitutionThe Presentence Report isconfidentialdocumentProcethattheisnotdisdures should be established to ensurereportclosed to third partiesIf you haveany questions please contact Nancy Rider Attorney-Advisor of the Financial Litigation Staff at FTS/202-272-4017

VOL37 88REMEMBERInFirearmsSalesOn November20 1989 Attorney General Dick Thornburgh sentletter to the HonorableDanoftheQuayle Vice PresidentUnited States and President of the United States Senate and theHonorable ThomasFoley Speaker of the U.S House of Representatives with copies to all members of Congress concerningfor the immediate and accuratesystems availableidentification of felons who attempt to purchase firearmscopy of thatletter is attachedas Exhibitat the Appendix of this BulletinOrganizedCrime StrikeForcesDecember1989 Attorney General Dick Thornburgh forall UnitedStates Attorneysletter from JosephBidenChairman Committee on the Judiciary United StatesSenate concerningintegrating the Organized Crime Strike Forcesinto the United States Attorneys Officescopy of that letter is attachedas Exhibitat the Appendix of this BulletinThe AttorneyGeneral has indicated that he may be calling uponthe United States Attorneys for assistance in the near ntsOn November30 1989 StuartGerson Assistant AttorneyGeneral for the Civil Division advised all United States Attorneys that the Department of Health and Human Services has askedthe Department of Justice to assist certain federal agenciesinreporting medical malpracticetothenew NationalPracpaymentstitioner Data BankThe Data Bank was establishedby the HealthCare Quality ImprovementAct of 1986Pub99-660Amongother things the Act requires any party makingpayment in settlement of or in satisfaction ofjudgment inmedical malpractice actionto report such payment and certain other information to the Data BankSpecifically the party making the payment must reportthe name of the physician or licensed healthcare practitionerfor whose benefit the payment was madetheamount of the paymentthe name of any hospitalwith whichthe physicianor practitioneris affiliatedor associatedandof the acts or omissions and injuries or illdescriptionnesses uponwhichthe actionor claim was based42U.S.CMuchofthis informationis alreadyknownto the111311agencies

VOL37 NODECEMBER12151989PAGE389The Department of Health and Human Services is chargedwithadministering theNational PractitionerData BankAlthough themandatory reportingprovisions of the Act do not apply to thefederal government Section 11152bof the Act requires the Secretary of Health and Human Services to seek to enter into memoranda of understandingwith certain federal agencies to provideinformation to the Data Bank including payment informationAtthis time the Departments of Defense and Health and Human Services will provideinformation to the Data BankThe Departmentof VeteransAffairs Bureau of Prisons and the U.SCoast Guardare developingproposals to submit information alsoorder to assisttheseagenciesin reportingto the Datais requestedthat your office report to the appropriatefederal agency every payment made in medical malpracticesuitsin your jurisdictionwhetherin settlement of the suit or insatisfactionofAttachedat the Appendixjudgmentof thisBulletin as ExhibitisNoticeof MedicalAwardMalpracticeor Settlement togetherwithlist of addressesfor the agenciesThis form should be completed and sent to the agency conwith the request to the GovernmenttemporaneouslyAccountingOfficeforpayment of the judgment or settlementInBank itIf you haveany questions please call RogerAssistant DirectorTorts BranchCivil Division S/202-Of AppealRobertKopp Director Appellate Staff Civil DIvisionhas been instructed to addresspotential problem in every casein whichan AssistantUnitedStates AttorneyfilesnoticeofIn order to bringappealdiscussionofthe probmoregenerallem to all Assistant United States Attorneys the Appellate Staffhas issuedmemorandum which is attachedas Exhibitat theAppendix of this Bulletinyou have any questions or requirecall TonypleaseSteiæmeyer ivisionAppellate

VOL37 res390ActJrOn NovemberAssistant1989 Edward S.G DennisAttorney General Criminal Division reminded all United Statesthat the Internal Security Section is responsibleforAttorneysthe coordinationof the Classified InformationProceduresAct18 U.S.C appSupp1981 which established certainpretrial trial arid appellate procedures for criminal cases inwhich there ispossibility that classified information will bedisclosedAccordingly the Section is to be consulted in anycase in whichclassifiedinformation may be disclosedto thecourt defense counsel or through testimony in litigation suchinformation will playrole in prosecutivedecisionmaking orCIPA issues are raised in appellate litigationCIPAIn criminal cases in which there islikelihoodreasonablethat classified information will be revealed at trial the issueoften arises as to whether the importanceof goingforward withthe curity which may result from the public disclosure of the classified information at the trial In the past the seofimpededmakingthe absence of uniform proceduresthetopermittinggovernmentascertain before trial what classifiedinformation the defensewill seek to discloseand whether the court will determine thatit is admissibleIn additionin those cases in which the decision was made to prosecuteresolutionissues relatingtoofclassifiedinformation is often unnecessarilyburdensomeCIPAwas designed to address these problemsThe procedures insofaras possibleenable the governmentto be made aware prior totrial of what classified information if any and in what formwill have to be disclosedduring the trial9aAs you know the Chief Justiceofpursuant to Sectionthe Act promulgatedfor handlingclassifiedsecurity proceduresinformation in the custody of federal courts which became effective on March 30 1981The Department of Justicepursuant toSection 12aof the Actpromulgatedguidelines for determination of the propriety of initiating or declining prosecutionofcases which may involve the disclosure of classified informationwhich became effective1981on June 10Copies of the guidelines as well as the security procedures which appear in theUnitedStates Attorneys ManualUSAN 9-90.941 have previouslybeenfurnished to all United States Attorneys

VOL37 NODECEMBER1215PAGE1989391inforniaconnectionwith any cases involving classifiedshouldbeinmindkepttion two essential aspects of CIPACriminalDivisionFirst on

U.S Department of Justice Executive Office for United States Attorneys United States Attorneys_Bulletin Published by Executive Office for United States Attorneys Washington D.C For the use of all U.S Department ofJustice Attorneys Laurence McWhorter Director Legal Counsel Manuel Rodriguez FTS 633-4024 EXECUTIVE Editor Judith Beeman FTS 272-5898 UNITED Editorial Assistant Audrey Williams FTS .