Target, Subject, or Witness: What Does My Status Mean in a Federal Investigation??

The Justice Department’s Justice Manual defines these three designations as follows:

• Target: The Justice Department considers targets as “person[s] 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.” (Justice Manual 9-11.151)
• Subject: The Justice Department defines subjects as “person(s) whose conduct is within the scope of the grand jury’s investigation.” (Justice Manual 9-11.151)
• Witness: The Justice Department refers to witnesses as person(s) who possess information relevant to the grand jury’s investigation, a category the Justice Manual does not separately define.. Generally, a witness is someone who is not under investigation himself or herself. However, the Justice Department’s definition is very broad, noting “that witnesses are not necessarily known to be innocent or ignorant of the crime[s] under investigation.” A witness also “does not have to have personally observed the suspected criminal act.” (Justice Manual 9-11.130)

What about “suspect”?

Although this term is common in other contexts, “suspect” is not one of the Justice Department’s three grand-jury designations.

Is the Justice Manual’s designation system outdated?

No, the Justice Manual is the current version of the U.S. Attorneys’ Manual, which changed its name in 2018.

Does this information have any real meaning?

These designations reflect prosecutors’ current assessments. They are not meant to provide any form of binding legal protection, and prosecutors can change target, subject, and witness designations at any time without prior notice or a required explanation.

Is this information limited to the grand jury?

While these designations appear in the Justice Manual’s section on grand jury proceedings, the U.S. Department of Justice is not limited to these classifications. Agents can interview suspected criminals; prosecutors can issue subpoenas; and federal agents can obtain warrants to search a home or seize property, all before an indictment is returned.

Can Prosecutors Refuse to Tell Me What My Designation Is?

Prosecutors are generally not legally required to disclose your status as a federal investigation witness, subject, or target. If you are contacted by federal agents, subpoenaed, or otherwise made aware of a grand jury investigation, you should immediately engage experienced defense counsel who can then ask federal prosecutors about your current status.

Can Defense Counsel Speak Directly With Federal Prosecutors?

Yes. Your defense counsel will be able to ask federal prosecutors directly about your current classification as a witness, subject, or target. While federal agents may characterize your status differently, your formal status is established by prosecutors. And your target status, if any, can be changed by prosecutors to subject or witness status, and vice versa.

What Other Questions Can Defense Counsel Ask?

In addition to asking about your classification, your defense counsel can ask federal prosecutors about the offenses they are investigating, the transactions they have under review, when the grand jury proceedings began, and whether the grand jury has heard testimony from witnesses that implicate you.

Does a Subpoena or an Interview Request Imply Investigative Status?

Neither receiving a subpoena nor being asked to sit down for a voluntary interview establishes your status as a federal investigation witness, subject, or target.

Is the Justice Manual Enforceable?

Section 1-1.200 of the Justice Manual expressly states: “The Manual creates no enforceable legal rights. Neither the Department nor the Supreme Court, nor the Office of Special Counsel or the Executive Office for United States Attorneys has established any legal rights to a witness, subject, or target based upon the information contained in this Manual.”

Do All U.S. Attorney’s Offices Send Target Letters?

No. As a result of “discretion” and “policy considerations” (Justice Manual 9-11.130), U.S. Attorney’s Offices have a degree of discretion when implementing the Justice Department’s policy regarding the issuance of target letters.

Can Target Status Be Revealed Without a Letter?

Yes. One way you may discover you have target status (without getting a target letter first) is if federal agents execute a search warrant at your house or office.

What Should I Do When Federal Agents Contact Me?

The Justice Department will generally not let you know that you are being investigated by the government until it has enough information to bring you to the grand jury, file an indictment, or file a civil complaint. However, in many cases, this is not how people find out about the government’s interest. If you have any of the following, you may be at risk in the investigation:

• Federal agents visit your home or office.
• You receive a grand jury subpoena or an administrative subpoena.
• Your home or office is searched under a search warrant.
• You receive a “target letter.”

As noted below, even a voluntary interview request may not signal your level of exposure in an investigation. However, if you’re not sure how the government views you, assume that you could potentially face charges or be implicated as a witness or subject in the grand jury’s work.

If you’re contacted by federal agents regarding an investigation, do you have the right to refuse to give an interview? Yes, you can decline to sit down for a voluntary interview. You don’t need court permission to decline. If you hire defense counsel, your counsel can then communicate with the investigating agents and/or federal prosecutors on your behalf, without any of these communications creating any legal obligation for you to speak to agents yourself. However, you will not have this option if you are subpoenaed.

As discussed below, a subpoena (which is different from a voluntary interview request) legally compels you to appear and testify before the grand jury, or to produce the documents and records it demands. If you receive a subpoena, the first thing you need to do is consult with defense counsel to assess your level of exposure in the investigation and determine how to protect yourself going forward.

If you are contacted by agents, you should also keep the following in mind:

• Making Materially False Statements. Knowingly and willfully making a materially false statement to federal agents can violate 18 U.S.C. § 1001, a federal criminal statute.
• Obstructing Justice and Destroying Evidence. Evidence destruction, regardless of whether it is the subject of your own potential exposure, can create its own separate criminal exposure.
• Talking to Your Colleagues or Associates. Your statements can be taken from your colleagues, associates, and anyone else to serve as additional evidence against you.
• Implementing a Litigation Hold. While you should not delete, shred, or otherwise destroy potential evidence in response to agents’ contact, you should also initiate a litigation hold, if you haven’t done so already. This should include any emails, texts, business records, or any other pertinent documentation.

What Does a Federal Target Letter Actually Mean?

A target letter is a letter in which federal prosecutors inform a person that they are currently designated as the target of a grand jury investigation. But even with the delivery of a target letter, it is not yet an indictment and it is not even a formal criminal charge.

Typically, a target letter will:

• Identify the specific federal offense or offenses being investigated.
• Identify the transaction(s) or transaction period being investigated.
• Explain the right to self-incrimination (i.e., Fifth Amendment rights).
• Explain the right to counsel.
• Set a date and time for a voluntary interview with prosecutors.

Do Prosecutors Always Send Target Letters?

The Justice Department encourages the issuance of target letters, but it provides prosecutors with discretion to decline to send one if notification “would be inconsistent with the ends of justice” (Justice Manual 9-11.153).

If I Receive a Target Letter, does it Mean I will Face an Indictment, and if So, in How Long?

There is no timeline; a target letter is merely notification of a prosecutor’s current assessment of your status in a federal investigation. It does not necessarily mean that you will be indicted, it does not necessarily mean that you will be convicted, it doesn’t mean that you will be convicted of the specific offenses mentioned in the letter, and it certainly does not mean that you will be indicted within any given timeframe.

Does the U.S. Constitution Require a Target Letter Prior to an Indictment?

The U.S. Constitution requires an indictment (which does not require an arrest) for all federal felonies. However, as stated above, it does not require the issuance of target letters prior to an indictment. There are numerous reasons to seek a target letter, and engaging experienced defense counsel to advocate on your behalf with federal prosecutors is one of them.

Are Target Letters Always Precursors to Indictments?

No, there are many ways that you can find out you’re in the crosshairs of a federal grand jury investigation, and you can be indicted (or even convicted of a federal offense) without ever receiving a target letter.

If any of this describes your situation, it is worth talking it through with counsel. Spodek Law Group can be reached at 212-300-5196.

How Should I Respond to a Federal Subpoena?

If you are subpoenaed to appear as a witness in a federal grand jury investigation, you must preserve, protect, and produce all responsive documents and records unless you have grounds for a legal excuse. Under Federal Rule of Criminal Procedure 17(c)(2), you can ask the court to “quash or modify” the subpoena if you can show that compliance would be “unreasonable or oppressive”. If you refuse to comply with a subpoena or attempt to withhold documents, you may need to invoke a legally-recognized objection. Common objections to federal subpoenas include:

• Attorney-Client Privilege. This privilege applies to confidential communications between a client and attorney made for the purpose of seeking or providing legal advice. It extends to the attorney-client communications made in contemplation of litigation or criminal investigation.
• Excessive Burden. This objection applies if the cost of complying with the subpoena is excessive, or if responding to the subpoena imposes an unreasonable burden on the recipient.
• Overbreadth. Subpoenas may be overbroad if they seek more documents and records than are reasonably relevant to the investigation at hand.
• Irrelevance. The Justice Department cannot compel your production of documents and records that are not reasonably relevant to its investigation.
• Self-Incrimination. As noted below, the Fifth Amendment’s protection against self-incrimination generally does not apply to the contents of documents and records that you prepared voluntarily.

In most cases, the Fifth Amendment does not protect the contents of voluntarily prepared documents, emails, texts, and records from being used as evidence in a criminal case. The only exceptions are:

• When the production of the documents or records is privileged.
• When the documents or records are protected by the act-of-production privilege. The act-of-production doctrine allows you to refuse to produce documents and records when the act of producing them would itself be testimonial, because handing them over would concede that the documents exist, that you possess or control them, and that they are authentic.

What Do I Do if I Do Not (and Cannot) Comply with a Federal Subpoena?

If you are a subpoenaed witness, you must appear before the federal grand jury on the day and time appointed, unless the subpoena has been quashed, modified, or otherwise excused. If you refuse to appear or fail to comply with the subpoena’s order, you risk being held in contempt in federal court under Federal Rule of Criminal Procedure 17(g) and other laws. If a federal judge issues an order that compels you to testify in federal grand jury proceedings under 28 U.S.C. § 1826, you can face fine and confinement pending the grand jury’s investigation. Therefore, it is essential to speak with defense counsel promptly to assess your exposure and negotiate a favorable outcome in which you do not face criminal liability.

What Happens if I Testify Before the Grand Jury?

A federal grand jury is a grand jury of 16 to 23 members of a community. In federal criminal investigations, its principal function is to determine whether there is probable cause to justify returning an indictment against a suspected criminal, though it also investigates crime and protects citizens from unfounded charges. If the grand jury decides that the probable cause standard has been met, then it returns an indictment. The Justice Department describes the grand jury as “an independent body” rather than a court of law, and the grand jury’s work is a very important function of the investigative phase of a federal criminal investigation.

• May I have my attorney inside the grand-jury room when I testify? No, your attorney cannot enter the grand-jury room with you. Instead, you are permitted to leave the grand-jury room periodically to consult with your attorney, who waits outside the grand-jury room during the proceedings.
• Will the prosecutors tell the grand jury that I’m a target or subject? According to the Justice Department’s current policy, prosecutors should advise you, not the grand jury, of your target or subject status and of your rights before you testify.

What are the Rules for Testifying Before the Federal Grand Jury?

Both the federal grand jury’s deliberations and its proceedings are kept secret, and grand jury proceedings are closed to the public under Federal Rule of Criminal Procedure 6. However, grand-jury proceedings must also protect the rights of persons under the federal grand jury’s investigation. Specifically:

• The Fifth Amendment. The Fifth Amendment generally protects you from being compelled to testify before the grand jury against yourself.
• The oath, the penalty, and the crime of perjury. Because grand-jury testimony is given under oath, you can face felony perjury charges under 18 U.S.C. § 1623 if you knowingly make an untrue statement.
• The scope of your testimony. You are only required to testify regarding facts that are pertinent to the investigation.
• The option to invoke the Fifth Amendment. If you testify under a grant of immunity, you will have to answer any question to which the Fifth Amendment would otherwise apply. Otherwise, if you decline to testify, you will typically be expected to invoke the Fifth Amendment question by question.
• The right to consult with outside counsel.
• The Right to Counsel in Grand Jury Proceedings. Federal grand-jury witnesses have the right to consult with their counsel outside the grand-jury room, as their counsel will not be permitted to enter the room while they testify.

Do Immunity and Proffer Agreements Really Protect Me?

If you are a target, subject, or witness in a federal grand jury investigation, and you are thinking about cooperating with federal prosecutors, the primary goal of cooperation is to protect yourself from criminal liability. While prosecutors’ decisions regarding indictments and criminal charges remain at their sole discretion, cooperating in a federal criminal investigation can have the potential to convince federal prosecutors that you are a suitable witness rather than a target of the federal investigation. However, cooperation is not always the best option, and the “value” of cooperation in a specific federal investigation depends on numerous case-specific circumstances.

There are three main mechanisms of protection for grand-jury witnesses: immunity orders, proffer agreements, and informal agreements.

Immunity Orders

Immunity orders are issued by federal judges, and they are based on the statutory framework set forth in 18 U.S.C. §6002. Under §6002, there are two types of statutory immunity: use and derivative use immunity and transactional immunity.

Immunity orders under §6002 generally provide use and derivative use immunity. This type of immunity bars the use of your grand-jury testimony against you; however, it does not bar the use of information learned as a result of your testimony. Use and derivative use immunity does not bar prosecution for the underlying offense, whereas transactional immunity bars prosecution for the underlying offense entirely.

Informally making agreements with federal prosecutors is one way to get transactional immunity without formally receiving an immunity order. However, prosecutors may tell grand-jury witnesses that their promises will serve as “statutory immunity.” This is not the case, and if you are thinking about cooperating with prosecutors, you will need to speak with experienced defense counsel to secure statutory immunity under 18 U.S.C. §6002.

Proffer Agreements

A proffer agreement is a contract between federal prosecutors and a witness. In contrast to an immunity order, a proffer agreement is a privately-negotiated contract rather than a court order. Also, a proffer agreement does not grant immunity in the statutory sense. Proffer agreements typically include the following language:

• Statements in a proffer agreement will not be used for impeachment purposes (with certain carved-out exceptions).
• The Justice Department will not use the proffered information directly to prosecute you.
• The Justice Department will not use the information provided in a proffer agreement to support an indictment.

Informal Agreements

Informal agreements with prosecutors are often not sufficient. If you rely on a prosecutor’s oral or informal promise, you should not expect that this promise will act as a legally-enforceable statutory immunity.

Can My Status Change Before an Indictment?

If you’re designated as a “subject,” does it mean the prosecutors have already decided to file charges against you? No, not necessarily. If you’re designated as a “witness,” does it mean the prosecutors have already decided that they won’t pursue charges against you? No, not necessarily.

Can your status change in a federal criminal investigation? Yes. For example, based on evidence uncovered in grand jury proceedings or answers a federal investigation witness, subject, or target provides during a voluntary interview, the prosecutors can change anyone’s investigative classification to a “target.”

Can a person with “target” status be cleared of all wrongdoing? Yes, but prosecutors are very unlikely to designate anyone as a “target” if it’s not clear that the person is facing potential criminal charges.

Do target letters automatically mean you will face indictment? Target letters do not automatically mean that indictment will be sought against you. However, if you’ve received a target letter, the investigation has likely advanced to the point where the government believes it already has sufficient grounds to return an indictment. This is true in most white-collar investigations (most of which take months and years to conclude), though this may take much longer before any formal charges.

Can a witness’s or subject’s status change due to answers provided during a voluntary interview? Yes, this is a common way to learn the details of an investigation and help determine your level of exposure to federal criminal charges and civil penalties.

How long does it take for someone who is a federal target or subject to learn how the investigation is progressing? No federal rule dictates the amount of time that must elapse from the moment federal agents contact you to the moment you are indicted. Therefore, in many cases, it could take months or even years before you learn more about your designation and what it means for you moving forward.

Can prosecutors reach an indictment or criminal charges against you even if you have never spoken to federal agents? Yes, and anyone, whether you are a target, subject, or witness, can still face potential consequences even if an indictment or criminal charges never materialize. For instance, your status as a subject or target can have substantial implications for your professional license and immigration status, and your employer may take disciplinary action against you as well.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.