Signs You're Under Federal Investigation Before Anyone Contacts You.

The federal government is not generally required to notify individuals when they are under investigation. Instead, the authorities conduct their investigations in secret. Federal law enforcement agents have ample time to collect evidence. A federal criminal investigation can go on for months or years before it is revealed.

If the federal government has targeted you for a criminal investigation, there are several things that you need to consider. First, the federal government may not be legally required to notify you that it is investigating you. If federal law enforcement agents contact you and request an interview with federal authorities, this does not mean that you have committed any crimes.

As a result, the request for an interview is voluntary. You can decline a request for an interview, and you can seek the advice of federal defense counsel before speaking with federal authorities.

If you discover evidence that you are being investigated, preserving any relevant physical or electronic records will be essential. Destroying records can raise additional concerns and can add to the risk of facing criminal charges for obstruction of justice.

The statute of limitations is the maximum time in which the government can initiate criminal prosecution. While some federal criminal statutes of limitations are relatively short, the statute of limitations for many federal offenses is much longer. There are several federal statutes with no time limit (i.e., no statute of limitations), including 18 U.S.C. § 3281, which covers capital offenses. Additionally, 18 U.S.C. § 3293 provides a ten-year statute of limitations for bank fraud, and 26 U.S.C. § 6531 provides a six-year statute of limitations for various “specified tax crimes.” Furthermore, as outlined in 18 U.S.C. § 3290, any time that someone spends “fleeing from justice” does not count toward the statute of limitations.

What are Real Pre-Contact Signs of a Federal Investigation?

For those who are worried about the possibility of being the subject of a federal investigation, the following are some of the real signs that can warrant immediate concern, even in the absence of a direct contact attempt from the government.

1. An Expiration of a Gag Order Under 18 U.S.C. § 2705(b)

As a general rule, when the federal government issues a grand jury subpoena to a service provider seeking disclosure of its subscriber information, it will also issue a gag order under 18 U.S.C. § 2705(b) to prevent the service provider from notifying its subscriber.

Gag orders are typically time-limited. Once the gag expires, the service provider is allowed (but not always required) to disclose the existence and timing of the order to the subscriber. As a result, an account holder may receive an email notification after the fact from the service provider with information such as:

• The time of the order’s issuance
• The time of the order’s expiration
• The federal law enforcement agency or branch of the federal government that issued the order

2. An Ungagged Grand Jury Subpoena

While grand jury subpoenas are usually accompanied by gag orders under 18 U.S.C. § 2705(b), this is not always the case. If the federal government does not request a gag order, the service provider is free to notify the subscriber.

In such cases, the service provider will send an email to notify the subscriber that its account records have been handed over to the government.

If you receive a notification from your email service provider, financial institution, or any other service provider indicating that your account records have been produced in response to a federal grand jury subpoena, this is a clear and immediate sign that the federal government is conducting a criminal investigation.

3. A Title III Inventory Notice

Title III wiretaps are a type of electronic surveillance that may be used by federal law enforcement when pursuing criminal charges for drug offenses, money laundering, fraud, Racketeer Influenced and Corrupt Organizations (RICO) violations, and other serious crimes.

Under Title III, once an interception ends, the federal government must send a written notice containing an “inventory” of the intercepted records to the target of the wiretap. The notice must be sent within 90 days after the interception ends. Generally speaking, the inventory notice is the only type of pre-contact notification a Title III wiretap target may receive.

While receiving a Title III inventory notice is one of the most direct signs that you are the target of a federal criminal investigation, it is not necessarily a sign that you will face prosecution.

4. A Notice of Execution of a Delayed-Notice Search Warrant

Under 18 U.S.C. § 3103a, the government can execute a search warrant with notice of the search delayed. This typically allows the government to seize physical and electronic evidence without notifying the target of the warrant, and it often allows the government to conduct covert surveillance for days, weeks, months, and potentially years.

Under 18 U.S.C. § 3103a, the government must provide notice that it has executed a delayed-notice search warrant after a set period of time. Generally, the notification time will be 30 days after execution, but this can be extended upon a federal judge’s approval.

If you receive a delayed-notice search warrant notification+OR+(granuleid:USC-prelim-title18-section3103a)&f=treesort&edition=prelim&num=0&jumpTo=true) from the U.S. Attorney’s Office, you are likely the target of a criminal investigation.

5. A Notice of Record Preservation Demand

Under 18 U.S.C. § 2703(f), the government has the power to issue preservation demands to third parties. With this authority, federal law enforcement can require any service provider to temporarily preserve a user’s account records for up to 90 days. If the records are kept under a preservation demand, the provider must retain them for an additional 90 days upon a renewed request from the government, for a maximum of 180 days.

While preservation demands do not inherently trigger notice to the account holder, service providers that are not under a gag order can (and often will) disclose these demands. If you receive a notice of a preservation demand from your service provider, this is a sign that you may be the target of a criminal investigation.

6. Modern Federal Surveillance

In the early days of federal law enforcement, surveillance involved watching suspects with telescopes and following them on the street. While these “classic” forms of surveillance still exist, modern federal surveillance differs in two ways: first, it relies heavily on digital records, and second, it is usually not visibly observable.

For example, the government can obtain records of your bank account and social media account information without your knowledge. It can intercept your encrypted communications. It can even use GPS tracking, license plate readers, and other automated data collection systems. This means that, unlike traditional forms of surveillance, modern federal surveillance often leaves no discernible signal that the government is watching.

Can Bank Audits or Civil Demands Be Signs of a Federal Criminal Case?

The short answer is yes, although they can also be signs that something else is going on. While banks, tax authorities, and other administrative agencies have a variety of compliance and enforcement measures at their disposal, they can also work closely with federal law enforcement agencies when suspicious transactions are flagged. With that said, individuals who are concerned about potential issues should always work with their attorneys to determine their best next steps.

1. Account Restrictions

Account restrictions are a relatively common occurrence. Banks and other financial institutions can impose restrictions on customers’ accounts for a variety of reasons, and not all of these restrictions are mandated by federal law enforcement. Banks also impose restrictions as part of their internal compliance efforts. However, as a result of the Bank Secrecy Act (BSA) and other anti-money laundering (AML) regulations, banks may be required to file suspicious activity reports (SARs) or currency transaction reports (CTRs) when customers engage in certain types of transactions.

While banks are generally prohibited from disclosing the filing of a SAR to a customer, banks may restrict accounts based on the risk that the customer has perpetrated a crime. Under current federal regulations, when filing a SAR, banks must have grounds for suspecting a transaction of at least $5,000. However, the $5,000 SAR threshold only applies when the bank can identify a suspect. If the bank suspects the transaction is related to a crime but is unable to identify a suspect, a SAR is still required once the transaction involves $25,000 or more.

On the other hand, banks are generally required to file CTRs when customers engage in currency transactions exceeding $10,000. Again, banks are generally prohibited from disclosing the filing of a CTR to a customer.

2. Bank Audits

Bank audits can also trigger an investigation. Federal banking regulators such as the OCC, FDIC, Federal Reserve, and NCUA regularly examine banks for compliance with the Bank Secrecy Act on behalf of FinCEN, which administers the statute, and those examinations also cover the sanctions programs enforced by the Office of Foreign Assets Control (OFAC). While bank audits are generally not initiated in response to an individual’s specific crimes, they can lead to a referral to the federal government.

3. IRS Civil Examinations

IRS agents can also refer their civil examinations to the IRS Criminal Investigation (IRS CI) division. According to the Internal Revenue Manual (IRM) section 25.1.2.2, when firm indications of fraud are established, “[t]he compliance employee must suspend collection or examination activity, and immediately notify the group manager and the FEA,” and the Fraud Enforcement Advisor then recommends a referral to IRS CI on Form 2797 if the criminal criteria are met.

This refers to cases in which taxpayers under civil examination provide Revenue Agents with “firm indications” of fraud. If this happens, the civil examination is suspended pending a review by IRS CI.

4. Civil Investigative Demands (CIDs)

The U.S. Attorney’s Office and the Department of Justice (DOJ) can also issue Civil Investigative Demands (CIDs) in cases involving the False Claims Act (FCA), and other federal civil statutes. Under 31 U.S.C. § 3733, “ a United States attorney for each District... Shall have the authority to issue a civil investigative demand, and the power to subpoena witnesses, with regard to any civil action to be brought by the United States, and any other matter in which the issuance of a civil investigative demand will aid in the efficient conduct of a civil action.” If you receive a CID from the DOJ, it does not always signal that you face prosecution, but it can have the potential to become a criminal case.

5. Qui Tam Complaints

The FCA also authorizes qui tam actions filed by “relators” in secret. Under 31 U.S.C. § 3730(b), a qui tam complaint is filed “under seal” for the government’s investigative and pre-intervention purposes. This means the government is given at least 60 days to investigate the allegations and decide whether to intervene before the complaint is unsealed. While this process provides opportunities to intervene, it can also reveal a qui tam complaint before it becomes public. If you receive a notice that your records have been subpoenaed by the federal government, you are likely a target of a qui tam action under the False Claims Act.

Todd Spodek and the attorneys at Spodek Law Group handle federal cases of this kind from New York, Brooklyn, Queens and Los Angeles.

Do Target Letters and Grand Jury Subpoenas Mean I Am the Target?

If the federal government sends you a target letter, this is the most direct formal warning that you may face criminal charges. According to the Justice Manual § 9-11.151:

• A target is a person as to whom the prosecutor or a grand jury has substantial evidence linking him or her to the commission of a crime. In the judgment of the prosecutor, a target is a putative defendant.
• A subject is a person whose conduct falls within the scope of a grand jury’s investigation, but for whom the prosecutor has not yet decided whether to seek a criminal charge.

While receiving a target letter does not make an indictment inevitable, it is a strong possibility. However, whether you can be indicted depends on the evidence the government has gathered, and whether you can avoid the risk of facing criminal charges.

Grand Jury Subpoenas

Another significant pre-contact sign of a federal criminal investigation is receiving a grand jury subpoena. A grand jury subpoena is a legal demand that can require you or someone you know (or someone with whom you have a relationship) to produce a particular record or provide testimony at the grand jury hearing. With this type of subpoena, the government can seek:

• Testimony
• Documents
• Emails, messages, and other electronically stored information
• Testimony presented in writing under oath (deposition)

While receiving a grand jury subpoena means that you will (or potentially will) be involved in a criminal investigation, it does not necessarily mean that you are the investigation’s target. Grand jury subpoenas are often used as a tool to gather evidence and uncover information. You could receive a grand jury subpoena not because you have done something wrong, but because you possess information or have knowledge of information about the target of a criminal investigation.

Interviews with Your Associates

When agents are pursuing a suspected target of a criminal investigation, they often interview the target’s associates first. This allows them to uncover evidence and information about the target’s activities, finances, and associations without alerting the target. They then present the findings to the grand jury or the DOJ’s team, which may decide to pursue the case. Because of this, while you may know that your associates are being questioned, this does not necessarily mean that you are the primary target of the investigation.

But why are you aware of this information?

Well, while the federal government is not required to notify targets of their investigations, it must notify targets of their subpoenas. If the federal government has subpoenaed your associates or colleagues, they will be notified. While your associates and colleagues may not be the targets themselves, their relationship to you makes them witnesses in the investigation. While this doesn’t mean that you are a target of the investigation, it is certainly an event that warrants attention.

While having associates and colleagues act differently is a common occurrence in the early stages of a federal investigation, this is not conclusive evidence of federal scrutiny.

What Should I Do If I Suspect a Federal Investigation?

1. Carefully Preserving Relevant Records

One of the first steps individuals who are aware of an investigation should take is to carefully preserve all relevant physical and electronic records. Even if you are not the primary target of a federal investigation, if you have access to relevant evidence, then preserving such evidence will be essential.

As you may know, all electronic devices have a limited capacity, and it is common practice to delete old messages and emails to make room for newer records. However, routine deletion practices should stop as soon as you are aware that you could be involved in a federal criminal case. With that said, you need to make sure that you do not intentionally delete any records that are relevant to the federal government’s investigation.

The federal government aggressively prosecutes suspected cases of destruction of records. Under 18 U.S.C. § 1001, it is a federal offense to provide a “materially false statement” to federal authorities. As explained in 18 U.S.C. § 1519, it is also a federal offense to:

“ destroy, alter, or conceal any record, document, or other tangible object... With the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any court of the United States.”

With that said, this applies in suspected cases of fraud, tax crimes, and other federal offenses. If you destroy any physical or electronic records, you risk being charged for destruction of evidence, which could carry prison time.

2. Staying Silent (With Care)

Staying silent is another critical step when facing a federal criminal investigation. While it is generally advisable to remain silent, how you maintain this silence can make a significant difference in your case. For instance, when the U.S. Supreme Court decided the Salinas case, it said that silence can be used against you unless you explicitly invoke the Fifth Amendment. However, in the Berghuis case, the U.S. Supreme Court held that, in order to invoke the Fifth Amendment, you need to state your invocation clearly and unambiguously. If you only stay silent, you can be accused of withholding information, as you could be withholding information relevant to the government’s criminal investigation.

3. Promptly Consulting with Federal Defense Counsel

If you have information relevant to a federal criminal investigation, then consulting with federal defense counsel promptly will be essential. A lawyer can contact the federal authorities and explain how you can contribute to their investigation or a desire to avoid further involvement. By doing so, you may be able to avoid prosecution. If you think you may be involved in a federal criminal investigation, get in touch with federal defense counsel to determine your best next steps.

4. Avoiding Witness Tampering Allegations

If you have become aware of a federal criminal investigation, communicating with witnesses will be highly risky. As you may know, federal prosecutors and agents are trained to seek out and encourage witnesses and targets of criminal investigations to communicate. As a result, there is a risk that communication could be used against you under 18 U.S.C. § 1512. If you are accused of attempting to “cover up” or “coordinate stories,” then you can face additional criminal charges for witness tampering.

5. Don’t Panic and Understand What Your Rights Are

While receiving a search warrant notification from the federal government is a distressing experience, panicking will not help you. It is essential to remember that a search warrant merely means that federal authorities believe there is a strong probability of finding evidence of a crime committed at the location where they are executing the search. However, this does not necessarily mean the premises’ owner or occupant has committed a crime.

Will I Be Notified If the Feds Are Investigating Me?

Will you be notified if the federal government is investigating you? Not necessarily. The federal government is not required to notify individuals of their investigations. In some cases, an investigation may close without the person ever receiving notice.

While receiving a target letter from federal prosecutors is a direct and clear signal that you are being investigated for a criminal offense, you will not necessarily receive a target letter. Target letters are not legally required notifications. Instead, federal prosecutors have the discretion to issue these letters. As a result, many individuals have never received target letters, and many individuals have faced criminal charges without receiving a target letter.

Are There Deadlines That Require Federal Agents to Finish a Federal Investigation?

Not really. While statutes of limitations restrict the time in which federal authorities can bring charges against a target in court, they do not restrict the duration of investigative activity. Generally, statutes of limitations grant the federal government five years to seek criminal charges under 18 U.S.C. § 3282.

However, some crimes have different or longer statutes of limitations. If the federal government pursues a criminal investigation under a statute with no statute of limitations, agents can take a substantial amount of time to investigate.

If I Received a Target Letter, Does It Mean the Federal Government Believes that I Am the Primary Target of the Investigation?

Not necessarily. While receiving a target letter makes it far more likely that you are the primary target, there are many other individuals who could be involved in a criminal investigation. If you received a target letter and a grand jury subpoena, your defense counsel can ask the prosecutors whether you are classified as a target, subject, or witness. This information can help your defense counsel determine the best path forward.

What Happens If the Federal Government Does Not Bring Criminal Charges Against Me Within the Applicable Statute of Limitations Period?

If the federal government files a sealed indictment before the expiration of the statute of limitations, then this is sufficient to meet the limitations period. After the sealed indictment is filed, federal authorities can wait longer to announce it publicly or arrest the individual charged. This allows federal agents to conduct additional investigations and further build their evidence.

Sealed indictments are common and, despite not being public knowledge, this can significantly increase the likelihood of facing criminal charges. If you’re concerned that you may be the target of a federal criminal case, now is the time to get in touch with federal defense counsel.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.