Should I Respond to a Target Letter Without a Lawyer??

According to the Department of Justice’s Justice Manual, a “target” is defined 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.

A federal target letter is notice that the United States is conducting a grand jury investigation against the individual who has been designated as a target of the investigation. But receiving a target letter does not mean that you have been criminally charged with a federal offense. It does not mean that you have been indicted by the grand jury, either.

When prosecutors issue target letters, it is generally because the grand jury investigation has already progressed substantially. If you have received a target letter, then the investigation is substantially advanced, and prosecutors believe they have already conducted enough research to move forward with a federal criminal case against you.

While responding to a federal target letter is entirely voluntary, you should be cautious. Any voluntary reply to the prosecutors who issued the target letter could potentially be used against you as evidence in a future federal criminal prosecution.

The United States Attorney’s Manual also defines the term “subject,” stating that it refers to:

• a person whose conduct is within the scope of the grand jury’s investigation.

A witness or a subject can later become a target. Although receiving a target letter indicates that you are at risk for indictment, it does not mean that you will ultimately be indicted. Many United States Attorney’s Offices issue target letters in the course of a grand jury investigation and ultimately decline to seek an indictment.

What should I do immediately after receiving a target letter?

1. Confirm if Your Letter Includes a Subpoena

You should first read your federal target letter carefully. Determine if your letter includes a subpoena to appear for testimony, to produce documents, or to produce electronic data. If you have received a federal subpoena, then you must respond to the subpoena within the time that is stipulated, unless your federal defense lawyer negotiates an extension with prosecutors on your behalf.

2. Identify Every Appearance, Production, or Contact Date

In addition to ensuring that you can comply with any subpoena deadlines, read your target letter to identify any other requested appearance dates, production dates, or contact dates. Then, create a calendar that you can share with your federal defense lawyer.

3. Preserve Any Potentially Relevant Documentation

You should also preserve any records that could potentially be relevant to the federal grand jury investigation. This includes paper documents, electronic records, and financial records. If you have any concerns about document preservation, you can reach out to your defense attorney to learn more about what you need to do.

4. Hire an Experienced Federal Defense Lawyer

The best next step is to hire an experienced federal defense lawyer to review your target letter and make any substantive response on your behalf. This is important because you will need to engage with federal prosecutors and agents, so you need a lawyer who knows how to protect you in these conversations.

While you do not want to ignore the allegations against you, you also do not want to say something that you will regret later. This is a delicate balance, and it is one that is best handled by a federal defense lawyer who has prior experience defending clients in target letter investigations.

5. Decline to Give an Interview Without a Lawyer

In target letters, prosecutors sometimes offer to interview the target or provide them with an opportunity to meet with agents on a voluntary basis. Although this interview can be beneficial in some cases, you do not want to respond to your target letter without first consulting your lawyer.

If you are contacted for a voluntary interview, you may want to decline until you have spoken to your attorney. Be clear but polite, and let the agent know that your counsel will respond.

While you have the right to refuse to interview with the U.S. government, you will want to be certain about what you need to do when communicating with the agents. You may want to ask for the agents’ business cards as well, so that you can share this information with your lawyer.

Note that you do not need to discuss any details of the investigation with agents when requesting a business card.

6. Verify Your Target Letter

While this may seem unnecessary, you should verify that you have actually received a target letter from the U.S. government. If you have any doubts about the legitimacy of the letter you received, you can get in touch with the corresponding U.S. Attorney’s Office using independently sourced contact information from an external source, such as their official government website.

You may want to ask a clerk to confirm that the letter was sent by that office to you. Again, you can do this without discussing the allegations in your target letter.

Does a target letter require me to respond?

A target letter does not require you to respond in and of itself. However, if your target letter comes along with a grand jury subpoena, that subpoena compels you to respond.

A target letter and a grand jury subpoena are two separate and distinct legal documents. While a target letter is essentially a courtesy notice that tells you that you are a target in a grand jury investigation, a grand jury subpoena is a legally binding document that requires you to respond as specified, subject to valid privileges or other court-recognized objections.

You may receive a grand jury subpoena that is attached to your target letter. Or you may receive a subpoena independently. Regardless, if you received a grand jury subpoena, you will need to comply. If you received a subpoena, your federal defense lawyer can help you explore several options. These options include obtaining an extension, attempting to have the subpoena quashed, or challenging it in court.

5. What Happens if I Ignore a Grand Jury Subpoena?

If you disobey a grand jury subpoena, this can lead to contempt of court sanctions. Under 28 U.S.C. Section 1826, a court may order a witness who refuses without just cause to comply with a grand jury subpoena confined until he or she complies, for a period not to exceed 18 months, and a court may separately impose criminal contempt penalties under 18 U.S.C. Section 401.

6. When Must I Respond to a Grand Jury Subpoena?

The date on a grand jury subpoena establishes your deadline for appearing for testimony or producing the evidence requested by prosecutors. Depending on the nature of the subpoena, it may require your immediate appearance, or it may establish a deadline of days or weeks in the future.

7. Is a Target Letter Required Prior to a Federal Grand Jury Indictment?

No, issuing a target letter is not required prior to obtaining a grand jury indictment. However, if prosecutors are conducting a grand jury investigation against you, receiving a target letter is quite common.

The target letter will also typically outline your Fifth Amendment right to refuse to provide testimony or evidence that could potentially be used against you. It will also usually be clear about when you can expect the outcome of the grand jury investigation.

3. How can speaking with prosecutors make a criminal case worse?

Even if the information that you provide to prosecutors is truthful, it is not necessarily a good idea to give a statement without first consulting your defense attorney. Even truthful admissions can help prosecutors establish the elements of the offense with which you are being charged.

4. Does 18 U.S.C. Section 1001 apply when you are responding to a federal target letter?

Yes, Section 1001 applies when you respond to a target letter. Section 1001 is a federal criminal statute that applies to knowingly and willfully making materially false written or oral representations and, in limited circumstances, concealing material facts by trick, scheme, or device. Specifically, Section 1001(a) covers:

• “Whoever, in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States Government, knowingly and willfully makes any materially false, fictitious, or fraudulent statement or representation; or
• Whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the United States Government, knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact.”

The statute applies to all knowingly false written or oral representations, even if the representations are unsworn.

While the Fifth Amendment grants you the right to remain silent, the privilege does not extend to the right to give materially false answers when talking to federal prosecutors or agents. With this in mind, you may want to communicate with the United States Attorney’s Office through a defense attorney.

5. How does it make a criminal case worse to give inconsistent explanations to federal prosecutors?

Providing federal prosecutors and agents with inconsistent explanations can potentially be used against you. The United States Attorney’s Office can potentially use this inconsistency to either (i) undermine your credibility or (ii) impeach your testimony if the case goes to trial.

6. What are the risks of sharing information with family about the U.S. Attorney’s Office?

Sharing information with family members about the information contained in your target letter is unlikely to help your case. Unless you engage family members for legal advice, conversations with family members are not protected by the attorney-client privilege.

7. Can an attorney respond to a target letter on my behalf without contacting the U.S. Attorney’s Office?

No, if you want your attorney to respond to your target letter on your behalf, your attorney will need to make contact with the U.S. Attorney’s Office on your behalf. However, this does not mean that you can be questioned by the federal prosecutors or agents.

8. What are the penalties for violating 18 U.S.C. Section 1001?

A violation of 18 U.S.C. Section 1001 can result in up to five years of imprisonment.

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.

How should I handle a subpoena for documents?

1. Avoiding Document Destruction Charges

Under 18 U.S.C. Section 1519, you can face up to 20 years of imprisonment for altering, destroying, or concealing records in the intent to “impede, obstruct, or influence” a federal investigation. When you are serving as a federal grand jury subpoena’s recipient, you should be very careful when disposing of any evidence that could potentially be used against you.

Section 1519 prohibits the destruction of records, documents, or other tangible objects “in relation to or in contemplation of” a federal grand jury investigation. With this in mind, you should avoid destroying any records, documents, or other tangible objects if you are unsure of whether you could face Section 1519 charges in the future.

2. Avoiding Unprotected Disclosure

If you need to respond to a grand jury subpoena by producing documents, then you should work with an attorney to ensure that no attorney-client privileged information is disclosed. Your attorney can perform a privilege review of all records, documents, and other tangible objects and withhold those covered by the privilege.

3. Avoiding Scope Violations

When responding to a grand jury subpoena for documents, you must also be careful to stay within the subpoena’s scope. Producing records, documents, or other tangible objects not requested can potentially be used against you in a federal grand jury investigation.

4. Avoiding Fifth Amendment Violations

In addition to avoiding scope violations, you should avoid doing anything that could potentially be testimonial. In fact, the act of producing records, documents, or other tangible objects can itself be testimonial under the Fifth Amendment. With this in mind, you should work with your defense attorney to ensure that you do not violate the Fifth Amendment when responding to a grand jury subpoena.

5. What if Federal Prosecutors Ask Me for a Password or Electronic Encryption Key?

As a federal grand jury subpoena’s recipient, you could be required to produce the password, pin, or electronic encryption key to any computer or device. If so, this is another example of testimonial production, and you may be entitled to withhold the password, pin, or encryption key under the Fifth Amendment.

Again, work with your attorney to determine if you have the right to refuse to provide the password, pin, or encryption key to federal prosecutors or agents.

6. How Do I Know if I Can Object to a Grand Jury Subpoena?

The Fifth Amendment privilege generally does not permit a custodian to resist production of an entity’s records on the ground that production may incriminate the custodian personally. With this in mind, if you have been served as a corporate records custodian, you may not be able to invoke the Fifth Amendment privilege to object to a grand jury subpoena.

Additionally, transmitting a business record to an attorney does not make the record privileged. With this in mind, transmitting a business record to an attorney should generally not shield the record from production.

Is it safe to attend a federal proffer meeting?

1. Can cooperation affect sentencing?

Offering cooperation is not the same as granting immunity, and you should not expect the U.S. government to provide you with immunity in return for cooperation. While cooperation can influence charging and sentencing decisions, neither leniency nor immunity is guaranteed.

2. What protections does a proffer agreement provide?

A proffer agreement provides you with protections that are limited to the written terms of the agreement. This is a critical distinction, and you should not assume that any proffer agreement is equivalent to immunity.

3. Is a proffer agreement the same as transactional or blanket immunity?

Proffer agreements are not necessarily equivalent to transactional immunity, which prohibits prosecutors from charging you for certain offenses. Proffer agreements often establish that the U.S. government can still prosecute you for those same offenses. This is the same for blanket immunity as well, which prohibits prosecutors from using certain types of evidence to prosecute you.

4. Can the U.S. government use my proffer statements in a federal criminal trial?

Proffer agreements often preserve the U.S. government’s ability to use your proffer statements to impeach or rebut your testimony at trial.

5. Can the U.S. government use information I disclose during a proffer meeting?

If you provide proffer information to federal prosecutors, then they can likely use that information to pursue evidence for a subsequent investigation or prosecution. If you have any concerns about using your information to pursue evidence, this will be a good time to discuss this with your defense counsel.

6. Can a proffer agreement be used to prosecute you for making a false statement?

Proffer agreements often reserve the U.S. government’s ability to use the information disclosed by a target letter recipient to substantiate a false-statement prosecution under 18 U.S.C. Section 1001 or another federal criminal law.

7. Can your proffer affect your sentencing?

If you have a written proffer agreement that allows the U.S. government to use the information that you disclose during your proffer meeting in sentencing, then that is another option as well.

8. What are federal sentencing guidelines?

If your written proffer agreement allows the use of your proffer statements during your sentencing, it could be that your sentencing guidelines are subject to an upward adjustment. While federal prosecutors cannot insist on a specific sentence under the U.S. Sentencing Guidelines (U.S.S.G.), which are advisory, federal judges can still impose sentences at or above statutory mandatory minimums.

Should I testify before the federal grand jury?

1. Can a target letter recipient testify before the federal grand jury?

The Department of Justice (DOJ) encourages the use of cooperation in criminal cases, and the target letter recipients’ privilege against self-incrimination does not prevent them from testifying before the grand jury. In fact, the DOJ’s Justice Manual states: “In general, if a target makes a reasonable request to testify before the grand jury, prosecutors should allow the target to testify without undue delay.”

Of course, a target letter recipient’s lawyer will decide whether or not to testify during the grand jury investigation, based on the specific circumstances of the case.

2. Can my defense lawyer attend the grand jury session?

Defense lawyers cannot attend the grand jury sessions, as the proceedings are conducted in secret. However, defense attorneys can be present outside the grand jury room. This means that you can leave the grand jury room and speak to your lawyer in confidence.

3. How do I invoke my Fifth Amendment privilege if I am required to testify before the grand jury?

If you are called as a grand jury witness, then you will likely need to invoke your Fifth Amendment privilege. Depending on your circumstances, your lawyer will determine whether you should invoke the privilege on a question-by-question basis, or if there are other circumstances.

4. Do I have a right to appointed counsel when responding to a target letter?

Under the Sixth Amendment, the right to appointed counsel generally attaches when formal proceedings begin (at the present state of the legal system). This means that when you are facing a criminal indictment, you have the right to have a lawyer, and if you are financially unable to afford one, the Sixth Amendment guarantees you a right to appointed counsel.

At this stage, your defense lawyer should be able to explain your legal options. A target letter does not, on its own, entitle you to appointed counsel.

5. Can I request appointed counsel to respond to a target letter?

The U.S. Attorney’s Office generally appoints counsel for defendants who are financially eligible under 18 U.S.C. Section 3006A. Again, remember that receiving a target letter does not entitle you to appointed counsel.

6. Does testifying before a federal grand jury carry any risks?

Yes, testifying before a federal grand jury carries the risk of prosecution for perjury. Along with perjury, a witness can face obstruction of justice charges if federal prosecutors can use the witness’s testimony to substantiate the allegations. If you need to provide testimony, make sure you communicate with your defense counsel.

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.