DOJ Target Letter: Understanding Your Rights and Next Steps.

Welcome to Spodek Law Group. This article is about a DOJ target letter and understanding your rights and what are the next possible steps.

A target letter is usually just one page, and it's signed by the assistant United States attorney. It tells you that a federal grand jury is investigating you and that you are a target. People typically read this panic and then make decisions very hastily, which shape the entire case. The goal of this article is to give you a plain explanation from the Spodek Law Group about what the letter is, what it is not, and what actually happens next.

Where this letter comes from

So let's discuss where this letter comes from. This letter is not a court order, and it's certainly not a charge. It comes from the Internal Justice Department policy set out in the Justice Manual. Section 9-11.151 states that the policy of advising a grand jury witness of rights when that witness is a subject or a target.

The manual also contains a sample target letter, which is why these letters almost all read the same across various districts. Here's the thing that people often forget: the Justice Manual is internal guidance. Its introduction says it's not intended to create any rights, substantive or procedural, enforceable at law by any party. So the argument that they broke their own manual is rarely a winning court argument. This is not a motion that should be dismissed or should be attempted to be dismissed.

Target subject and witness difference

There are some terms that matter, though, when it comes to the DOJ target letter, such as target, subject, and witness. DOJ policy defines these terms.

That practical difference is very, very important. Subject status is a fluid target. Target means the prosecutor has already formed a view about you and is looking to move forward with that view.

So it's important to read the word in the letter closely. Target and subject are not interchangeable. Status is not permanent either. People sometimes move from subject to target and occasionally back the other way when the evidence changes the theory.

Standard letter short list

The standard letter usually will recite a short list.

• You can refuse to answer any question if a truthful answer would tend to lead to an incrimination of you.
• Anything you say can and will be used against you.
• If you do have counsel, the grand jury will give you a reasonable chance to step out and consult with him or her when you do face them.

That last sentence we just said is often underestimated. Your lawyer cannot sit beside you in a grand jury room. There is no judge in there, no defense lawyer, and absolutely no cross-examination. You are walking into a hallway to ask a question and then walking back in.

Now, one thing to consider is that the Fifth Amendment right is very broad. It covers answers that would supply a link in the chain of proof against you. It does not by itself shield ordinary business records that already exist in the public light or that exist based on a subpoena.

Invitation to testify

Now, one thing that is important to realize is that the invitation to testify is not a favor you're giving the prosecutor. Justice Manual 9-11.152 says reasonable requests by a subject or target to testify should ordinarily get favorable consideration. But only if the person explicitly is waiving their privilege against self-incrimination on the record. Section 9-11.153 encourages prosecutors, in different cases, to notify a target a reasonable time before seeking an indictment so the person has, in fact, that chance.

Now, let's do the calculation here. You waive the Fifth on the record without a lawyer beside you, in front of a body that's only hearing the government's evidence. The manual itself notes prosecutors have no legal obligation to allow it, and that refusing can create an appearance of unfairness against you.

There are narrow cases, though, where a target does testify. Usually the defense will hold documents that flatly contradict the prosecutor's theory. It is rare. A negotiated proffer with the prosecutor and different federal agents with counsel present is typically the far more common route, and the carve-outs in these agreements matter more than most clients would think.

Clock and statute limitation periods

Now, it's important to realize that there is a clock and why the letter arrived now. Most federal non-capital offenses carry a five-year statute of limitation periods, running from when the offense was committed. Some statutes provide longer periods.

Target letters usually arrive when the government has finished collecting documents and is deciding whether to present the case. Sometimes it will arrive as the statute of limitation date approaches, which is why prosecutors may ask for a tolling agreement. Signing one is a genuine tradeoff. It can buy you time to argue for a declination. It can also hand the government time it was missing.

Mistakes when you get a target letter

There are, though, mistakes that many people make when they get a target letter. There are three that we would roughly love to talk about in this article.

Talking to absolutely nobody

One is talking, not to agents, not to co-workers, not to the prosecutor directly. You should be talking to absolutely nobody. A false or misleading statement to a federal agent is its own felony, and it's often easier to prove than the underlying conduct they think you did.

Touching documents

Another mistake is touching documents. Section 1519 of Title 18 talks about knowingly altering, destroying, concealing, or falsifying records with an intent to impede a federal investigation, including one that was only in contemplation. This can carry up to 20 years in prison. If you delete a message thread after reading a target letter, this builds a new and cleaner case against you. It's important to put a preservation hold in place instead.

Coordinating a story

Another mistake people make is coordinating a story. They'll call other witnesses, and it looks like tampering even when the motive is innocent.

Grand jury secrecy

Another useful detail to remember is Rule 6(e) imposes grand jury secrecy on grand jurors, court reporters, interpreters, and even the government attorneys, but it does not list witnesses. A friend who was subpoenaed may be free to tell you about it.

Other tracks in parallel

There are often other tracks running besides the criminal case in parallel. For example, criminal exposure is not the only exposure. Justice Manual 1-12.000 directs all prosecutors and civil attorneys to communicate and coordinate on white collar issues. A civil case, an agency enforcement action, a licensing board, and a grand jury, these all can move all at the same time and in parallel against you.

Unfortunately, though, that creates a squeeze on you. Invoking the Fifth in a civil case can protect you criminally, but in civil litigation, an adverse inference from your silence is generally allowed and can be used against you. In addition, answering civil discovery fully can hand the criminal side a sworn transcript that can then be used against you. Often sequencing matters, and asking a court to stay the civil case is often the move.

State charges often follow the same conduct. Separate sovereigns. Means a federal resolution does not automatically end any state exposure against you. Having said that, the DOJ has an internal policy that limits successive federal prosecution after a state case.

For a non-citizen, though, the conviction can matter more than the sentence. Under federal penal codes, a non-citizen convicted of an aggravated felony after an admission can be deported. Several aggravated felony categories turn on a one-year term of imprisonment or a loss of above ten thousand dollars. Those are numbers a plea can sometimes influence.

What actually changes the outcome

So the question really is, you've got a target letter, but now what actually changes the outcome? Typically speaking, in our experience, a leverage sits in the pre-indictment window. After an indictment is returned, the conversation changes drastically. The work that matters is typically boring and unglamorous.

First and foremost, you have to preserve everything. You should map which entities actually hold records. You should also discover who else received subpoenas. You should test whether the theory depends on intent evidence that documents may prove. Then decide whether a declination presentation to the line prosecutor and a supervisor is worth the effort.

That presentation is not a pleading. It's showing proof to a problem the government has not yet fully seen. There are facts, though, that move results. For example, whether the loss figure is provable or assumed, whether a cooperating witness has credibility issues, and whether the conduct sits inside a real compliance issue, and whether the statute of limitation period actually covers the earliest conduct, and more importantly, whether the client can stay quiet.

The bottom line is simple. A target letter is a policy document, not a legal event whatsoever. It creates no enforceable rights, and it starts no deadline for you. What it does tell you is that the investigation is mature and a charging decision is close.

Two of the rights it lists, silence and counsel, are protection, and you should be taking those two rights seriously. The third, the chance to testify, is an offer most people cannot afford to ignore. The useful steps we recommend are preservation, silence, and your attorney speaking to the prosecutor instead of you. And more importantly, honestly mapping out the civil, state, and immigration exposure you have before anything gets negotiated.

If you're dealing with a target letter from the DOJ, we encourage you to contact us today.