Heading Off a Target Letter Before It Arrives.

Can a Target Letter Be Avoided?

Early Intervention Strategies According to the Justice Manual, U.S. prosecutors are encouraged to give target letters to the “individuals” they believe are targets of a federal grand jury’s investigation: “The federal prosecutor should notify the target of the investigation, and if necessary and appropriate, discuss the matter with the target and the target’s counsel.” Justice Manual § 9-11.151. However, federal prosecutors are not required to send out target letters. They can proceed with grand jury indictments without ever sending a target letter (or target warning) to any of the potential federal criminal defendants.

Our federal defense attorneys’ pre-letter advocacy includes seeking a prosecutorial declination. If prosecutors decline to prosecute, the target of the investigation will not receive a target letter because they will not be listed as a target. However, avoiding the issuance of a target letter is not necessarily the same thing as obtaining a prosecutorial declination.

If you are currently under federal investigation, avoiding the issuance of a target letter should be at the top of your priority list. But even if the prosecutors decide to issue a target letter, your federal defense attorney can still try to avoid an indictment.

At Spodek Law Group, we work on matters. We represent grand jury targets against the government’s pursuit of indictments, and we have convinced the government to abandon criminal cases before indictments were sought. The chances of avoiding a federal target letter diminish as the grand jury’s investigation progresses. The more your federal prosecutor depends on your testimony or records, the more likely he or she is to issue a target letter before seeking your indictment. At Spodek Law Group, our attorneys seek to intervene early. We seek to open a dialogue with prosecutors and uncover the weaknesses of the case against you before the prosecutors seek your indictment.

How Do I Know If I Am Under Federal Investigation Before Receiving a Target Letter?

There are several signs that you may be under federal investigation. Often, these signs appear before a target letter is issued. When targeted by federal law enforcement, you may know: - By a search warrant. A search warrant is a very strong indicator of a federal criminal investigation. If your home or business is searched, then there are strong grounds for believing that you are being targeted.

• By a third-party subpoena. If you learn that the grand jury is seeking your telephone or bank records from a third party, then this is another sign of a federal investigation.
• When agents visit your colleagues, friends, or business associates. This is a common way to get a heads-up. Agents often conduct interviews with others before contacting the targets.
• When your bank, client, or vendor receives a subpoena. When third parties receive a subpoena, you are likely under investigation as well. Banks and other third parties generally comply with subpoenas issued by a federal grand jury.
• When you receive a civil investigative demand. A civil investigative demand (CID) is common in parallel civil enforcement investigations. CIDs are issued by DOJ, SEC, and other federal agencies. If you receive a CID, a federal agency may be pursuing civil and/or criminal action against you.

  Who Issues a Federal Target Letter?

  The U.S. Attorney’s Office is responsible for issuing target letters in federal grand jury criminal investigations. When prosecutors decide to pursue an indictment, they generally send a target letter to the prospective defendant or company. Usually, the target letter will also be sent to the prospective defendant’s or company’s defense counsel.

  What Does It Mean to be a “Target” in a Federal Criminal Investigation?

  The DOJ Manual defines a target as a “putative defendant.” In DOJ’s words, this means, “the prosecutor has substantial evidence linking the person or entity to the crime (or crimes) for which the grand jury is investigating.” Essentially, the target of an investigation is someone whom the prosecutor intends to target for indictment and prosecution.

  What is the Difference Between a “Subject” and a “Target” in a Federal Grand Jury Investigation?

  An investigation subject is someone whose conduct “falls within the scope of the grand jury’s investigation, but is not a putative defendant.” Being a subject is a broader category. It may or may not lead to criminal charges, but it does not necessarily mean you are likely to be indicted.

  What Should I Do to Preserve Evidence Before Charges Are Filed?

  When you are under federal investigation, taking action to preserve evidence can be very important. The steps your federal defense attorney will recommend depend on the specific nature of the investigation and the circumstances involved. In addition to the investigative defense strategies mentioned above, your defense attorney may also suggest: - Litigation Hold: A litigation hold suspends the routine deletion or destruction of potentially relevant information. This is critical because companies that automatically purge records are at risk of deleting evidence that may be important to your defense.

• Device Collection: A defense attorney may want to collect all devices, including smartphones, laptops, and tablets, in order to preserve all files, emails, and texts. As part of this process, your defense attorney will seek to preserve the metadata while creating copies so that the original evidence is not altered.
• Privilege Review: A privilege review involves identifying and segregating all communications that are protected by attorney-client or other legal privileges. This allows you to comply with investigators’ records requests without unnecessarily compromising your privilege.

  What Are the Risks of Destroying or Altering Evidence?

  While preserving evidence is critical, destroying or altering evidence can be disastrous. Destroying records can give the government grounds for federal obstruction charges in addition to the government’s criminal charges for the underlying conduct.

The Sarbanes-Oxley Act of 2002 introduced Section 1519 to the U.S. Code, which imposes a maximum sentence of 20 years in prison for obstructing an investigation. Specifically, Section 1519 prohibits “destroying, altering, concealing, falsifying, or using any record, document, or tangible object with the intent to impede or obstruct an investigation of any matter within the jurisdiction of any department or agency of the United States.” As a result, obstruction charges can survive even if the target’s underlying conduct does not lead to an indictment.

How Can I Preserve Favorable Evidence While Avoiding Spoliation Charges?

Even while guarding against charges of evidence destruction, it is still important to preserve potentially favorable evidence. Federal prosecutors and grand jurors have long memories; however, records can be purged, and evidence can degrade over time.

Your defense attorney can help protect against the loss of potentially favorable records by identifying and preserving all relevant information as quickly as possible. This includes identifying key dates, witnesses, and sources of information. Your defense attorney can then work to collect all relevant files, interview key witnesses, and otherwise document evidence before it is lost.

What Does a Target Letter Say About Destroying Evidence?

Target letters often warn about the consequences of destroying evidence or otherwise obstructing federal investigators. In most cases, a target letter will include a strong warning similar to the following: “You are advised that destruction, alteration, concealing, falsifying or utilizing records or documents with the intent to impede or obstruct the investigation of any matter within the jurisdiction of any federal department or agency is a federal crime under 18 U.S.C. Section 1519, punishable by up to 20 years in prison, including a substantial fine and a permanent criminal record.”

What Can a Lawyer Do to Stop a Target Letter From Issuing?

For cases involving criminal allegations that have raised concerns for compliance purposes, your federal defense attorney can initiate an internal investigation to uncover the full facts of the case. This will allow your attorney to identify all relevant exculpatory records and communications before prosecutors finalize any charging decisions. Your attorney can then present the exculpatory evidence to the federal grand jury or a U.S. Attorney to support a request for a prosecutorial declination or a favorable plea deal.

Once your defense attorney has sufficient information to proceed, they may put together a defense white paper. A defense white paper is a document that outlines your defense arguments, evidence, and relevant facts. It will also explain why these factors favor a target letter or charges and propose a specific outcome. Often, this document will be enough to convince federal prosecutors to drop their charges.

Prior to the issuance of a target letter, your federal defense attorney can also take the following steps to convince federal prosecutors and grand jurors to decline to pursue an indictment:

• Asking the Prosecutors to Close the Investigation. Your attorney will ask prosecutors to drop the investigation and not send you a target letter or seek an indictment.
• Challenging the Prosecution’s Statutory Theory. Your attorney will challenge the prosecution’s legal theory before the grand jury meets. They can present defenses to the crimes for which you are being investigated, and they can challenge the prosecutor’s use of federal laws or their intent.
• Presenting Exculpatory Evidence. Your attorney will present exculpatory evidence to the grand jury (if appropriate) and federal prosecutors. Exculpatory evidence is evidence that tends to show that you are not guilty of the crimes for which you are being investigated.
• Obtaining a Prosecutorial Declination. Your attorney will attempt to obtain a prosecutorial declination. This is a formal decision by prosecutors not to file charges in a criminal investigation. If you obtain a prosecutorial declination before the grand jury’s calendar is filled, a target letter will never be issued.
• Investigating Other Target Letters, Agents, Witnesses, and Subpoenas. To determine how to best handle a federal investigation, your attorney will investigate other target letters, agents, witnesses, subpoenas, and more. By gathering this information, your attorney can make informed decisions and provide competent and zealous defense representation.
• Implementing Restitution or Remediation Measures. Your attorney will determine if paying restitution or implementing other remediation measures will help your case. These measures can support a request for mitigation, but they will not guarantee a prosecutorial declination.

  Do I Need to Hire a Lawyer Who Will Call Me a “Victim” in the U.S. Department of Justice’s Investigations?

  Our firm’s lawyers may have prior experience at the Department of Justice (DOJ) and at other federal law enforcement agencies. However, this does not mean that they will use their experience to support the government’s case against you.

From the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), the court described the duties of ineffective assistance of counsel in criminal cases as follows: “To prevail a defendant must show that: (i) counsel’s performance was deficient; and, (ii) counsel’s deficient performance prejudiced the defense.”

Is it Better to Contact Prosecutors Early or Stay Quiet?

There is no one-size-fits-all answer to this question. Determining when to contact federal prosecutors and federal grand juries depends on the circumstances of the case. Reaching out too early can be just as risky as reaching out too late. Reaching out too early can cause your defense counsel to disclose defense theories and strategies that may be useful during future stages of the case. Additionally, if your defense counsel does not have all of the information they need, reaching out too early can alert federal prosecutors to relevant facts that they had not yet considered. In some cases, it is even more productive to stay quiet. When the outreach may result in the disclosure of harmful or incriminating information to the government, it is often best to remain silent.

The risks of reaching out too early are balanced against the risks of not reaching out until the prosecutors issue a target letter or seek your indictment. When federal prosecutors and grand jurors have already reached their charging conclusions, it will be too late to avoid the target letter. As a result, you need to ensure you have good legal representation to make informed decisions. Defense lawyers who advise silence as a default are just as dangerous as defense lawyers who advise reaching out prematurely. They can waste the time you have to reach prosecutors, and they can lead to unnecessary charges and convictions.

What is an Attorney Proffer?

An attorney proffer is a presentation of a case’s facts, the evidence the attorneys have, and the law applicable to the case’s circumstances. In an attorney proffer, your attorney presents your arguments to federal prosecutors hypothetically, which means they do not admit anything that you have already admitted. This limits the exposure risk of your defense attorney reaching out to the prosecutors or grand jury.

In a voluntary disclosure, you or your defense attorney voluntarily disclose facts and information to prosecutors. Voluntary disclosure is different from a proffer, and it carries much higher risk. With your defense attorney, you will need to determine whether to pursue a proffer or a voluntary disclosure. If you voluntarily disclose information, you need to make sure your defense attorney has sufficiently reviewed your case and that the government is not using your information against you.

A voluntary disclosure can also trigger the loss of attorney-client privilege. In a voluntary disclosure, you or your attorney may be forced to admit facts that the prosecutors would not have known otherwise. However, if you have a good defense attorney, he or she will never disclose information that would trigger a waiver of your attorney-client privilege.

Can I Reach Out to Prosecutors Directly?

If you have an attorney, you must not communicate with prosecutors directly. It is critical that your attorney manages all communications so that you do not make mistakes or accidentally give away too much information.

How Does the Grand Jury Schedule Limit the Time I Have to Avoid a Target Letter?

The federal grand jury calendar can effectively close the window for pre-indictment intervention. Once the grand jury has already determined to move forward with an indictment, it will be too late to convince prosecutors to decline to seek one.

The timeline for receiving a target letter and subsequently becoming indicted varies from case to case. While there are some general guidelines in the Justice Manual, no federal rule fixes the timeline between receiving a target letter and the subsequent issuance of a grand jury indictment. Federal prosecutors may seek an indictment within days, weeks, or months. If you received a target letter and intend to avoid indictment, you should seek legal counsel immediately.

Can Your Defense Attorney Speak Directly to the Grand Jury?

A defense attorney cannot enter the federal grand jury room unless the grand jury invites them to join. Unlike in federal court, defense attorneys cannot speak during grand jury proceedings. Also, prosecutors select which witnesses will testify and which evidence will be shown to the grand jury. As a result, the grand jury generally makes the decision to move forward with a prosecutor’s recommendation.

Does the Grand Jury Ever Decline to Issue an Indictment?

A federal grand jury can decline to issue an indictment. According to many grand jury statistics, federal grand juries decline to issue an indictment in fewer than one percent of cases presented by federal prosecutors. However, it is important to remember that this figure reflects the likelihood that a grand jury will issue an indictment when prosecutors choose to present evidence. It is not representative of the chances of avoiding an indictment prior to facing a grand jury.

For example, our law firm may be able to obtain a prosecutorial declination for our client before the grand jury begins its work. If your client is in this situation, your client may not ever face the grand jury.

By intervening early, your defense attorney can make a positive impact by convincing federal prosecutors and the grand jury to decline to seek an indictment. In many cases, the federal prosecutor will make a recommendation of indictment to the grand jury. If the defense attorney presents convincing arguments to the prosecutor, he or she may be able to avoid an indictment by persuading the prosecutor to change his or her recommendation.

What is a Federal Grand Jury?

The federal grand jury is a jury that consists of 16 to 23 U.S. citizens. It is the body that hears the prosecutor’s case and decides whether to seek an indictment against the defendant. Many people describe a grand jury as a “rubber stamp” because it rarely declines to issue an indictment.

If you received a target letter and believe that you may have grounds to challenge the prosecutor’s recommendation to the grand jury, we strongly suggest you consult with a lawyer to discuss how to avoid indictment.

What Does “Success” Look Like When No Target Letter is Sent?

Many targets are able to avoid the issuance of a target letter. While this is a successful pre-indictment outcome, it does not always come as a result of avoiding target classification. While it is not usually possible to compel prosecutors to either avoid target classification or decline to seek an indictment, we represent clients obtain favorable pre-indictment resolutions. If you need help avoiding a target letter, your attorney should work with prosecutors on the following:

• Target Reclassification: If a target is reclassified as a non-target or subject, this will eliminate the need for a target letter.
• Civil Resolution: Depending on the nature of the case, it may be possible to resolve federal investigations civilly.
• Controlled Surrender: In some cases, achieving a prosecutorial declination is not possible, and a target must eventually surrender and face prosecution.

Avoidance of a target letter does not mean the government did not designate our client as a target in order to issue the target letter. The target letter’s issuance is subject to numerous factors, including prosecutorial discretion, target’s level of risk for fleeing, target’s level of obstruction risk, and the grand jury’s calendar. While we have had great success obtaining a prosecutorial declination, we cannot guarantee that the issuance of a target letter can be avoided in all cases.

Furthermore, we cannot guarantee our clients’ avoiding a target letter will lead to a successful outcome such as a deferred prosecution agreement or non-prosecution agreement. Deferred prosecution agreement is an agreement by the government to postpone prosecution on the condition of deferred prosecution. A non-prosecution agreement is a written agreement to avoid prosecution upon full compliance with the agreed-upon conditions.

What Does Your Defense Attorney Not Guarantee?

Even if your defense attorney has represented you before the grand jury’s proceedings, this does not guarantee avoidance of arrest, indictment, warrants, and subpoenas. However, your attorney may be able to work out terms for a controlled surrender. Self-surrender means your attorney can arrange for a time and place where you can surrender your person to federal law enforcement agents. This can be an alternative to a potentially embarrassing arrest of a target or defendant at their home or work. In many cases, this is a viable alternative to arrests, but not all prosecutors accept surrenders without an indictment.

Our defense attorneys can also identify non-prosecution agreements and alternative resolutions during pre-indictment proceedings. While our attorneys’ representation in pre-indictment proceedings cannot prevent issuance of a target letter, you should consult with an experienced lawyer to explore the various means to reach favorable outcomes including a plea deal or an agreement to accept a federal information instead of an indictment.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm& #x27;s attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.