Federal criminal investigations may start in different ways. They often begin when a federal law enforcement agency, such as the FBI, receives information about criminal wrongdoing from a victim of a crime or a witness who knows a crime. The investigation results are then turned over to the appropriate U.S. Attorney’s Office to determine whether there is sufficient evidence to proceed with a criminal prosecution.
From the onset, it is essential to understand that being a “target” of a federal criminal investigation has a particular significance and carries serious potential ramifications depending on the strategy used in responding to the letter.
Target v. Subject
Rule 9-11-151 of the Justice Manual of the Department of Justice defines the difference between “target” and “subject” this way:
A “target” is a “person whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.” Designation as a “putative defendant” indicates the prosecutor believes the target has committed an offense and is very likely to be charged with a crime.
Alternatively, a “subject” is a “person whose conduct falls within the scope of the grand jury’s investigation.” Criminal charges may be filed against a subject after further investigation. Therefore a person designated as a subject must respond as if criminal charges are a possibility. Before deciding how to respond to a subpoena to testify, a “subject” must consult experienced criminal defense counsel and only consider whether to testify after obtaining a clear understanding of the law and a legal evaluation of the pros and cons of a particular course of action.
The Supreme Court has not given an explicit requirement that targets must be warned of their rights against self-incrimination before testifying pursuant to a grand jury subpoena. However, to avoid the appearance of compulsion to self-incrimination, it is the policy of the U.S. Attorney’s Office to inform a “target” or “subject” of their rights before testifying before a grand jury. Therefore, a warning of rights is normally added to a target letter, and individuals are usually warned of such, on the record, before testifying before a grand jury.
What is a Target Letter?
A December 13, 2020 article in The National Law Review (“NLR”) defines a “target letter” as “a written letter issued to a witness who has been subpoenaed to testify before a federal grand jury.” The designation as “target,” indicates the government believes the individual is a potential defendant.
The receipt of a target letter allows an individual to immediately seek qualified criminal defense counsel to determine the best course of action in responding to either a request for an interview or subpoena to testify before a grand jury.
The NLR article informs that “… Assistant U.S. Attorneys issue target letters subsequent to the issuance of grand jury subpoenas. The timing has both practical and strategic elements, and it is noteworthy for the limited opportunity it provides for targets to prepare their defenses. Again, if you are already aware of the risk of prosecution this is less of a concern (assuming that you have undertaken efforts to defend yourself during the government’s investigation); however, if your target letter comes as a surprise, then you will have a lot of work to do in a fairly small amount of time.”
The problem inherent in deciding how to respond to federal investigations is that agents are typically tight-lipped about their work, and grand jury investigations proceedings are secret. Additionally, the grand jury may have already heard from other witnesses, some of whom may have provided damaging evidence.
The NLR article offers five pieces of excellent—advice we adopt here—about what an individual should do if they receive a target letter:
- Read the Target Letter Carefully: Upon receiving a target letter you should read it carefully. These letters are generally short, but they also generally contain a lot of important information. In particular, your target letter most likely contains a warning against destroying or altering documents (including electronic records) that may be relevant to the grand jury’s investigation. If you destroy any documents (or allow any documents to be destroyed), either intentionally or inadvertently, this on its own could lead to federal criminal charges.
- Re-Read Your Grand Jury Subpoena: At this point, you should also carefully re-read your grand jury subpoena. Make sure you know when and where you are being called to testify, and make sure you know whether you have been asked to bring documents with you as well.
- Engage Federal Defense Counsel: Now is also the time to engage federal defense counsel—if you have not done so already. You will want to choose counsel with specific experience handling federal grand jury investigations, as the laws and procedures at the federal level are very different from those involved in state-level criminal proceedings.
- Prepare Your Grand Jury Testimony: It will take time to prepare your grand jury testimony. Working with your defense counsel, you will need to try to anticipate as many questions as possible, and you will need to carefully consider what you say – and choose not to say – in court.
- Make Sure You Know What to Expect in Court: Finally, when preparing for your grand jury proceeding, it is important to prepare for what you can expect in court as well. For example, you are not entitled to have your attorney present during the grand jury proceedings (although the court must provide you a “reasonable opportunity” to confer with your legal counsel outside of the presence of the grand jury). As the target of a federal investigation, you need to be proactive about your defense, and you need to make sure that you do not make miscues simply as a result of being unprepared.
The main piece of advice about any federal investigation is this: secure the services of an experienced federal defense attorney, even if you initially assume that you are just a “witness.” An individual’s status as a witness can quickly change to being a “subject” or “target” of the investigation.
Finally, it is safe to assume that there has been a lot of work put into a federal investigation before a formal indictment is issued. This is not a traffic court. Therefore, it is essential to begin preparing for your defense as soon as you suspect federal agents are asking questions about you or actions you may have taken, no matter how innocent. The more time a defense attorney has to investigate the case and prepare you for what may be around the corner, the more likely they will get through the process favorably.
Our best take away advice from this discussion is this: If federal agents approach you for an interview or you receive a target letter from a federal prosecutor, do not agree to talk without an experienced lawyer. You have the absolute right to refuse to answer any questions without the advice of counsel. Assert it.