First Moves After an FBI Target Letter Lands.

1. Do Not Call the DOJ or FBI

2. Preserve Documents and Electronic Devices

3. Stop Speaking About Your Case

4. Retain Experienced Counsel Immediately

5. Do Not Volunteer Information

6. Decline to Discuss Your Case with Law Enforcement

What Should I Verify and Save During the First Day?

If you received a target letter from the U.S. Attorney’s Office (or the FBI, DEA, IRS, or other federal agency) within the last 24 hours, time is of the essence. First, set aside time to do the following with your federal criminal defense lawyer:

• Save Your Letter and Delivery Documentation. Do not reply to the target letter or reach out to the FBI or DOJ regarding the letter’s contents yet. Save the letter, its envelope, and any attachments or delivery records in their original form.
• Keep Track of Response Dates. Note the date the letter says you received it, the response deadline in the letter, any other relevant deadlines in the letter, and any response dates that appear on the accompanying subpoena or other process documents.
• Prepare a Case Chronology. We encourage you to prepare a detailed chronology of your activities, communications, and other relevant information that might be at issue in the FBI target letter. This should be prepared confidentially and specifically for the purpose of facilitating counsel’s legal advice.
• Disclose All Outstanding Requests. Make sure to give your counsel copies of all pending subpoenas, search warrants, preservation notices, and other correspondence from the FBI, DOJ, or any other government agency.
• Have Your Federal Criminal Defense Attorney Verify the Letter’s Authenticity. Do not call the phone number listed on the letter to confirm whether it is authentic. We can confirm the authenticity of the target letter using independently sourced contact information from the U.S. Attorney’s Office in your federal district. This is critical because target letters (and other government correspondence) are occasionally forged by third parties to solicit money or sensitive information, and federal agents and DOJ attorneys may not be available to immediately verify that the communication was genuine.
• Disable Any Auto-Delete or Disappearing-Message Settings for Potentially Relevant Information. This includes the target letter itself, all related files, emails, text messages, notes, voicemails, and call logs, and any electronic devices that are likely to be seized by federal agents.
• Carefully Review the Target Letter. Read through the target letter carefully to see if it identifies the federal crimes under investigation. Often, the target letter will state the specific federal statutes at issue, although this varies depending on the case.

What Does an FBI Target Letter Actually Mean?

What Does it Mean to be a “Target”?

The U.S. Attorney’s Offices usually issue these letters, but they are commonly called “FBI target letters” because of the role of the FBI (or DOJ, DEA, IRS, etc.) in gathering information for the target letter. The Justice Manual, which is the U.S. Department of Justice’s set of guidelines and protocols, defines a “target” as:

“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.”

Justice Manual § 9-11.151

The DOJ manually describes a target as a “putative defendant,” and this suggests that you are a “putative defendant” as well. However, this should be understood as a prosecutorial judgment rather than a judicial finding of guilt. As a result, you have a right to challenge the government’s evidence and make other legal defenses to contest the government’s allegations of guilt to the fullest extent possible.

Does This Letter Constitute a Subpoena?

In many cases, a target letter is accompanied by a federal subpoena for records, and this means you may have an immediate legal obligation to comply with the subpoena. Note that a subpoena constitutes a legal command which imposes various legal obligations regardless of whether an indictment or charges are forthcoming.

As a result, after receiving an FBI target letter you should promptly assess your next steps based on the specific allegations and any accompanying documents, which may include an Office of Attorney General (OAG) or Office of Inspector General (OIG) subpoena.

Can a Target Letter Be Used as Evidence of Your Guilt?

No, a target letter is not an indictment, nor does it constitute criminal charges. It does not create legal liability, and it does not necessarily mean that prosecutors will eventually seek an indictment from the grand jury.

Moreover, federal law does not impose an indictment deadline or any other obligation for an indictment to be issued once a target letter has been mailed. Therefore, even if federal agents seize all of the records you have, that does not mean that an indictment or criminal charges are pending. An indictment could follow a target letter in a matter of days, weeks, months, or years.

Are All Targets Likely to Be Indicted?

Unfortunately, this is not something we can determine with any certainty, as there is no data that indicates what percentage of FBI targets eventually get indicted. In fact, some sources indicate that “the vast majority of federally indicted defendants never received an FBI target letter.” This suggests that many targets are not indicted and the government does not notify targets of the grand jury’s decision not to indict.

If any of this describes your situation, it is worth talking it through with counsel. Spodek Law Group can be reached at 212-300-5196.

How Do I Preserve Evidence Without Making Things Worse?

1. Do Not Destroy, Conceal, Alter, or Falsify Documents, Records, or Other Relevant Information

U.S.C. § 1519 prohibits all “intentional or knowing” destruction, concealment, alteration, or falsification of any record, document, or tangible object in order to impede, obstruct, or influence a “federal matter, investigation, or proper administration of any matter within the jurisdiction of any department or agency of the United States.”

• “It can be a huge mistake to take your case for granted and only consider making a mistake if this means that you are at fault.”

2. Do Not Contact Persons Who Could Potentially Be Witnesses in the FBI’s Investigation

If you received an FBI target letter, do not speak with anyone about the investigation. If you contact a potential witness to try to shape the witness’s memory of events or persuade the witness to cooperate on your behalf, you could face obstruction charges. If you are charged with obstruction, this is a separate offense from any allegations in the FBI target letter. You can still face liability for obstruction even if you are found not guilty of the criminal offense(s) in the FBI target letter.

3. Do Not Discuss the Investigation with Coworkers, Friends, Business Partners, or Former Coworkers, Friends, or Business Partners

Your conversations with coworkers, friends, business partners, former coworkers, friends, or business partners do not enjoy any statutory privilege. As a result, the government may be able to subpoena your communications with these people. As a result, you should not send text messages or emails regarding the target letter, the investigation, or other relevant issues, as these will be subject to government review.

4. Do Not Discuss the FBI Investigation or Your Target Letter with Your Spouse or Anyone Else in Your Household

A common misconception is that conversations between spouses are automatically protected from government disclosure. Spousal communications are only protected under the “marital communications privilege,” and this privilege is narrow in scope. In addition, prosecutors may seek to carve out exceptions to the marital communications privilege if you used your spouse to destroy or hide evidence or assist in other criminal activities.

5. Do Not Discuss the Investigation with Your Local Lawyer, Public Relations Firm, or Consultant

Local lawyers, public relations firms, and consultants lack the attorney-client privilege. While your local lawyer may be able to communicate on your behalf, and your public relations firm may communicate with your clients or other parties on your behalf, everything said, written, or sent in the course of your relationship can be subpoenaed.

If you use your local lawyer to contact federal authorities or to contact your federal criminal defense lawyer on your behalf, your local lawyer must be careful to only act as your representative. As your local lawyer and public relations firm and other advisors will be able to assist your federal criminal defense lawyer, they will be helpful assets during the FBI investigation. However, they may become targets themselves.

6. Avoid Deliberately Altering Your Communication and Behavior in a Manner That Could Create False Impressions

You should take steps to avoid deliberately altering your communication and behavior, which includes continuing your professional and personal communication with your clients, customers, colleagues, friends, and family as long as necessary and possible. However, if you suspect that someone is trying to gather information about you, you should notify your counsel immediately.

What If the Letter Includes a Subpoena or the FBI Arrives at Your Door?

1. Grand Jury Subpoena

A grand jury subpoena requires you to appear before the grand jury on a specified date and time. It may also require you to produce documents or electronically stored information. Depending on the circumstances, you may have the right to refuse to answer certain questions or to withhold records protected by attorney-client privilege. Speak with a federal criminal defense lawyer promptly so your lawyer can prepare you for your appearance and manage any document production requirements.

2. Fifth Amendment to the U.S. Constitution

The Fifth Amendment to the Constitution provides, in part: “No person . .. shall be compelled in any criminal case to be a witness against himself.” The Supreme Court has interpreted the Fifth Amendment to grant a “right to remain silent,” which includes the right to decline to answer incriminating questions. The Fifth Amendment doesn’t excuse ignoring a grand jury subpoena, so you should speak with a federal criminal defense lawyer about how to handle a subpoena in accordance with the law.

3. Document Subpoena (Subpoena Duces Tecum)

A document subpoena requires you to produce copies of records to the federal government by the deadline in the subpoena. If you do not have the records being sought, or if the records fall under a constitutional or statutory privilege, you must communicate this to the government before the compliance deadline. Otherwise, the government may view you as non-compliant. Our federal criminal defense lawyers can manage communications with the government to protect your interests.

4. Consensual FBI Doorstep Interview

If federal agents arrive at your home or workplace and ask to speak with you, you are not required to do so. You can politely decline and ask to call your lawyer. FBI target status makes consenting to voluntary interviews risky. Agents can use the Fifth Amendment right to silence as evidence of consciousness of guilt, so it is critical to discuss whether to have an interview. Your attorney can arrange interviews or discuss the specific risks.

5. Federal Search Warrant

If federal agents arrive at your door or business with a search warrant, you must comply. Your status as an FBI target doesn’t prevent the execution of a warrant. Agents are authorized to search and seize any property identified in the warrant. However, Federal Rule of Criminal Procedure 41(e)(2) requires agents to provide a copy of the search warrant and a receipt for seized property. Call your federal criminal defense lawyer immediately so we can obtain the warrant and inventory while communicating with the government to protect your rights.

How Can Federal Criminal Counsel Change What Happens Before Indictment?

1. Communication With Investigators and Prosecutors

The primary role of a federal criminal defense lawyer is to represent you and negotiate with the DOJ or other federal agencies. You do not have to deal with federal agents or prosecutors, and your lawyer will handle all communications and discussions on your behalf. Your lawyer may seek to persuade investigators and prosecutors that they should drop their investigation, or may seek to persuade them that you are not culpable of criminal conduct. We rely on a nationwide network of former federal law enforcement agents to help with pre-indictment intervention and defense.

2. Pre-Indictment Discovery

If you were a defendant in a criminal trial, you would have extensive rights to pretrial discovery, including the right to know the evidence the prosecution has against you. However, prior to indictment, targets generally do not have a constitutional or statutory right to discovery. Your lawyer can attempt to obtain the government’s evidence informally, though prosecutors usually decline to respond to informal requests for discovery. The government does not have a deadline to charge targets, so targets often wait for months or years to find out the government’s evidence against them.

3. Presentations to U.S. Attorneys, Special Agents, and Other Officials

If your lawyer can gather evidence (e.g., from a whistleblower, former customer, or business partner) that proves that you are innocent or are not responsible for the criminal conduct alleged in your FBI target letter, presenting that information to the appropriate investigators and prosecutors promptly could make all the difference. If prosecutors believe that you are not guilty or not culpable, they will not seek an indictment.

4. Pre-Indictment Plea Negotiations

If there is sufficient evidence that you are responsible for criminal conduct, it may be appropriate to negotiate a pre-indictment plea agreement. With a pre-indictment plea agreement, you can agree to a specific charge, sentence, and fine without a formal indictment. Once you agree to a plea, you can admit your fault in exchange for a plea agreement that limits your exposure. Many of the best results come from plea negotiations initiated before grand jury indictment.

5. Proffer Sessions

If you are willing to speak with the government about your activities and you are willing to speak with the government under “safe” conditions, a proffer session may be an option. During a proffer session, you provide information to the prosecutors and/or federal agents in order to get a more accurate picture of what you know. The federal government typically agrees not to use any information you proffer during the session against you in a subsequent prosecution (although the government can use it to pursue leads that lead to other evidence, and it can use it to prove that you lied during the proffer).

The results of a proffer session can be a favorable or favorable-leaning pre-indictment outcome. However, if the prosecutors think that you are not providing sufficient (or truthful) information, you could find out the target letter has shifted from “target” to “subject,” or you could get indicted for the original offense.

6. Proffer Agreements and Proffer Protections

The term “proffer protections” is a colloquial term. The information that you proffer in a proffer session are protected under a proffer agreement. An orally made assurance from the prosecutors can also be seen as a promise, but written agreements with prosecutors are far more common.

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.