Target Letter or Subpoena: What Each One Signals.

A target letter from the U.S. Department of Justice (DOJ) or the U.S. Attorney’s Office says, “You are the target of a federal grand jury investigation.” You are a potential defendant. However, unlike a subpoena, a target letter does not compel you to provide anything. It merely notifies you of the DOJ’s criminal investigation and that you will need a defense attorney. Target letters usually do not list specific allegations, and they don’t identify anyone as a potential target unless the DOJ has issued the letter specifically to target you. As target letters notify you that you are under investigation, receiving a target letter may precede a declination, cooperation, plea negotiations, or no immediate charge at all.

A grand jury subpoena is a request for you to appear in federal court or provide specific documents or other information to the grand jury. It is a compulsory document. In other words, unless your attorney quashes or modifies it, or identifies it as being defeated by a legally recognized privilege, you must comply with a grand jury subpoena or you may face civil or criminal penalties. As grand jury subpoenas are not issued necessarily to identify the recipient as a target, a grand jury subpoena doesn’t tell you anything about your own status. It may, however, indicate that the grand jury is investigating someone you know or a matter that you may have information on.

Target letters identify their recipients as potential federal criminal defendants, and they create no compulsory testimony or document-production obligation. Subpoenas, however, require compliance unless they have been quashed, modified, or defeated by a legally recognized privilege. As a grand jury subpoena is not issued necessarily to identify its recipient as a target, a target letter may precede declination, cooperation, plea negotiations, or no immediate charge at all.

What Does a Federal Target Letter Actually Mean?

The Justice Manual describes “target” as follows: “A target is a person as to whom the prosecutor or grand jury has substantial evidence linking him or her to the commission of a crime. A target letter is the prosecutor’s way of notifying a target that he or she is the focus of a federal investigation and that he or she may have time to enter into plea negotiations before an indictment is returned.”

At this stage, target is a prosecutorial judgment, and it is an internal classification. To be a target means to be the focus of a grand jury investigation. To date, this means that a federal prosecutor thinks he or she has sufficient evidence to obtain an indictment from a grand jury. The prosecutor also thinks that he or she has sufficient evidence to convict the target beyond a reasonable doubt at trial. However, target classification does not necessarily mean that the target will be indicted.

One key point to remember is that a target letter is not an indictment and a target letter is not a criminal charge. In either case, it is important to take the target letter very seriously.

In the Justice Manual, section 9-11.151 discusses target letters. It states that it is “the ‘usual’ and sometimes “appropriate” practice to give targets the opportunity to speak with the United States Attorney’s Office or an Assistant United States Attorney prior to the issuance of an indictment. If the case has been referred to a grand jury, target letters are usually sent prior to the target being compelled to testify before the grand jury.”

A target letter is an implementation of this policy. However, internal policies only create guidelines, and they do not create enforceable rights for criminal defendants. It is not uncommon for federal prosecutors to fail to comply with their own internal policies and, if the policy does not create an enforceable constitutional or statutory right, failure to comply with the policy may have limited or no implications for the target’s case.

Moreover, while prosecutors usually send target letters when they have sufficient evidence to obtain an indictment, an indictment is not dependent on a target letter. A target letter is not a prerequisite for an indictment, and a grand jury can issue an indictment against anyone it deems appropriate if the appropriate evidentiary standards are met. This is true, regardless of whether you have received a target letter or a grand jury subpoena (or even if you have never heard anything about a grand jury investigation).

What Does a Grand Jury Subpoena Legally Require?

When the DOJ or U.S. Attorney’s Office issues a grand jury subpoena, its meaning depends on the recipient’s perceived role in the investigation. Usually, it means the DOJ believes the recipient possesses evidence the grand jury could use to determine if criminal charges are warranted. But, as discussed above, targets are a subset of witnesses. Thus, if you have been issued a grand jury subpoena, the DOJ likely believes you have relevant evidence, although it will not let you know if it thinks you are a target.

Two types of grand jury subpoenas exist:

• A grand jury subpoena to testify at a specified time, place, and manner is known as a subpoena ad testificandum.
• A grand jury subpoena to produce documents and/or other evidence in the recipient’s possession, custody, or control is known as a subpoena duces tecum.

Regardless of the type of grand jury subpoena issued, the recipient is compelled to comply (unless the subpoena has been quashed or modified). The grand jury subpoena will state a compliance deadline and place, date, and time you must appear in federal court. In order to avoid unnecessary exposure to the DOJ or U.S. Attorney’s Office, we will not insist on challenging a grand jury subpoena unless we can defeat it through a privilege defense. If you have received a grand jury subpoena, you must appear in federal court or produce the records in DOJ or U.S. Attorney’s Office custody at the date, time, and location specified in the subpoena. If you need more time or think it may be necessary to challenge the subpoena, you must address it with a U.S. Attorney or the U.S. Department of Justice.

The Federal Rules of Criminal Procedure Rule 17 grants U.S. Attorneys and U.S. Attorneys’ Offices the power to issue subpoenas under the authority of the federal district court. Rule 17(g) states: “The court (other than a magistrate judge) may hold in contempt a witness who, without adequate excuse, disobeys a subpoena issued by a federal court in that district.” If a witness to a grand jury investigation does not appear for a grand jury proceeding, the DOJ or U.S. Attorney’s Office will petition the district court for a writ of contempt under Rule 17(g).

Another important provision is Federal Rule of Criminal Procedure 6(e). It says the grand jury “must keep its proceedings secret,” and a “grand jury subpoena received by a federal criminal grand jury witness” is not explicitly on the list of documents and proceedings that must be kept confidential. This means a grand jury subpoena does not necessarily carry a presumption of confidentiality, and a grand jury subpoena cannot be thought to be automatically confidential merely because grand jury proceedings are secret. As a result, recipients of grand jury subpoenas can voluntarily share their subpoenas and the subpoena's implications with third parties.

What if I Receive Both Documents Together?

Justice Department policy encourages prosecutors to try and get a target’s voluntary appearance before subpoenaing a target to testify in a grand jury proceeding. Also, Justice Department policy dictates that subpoenaing a target ordinarily requires approval from senior DOJ leadership. This means that a target should be subpoenaed only after an effort has been made to secure the target’s voluntary appearance and the United States Attorney or the responsible Assistant Attorney General has approved the subpoena. However, since DOJ policies generally create no enforceable rights for criminal defendants, the issuance of a target letter can be an indicator of a target’s status, but it must be analyzed on a case-by-case basis.

Recipients of federal subpoenas can receive either a target letter and grand jury subpoena together or separately. While this will not necessarily mean any particular thing, your attorney will need to determine whether you are a target and whether your subpoena has any implications for your situation.

When you have been subpoenaed as a target, receiving both a target letter and a subpoena requires two separate analyses. With the subpoena, you have to determine if it can be quashed, if you need to comply, or if you can rely on the Fifth Amendment. With the target letter, you have to determine if it is appropriate to engage in discussions with the DOJ or offer a proffer.

The issuance of a target letter alone is the prosecutor’s decision to give you the opportunity to speak with the DOJ, and it is an implementation of Justice Department policy. However, since subpoena compliance is a court-ordered obligation, you will still be required to appear in federal court, even if you have received a target letter.

The issuance of a target letter alone is a prosecutorial decision to engage voluntary discussions. The issuance of a subpoena is a court order that requires compliance. Thus, receiving a target letter does not remove the need to comply with a subpoena. While it may still be advisable to voluntarily contact the DOJ and offer a proffer, you must appear in federal court if the subpoena cannot be quashed, modified, or defeated by a legally recognized privilege. If you fail to appear, the DOJ may petition the court to issue a writ of contempt under Rule 17(g) or otherwise penalize you.

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

Can I Take the Fifth Amendment Before the Grand Jury?

While the Fifth Amendment may protect you against providing self-incriminating testimony to a grand jury, taking the Fifth Amendment is not a defense to appearing in federal court upon receiving a subpoena. Instead, if you are subpoenaed to appear as a grand jury witness, then taking the Fifth Amendment is a defense to answering the prosecutor’s questions. But, with this in mind, here are five key points that you need to know:

1. When the Fifth Amendment Applies

Generally, the Fifth Amendment only protects against self-incrimination. This means that if you are testifying before a grand jury and the DOJ or U.S. Attorney’s Office asks you questions to which you can answer without incriminating yourself, then you must answer. If you cannot answer a question without incriminating yourself, then the Fifth Amendment may protect you, provided you invoke it.

2. When the Fifth Amendment Does Not Apply

Again, since the Fifth Amendment is meant to protect against self-incrimination, it does not apply to all questions. If there are some questions that the grand jury prosecutor asks to which you can respond without incriminating yourself, then you cannot refuse to answer those questions. As a result, blanket assertions of the Fifth Amendment are generally improper. When refusing to answer, you must generally invoke the Fifth Amendment on a question-by-question basis.

3. When the Fifth Amendment Does Not Shield Against Testimony

While the Fifth Amendment protects you from providing self-incriminating testimony, it does not prevent the government from compelling your testimony. Under 18 U.S.C. §6002, the government may seek to compel a witness’s testimony by offering use-and-derivative-use immunity. Because this type of immunity, as held in a landmark case, is coextensive with the protections provided by the Fifth Amendment, a court can compel testimony from a witness even if the witness has a valid Fifth Amendment claim.

4. Your Right to Counsel

The grand jury process differs from other court proceedings because defense counsel is not allowed to accompany a witness into the grand jury room. Instead, counsel remains outside the grand jury room, and witnesses can request to step out to speak with their lawyers. If you are subpoenaed to testify before a grand jury, you will have a defense lawyer in court with you, but your lawyer will not be in the grand jury room.

5. Use- and Derivative-Use Immunity vs. Transactional Immunity

U.S. Attorneys’ Offices will not offer transactional immunity to witnesses who testify. Transactional immunity prevents prosecution for any federal crimes to which the immunized testimony relates. Instead, under 18 U.S.C. §6002, U.S. Attorneys’ Offices offer use-and-derivative-use immunity. This prevents the DOJ or U.S. Attorney’s Office from using immunized testimony or evidence derived from immunized testimony against a witness.

Do I Have to Produce Documents or Company Records if I Receive a Grand Jury Subpoena?

If you have received a subpoena duces tecum from the DOJ or U.S. Attorney’s Office, it is generally not possible to use the Fifth Amendment to withhold documents you were asked to produce. While documents may contain information that would be incriminating, as the Supreme Court noted in one case, “The privilege against self-incrimination” does not protect against “compulsion to produce voluntarily prepared records.” While the Supreme Court acknowledged in a 2000 case, 530 U.S. 27 (2000) that producing documents in response to a subpoena can communicate that documents exist and you have them in your possession and that the documents are authentic, it held that this act of production can itself be testimonial and protected by the Fifth Amendment.

The “required records doctrine” is another limitation that limits the ability to withhold documents in response to a grand jury subpoena. In one case, the Supreme Court held that the Fifth Amendment protection does not apply to the compelled production of records required by federal statutes or regulations, such as financial records under the Bank Secrecy Act. Additionally, the “collective entity doctrine” does not allow corporate record custodians to use their personal Fifth Amendment privilege to protect company records.

However, there are some exceptions and defenses to the government’s request for records production. If you are the recipient of a grand jury subpoena for documents in your custody, you should speak with a defense attorney to determine whether you can rely on any privileges. Here are two common defenses to producing documents in response to a grand jury subpoena:

1. Attorney-Client Privilege

If a grand jury subpoena duces tecum requests responsive communications, those communications may be protected by the attorney-client privilege. As generally accepted, the attorney-client privilege is absolute, and attorneys cannot waive it. As a result, this privilege usually protects communications between lawyers and their clients from being compelled into the government’s hands in federal grand jury proceedings.

2. Attorney Work Product

Like the attorney-client privilege, the attorney work product privilege prevents documents such as notes, emails, memos, and other items produced during the course of a legal case from being disclosed to the opposing party in a civil or criminal lawsuit. If you have a valid claim to attorney work product protection, this can potentially be a valid reason for withholding documents in response to a grand jury subpoena.

Subpoenas for Electronically Stored Information (ESI)

Subpoenas requesting ESI are common. ESI can include everything from emails and texts to computer-generated data. If your subpoena is seeking ESI, your attorney should be able to negotiate with the government. If you have a valid claim to ESI protection, your attorney can also use it as a valid defense to refusing disclosure.

How Should I Respond to a Document Subpoena?

If the DOJ or U.S. Attorney’s Office issues a grand jury subpoena, you may be able to avoid compliance by filing a motion to quash. Federal Rule of Criminal Procedure 17(c)(2) requires a motion to quash a subpoena to be filed “promptly.” All such motions are filed in the federal district court where the subpoena was issued.

While you can both challenge a grand jury subpoena and comply with it, waiting to challenge the subpoena until after complying can lead to the government arguing that you have waived your objection. When defending a subpoena in the federal district court, we want to be confident that your response was timely, appropriate, and fully protected your rights.

One of the first steps when responding to a federal grand jury subpoena is placing a litigation hold. A litigation hold is an order to suspend the routine deletion or destruction of potentially responsive records, whether those records are held by individuals or organizations. With this in mind, responding to a grand jury subpoena for records production generally involves four stages:

1. Collect All Responsive Records

The first step to responding to a grand jury subpoena for records production is to identify and collect all records that are responsive to the subpoena. Once collected, you then need to review the responsive records to determine which ones are privileged and which are not.

2. Perform Privilege Review

Your defense team will conduct a privilege review to determine if any of the records are protected by a legally recognized privilege. This step is where your team must make informed and timely determinations about which records to produce and which ones to withhold from the grand jury prosecutors.

3. Produce Non-Privileged Records

Once the privilege review is complete, the recipient of a grand jury subpoena must produce all records that it is not entitled to withhold. The production itself may include written objections to the subpoena if your team believes that the responsive records that were withheld are still subject to a valid objection.

4. Preserve Unresolved Subpoena Disputes

Along with negotiating with prosecutors, your attorney may attempt to narrow the scope of the subpoena, or seek to challenge it on one or more of the following grounds:

• The records sought are irrelevant,
• The records are not in your possession, custody, or control,
• Compliance would be unduly burdensome,
• The subpoena is being used for an improper purpose,
• There is a constitutional or legal objection to complying,
• The issuing office lacked authority to issue the subpoena, or,
• There is some other procedural or jurisdictional defect.

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.