A DOJ Target Letter Just Arrived: Your Rights and What Follows.

Are You Indicted or Charged with a Federal Crime?

Is the Department of Justice Using You as a Target, or Are You a “Subject” or “Witness” in a Federal Investigation?

What Are the Next Steps After Receiving a DOJ Target Letter?

What should I do in the first 24 hours?

When receiving a DOJ target letter, one of the most important next steps is a careful review of the letter’s contents. This is important because the content will determine who sent the letter, what statutes the government intends to bring charges under, any deadlines involved, and whether the letter contains subpoenas or requests for interviews, questioning, or voluntary participation. It is also important to discern how the DOJ is requesting cooperation, if at all, as the language of a request can signal how the government views the situation, and whether they think they have enough evidence to convict without any additional information.

Verifying that the letter is actually from the DOJ is another critical next step. To verify that your target letter is genuine and not a scam, you should reach out to the DOJ through official channels as listed on its website or in a reputable phone directory rather than contacting any phone number provided on the letter itself. Letterhead, signatures, and caller IDs can be easily spoofed or forged, so you should not take that information at face value.

It is also likely that federal agents will reach out to targets before their defense counsel even has a chance to appear. If this happens, agents may try to persuade you to voluntarily agree to be interviewed or sit down for questioning. They may argue that this is a great opportunity to explain the situation, get ahead of the investigation, or provide your version of events before the situation escalates. However, targets should not volunteer information. Even innocent mistakes in communication can have repercussions, and there are few incentives for targets to make it any easier for the government to build a case against them. Instead, targets’ most effective option is to remain silent. Federal agents should only speak with your lawyer, who will take over communication and advise you on when and how to speak with them if necessary.

Examining the envelope and attachments that came with the DOJ target letter is also extremely important. The date on the envelope and postmark can give you the same date that the government may claim they sent the letter, and other attachments may include timing, service details, references to existing search warrants or grand jury requests, or language that requires particular attention. Don’t throw anything away; everything from an envelope to attachments can be extremely informative in a defense investigation.

Preserving evidence that is under your control is another important step to take. Auto-delete settings in messaging apps, email logs, and other electronic storage can unintentionally erase pertinent emails, texts, logs, or cloud backups. In addition, targets must avoid deleting any or changing any of their files or altering their online accounts. When targets speak with their lawyer, the lawyer will need to determine what electronic devices and data sources need to be preserved. This will include phones, tablets, external drives, and emails as well as social media and cloud-based storage services (such as Apple iCloud, Dropbox, OneDrive, G Suite, and Amazon Drive). He or she will also need an early inventory of encrypted applications (e.g., WhatsApp, Signal, Telegram, or others) and online files or account logs on any platforms that could be of relevance to the case.

Discussing the investigation with anyone else, even if this is via calls, texts, or emails, is another mistake that you must avoid. These communications not only can provide evidence of the investigation or even evidence of guilt, but also can create witnesses that can be called to testify against you. Until your lawyer has a chance to assess the situation and provide guidance, it is best to keep silence and keep everything to yourself.

Does a target letter mean I will be indicted?

Am I a Witness, Subject, or Target?

Does Target Status Carry a Greater Risk of Indictment?

Do I Have to Receive a Target Letter for the Government to Indict?

Do I Have a Right to be Indicted After I Receive a Target Letter?

When Will the DOJ File Criminal Charges Against Me After Sending Me a Target Letter?

What if a Subpoena is Attached to My Target Letter?

If there is a subpoena attached to your target letter, you must not ignore it. Ignoring a subpoena can result in contempt sanctions, including fines and jail time. There are different types of subpoenas issued in federal grand jury investigations, and Rule 17 of the Federal Rules of Criminal Procedure governs. Under this rule, grand jury subpoenas may demand testimony, the production of documents, or both.

Subpoena for Documents and/or Testimonial Subpoenas

With document subpoenas, review for privilege is critical. We need to make sure that your response to the subpoena does not produce documents you are entitled to keep private. We also need to make sure that the information you produce does not create new legal risks. Producing documents that you have previously claimed not to possess or do not have control over can establish possession, control, authenticity, or existence of the documents in question.

The Fifth Amendment protects against being forced to testify against yourself. This protection, however, is generally not available with respect to the production of documents, particularly business records created and kept in the ordinary course of business. Generally, corporate record custodians cannot invoke the Fifth Amendment to refuse to produce business records they have in their possession or control.

What are my options if I’ve been served a Grand Jury Subpoena?

Recipients of subpoenas are entitled to challenge the subpoena by filing a motion to quash or modify under Rule 17(c)(2). In its motion, the recipient of the subpoena must demonstrate that the subpoena is unreasonably broad, oppressive, or otherwise unenforceable.

Can I decline to testify in a Grand Jury?

With testimonial subpoenas, recipients can generally invoke their Fifth Amendment privilege to decline to testify. If the recipient of a testimonial subpoena is a corporate record custodian, however, the privilege likely won’t apply to records in the record custodian’s possession or control. In these cases, the record custodian may be required to testify, and the record custodian’s legal counsel should be prepared to defend his or her client’s Fifth Amendment rights if necessary.

Can I decline to produce documents if I am a Corporate Record Custodian?

If you are the corporate record custodian and the government is demanding records, you will need to review all relevant records for privilege and identify what records are responsive to the subpoena. We can advise you if there are any valid grounds to decline to produce records, such as those that you need to use to establish a defense against the government’s allegations.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

Should I Testify Before a Federal Grand Jury?

Some target letters will include an invitation to testify before the grand jury. These invitations can be misleading; while they can signal the government’s willingness to resolve the situation through cooperation, they can also signal that the government doesn’t think it needs to rely on a target’s testimony. Whether or not a target should cooperate depends on the specifics of the case, and a target’s federal defense lawyer needs to take that into account.

Defense Lawyer’s Role in Grand Jury Proceedings

A defense lawyer can advise his or her client throughout the grand jury process, but not while the client is testifying inside the grand jury room. Under Rule 6(d)(1) of the Federal Rules of Criminal Procedure, the only people allowed inside the grand jury room during a target’s testimony are the attorneys for the government, the witness being questioned, the grand jurors, any interpreter who is needed, and the court reporter or operator of the recording device. If a target wants to speak with his or her defense lawyer, he or she may ask to step outside the grand jury room to consult counsel, and no judicial approval is required.

Invoking Fifth Amendment Rights

If a target chooses to testify, he or she can invoke his or her Fifth Amendment right to remain silent before any questioning takes place. Once a target begins testifying before a grand jury, he or she may still invoke the Fifth Amendment on a question-by-question basis, and no prosecutor approval is required. In the rare instance that prosecutors offer transactional immunity, targets may still be required to testify.

The Risk of Testifying Before a Federal Grand Jury

For targets, testifying before a federal grand jury is always risky. This is because grand jury testimony is generally admissible as evidence of guilt in the prosecution’s case in chief. Even if a target’s testimony supports the defense, prosecutors can still use it against him or her if it supports the government’s case.

Compulsory Testimony of Targets Before a Federal Grand Jury

In most cases, the government cannot compel a target to testify before a federal grand jury. To do so, the government must file a motion with the court seeking an order that compels a target’s testimony. Orders for compulsory testimony must invoke 18 U.S.C. §§ 6002, 6003, which govern the grant of use and derivative-use immunity in federal criminal cases.

Use and Derivative-Use Immunity

Use and derivative-use immunity means that the government cannot use anything obtained from a target’s compelled testimony as evidence against that target in court. It also means that the government cannot use information obtained through a target’s testimony to obtain other evidence that it can then use in court against the target. Once a target receives a valid order for use and derivative-use immunity, his or her Fifth Amendment right to remain silent is waived, and he or she can be held in contempt of court if he or she refuses to testify.

The Risk of Testifying Even If Immunity Is Granted

Testifying before a federal grand jury is still risky, even if the government has granted the target immunity. Prosecutors control the questioning during the grand jury proceedings. If a target testifies, the target may unintentionally provide information the government needs to support prosecution. Targets should only testify if they have received advice from their federal defense lawyer that it is in their best interests to do so.

Can a Proffer or Cooperation Decision Backfire?

What Is a Proffer Agreement?

A proffer agreement is a type of agreement between a target and a federal prosecutor under which a target may share information with the prosecutor with limited use protections. These agreements do not provide immunity and do not protect targets from prosecution; they offer only a narrow promise that the target’s proffer statements will not be used as direct evidence in the government’s case-in-chief. Defense lawyers negotiate these agreements before a target agrees to speak with prosecutors.

Limitations of Use Protections in Proffer Agreements

The use protections in proffer agreements have important limitations. First, while these agreements protect a target’s proffered statements from being used against him or her in the government’s case-in-chief, these protections do not extend to impeachment purposes. This means federal prosecutors can use a target’s statements against the target if the target later testifies in court and contradicts what was discussed during the proffer session.

Second, these protections do not extend to rebuttal purposes. In the case that a target’s defense relies on a particular claim, federal prosecutors can use a target’s proffer statements to contradict his or her claim.

Consequences of Making False Statements During a Proffer

A target must also be careful not to make false statements during a proffer session. False statements made during a proffer session are not protected. Providing false information to a federal prosecutor can result in exposure for additional crimes under 18 U.S.C. § 1001.

Risk of Exposing Evidence Through a Proffer Agreement

Finally, proffers can potentially harm a target’s defense strategy. If a target discloses information during his or her proffer session that goes beyond what the prosecutors already had corroborated, the prosecutors can use this information to further build their case against the target.

Factors Influencing a Target’s Decision to Cooperate

If receiving a target letter includes the opportunity to cooperate, what factors need to be considered when deciding whether to do so? Generally, the value of a target’s cooperation depends on a variety of factors, including:

• Truthfulness, Targets must be truthful during cooperation.
• Corroboration, Prosecutors need to be able to corroborate as much of a target’s information as possible.
• Timing, Offers for cooperation should be made promptly.
• Utility, A target’s information needs to be useful to the government.
• Evidence and Exposure, If the prosecutors already have substantial evidence, then accepting a cooperation plea could result in a substantial sentence.
• Sentencing Risk, If a target’s sentencing risk is substantial regardless of the charges he or she faces, cooperation could provide a path toward a better outcome.
• Other People, Cooperation may expose others to federal investigation or prosecution.
• Truthfulness, If a target provides untruthful information during cooperation, he or she should not expect any benefits from the federal government.
• Strategic Utility, Is cooperation more (or less) likely to result in a favorable outcome than facing prosecution?

Who Can I Safely Talk To After Receiving a Target Letter?

Can I Contact the Agents Directly?

Directly contacting federal agents after receiving a target letter is not advisable. Federal agents can use any inconsistencies to their advantage and may try to induce you to volunteer information that hurts your defense. Instead, contact counsel and have counsel speak to the agents on your behalf.

Can I Talk to Witnesses?

Talking to potential witnesses is also risky. Prosecutors could argue that you are attempting to obstruct justice, intimidate witnesses, or tamper with evidence. We strongly recommend that you avoid all contact with potential witnesses, and instead, let your defense lawyer handle communications on your behalf.

Can I Talk to Family, Friends, or Others?

Conversations with family, friends, and others are not covered by attorney-client privilege, and anyone you speak with can be called to testify about what you said. In the case of family members, these conversations can be particularly problematic because Prosecutors could target family members who may feel compelled to cooperate in order to avoid trouble themselves.

Can I Talk About the Investigation on Social Media?

Do not talk about the investigation on social media or any other public platform. The information you share can be used in court as evidence.

What Are the Risks of Making False Statements to Federal Agents?

If you speak with federal agents, be extremely careful with anything you say. The federal government considers it a crime to make false statements or withhold material information in connection with an ongoing investigation. False statements to federal agents can lead to additional criminal charges under 18 U.S.C. § 1001.

What Should I Do Instead?

While you must not make false statements to federal agents, you are not required to answer their questions. You can use your counsel to communicate your refusal to answer. This is not an admission of guilt, but rather a protected exercise of your legal rights.

Instead of volunteering information, remember that you have the right to decline to speak to agents unless you have advice from your defense lawyer to do otherwise.

What Is Covered by Attorney-Client Privilege?

The attorney-client privilege covers confidential communications with your defense attorney made for the purpose of legal representation. However, while the legal advice itself is protected, it generally does not protect disclosures about the underlying facts of your case. Federal prosecutors may still use other means to obtain facts disclosed during the attorney-client relationship.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.