Pre-Indictment Advocacy: Reaching the AUSA Before Charges Exist.

Pre-indictment advocacy focuses on reaching federal prosecutors and grand jurors before charges take the form of a public court filing. Once the grand jury returns an indictment, an AUSA’s charging choices generally harden.

As a result, even the best-drafted white papers can backfire by revealing key trial defenses too early. Many prosecutors view a white paper as a road map to a conviction, so pre-indictment advocacy requires a strategic approach.

No ethical attorney can guarantee to prevent a federal indictment. It is possible to stop an indictment if you can show that charges are unjustified, but it’s far from a legal certainty. You must judge your lawyer’s pre-indictment advice accordingly.

The law’s strict rules on pre-indictment timelines can appear confusing, but they make sense in practice. The Speedy Trial Act has a timeline for indictments, and the indictment clock generally starts running upon arrest.

Under the Speedy Trial Act, codified in 18 U.S.C. § 3161(b), federal indictments must typically be returned within 30 days of the date of arrest. Federal criminal charges can be filed without an arrest, and under Federal Rule of Criminal Procedure 6(e)(4) an indictment may be returned under seal and kept secret until the defendant is in custody or has been released pending trial. There is no comparable 30-day deadline for unsealing it, because the Speedy Trial Act clock does not begin until arrest or service of a summons.

Because of the Speedy Trial Act’s constraints, federal criminal cases generally move forward fairly quickly once they begin. This doesn’t make it inevitable that your pre-indictment advocacy will not be successful. It may be that your case is not even close to filing yet.

Federal criminal charges can be filed based on a pre-arrest investigation that has spanned months or years. The government generally faces no deadline for returning indictments in these cases. However, by the time you are informed of the investigation, a sealed indictment may already exist.

How Does Counsel Reach Out to the AUSA Before Indictment?

Federal criminal cases are prosecuted on behalf of the United States by the United States Attorney’s Office (USAO), where the case is handled by the U.S. Attorney and an Assistant United States Attorney (AUSA). These law enforcement agents may work with one or several agencies to build a case against you. Some common agencies involved in federal criminal investigations are the:

• FBI
• DEA
• ATF
• IRS-CI
• Homeland Security Investigations (HSI)

This does not make our lawyers’ jobs easy, because sometimes we have to approach prosecutors that we haven’t identified yet. The best way to reach a prosecutor depends on how far along an investigation has progressed. Some general methods for reaching prosecutors before indictment:

• Call the USAO’s intake line and ask to speak with the assigned AUSA. If the AUSA is assigned, the clerk should be able to route the call accordingly.
• Identify the case agents and tell them you have been retained to represent the target of their investigation. If the federal prosecutor is already involved, the agents should be able to relay this information to the prosecutor.
• Check return instructions on any federal subpoenas. If the government issued a grand jury subpoena, the return instructions should contain the contact information of either the assigned AUSA or the AUSA’s assistant or contact at the prosecuting agency.
• Reach out to the prosecutor if you are named in a target letter. Target letters often specify the responsible prosecutor and provide a deadline for response.

Once you have reached out to the AUSA or FBI or DEA agent, what will they say? Even the most seasoned attorneys can struggle to gain insight into a case early on. Some prosecutors are reluctant to speak with defense counsel until they have thoroughly reviewed investigative reports. Others won’t even share their phone number or email address with you.

The first conversation between counsel and an AUSA typically will not involve discussing a particular case’s facts. Instead, counsel will disclose their representation, ask for the status of the investigation, and request time to make informed decisions regarding their client’s defense.

Should My Lawyer Contact the AUSA or Stay Silent?

Sometimes, pre-filing advocacy begins with reaching out to the investigating officer, rather than the prosecutor. The most experienced white-collar defense attorneys will know whether it is too early to make contact, and if so, at what stage it makes the most sense. This is especially true if the federal prosecutors themselves don’t yet know about the case. Contacting them prematurely could draw attention to a case file that is moving too slowly to become an indictment.

In many cases, the federal government has less credibility for prosecuting when counsel can intervene early in the process. However, when investigations are serious, the prosecutor is unlikely to divert from the investigation upon counsel’s informal outreach. Those cases may need for counsel to work with prosecutors more closely for pre-indictment advocacy to be effective.

The AUSA’s ability to divert from the investigation on counsel’s request can sometimes depend on the case’s seriousness. In less serious cases, restitution to victims, public apologies, or proof of repaired harm can sometimes convince the AUSA that charging isn’t necessary. The goal will be to avoid indictment, as that will allow a target to live their life in peace without public exposure.

In some cases, though, indictment will be unavoidable. In these cases, early intervention will allow counsel to steer the case toward a minimal sentence. Even when charges are inevitable, the best pre-indictment outcome is an indictment with minimized exposure. This goal is common in cases involving high risk of criminal liability that cannot be averted.

Along with working on a more favorable pretrial resolution, counsel can also work to mitigate your liability. This can involve reducing the number and nature of the charges before indictment. Here, charge narrowing can sometimes mean a significant reduction in sentence, as prosecutors may not have enough evidence to trigger mandatory minimums.

Pre-indictment strategy also involves negotiating the scope of an indictment. This involves identifying the key elements of a charge that prosecutors won’t be able to prove. If prosecutors are forced to narrow a charges to specific counts that are easier to prove, defendants may have more defense opportunities on their day in court.

Prior to indictment, counsel will also identify potential suppression issues. Even though there will be no formal suppression motions, counsel will still work to persuade federal prosecutors that evidence must be excluded. If prosecutors agree to exclude evidence before indictment, this may give you grounds for challenging the charges before the case reaches the judge.

What Should a Pre-Indictment Presentation Actually Say?

Even if federal prosecutors can prove one or more federal offenses, they are not required to charge. While a decision to charge could hold up in court, federal prosecutors will only proceed if their charges are appropriate. According to the Department of Justice, federal prosecutors have the authority to make discretionary charging decisions based on:

• The strength of the evidence,
• The likelihood of obtaining a conviction,
• The target’s history,
• The level of culpability,
• Deterrence,
• USAO priorities, and,
• More favorable sentencing alternatives.

These factors inform U.S. Attorneys’ and AUSAs’ charging decisions in every federal criminal case. Additionally, DOJ policy also requires that there be probable cause in order for a federal criminal case to initiate. It further mandates that prosecutors assess whether "the admissible evidence will probably be sufficient to obtain and sustain a conviction."

In this context, a pre-indictment memorandum is most effective when it is tailored to the specific circumstances of the client’s case. It presents defense facts and arguments to the AUSA and explains how they undermine the government’s case. A pre-indictment presentation can ask the AUSA to:

• Decline federal prosecution, or
• Initiate a diversion program, or
• Initiate the process of securing a pretrial resolution (or a plea bargain), or
• Charge the defendant with less serious crimes than they have the evidence to prove.

Along with these requested outcomes, the memorandum typically includes a summary of pertinent pre-indictment case law as well as grounds for mitigation. These elements make the memorandum’s findings more persuasive and facilitate the AUSA’s decision to decline or defer prosecution.

The content of the presentation is not the only important aspect. While relevant, a lawyer’s prior professional relationship with an AUSA will not stand alone. Those attorneys who have previously established a track record of success with the government will be able to more easily approach AUSAs on their client’s behalf. However, the AUSA will still rely heavily on the evidence presented to them.

But if the presentation is a request for more information from the government, what information will you get back? In some cases, the AUSA will tell your lawyer whether a conviction is more likely than not. Often, they will agree to provide other information. In other cases, they will simply send a short response stating that you have provided insufficient information to warrant a declination.

A pre-indictment presentation will provide you with some degree of insight into the AUSA’s perception of your case. However, it won’t give you pre-indictment discovery. No rule grants targeted individuals the general right to demand information from prosecutors, and that’s unlikely to change in the future.

If you are concerned that federal prosecutors are preparing to bring charges against you, time is of the essence. Pre-indictment interventions generally only work if counsel can reach the AUSA before charges become public. Here, our law firm offers free consultations with a defense attorney who has more experience in federal criminal court than all federal judges combined. To talk with our lawyers, call us today or click here.

Todd Spodek is the managing partner of Spodek Law Group, a second generation criminal defense firm that has been practicing since 1976.

How Can Outreach and Presentations Avoid Waiving Rights and Creating Evidence?

Can outreach and presentations expose you to further risks, or can you reach out to federal prosecutors and investigators without risk of waiving your rights and creating evidence that could be used against you in court? The answer is yes, you can, so long as your lawyer knows the right approach.

To contact the AUSA without exposing defenses or creating evidence for the prosecution, your lawyer may, among other things:

• Carefully choose what information to disclose in the pre-indictment memorandum;
• Avoid addressing the case’s core facts;
• Focus on mitigating reasons, such as a lack of record;
• Avoid admitting elements of the offense; and,
• Approach the AUSA with an open line of communication for purposes of gathering information.

Counsel may then make a judgment call on when and how to build the AUSA’s case in order to best protect the client’s rights, in order to either achieve a total avoidance of indictment or present a more favorable image to the prosecutors.

As our lawyers have explained above, your lawyer will carefully select what information to share with federal prosecutors. One of the most crucial elements of the attorney-client relationship is that the lawyer keeps the client’s information private. In legal terms, this is known as the attorney-client privilege. While it protects communications, however, the attorney-client privilege does not apply to the underlying facts of your case.

Within this scope, the work-product doctrine may protect the investigative impressions of your lawyer and defense team members. However, voluntary disclosure to prosecutors does not qualify for protection under this doctrine.

As a result, even if the federal investigators and prosecutors’ actions are limited in the first instance, disclosures can still pose risks. Here, federal rules don’t always apply, and the outcome can depend on the specific laws of the jurisdiction in which your lawyer has contacted the AUSA.

As for disclosure to federal investigators, voluntary disclosures do not qualify for attorney-client privilege protection. The Fifth Amendment, however, generally protects the target against government-compelled self-incrimination in criminal investigations and during federal criminal prosecutions. It is possible to waive these protections as a result of voluntary admissions, so it’s crucial that you avoid speaking to federal investigators or AUSAs.

The question then becomes how your lawyer will present a pre-indictment memorandum to an AUSA without the risk of creating evidence. Some lawyers, such as, federal prosecutors themselves, will claim that you can communicate in confidentiality with the AUSA. However, if the target gives information that is admissible against him, that may present grounds for indictment. As a result, your lawyer must carefully structure pre-indictment communications to avoid creating evidence for the prosecution.

Under Federal Rule of Evidence 410, communications during plea negotiations are inadmissible at trial. While Rule 410 can protect pre-indictment communications with the AUSA, it is important that you only discuss the case in the context of a potential plea. If not, Rule 410 protection will not apply.

Further, if your lawyer makes a representation on your behalf to the AUSA within the scope of the representation, those statements may be treated as your own under Federal Rule of Evidence 801(d)(2)(C) and (D) and can be admissible against you, which is why the wording of any pre-indictment communication matters.

What Should I Do After Getting a Federal Grand Jury Subpoena?

The answer depends on the nature of the grand jury subpoena and how the grand jury is using it. Grand jury subpoenas appear in two main forms:

If you get called to testify before the grand jury, you may not have to stay in the room for the duration of your testimony. You may be able to step out of the grand jury room to consult with your lawyer after any question from the prosecutors. Your lawyer will not be able to hear your testimony, but he or she may be able to help you answer the prosecutor’s questions.

But what if you have received a grand jury subpoena requesting documents? If so, you may be able to respond to the subpoena and retain certain information. Your lawyer will need to evaluate all information that may be potentially protected by constitutional, statutory, or common law privilege, or other laws that protect information for privacy, security, and other reasons.

And what if you have received a grand jury subpoena that is demanding both your testimony and any documents that are in your possession? If so, you should talk with your lawyer as soon as possible. If you ignore your grand jury subpoena, you may run the risk of contempt and other sanctions. However, Rule 17(c)(2) provides that the court may quash or modify the subpoena if it is unreasonable or oppressive. To avoid unnecessary risks, you should engage with prosecutors and grand jurors as soon as possible to try to find a solution.

But if you are subject to a grand jury subpoena that is not unreasonable, should you still refuse to produce all documents? A grand jury subpoena for documents may demand production of records that may be interpreted as testimonial. For example, by producing a record, the recipient may be deemed to admit to the existence of a record, the possession of a record, and the authenticity of the record. This can constitute a waiver of the privilege against self-incrimination.

As for the privilege against self-incrimination, a corporate custodian cannot invoke this privilege in order to withhold corporate records in a grand jury investigation. The Supreme Court determined this in the seminal case, Branch Banking & Trust Co. v. United States, 396 U.S. 163 (1969).

Regardless of how a grand jury subpoena may impact you, you should communicate with prosecutors as soon as possible. When appropriate, your lawyer can request:

• A change to the date of appearance,
• A narrower date range,
• Rolling productions,
• Change in format, or,
• The right to invoke the privilege against self-incrimination.

What Outcomes Count as a Success Pre-Indictment?

In many cases, a civil or regulatory resolution can serve as a substitute for criminal charges. If you have received a grand jury subpoena, you should consider these types of outcomes in your strategy.

In corporate cases, two other outcomes may be available in addition to avoiding criminal charges. These outcomes are non-prosecution agreements (NPAs) and deferred prosecution agreements (DPAs).

• An NPA allows for the resolution of the investigation by agreement with the prosecutor, and as long as conditions are satisfied, no criminal charges will be filed.
• A DPA involves a prosecution. However, the prosecution is deferred while the defendant fulfills all conditions of the DPA. If the conditions are satisfied and no further crimes are committed, the government agrees to dismiss the case.

Wait, what happens if the government intends to seek an indictment and there are no grounds to avoid one? In this case, an outcome that could be a “win” for the defendant is filing by information. An information is the federal equivalent of a formal complaint, and an information is generally used for plea deals. A defendant may be able to avoid a formal grand jury indictment in a noncapital case if he signs a written waiver (Rule 7(b)).

In some cases, restituing the victims or paying restitution will provide grounds to avoid criminal charges, but federal criminal liability cannot be extinguished by paying restitution alone.

Depending on how far the case has progressed, you may be able to use pre-indictment negotiations to arrange for a voluntary surrender. This allows the defendant to surrender to federal authorities rather than being arrested in his home.

Another good pre-indictment outcome for a defendant is federal declination. If the prosecutors decide not to bring an indictment, their decision will remain internal. This will not result in any entry of the outcome in public court dockets.

In a variety of criminal offenses, defendants’ counsel may be able to negotiate a government-sponsored substantial-assistance departure prior to indictment. Pursuant to U.S.S.G. § 5K1.1, this allows prosecutors to request a more lenient sentence than recommended by a sentencing guidelines range if the defendant’s aid was substantial.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.