Does a Target Letter Mean Prison??

A federal target letter itself is not a criminal charge, nor is it a criminal indictment; it does not carry the authority to impose any刑 (punishment), let alone criminal conviction or imprisonment. However, while the receipt of a federal target letter is not a guarantee that you will be arrested and convicted, it signals that you are in the federal prosecutors’ sights, and that their next step could be to pursue criminal charges.

What are the Chances that the Federal Target Letter will Lead to an Indictment?

The federal government has substantial resources at its disposal to prosecute criminal cases, and, as a result, when federal prosecutors target individuals in criminal matters, it is only reasonable to assume that they intend to pursue the prosecution of that case to the full extent of their ability. While an indictment is not certain following the issuance of a target letter, it is a strong possibility in many cases.

How Can I Avoid the Consequences of a Federal Target Letter?

The most effective way to avoid the consequences of a federal target letter is to engage the services of experienced federal defense counsel. When you retain experienced federal defense counsel, your lawyer will contact the Assistant United States Attorney assigned to your case and request a copy of any and all discovery in order to learn more about the investigation. Then, once you have a clear picture of your potential exposure and the strength of the government’s case against you, your defense lawyer can determine whether to work with the Assistant United States Attorney in order to convince them to drop the case.

What is a Federal Target Letter?

A federal target letter is a communication sent by one of the U.S. Attorney’s Offices when the federal government is conducting a criminal investigation. The U.S. Department of Justice (DOJ) Justice Manual, which has previously been referred to as the Justice Manual or United States Attorneys’ Manual, defines a “target” of an investigation in Section 9-11.151 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. This designation is intended to communicate to the individual or entity, the prosecutor’s judgment that there is substantial evidence linking the individual or entity to a criminal offense, and a likelihood of an indictment to be returned by the grand jury, which the prosecutors will be seeking to convict. The designation is intended to communicate to the individual or entity that it has the opportunity to consult with counsel, if desired, and, with the consent of the prosecutor, to present any information it may have in support of not being charged, if appropriate. The designation is intended to encourage an open-minded approach toward the case, and to avoid the presentation of arguments to a grand jury that is potentially biased toward conviction of a target.”

Does the Target Letter Say Why the FBI Investigated Me?

The Justice Manual does not describe the purpose of target letters. However, when the federal government sends a target letter, it typically informs the recipient of two basic pieces of information:

• Why they are the target of a federal investigation
• What the federal government is demanding in order to avoid criminal charges

A target letter will commonly identify the federal criminal offense (or offenses) under which the federal government is investigating the recipient, and it will go on to explain the recipient’s Fifth Amendment privilege against self-incrimination.

The Justice Manual does not require the government to notify a target. Under JM 9-11.153, a prosecutor is merely encouraged, in appropriate cases, to notify a target a reasonable time before seeking an indictment, and the United States Attorney may decline to give that notice where it would adversely affect the integrity of the investigation or the grand jury process, or for other appropriate reasons.

Do I Need to Do Anything About Receiving a Federal Target Letter from the DOJ?

If you have received a federal target letter, you should assume that you are under serious scrutiny, and that you are on the brink of facing an indictment if you do not act. The federal government is essentially giving you a final chance to convince it of your innocence or cooperate with its prosecutors before you are formally charged. With this in mind, it is vital that you contact a reputable federal defense attorney at Spodek Law Group as soon as possible. We can assist with your case to help to avoid a criminal indictment.

If I Just Received a Target Letter, How Much Time Do I Have Left Before My Indictment?

If you have just received a federal target letter, you do not know how much time remains between the issuance of your target letter and the time the federal government returns your indictment. No fixed time limit exists; and, in some instances, the government has been known to take months between targeting and indicting a suspect.

What should I do in the first 72 hours?

If I Received a Target Letter from the Department of Justice, what are my next steps?

Once you speak with counsel, your defense lawyer will assess your case based on all available information and will develop a plan forward. From there, your lawyer will determine whether it will be possible to learn more about your case before making contact with federal law enforcement. If so, your defense counsel may contact the Assistant United States Attorney in charge of your case to inquire about the scope of the investigation and your target status. But, regardless of your lawyer’s plan to pursue a favorable resolution, your defense lawyer will have informed you of some of the first things not to do following receipt of a target letter.

The first of these is to avoid speaking to federal agents or prosecutors. While you may believe that speaking with federal agents or prosecutors would prove your innocence, and that it would convince them not to seek an indictment, it is much more likely that statements you make during communication with federal agents or prosecutors will be used against you if the federal government pursues your prosecution. However, there is one exception. If your defense counsel advises you that talking to federal law enforcement will be in your best interest, your lawyer can work with you to provide a statement to the DOJ’s federal prosecutors.

Similarly, your defense lawyer will advise you not to contact any individuals who may be witnesses in your case. While you may believe that reaching out to witnesses will prevent the government’s case against you, the Assistant United States Attorney could potentially frame this as witness intimidation or evidence tampering. Of course, your defense counsel will be able to contact these individuals in order to learn more about the investigation, and they can communicate with these individuals on your behalf, if necessary.

What Can I Do to Help My Federal Case?

While there are things you should avoid following receipt of a federal target letter, there are also things you can do. Your defense lawyer will walk you through the ways that you can help in your case. Two such ways are:

• Preservation of Evidence
• Compliance with Demands

With respect to the preservation of evidence, your lawyer will tell you how to avoid deleting emails, texts, financial records, and other documents that the DOJ could seek to subpoena. If your organization or business deletes data on a regular basis, your defense lawyer will instruct you to suspend these deletions when it is clear that the information will be relevant to the federal government’s investigation. With respect to compliance, you will want to work with your defense attorney in order to understand whether you have any pending subpoenas, mandatory appearance dates, or other preservation obligations.

What if My Target Letter from the Federal Government Included a Subpoena?

If your target letter included a subpoena, it means that you have not only been identified as a target of a federal investigation, but that the DOJ has also demanded documents or testimonial evidence. It is important to remember that, unless a federal court has granted a motion to quash (i.e. modified, excused, or vacated), a subpoena deadline is mandatory. At Spodek Law Group, our criminal defense lawyers can work with you and federal law enforcement to resolve your subpoena compliance obligations as quickly and efficiently as possible. Here are three common ways our lawyers can help with these obligations:

• Challenges to Subpoena Requests. If the documents or testimonial evidence being requested by the DOJ is unreasonable or oppressive, your defense lawyer can file a motion for the federal court to quash the subpoena. Federal Rule of Criminal Procedure 17(c)(2) allows the court to quash the subpoena in “any case where the subpoena, in its form or content, is unreasonable or oppressive.”
• Assertion of Privileges. If the documents or testimonial evidence being requested by the DOJ is protected by a valid privilege (e.g. attorney-client privilege or work product doctrine), you must still formally respond to the subpoena. A response will demonstrate your (and your lawyer’s) good faith effort to comply with the subpoena, and it will inform the DOJ of your objections. For example, if your lawyer determines that the requested documents are protected by the work product doctrine, your lawyer will notify the DOJ to avoid any allegations of contempt of court.
• Fifth Amendment Privilege. While the Fifth Amendment protects recipients of subpoenas against giving testimony that could incriminate them, it does not protect the recipient against handing over documents. But, in certain circumstances, a testimonial act of producing documents can be the focus of an investigation, and a recipient can assert the Fifth Amendment privilege in these rare instances. Another rare circumstance is when the employee’s communication is a protected communication of the organization’s counsel; and in this case, the organization may assert its attorney-client privilege in order to avoid producing the document.

Can I Refuse to Respond to a Subpoena?

If you received a subpoena, you cannot simply remain silent. A validly-issued subpoena is not a request, it is an order from a court, and remaining silent does not excuse disobedience of the subpoena (or a court order). If you received a subpoena, you should contact a federal defense lawyer who can contact federal prosecutors on your behalf.

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.

Should I Cooperate, Proffer, or Testify to the Grand Jury?

If you’ve received a federal target letter, there are several ways that you can try to avoid being formally charged in a federal criminal case. From speaking with investigators in order to demonstrate your innocence or mitigating evidence, to proffer meetings with federal prosecutors to demonstrate your ability to cooperate, each approach carries substantial risk. Our defense attorneys will help you make the best decision in your case, and your defense attorney will also help protect you if you pursue any of these options.

What is a Proffer Meeting?

A proffer meeting is a negotiation where a target can give investigators and prosecutors the information they need to consider not seeking an indictment. While, the concept of “cooperation” in federal cases may imply a voluntary act of providing information, the reality is more complicated. The Justice Manual does not define “effective cooperation,” and cooperation is never required. Under the Principles of Federal Prosecution, a person's willingness to cooperate is one of several discretionary factors a prosecutor may weigh in deciding whether to charge, and any sentencing benefit depends on the government's separate decision to move for a reduction.

As a result, when you communicate with federal prosecutors, you are potentially providing them with evidence that is pertinent to your case. This is why proffer meetings with federal prosecutors are often conducted under “proffer protections.” Proffer protections are contractual protections where investigators and prosecutors agree in writing to limited protections over the target’s proffer.

What Protections Exist in a Proffer Agreement?

The protections provided by a proffer agreement are not absolute. A proffer agreement is not a license to knowingly make false or misleading statements, and it does not confer immunity from prosecution. While proffer protections are contingent on the truthfulness of statements made by the target, they can be as broad as they are narrow depending on the specific written agreement negotiated between the target’s defense counsel and the DOJ’s federal prosecutors.

Generally, in a proffer agreement, investigators and prosecutors will agree to a limitation on their ability to use information that is learned during a target’s proffer. However, proffer agreements usually contain other provisions that:

• Protect Information Learned During Proffer

Generally, they will agree that the investigators and prosecutors cannot use anything learned during a proffer to build a case against the target. This provision does not, however, bar investigators and prosecutors from pursuing leads derived from a target’s proffer statements to build their case.

• Affirm the DOJ’s Right to Use Target’s Statement to Impeach or Rebut

In addition to pursuing information learned during the proffer, investigators and prosecutors will often explicitly state that they will be able to use the target’s statements against him or her in the event of conflicting testimony at trial. This provision will allow investigators and prosecutors to impeach a target’s testimony based on his or her statement given during the proffer.

Do I Have a Constitutional Right to Testify to the Grand Jury?

You do not have a constitutional right to testify before a grand jury. A target can choose to waive his or her right against self-incrimination, but targets are not required to testify. Again, making the informed decision to testify (or not) in federal criminal cases, often requires the skills and experience of a reputable defense attorney who can effectively manage the risks and benefits.

Will I be Arrested or Detained After an Indictment?

Regardless of whether you were arrested in conjunction with the return of a federal indictment, there will be other procedural steps to take following the return of your indictment. With respect to your arrest, Federal Rule of Criminal Procedure 9(b)(2) provides, “If an indictment or information is returned or filed, the court must issue a summons if it finds that the defendant has not posed a flight risk or otherwise failed to make an initial appearance in the criminal case. Otherwise, the court must issue a warrant for the arrest of the defendant.”

If you are arrested, or in cases where a court order is issued, Federal Rule of Criminal Procedure 5 requires that the “charged defendant shall be brought without unnecessary delay before a magistrate judge to hear the initial appearance.” Your initial appearance is a procedure through which the court reads you your rights and explains the process that will lead to your arraignment hearing. If you were arrested or detained, your initial appearance will also address the issue of whether you should remain detained during your indictment proceedings.

What determines the Release or Detention of an Indicted Individual?

If you were arrested or detained, your release or detention while your charges remain pending is governed by the Bail Reform Act of 1984. This federal statute, at 18 U.S.C. § 3142, allows for the release of a target that does not present a danger to the community, and where release does not risk nonappearance at trial. Specifically, 18 U.S.C. § 3142(c) states, “the officer or judge shall release the person on the least restrictive condition or conditions that will reasonably assure the person’s appearance in court and the person’s that release of the person will not present an unreasonable danger to the community.”

If the person is not released under Section 3142(c), a judicial decision is required to continue to detain the individual pending investigation and trial. With this decision, the court can impose pretrial detention if the judicial decision “establishes to the court’s satisfaction that: (i) there are no conditions of release which will reasonably assure the appearance of the person in connection with a future proceeding, or (ii) there are no conditions of release which will reasonably assure the protection of the community from the defendant’s dangerousness.” The law goes on to state that “the court may find that no condition or combination of conditions of release will reasonably assure the appearance of the person in connection with a future proceeding or the protection of the community from the defendant’s dangerousness.” When making this decision, the court must also consider the factors identified in Section 3142(g), including:

• The nature and circumstances of the offense alleged;
• The weight of the evidence;
• The person’s character and characteristics;
• The person’s history and the possibility of escape;
• The condition of the community, and the danger the person presents to the community.

When Will I be Sentenced Following a Federal Indictment?

If you have been detained pretrial, this time in jail will not count toward your criminal sentence. In federal criminal cases, pretrial detention is intended to prevent risks that a person may escape prosecution or present a danger to others, and as a result, pretrial detention will not count as criminal punishment.

Finally, following your initial appearance, you will be scheduled for an arraignment hearing. Federal Rule of Criminal Procedure 10(a)(1) requires that at this hearing, you “shall be informed of the nature of the charges and enter a plea.” If you are sentenced to a term of imprisonment, the sentencing hearing will occur after you have pleaded guilty or have been found guilty at trial.

How is Prison Time Calculated if I am Convicted Following a Federal Indictment?

The federal criminal process concludes with a criminal punishment if a defendant is either convicted or convicted after a guilty plea. This criminal punishment takes the form of imprisonment, though it may also take the form of a monetary fine or probation. When convicted for an offense that carries a term of imprisonment, an individual is referred to the Bureau of Prisons ( BOP), and, once sentenced to prison, is subsequently confined. The BOP determines how many years the individual will serve based on the amount of prison time the sentencing judge imposed.

How is the Sentence Calculated for Federal Criminal Offenses?

The sentence for a federal criminal offense is calculated according to the federal sentencing guidelines. The guidelines take into account two main factors: the offense level and the defendant’s criminal-history category. These guidelines calculations result in a recommended sentencing range, which can either be a recommended range of imprisonment (e.g. “offense level 20 with no criminal history warrants a recommended range of 33-41 months of imprisonment”) or a recommended range of probation.

The sentencing guidelines are advisory in nature, which means they are not binding on sentencing judges. Federal sentencing judges must calculate a recommended sentence based on the guidelines; however, they are also free to impose a sentence that differs from this recommended range, provided that they provide their reasoning in writing (if the sentence is outside the advisory guideline range).

In certain federal economic crimes, the guidelines also take into account the “amount of loss” in determining a defendant’s recommended range of imprisonment. The higher the monetary amount of a defendant’s loss (or a victim’s loss), the more likely it is that the defendant’s sentencing judge will impose a sentence that is greater than the guideline range.

For other offenses, e.g. drug offenses, the sentencing guidelines and relevant statutes consider factors like the type and quantity of the substance involved. These factors can determine not only a defendant’s offense level, but also whether there is a mandatory minimum sentence.

Is the Sentencing Judge Able to Sentence Me to Life in Prison?

While a sentencing judge can, in some cases, sentence a defendant to life in prison, this is subject to a statutory maximum. A statutory maximum is a limit on the length of time a sentencing judge can sentence a defendant for a specific offense. This limit applies to each individual count that a defendant is convicted of, but it generally does not apply to the total length of time that a sentencing judge can sentence a defendant for multiple counts of conviction.

As with federal sentencing guidelines and the maximum sentence allowable under a statutory maximum, the sentencing judge cannot sentence below the mandatory minimum unless there is a statutory exception. A mandatory minimum is a minimum length of time for which a sentencing judge must sentence a defendant for a specific offense.

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.