Signs the FBI May Already Be Looking at You.

The FBI does not tell the target of an investigation that an investigation is happening. Instead, they often let the target go about their daily life while they build the case for months or years.

In some cases, arrest or indictment will be the first (and only) time a person learns that the FBI had been investigating them. As we discussed above, the FBI wants to gather as much evidence as possible before alerting the target. Arrest is a very effective way of securing evidence (like devices) and of preventing the target from being able to destroy or shred anything.

When visible warning signs finally emerge, it usually only happens after the FBI has already done some substantial work. If you are starting to see things that make you think you are being targeted, it usually means that the FBI has already gathered a substantial amount of evidence.

For example, in most white-collar criminal cases, the FBI gathers records (via subpoenas and other means) before it contacts its target. It also often interviews witnesses before it contacts the target.

If the FBI is investigating a white-collar crime that involves email or other electronic data, it can access the device without changing how it works; it simply intercepts or downloads data.

If the FBI has evidence that you’re going to commit a crime, it may not notify you. It may wait until you commit the crime, then execute a warrant.

You may begin to see the consequences of an FBI investigation if the FBI has already discovered the evidence of an alleged crime through tips, referrals, and/or cooperating witnesses.

You may also start seeing indicators of an FBI investigation if the FBI found evidence of an alleged crime through a whistleblower, particularly in white-collar cases.

Which FBI investigation warning signs are most reliable?

The FBI (or other federal agency) wants to gather as much evidence as possible before they reveal themselves. Once you see signs that you are the focus of a federal investigation, it’s often too late to say whatever you think will clear things up. There will always be a better way to proceed.

1. Target Letter

A target letter is an official letter from the United States Attorney’s Office notifying you that you are a target of a federal investigation. At this point, prosecutors have generally concluded that they have substantial evidence linking you to a crime and that they consider you a putative defendant, meaning an indictment may be imminent.

2. Agents at Your Home or Work

If federal agents show up at your home or at your workplace without a warrant, they are looking for information. While they might ask for a consensual interview, this doesn’t mean that the FBI does not have a warrant or is not willing to use one if you don’t comply.

3. Grand Jury Subpoena

A grand jury subpoena is an order from a United States Attorney’s Office commanding you to either testify, produce documents, or produce copies of your emails, recordings, or other media.

Whether the grand jury subpoena is for yourself or for a third party, it represents a formal demand for evidence.

4. Search Warrant

By the time the FBI executes a search warrant, the investigation is generally advanced. This often means that there was sufficient evidence to convince a federal judge to sign the search warrant.

Of course, if the FBI has a search warrant, it is usually safer to wait and see what evidence the FBI has. But, again, it doesn’t mean that the FBI won’t charge you.

5. Your Associates Get Interviewed

If the FBI is interviewing your current or former associates, they have a reason for doing so. They may be looking for information about you, and this could mean that you are the primary target of the investigation.

6. Surveillance

The problem with surveillance is that there are no visible indicators that your home or device has been breached. While there are some methods for determining if your home or device has been breached, you are more likely to see indicators of a formal investigation.

These indicators are far more reliable. If you are starting to notice indicators of a formal investigation, don’t assume that the FBI is not interested in your case.

7. Former Employees Get Interviewed

In white-collar criminal investigations, the FBI commonly interviews current and former employees. If your former employees are being interviewed, it’s likely that they are being asked about you and about your company’s business dealings.

Am I a witness, subject, or FBI target?

Within the federal criminal system, the Department of Justice (DOJ) has established several specific roles for individuals in investigations. While a person can fill more than one of these roles at once, in most cases, a person will be either a witness, subject, or target.

A person is a target when DOJ personnel (such as federal agents and prosecutors) have substantial evidence linking the person to a crime. While the evidence may be sufficient to support an indictment, the person is not yet necessarily charged.

Witness

A witness is someone whom the DOJ believes has information that is useful to its case. While it is possible that a witness may become the subject or target of the case, a witness status itself carries no implication of wrongdoing.

Subject

A subject is someone whose conduct is within the grand jury’s investigative scope, but there isn’t enough evidence to warrant the person’s target status. A subject may become a target if the DOJ uncovers more evidence.

Target

A person is considered a target when the DOJ has “substantial evidence” that the person committed a crime. Under Federal Rule of Criminal Procedure 7, an offense punishable by more than one year in prison must be prosecuted by grand jury indictment unless the target waives that right in open court and agrees to be charged by information.

However, before indicting a target, the DOJ will often send a target letter. While this is a strong indicator of an impending indictment, the recipient of a target letter can still avoid indictment by speaking with a federal prosecutor.

If you find out that you received a target letter or are a target of a federal investigation, it is imperative to speak with a defense lawyer immediately.

How Can I Determine My Status in a Federal Investigation?

If you believe you are being investigated by the FBI, a few simple steps will help determine your status in the investigation.

A lawyer will contact the case agent or an Assistant U.S. Attorney. If the government is willing to confirm or deny whether an investigation is currently open, your lawyer will be able to find out.

However, the government may refuse to confirm or deny whether a criminal investigation is currently open. Sealed filings may also mean that a search of the public docket won’t be helpful.

Can My Witness, Subject, or Target Status Change?

Yes, it is entirely possible for a witness, subject, or target to change status. If you are a witness in a federal investigation and DOJ personnel find evidence that you were involved in a crime, you can change from a witness to a target.

Conversely, if DOJ personnel find no evidence of your involvement in the case, you can move from a target status to a subject or witness status.

In a criminal case, target status can carry negative implications. Not only do you want to avoid an indictment, but you may want to avoid any implication that you were involved in the alleged criminal activity. In some cases, this may involve avoiding a guilty plea.

What should I do if FBI agents contact me?

If FBI agents contact you, don’t panic. Simply ask for their identification and then walk away while you are looking for your lawyer. The agents may be willing to wait, and there is no requirement that you agree to be interviewed immediately.

In fact, while FBI agents can make consensual approaches without obtaining any warrant, you have the right to refuse. The agents cannot demand that you speak with them. While it is common for FBI agents to use “the carrot” by letting targets know they are willing to accept an interview that would result in no criminal charges, it may be a tactic that makes it more likely for FBI agents to find evidence to charge you.

Can I Ask for My Lawyer?

Yes, you have the right to have a lawyer with you. While FBI agents might tell you that you’ll only be questioned for a few minutes, it’s never in your best interest to be interviewed without your lawyer present. Requesting counsel is a lawful act.

Do I Have a Right to Remain Silent?

Yes, but not in the way you may think. While federal prosecutors do not need to give you Miranda warnings before questioning you in noncustodial settings, you must still remember your Right to Silence. The Right to Silence applies in all settings, regardless of whether Miranda warnings have been given. While the Right to Silence does not protect against “material falsehoods,” it is possible for a lawyer to be able to protect you from the repercussions of giving the wrong information.

At this point, if you don’t have a lawyer, the best thing to do is to end the interview and request a lawyer.

What Are the Risks of Speaking with the FBI?

The risks of speaking with the FBI are very significant. Under 18 U.S.C. § 1001, will you make material false statements to a federal agent? The offense requires a willful intent to provide a material false statement in connection with a federal investigation, which is a federal felony.

How Can I Determine If Someone Is Actually an FBI Agent?

If someone contacts you claiming to be an FBI agent, there are two steps to verifying their credentials.

The first step is to ask for their badge. If the person refuses, walk away while you search for your lawyer. If the person presents their badge, the next step is to call the FBI agent’s designated agency and ask for the official switchboard. Once connected, ask for the FBI agent’s name and badge number to make sure it is the same one that was presented. In all cases, it is important not to discuss any facts with the caller prior to verifying their credentials.

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

What should I do during an FBI search?

If the FBI executes a search warrant at your home or at your workplace, remember the following:

First, the FBI may have a search warrant. If you don’t have a lawyer present, it is important to request a lawyer to confirm whether they have a search warrant.

If they do have a search warrant, you do not need to answer any questions.

Second, if the FBI has a search warrant, you need to know what information the FBI can access and what the FBI is entitled to take. The search warrant must describe with particularity the place to be searched and the items the agents are authorized to seize.

Additionally, under Federal Rule 41(f)(1)(C), when federal agents execute a search warrant, they are required to provide the recipient with a copy of the warrant and a receipt of anything the federal agents seize. Under Federal Rule 41(f)(1)(B), federal agents are also required to provide an inventory of all items that federal agents seized under the warrant.

Third, if you are present during a warrant execution, remember that you have the right to not volunteer information. While you may not be able to prevent the agents from searching your residence, you may want to point out any privileged materials that you want to remain confidential. As long as you do not physically obstruct the search, you have the right to do what you must to protect your privacy.

Fourth, if you are present during a warrant execution, remember that you do not need to consent to any searches beyond those that are within the scope of the warrant. In many cases, the FBI agents may try to convince the occupant to grant a consensual search. Even if you don’t have any concerns regarding your privacy, it is always safer to decline.

Fifth, if the FBI is executing a search warrant, you may have concerns regarding the agents’ probable cause for the warrant. However, remember that agents only need probable cause that the item they’re searching for is present in your home or place of business. Having a search warrant executed does not mean that the occupant of the home or place of business is guilty of a crime.

Regardless of the agent’s probable cause, you may have substantial concerns that are based on the evidence. This is not the time for raising any concerns. Instead, just try to determine as much as you can, while remaining quiet and cooperative.

Finally, if you are present during a warrant execution, remember to remain compliant. If you physically obstruct a federal agent during a warrant execution, this can have serious consequences. Search warrants require that the agents have probable cause, which is approved by a judge.

Am I at Risk for Prosecution?

How should I respond to a federal grand jury subpoena?

If you receive a grand jury subpoena, it is important to remember that you need to give an adequate response. If you ignore a subpoena, the presiding judge can hold you in contempt. However, if you are unsure whether you need to respond, it is important to consult with a lawyer.

As we discussed above, a grand jury subpoena is a compulsory legal demand for information. While your lawyer may be able to persuade the DOJ to narrow or quash the subpoena in some cases, your lawyer may need to file a motion with the court to have the subpoena quashed or narrowed.

What Should I Do if I Get a Grand Jury Subpoena?

If you receive a grand jury subpoena, you should immediately contact an attorney to speak with the prosecutor and the court. Before producing any records, you must review the documents for privilege. If you provide records that are privileged and you fail to request the opportunity to review the records before production, the records may no longer be protected.

Your lawyer should work with the DOJ to determine the scope of your response. This negotiation may take additional time, and your lawyer may need to negotiate the deadline for responding to the subpoena.

Is It Possible to Fight a Grand Jury Subpoena?

Depending on the subpoena, it may be possible to fight the subpoena or fight the scope of the subpoena. While federal judges’ authority to enforce grand jury subpoenas is broad, this authority is subject to certain limits. While a grand jury subpoena for a corporate entity will generally be enforceable, individuals will be entitled to certain protections under the Fifth Amendment.

The Fifth Amendment’s privilege against self-incrimination applies to the act of production of records as well. This means, regardless of whether you are the person whose record was created, if giving records to the government exposes you to criminal charges, this could implicate the act-of-production issues as well.

While the Fifth Amendment protects individuals, it does not protect corporate entities. While corporate agents may be able to use the Fifth Amendment to protect themselves, the privilege generally does not extend to corporate records.

How Can I Determine if a Grand Jury Subpoena Is Legitimate?

If you receive a grand jury subpoena, you can verify the legitimacy of the subpoena. You can verify the identity of the attorneys listed on the subpoena with the relevant bar association, and you can call the issuing court clerk’s office to confirm that the subpoena was issued. If you have questions about the legitimacy of the subpoena, your lawyer can answer them before you file a response.

How Likely is the Court to Enforce a Grand Jury Subpoena?

Absent privilege, a burdensome nature, or other legal defects, courts will generally enforce grand jury subpoenas in most cases.

What Should I Do While Counsel Investigates on My Behalf?

While your lawyer is investigating on your behalf, the best thing you can do is to speak with your lawyer and not talk to anyone else.

Conversations between clients and their lawyers are generally protected by the attorney-client privilege. However, communications with friends, family, coworkers, or business partners are generally not protected. If you discuss the investigation with anyone else, this information can be used to try to prove your guilt.

If you suspect an investigation, this is also the time to speak with your lawyer about what information you need to preserve. In many cases, evidence deletion is not an option, it only creates more exposure. Even if you are not currently being charged with a crime, deleting or destroying evidence can expose you to criminal charges.

What Is a Preservation Hold?

A preservation hold is a demand to stop all routine data destruction. If you have document or electronic data destruction policies in place, you need to suspend these policies. If you don’t have these policies in place, you should still take steps to preserve documents and electronic data.

In white-collar criminal cases, a preservation hold will also include an obligation to make sure that any potential data you have is not deleted. If you have control over emails, you should instruct the appropriate people (i.e., your IT staff) to stop all data destruction.

Essentially, a preservation hold is an obligation to not engage in data destruction. However, if you are being accused of destroying evidence, you could face criminal charges.

How Do I Respond to a Preservation Hold?

If you receive a preservation hold from the government, your lawyer will be able to advise you on what steps you need to take.

If you receive a preservation hold, it is important to respond appropriately. At a minimum, this may mean notifying the appropriate parties and ensuring that routine deletion or document destruction policies are suspended. Your lawyer can be able to advise you on what additional steps you need to take.

What if I Do Not Have Evidence that I Am the Focus of an FBI Investigation?

If you are not the focus of a federal investigation, you should not discuss the case with anyone. If you are a person involved in a white-collar criminal case and the government has not contacted you yet, it is safer to assume that the government is going to interview your associates and try to find evidence of your involvement in the alleged crime.

If you suspect an investigation is underway, you should not reach out to these associates directly. This is a bad idea because your lawyer may be able to speak with your associates in a less conspicuous manner.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.