Why a Federal Target Letter Was Sent to You.

A target letter is a correspondence issued from the United States Attorney’s Office (USAO) that identifies an individual, entity, or group as a target in a federal grand jury investigation. A “target” has a specific definition under Justice Manual section 9-11.151. According to the section, a target is: “a person as to 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.”

A federal target letter is not a criminal charge, an arrest, or a conviction. Instead, it is the government’s method of warning an individual that the prosecutor believes they have enough evidence to charge that individual. While receipt of a target letter is not a conviction, it does mean that the government believes they have the evidence necessary to convict the individual in federal court. Federal target letters are not filed on the public docket, but the grand jury secrecy rule binds prosecutors and grand jurors rather than the recipient, who is free to disclose the letter.

The federal government has the ability to pursue a criminal case in any federal district in the United States, so, if it is not apparent why you are the target of a federal grand jury investigation, the location of the United States Attorney’s Office that issued the target letter may provide the answer. This is also the answer to why you are targeted, as the United States Attorney’s Office must be able to demonstrate that its office has jurisdiction.

Who Sends Target Letters?

A target letter is issued by the United States Attorney’s Office (USAO). Federal Bureau of Investigation (FBI) and Drug Enforcement Administration (DEA) agents do not issue target letters, though they investigate the targets. Federal prosecutors in any of the 94 federal districts in the United States can issue target letters, and each letter will be signed by the Assistant U.S. Attorney (AUSA) in charge of the investigation.

How Soon After a Target Letter Will I Be Indicted?

There is no fixed interval between the receipt of a target letter and the timing of a potential federal indictment. In some cases, indictment can follow the target letter within several days. In others, the federal investigation may continue for years after the target letter arrives.

The federal government’s charging deadlines, under the Speedy Trial Act, do not begin until federal prosecutors file charges (federal indictment) against a target. Therefore, the deadlines for prosecution specified in 18 U.S.C. 3161 are immaterial to a federal investigation in which the target is still being considered for indictment.

Is there something unique to your federal district or the federal case pending against you?

The absence of a fixed interval between the receipt of a federal target letter and an actual federal indictment is national practice. No federal districts apply fixed letter-to-indictment timelines.

Can I tell when a target letter was sent based on what was included in the target letter?

Yes, in some cases. If a subpoena to a target is enclosed or if the target letter contains a date on which you are instructed to contact your Assistant U.S. Attorney to discuss your case, then it is likely that an indictment is imminent. Another indicator of a charging deadline approach is that the federal statute of limitations period is approaching. When the deadline for filing charges is fast approaching, the Assistant U.S. Attorney will be required to file charges immediately.

Why do many people who are indicted never receive a target letter?

Most people that are indicted by the federal government never receive a target letter. Federal prosecutors generally believe that it is better not to warn targets of impending charges and potentially trigger a target’s flight or attempts to destroy, hide, or make unavailable evidence that is relevant to a case. By not sending a target letter, Assistant U.S. Attorneys avoid creating target-related problems for their law enforcement partners, such as agents from the FBI or DEA.

Are you the only one the government thinks it has evidence to convict?

The government generally only sends target letters to individuals that it is prepared to convict. In some cases, this may mean that the government is only prepared to convict you as opposed to others that are involved in your case.

Regardless of when indictment may follow the receipt of a target letter, the primary benefit of receipt of a federal target letter is the advance time it provides you to make informed decisions about your potential defense before the government takes charges. An experienced federal defense lawyer can help you determine what the government is trying to establish, what it must establish in order to convict you, and what evidence you have available to fight or reduce criminal charges.

How Does the Statute of Limitations Affect the Window Before You Are Charged?

For the vast majority of federal offenses, there is a five-year statute of limitations on criminal prosecution under 18 U.S.C. 3282. However, offenses involving a financial institution (which includes any bank or credit union) that affect a financial institution have a ten-year limitations period under 18 U.S.C. 3293. Most federal tax crimes have a six-year statute of limitations for criminal prosecution.

The government’s statute of limitations period begins to run from the date of the conduct in question. Therefore, a target letter’s presence does not, by itself, shorten the window of time available for negotiations to occur before indictment.

Instead, the government routinely sends a request for a waiver of the statute of limitations period, which is referred to as a “tolling agreement.” Tolling agreements are very important because they can grant prosecutors more time to build a case if they do not have enough evidence to file charges at the time of a target letter. By signing a tolling agreement, you can provide more time for negotiations or you may even buy enough time to avoid indictment if prosecutors conclude that they do not have enough evidence to pursue your case in court.

What Is a Tolling Agreement?

A tolling agreement is a contract in which a potential defendant waives their right to rely on the statute of limitations defenses to a criminal prosecution. In exchange for a tolling agreement, a defendant agrees to extend the government’s charging period for the length of time specified in the agreement.

Often, the first decision a target must make after contacting counsel is whether to sign or decline to sign a tolling agreement. In some cases, the target may need to sign the agreement, while in other cases, signing a tolling agreement is not in the target’s best interest. When negotiating a tolling agreement, targets should communicate with prosecutors while providing the government’s negotiators the opportunity to offer favorable terms such as not charging you or not charging you with the most-serious charges available.

How Can I Find Out When I Get Off the Government’s Target List?

A target letter may arrive in the mail, or it may be provided to a target in a variety of other forms. If the Assistant U.S. Attorney or prosecutors in your case provides you with a target letter, this can serve as evidence that the government has sufficient evidence to identify you as a target. Assistant U.S. Attorneys and federal agents will not provide you with a target letter before you are indicted unless they are prepared to convict you. As a result, targets will typically remain targets until the Assistant U.S. Attorney or Assistant U.S. Attorney’s Office makes a charging decision, will decide to drop the investigation, or will decide that the targets have not committed a crime.

If you have decided to comply, negotiate with the Assistant U.S. Attorney, or, if you have deciding to fight the investigation, it should not surprise you if federal prosecutors are not willing to disclose any information as to your target status. In these situations, relying on any perceived benefit of target letter may be mistake. Once you have obtained professional advice and taken this into account, you should not worry when you receive your target letter.

What Should I NOT Do After Getting a Federal Target Letter?

Destroy Documents and Digital Information

There are various reasons for failing to comply with the requirements of a federal investigation. Even if documents, devices, or other forms of electronic or physical evidence are not relevant to an investigation, then your obligations to preserve that information must be kept up for any potential and future legal action, including subpoena enforcement.

Delete Relevant Files and Destroy Documents

If you have received a target letter and it contains an enclosed subpoena, you will need to preserve all potentially relevant information and documents. If the FBI or DOJ have subpoenaed documents or devices, you will need to promptly search for the subpoenaed materials and give the government copies of them. The destruction of records that may be relevant to a federal investigation can lead to an additional criminal charge for obstruction of justice under 18 U.S.C. 1519, with a maximum federal sentence of 20 years in prison.

Get a Legal Hold for Your Digital Data

If you own a company with company data stored on cloud-based servers, you will need to issue a legal hold as soon as you receive a target letter to prevent the automatic purging of relevant data. Employers typically have retention and purging policies to remove unnecessary files and documents from their digital record servers and company computers. A legal hold freezes data preservation at the moment it is issued, so the government cannot later say that you purged relevant data with the purpose of hindering a prosecution. All cloud-backups, company-related personal accounts, and personal accounts that were logged into company systems also are subject to data preservation.

Speak with the Government’s Negotiators

Interviews with Assistant U.S. Attorneys or their FBI and DOJ counterparts, like DEA agents, are extremely risky for suspects and targets. Even if you have information that can help resolve the government’s investigation, a misguided interview answer can move someone from a suspect to a target. Additionally, lying to a federal agent is a felony under 18 U.S.C. 1001. Lying to a federal agent is a five-year felony under 18 U.S.C. 1001, and a sentence of probation for a felony runs from one to five years under 18 U.S.C. 3561, supervised by a United States Probation Officer.

Spodek Law Group, led by managing partner Todd Spodek, defends clients in federal criminal and white collar matters.

Should My Lawyer Contact the Prosecutor Before Charges Are Filed?

Even before you are charged, there are legal possibilities for negotiations and seeking disclosure before charges are formally filed.

Pleas exist even before any charges exist. Before a federal indictment, prosecutors may not have focused all their investigative resources on you, which may give defense lawyers and target’s more negotiating room. Pre-indictment plea negotiations can potentially lead to not charging the target or charging the target with less-serious charges that do not carry a lengthy federal prison term. With an experienced federal defense lawyer, negotiations in which a target agrees to provide information that they know of in exchange for a reduced charge or not charging are a reality.

Can I Find Out What Evidence the Government Has Against Me?

Once charged, targets’ access to the evidence the government has collected is subject to strict discovery laws. However, before being formally charged, it may be possible for a target to learn the scope of the federal investigation and find out what information the government has in the case.

A federal target letter does not offer the same legal advantages as criminal charges. However, with a reverse proffer, federal prosecutors agree to give the target’s defense lawyer the evidence they have collected. This reverse proffer gives the target the information needed to make informed decisions about whether to enter a plea, negotiate a deal, or fight the case. However, it also does not require the target to reveal any information to federal prosecutors.

Should My Lawyer Initiate Contact with the U.S. Attorney’s Office After Receiving a Target Letter?

Contacting the government after receiving a target letter presents two potential concerns.

The first concern is that federal prosecutors or their agents might try to persuade the target’s lawyer to discuss the details of the government’s investigation. While there is little risk of prosecutors leaking confidential information, there is more risk of prosecutors trying to obtain information about a potential target’s guilt.

The second concern is that if target’s lawyer asks prosecutors about a target’s status, the prosecutor may take this as an indication that the target expects an indictment. Prosecutors may infer that the target is aware of their involvement in the case and this may cause them to prioritize the target’s prosecution.

However, outreach to prosecutors can be less risky if target is already aware that the government has information on their involvement. If your lawyer knows that the government has a strong case and you have a realistic prospect of a proffer, you can contact the Assistant U.S. Attorney early. This will allow the Assistant U.S. Attorney and their federal agents to gather whatever information is needed to help them resolve the case before a formal indictment is issued.

Can Federal Prosecutors Use What I Say in a Proffer Session?

If you have a proffer session with the Assistant U.S. Attorney or federal agents, the government generally cannot use your statements against you. This arrangement is informally known as a “queen for a day” meeting. However, the immunity offered in a proffer session is limited, unlike transactional immunity, which provides a blanket immunity against criminal prosecution for all crimes related to a target’s behavior.

One specific exception to the general restriction on the government’s use of a target’s statements in a proffer session is impeachment. For example, if you later change your story, the federal prosecutors can then introduce your proffer statement into evidence as a form of impeachment.

Can I Be Charged with Other Crimes Related to What I Reveal During a Proffer Session?

Not necessarily, but if you reveal information to federal prosecutors that provides leads to additional evidence of your crimes, you could potentially face charges based on this independent evidence. The government will not, however, be able to use your statements themselves to build a case against you.

While proffer sessions do give targets an opportunity to avoid indictment, the protection they offer is only conditional. For example, if you tell the prosecutors something that is factually untruthful, you can get in serious trouble. Not only will your statement be considered perjury but you also are committing a second crime if this proffer session has led you to disclose other crimes.

In other words, you should be very careful when you decide to negotiate a proffer with the Assistant U.S. Attorney and federal agents. The target should be represented by an experienced federal defense attorney who is prepared to use any legal options to protect the client and negotiate the best possible outcome.

Is a Proffer Agreement a Form of Immunity?

While often informally referred to as immunity, a proffer agreement is more like a contract. The Assistant U.S. Attorney and a target’s defense attorney negotiate what will be shared in exchange for certain protections and potentially not being charged with certain charges. Like all contracts, if one party breaches, the contract may become unenforceable.

Like any legal action, target attorney will have to negotiate terms with the Assistant U.S. Attorney. Some terms may include:

• Limit the Assistant U.S. Attorney to no more than one proffer session
• Restrict the Assistant U.S. Attorney to certain types of information
• Agree that proffer session is to be held at the target’s home or office to keep it private

Can Your Lawyer Keep Your Statements Out of Trial?

No. There are no guarantees that statements made during a proffer session will stay out of trial. But, an experienced federal defense attorney can use a proffer session to negotiate an outcome that avoids trial.

What Are Other Legal Protections for Grand Jury Witnesses?

For most people, “use immunity” is a legal mechanism used in grand jury investigations. Under 18 U.S.C. 6002, the government provides use immunity in order to compel the target to testify in front of the grand jury. The federal prosecutors can use all information gathered by grand jury testimony against the person who testimony to prove the element of any crime or a federal offense except for perjury.

Can I Fight a Target Letter or Get It Dismissed?

Generally, the Assistant U.S. Attorney will not give a response to your lawyer’s inquiries before deciding whether to convict you. This is part of the prosecutor’s strategic approach in a federal criminal case.

You cannot fight a target letter or get it dismissed. A target letter is not filed with a court and has no legal or procedural mechanism to be dismissed. Unlike other forms of legal correspondence, such as subpoenas, a target letter is part of the government’s investigative process and is not subject to court review.

Can I use the target letter to challenge the prosecutor’s decision if it is not sent?

While justice manual provisions apply to how prosecutors conduct investigations, they are not binding requirements. According to Justice Manual section 1-1.200, “The manual is neither a direct or indirect statement of the law and its provisions create no rights which are enforceable by a defendant.” If federal prosecutors fail to issue target letters to targets or, conversely, if they issue target letters prematurely, the Assistant U.S. Attorney’s failure does not constitute a valid defense. A target will have to prove that there is no probable cause against him or her in other means.

Unlike an indictment, the absence of a target letter does not affect the prosecution, and the decision not to send a target letter can never be used to dismiss a federal indictment. It is also impossible to use a departure from the DOJ’s target-notification policy to support any type of suppression motion.

Can You Question the Grand Jury’s Decision of Probable Cause?

Under Rule 6(a) and 6(f) of the Federal Rules of Criminal Procedure, federal grand juries are composed of 16 to 23 members and need at least 12 to concur to return an indictment. Grand juries determine whether there is a substantial showing of probable cause and they never determine guilt or innocence in regard to a target. Therefore, a target can question a prosecutor’s decision to file charges in court but a target can never question the grand jury’s decision based on a lack of probable cause.

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's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.