Target Letter Missteps That Cost Defendants the Most.

A target is someone the government has deemed a “putative defendant.” This means that, based on the evidence the government currently has, the government believes that you likely committed the crime for which you are being investigated.

A target letter is not an indictment, criminal conviction, or criminal record. To be clear: receiving a target letter does not mean that you have been indicted. You are not currently charged with a federal crime, and receiving a target letter does not guarantee an eventual indictment.

There is no fixed period of time that separates the receipt of a target letter from an indictment. Also, you do not have the right to see all the evidence against you (and you likewise have no right to see the evidence the government has presented to the grand jury, which is kept secret under Federal Rule of Criminal Procedure 6(e)).

If you have received a target letter, the government’s investigators have likely already gathered substantial evidence against you. The federal prosecutor that is assigned to your case, the assistant United States attorney (AUSA), will refer to you as “the target.”

Your target letter may identify your alleged offense and the applicable federal statutes. Your target letter will come from the U.S. Attorney's Office rather than from the grand jury or a federal court, and it will advise you that you may refuse to answer any question if a truthful answer would tend to incriminate you and that you have the right to be represented by counsel.

Your target letter may be written on the U.S. Department of Justice’s letterhead, and it may request that you get in touch with the federal prosecutor assigned to your case.

Your target letter will not identify who provided information to the AUSA, and it will not explain why the U.S. Department of Justice is interested in you. However, the U.S. Department of Justice is confident that you fall within the scope of its grand jury investigation.

Your target letter may refer to your alleged “conduct,” and it will not specify any alleged criminal intent on your part.

Why is it Dangerous to Speak to Federal Agents Without Counsel?

If you have received a target letter, you may receive a request to meet with federal agents or the federal prosecutor. These requests for voluntary meetings or interviews can be extremely dangerous.

While you are not required to participate in a voluntary interview, you can make mistakes that expose you to criminal charges. Even if you don’t make any admissions, you still need to be careful. A few reasons why you should not speak to federal agents or prosecutors without a federal criminal defense attorney assisting you include:

• Investigators can compare your interview answers to what they find during a forensic computer search, the answers they hear from your co-worker or spouse, or the testimony they hear from your business partner.
• Many targets try to be too helpful when speaking with federal investigators. While you do not need to be afraid to speak truthfully with investigators, there are consequences for any false statements you make to federal agents. Prosecutors can use your statements to build their case against you, and you could also face separate criminal exposure.
• In a federal grand jury investigation, prosecutors use interviews to gather evidence. Any statements you make, even truthful ones, can give the prosecutor more evidence or more information.

What Happens if I Refuse to Speak to Federal Agents or Prosecutors?

If you have received a target letter, do not attempt to persuade investigators to drop the investigation. Do not try to convince federal prosecutors that you have not committed any crime or do not need to be a defendant. Do not even try to convince the prosecutor that you have not committed a crime, and that you are willing to answer their questions.

In federal grand jury investigations, the target’s counsel is available to handle communications with federal investigators and prosecutors. The more direct contact you have with federal agents and prosecutors, the greater your risk.

Even if you refuse to consent to a search, search warrants and subpoenas issued by a grand jury or a federal court can compel you to turn over records. Refuse voluntary consent if you have received a target letter.

Does Hiring Counsel Prevent Search Warrants, Subpoenas, and Arrests?

No. If you are the target of a federal grand jury investigation, hiring defense counsel will not prevent the grand jury from issuing subpoenas for your financial and digital records. And, it will not prevent investigators from continuing to build a criminal case against you, even if you have received a target letter.

In some cases, the federal government can conduct a search without the court’s approval. If you have received a target letter, do not wait to contact an experienced federal criminal defense lawyer.

How Do I Preserve Evidence Without Accidentally Altering It?

If you have received a target letter, do not delete any records. You should not delete any records at all once you are on notice of a federal investigation, whether or not you believe they fall within its scope. Even if these records are incriminating, they are still considered evidence, and deleting them can constitute obstruction.

It is important to note that obstruction charges are separate criminal offenses that can be prosecuted independently of the original offense being investigated. This means that if you have received a target letter and delete records, you could face charges for obstruction even if the federal grand jury does not indict you for the underlying offense for which you are being investigated.

Many electronic records are subject to automatic deletion unless you take action to stop this from happening. As a result, promptly engaging a defense attorney to identify what needs to be preserved will be critical. If you use any messaging app, for example, you should check if it is set to automatically delete messages after a certain amount of time. If it is, this needs to be disabled immediately.

Our lawyers can take stock of all relevant devices, accounts, documents, and physical evidence, and then help you develop a comprehensive preservation plan going forward. This plan should include a wide range of items such as, but not limited to:

• Cloud accounts. These include Apple iCloud, Google Drive, Dropbox, and Microsoft OneDrive.
• Computer and mobile device backups. These are computer and mobile device backups stored on either the device itself or in a computer cloud.
• Messaging apps. These include apps like WhatsApp, Facebook Messenger, Instagram Direct, iMessage, Android Message, Signal, Telegram, WeChat, and Slack.
• Third-party storage. This includes digital record storage and other platforms.
• Digital accounts, apps, and software accounts.
• Physical evidence and documents.
• All types of financial records.
• All types of corporate records.
• Any devices that you used in the past that might contain relevant information.

It is also important to identify if you shared any of these accounts or devices with another user. This can include business co-owners or partners, employees, family members, and others. In these cases, you must be careful to avoid doing anything that would influence any other user of these devices. You will want to discuss this with your lawyer to determine appropriate steps forward.

If you have received a target letter, you should also be careful with employer-controlled computers. This includes computers that you used at home. If you are in possession of any computer that your employer has control over, you must make sure you don’t remove that computer from your office unless you have permission from the authorized employees.

Finally, do not move files, emails, or any other electronic records between folders, accounts, or devices. This action can alter the metadata of the records, and this metadata can be critical in federal investigations. Your lawyer can guide you to avoid any issues that may result from your actions.

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

Who Can I Safely Discuss the Investigation with?

Assuming that you are the target of a federal grand jury investigation, you need to be very careful about discussing the investigation with anyone except your lawyer.

Even if you have received a target letter and are communicating with the grand jury or the AUSA, you still need to be careful. Ordinary conversations with your family, friends, or colleagues have no attorney-client protection. They can also become witnesses during the grand jury proceedings. Even posts to social media can be used to build a criminal case against you.

If you are the target of a federal grand jury investigation, do not reach out to colleagues. If you attempt to coordinate a joint account or discuss how to protect your interests in the case, it could provide investigators with evidence to support allegations of obstruction or witness tampering.

In witness tampering cases, you can even face criminal exposure for talking about the investigation in a way that suggests that the other person should omit information that the investigators can uncover independently. If you have received a target letter, avoid talking to witnesses and co-defendants without a lawyer to represent your interests.

At a large company, you may have access to lawyers through the company. However, it is important to recognize that the company’s counsel represents the organization, not the individual. This is typically explained to the individual through an “Upjohn warning.” If you are the target of an investigation, you should consider whether it is in your best interests to accept representation through your company’s counsel.

Even if you need to use an attorney from the organization’s counsel, you may need to avoid using the employer’s computer systems to communicate with them. Company policies may state that communications through these systems can be monitored and accessed, and this could jeopardize claims of attorney-client confidentiality.

Even if you are comfortable and feel secure sharing information about the case with your spouse or your children, remember that repeating your attorney’s legal advice to family members or with other people who know about your case could waive the attorney-client privilege. You should not share anything related to your case with anyone else unless your attorney says you can.

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

If you have received a target letter, you may want to cooperate, proffer, or testify. Each of these has the potential to help you, but they can be dangerous too. You need to discuss your specific situation with your lawyer to make an informed decision.

For targets who think that cooperating with investigators is their best bet, remember that the federal authorities do not have to prosecute charges just because you cooperatively answered their questions. Even if you provide information about yourself or others, this does not mean that you will not be prosecuted in a federal court.

Another common option for targets in federal grand jury investigations is to request a proffer.

In a proffer interview, a target can meet with prosecutors and answer questions. These interviews are subject to a written agreement. But a proffer agreement is not the same as transactional immunity, and your proffer agreement can still expose you to criminal prosecution in a federal court.

There are several risks with conducting a proffer interview. For example, the statements you make could lead investigators to gather additional evidence against you, or, it could lead them to find evidence that you committed crimes. Proffer agreements also commonly allow prosecutors to use the target’s statements for impeachment purposes. Remember, a proffer is one of many possibilities when dealing with a federal investigation, and whether a target should proffer or provide assistance should be based on a comprehensive and personalized legal strategy.

The grand jury can issue a subpoena for your testimony. A grand jury subpoena is a court order, so you must appear, but you may invoke your Fifth Amendment privilege in response to questions whose truthful answers would tend to incriminate you, and your lawyer can help you make an informed decision.

One drawback to testifying is that your lawyer cannot accompany you into the grand jury room. The grand jurors, a court reporter, and the prosecutors are all present while the witness testifies, and the grand jurors may question the witness directly. The witness can request to have his lawyer available outside the grand jury room; However, this does not mitigate the risk of testifying alone in front of prosecutors.

A witness who appears before the grand jury has the right to invoke the Fifth Amendment. If the grand jury asks a specific question to which an answer could be self-incriminating, the witness can answer that the question violates his Fifth Amendment right to avoid self-incrimination.

You also do not need to testify before the grand jury voluntarily. Unless there are strategic reasons to testify, it generally does not make sense to volunteer to appear.

How Long After Receiving a Target Letter Will I Be Indicted?

Although you have received a target letter, the government has not indicted you yet. You may be charged with a federal crime. Although there is no set time for this, it could take days, weeks, or even months.

Even if you have been the target of a federal grand jury investigation for some time, this is an opportune moment to reach out to a federal criminal defense attorney. Your defense attorney can look at your target letter to help gauge your prosecutor’s strategies, and you can use that information to start making decisions to protect yourself. If you decide to defend yourself, you will need to defend against the charges being investigated.

You need to call an attorney right away. You do not want to spend too much time wondering how long it will take to be indicted. That time will be much better spent working on your defense strategy.

Can I Wait to Answer the Letter or Subpoena?

If you have received a target letter, you may be hesitant to do anything about it. However, the longer you wait, the greater your risks. For example, the target letter itself may contain a response or appearance deadline. This will be separate from any deadline you may be under to respond to a subpoena. If you ignore a target letter’s deadline, you could be under greater risk.

As a target of a grand jury investigation, reaching out to a federal criminal defense attorney is a highly advised step. Your attorney can take a more proactive approach on your behalf. Depending on the circumstances of your case, it may be possible for your attorney to meet with prosecutors and provide evidence that is exculpatory or mitigating in nature. This is the pre-indictment phase of the case and your attorney may be able to engage in pre-indictment negotiations to convince the government to decline to prosecute, to narrow the scope of the charges that may be brought against you, or to present a non-prosecution agreement as an alternative.

If you have received a subpoena, failing to respond to it can have adverse consequences that are independent of the grand jury investigation. If you received a document subpoena, your lawyer can help to challenge the scope or timing of the subpoena. If the grand jury has demanded privileged records or asked for an unreasonable amount of time to produce them, this is also an opportunity to object to the subpoena.

Once you hire an attorney to represent you, the lawyer can reach out to the grand jury and prosecutors on your behalf. In addition, you can also request additional time to comply with the subpoena. If you have a subpoena, make sure that you have already sought a deadline extension if necessary. If you need to request an extension, you must do so before your production date.

A lawyer can negotiate for more time on your behalf without conceding anything that could expose you to liability or guilt.

If you have received a target letter and your attorney is handling your defense, he will contact the Appropriate federal prosecutors for you. You will never need to directly communicate with investigators or prosecutors while your lawyer represents you.

If you have received a target letter, do not wait. Contact a lawyer who can take over handling your communication with federal investigators and prosecutors, and then you can focus on moving forward with confidence.

To speak with an experienced federal criminal defense attorney, call at the number listed or request a free confidential consultation online. Your consultation will be at no cost to you, and we will keep your personal information confidential. The more time you have to prepare for an indictment, the better your chances will be. Reach out to a lawyer who is familiar with these matters and who can assist you with determining your appropriate next steps.

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.