The Wait Between a Target Letter and an Indictment.

No federal statute sets a deadline for the government to file an indictment after sending a target letter. A target letter can precede an indictment by days, weeks, or months. A target letter is not a requirement for indictment either, and many federal defendants are indicted without receiving a target letter from the DOJ.

What is a Target Letter and How Do I Respond to One?

A target letter is a letter sent by the federal government to an individual who is the focus of its investigation. When the government sends a target letter, it typically means that it has substantial evidence to support criminal charges against the recipient. In many cases, this means that the government’s case against you is already well advanced, and it is important to take immediate action to defend yourself. To discuss your case with a defense lawyer at Spodek Law Group, please call or contact us online.

Is a Target Letter an Indictment?

No, a target letter is not an indictment. A target letter comes before the grand jury process, and it serves as notice to the recipient that they are under suspicion. An indictment, on the other hand, is the formal charging document that kicks off the federal criminal prosecution process.

Does the Speedy Trial Act Start Running from the Date of a Target Letter?

No, the Speedy Trial Act (18 U.S.C. § 3161) does not start running from the date of a target letter. As 18 U.S.C. § 3161(b) explains, “the clock” for indictment and trial under the Speedy Trial Act starts running only after the government has either arrested you or issued a summons. In most cases, the government must file an indictment against you within 30 days of your arrest or summons.

Why can't anyone tell me exactly when my indictment will come?

Why Is It Difficult to Predict How Much Time Between a Target Letter and an Indictment?

Because there are no fixed deadlines under federal law for the government to file an indictment after it issues a target letter, and target letters are not even required, predicting the timing of an indictment in federal criminal cases is difficult. Many federal investigations will continue for months or even years before any indictment is filed. In other cases, the timeline for indictments will be much shorter, sometimes just days or weeks.

How Long Does the Window Between Receiving a Target Letter and Receiving an Indictment Usually Last?

Some practitioners have estimated that, in many cases, the window between receiving a target letter and being indicted lasts from 30 to 90 days. Other practitioners have estimated that, for many target letters, the recipient is demanded to respond within 10 to 30 days. However, because the DOJ doesn’t maintain a table reporting the intervals between target letters and indictments (or any other government data available to the public), any published timing estimates are anecdotal. Furthermore, estimates are often not useful without additional information regarding the target’s district, specific offenses, the government’s case posture, the target’s responsive ability, and other mitigating circumstances.

Target letters, on their own, do not guarantee an indictment, let alone an imminent charging decision. After sending a target letter, the government might seek evidence of additional crimes or information from the targeted individual that would persuade it that indictment is warranted.

Target letters are not a requirement for federal indictment. Many targets of federal investigations will learn about the government’s investigation after months (or even years) of the government quietly gathering evidence. In those cases, the first time the targeted person will see any sign that it was (or still is) at risk of indictment is upon the filing of the indictment (or receipt of a subpoena during the process that led to the indictment).

What Does My Target Letter Tell Me About the Government’s Timing?

A target letter will often identify the federal crimes the government is investigating, the identity of the prosecutors handling the case, what you need to do (if any), and when the government needs to hear back from you.

What Does a Target Letter’s Response Deadline Tell Me About the Government’s Timing?

The response deadline (if any) listed in a target letter suggests how much pressure the government feels to complete its investigation. An invitation to have your lawyer call the prosecutor by a certain date, for instance, suggests that the government is at a stage in its investigation where it is ready to issue an indictment unless it receives information that persuades it otherwise. If the government has not set a response deadline, this suggests a lack of timing pressure, though you should not presume the government is prepared to hold off on filing its indictment for any substantial period.

What Does a Subpoena’s Return Date Tell Me About the Government’s Timing?

A subpoena’s return date offers a glimpse into the government’s planned timeline for gathering evidence. A subpoena with a relatively soon return date suggests that the prosecutors are at a point in their investigation where they need to start securing subpoenas in preparation for a targeted prosecution.

What Does the Target Letter Say About My Case?

The federal statutes that the government identifies in your target letter are the crimes you need to work closely with your defense lawyer to avoid facing. While target letters will identify the statutes that prosecutors believe apply in your case, these will not necessarily be the statutes the government will seek charges under when it presents its case to the grand jury.

The contact information the prosecutor lists in your target letter identifies the point of contact you or your lawyers need to deal with. You will typically want to keep your direct dealings with the government to a minimum, and it is usually in your best interests to have your defense attorney contact the government on your behalf.

What Does the Target Letter Tell Me About My Obligations?

A target letter will typically not create a court-enforceable deadline. A target letter is simply a target notice, and on its own, it does not compel you to do anything. However, target letters are often issued alongside grand-jury subpoenas that compel you to comply with a request for information, records, or testimony. A subpoena, not a target notice, creates compulsory process obligations, and a grand-jury subpoena requires strict compliance unless your lawyer can convince a judge to quash or modify it.

How Does the Statute of Limitations Affect Indictment Timing After a Target Letter?

Statutes of limitations still restrict how late prosecutors may charge federal offenses, and while these time limits may seem like helpful constraints, the federal government has several tools at its disposal for avoiding them when necessary. For example, as 18 U.S.C. § 3282 explains, no person may be prosecuted for a non-capital offense “unless the indictment is found or the information is instituted within five years next after such offense shall have been committed,” but this five-year window includes many exceptions, and prosecutors have various ways to delay the limitation clock.

One way the government can effectively circumvent the statute of limitations (when necessary) is by seeking a sealed indictment under Federal Rule of Criminal Procedure 6(e)(4). Under Rule 6(e)(4), “[t]he magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial.” In a sealed indictment, the government preserves the right to charge before the limitation period expires, and it then keeps the indictment sealed until it is ready to arrest the defendant. The government generally uses sealed indictments to arrest defendants at a desired time and date, and prosecutors also use sealed indictments to avoid alerting suspects of impending charges.

When negotiating with defense lawyers in pre-indictment target-letter cases, prosecutors may also seek limitation extensions or waivers. If the statute of limitations is set to expire, defense lawyers will typically demand that the government show its hand, whereas prosecutors may request to extend the limitation period. To negotiate a better outcome for their clients, defense lawyers may also seek to enter into tolling agreements, which are contracts that extend the statute of limitations for a specified period of time. In tolling agreements, the defendant agrees not to assert the limitations defense during the term specified, and the prosecutor agrees not to file an indictment during the same term.

The deadline imposed by the statute of limitations may also limit the time that prosecutors have to negotiate with targeted individuals. If the statute of limitations is set to expire during pre-indictment negotiations, prosecutors may be forced to file charges before these negotiations conclude.

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

What Makes a Federal Indictment Come Sooner or Take Longer?

In a target-letter case, several factors can make your indictment come sooner or take longer. These factors can depend on anything from the court’s grand jury schedule to the complexity of the issues at hand.

Grand Jury Schedules

While federal grand juries meet daily in some jurisdictions and not so often in others, every court and federal district has its own unique grand jury schedule. Therefore, the local grand jury schedule in the federal district where you are being targeted may play a role in determining when (or if) your indictment comes.

Cooperator Negotiations

At this stage in a target-letter case, it is very likely that the prosecutors are trying to turn the case’s key witnesses into cooperators. To get witnesses to cooperate against targets, prosecutors will offer them immunity or plea deals, and negotiating with them to determine the scope of their cooperation will take time.

Forensic Analysis of Seized Records and Computer Files

After sending a target letter, it is also very likely that prosecutors are conducting detailed forensic analyses of seized records and computer files. These analyses take time, particularly when prosecutors will be relying on them in their arguments for an indictment to the grand jury.

“Main Justice” Approval in Specific Federal Matters

Some federal matters require approvals from the Department of Justice’s Main Justice (and from the Attorney General or other senior prosecutors, as well) for specific charges. Obtaining the necessary approvals and assurances for pursuing charges in these cases can and often does take time.

Parallel Civil Proceedings

The government may also be pursuing parallel civil proceedings against targets of investigations in some cases. This can affect the timing of a pre-indictment target-letter case.

Forfeiture Issues

When prosecutors seek to seek the forfeiture of a target’s money and other assets as well as his or her arrest and prosecution, forfeiture-related issues can also complicate the timing and the nature of charges.

Superseding-Indictment Strategy

Federal prosecutors can also file superseding indictments, and if it is a matter of strategy, they may choose to indict a target on a small number of charges early on. Then, they can present the remaining charges to the grand jury later and include them in a superseding indictment.

The Number of Members on the Grand Jury

A federal grand jury consists of 16 to 23 members. If a prosecutor can’t convince the grand jury members in your case, prosecutors will have to wait for the grand jury’s term to end and a new grand jury to be empaneled.

What Can My Lawyer Ask Prosecutors Before an Indictment Is Returned?

If you are the target of a federal criminal investigation, and you have retained a defense lawyer, your lawyer will typically communicate with the prosecutors on your behalf (rather than you talking with them directly). While prosecutors do not have to provide answers to many questions, there are several things your lawyer can ask them that could provide insight into your case’s current posture, including:

Does the Government Have a Grand Jury Presentation Scheduled?

The first thing your lawyer can ask prosecutors is whether they have scheduled a presentation to the grand jury. If a date has been scheduled, this is a helpful indicator of the timing and likelihood of an indictment. If prosecutors have not yet scheduled a presentation, this suggests the time for negotiations has expanded, although this may still be very short.

Can the Government Provide a Pre-Indictment Reverse Proffer?

Your lawyer can also ask whether prosecutors will provide a pre-indictment “reverse proffer.” In a reverse proffer, prosecutors show the target’s lawyer the evidence they plan to present to the grand jury so that your lawyer can decide how best to respond to that evidence.

If the government agrees to provide a reverse proffer, this can be a very positive sign. Not only will you get a peek at the government’s hand, but the government’s willingness to disclose evidence this early suggests it may be open to hearing your arguments for non-indictment as well.

Can the Government Provide a Pre-Indictment Declination Meeting?

While a pre-indictment “declination meeting” is not possible in all cases, it is one additional possibility that your lawyer can raise with prosecutors. In a declination meeting, defense lawyers make their case to the prosecutors why the government should decline to bring the proposed charges.

While prosecutors are not required to provide a declination meeting, and they are not required to agree with anything a targeted person’s lawyer says, if your lawyer can get a prosecutors to agree to a meeting, this gives you an additional chance to avoid criminal charges.

What is My Target Status?

Your lawyer can ask the government to clarify your status. Although you were a target in your target letter, this status can change. In some cases, the government may decide to indict you, but then change your status during a pre-indictment negotiation.

Does the Government Anticipate Seeking an Indictment Extension?

Your lawyer can also ask whether the government anticipates seeking an indictment extension from the court. This is a key question in cases involving grand juries that have finished their service.

Can I Coordinate My Surrender?

If your lawyer determines that indictment is inevitable, you may want to coordinate your surrender to the federal authorities. Discussing surrender arrangements with prosecutors allows you to preserve the integrity of your personal property and arrange for your release on bond as quickly as possible.

You may also be able to waive your indictment. This means you waive the grand jury process and agree to be indicted by “information.” A defendant who agrees to be indicted by information can avoid arrest and coordinate his or her surrender with prosecutors.

Should I Proffer or Testify Before the Grand Jury?

Proffer sessions and grand-jury testimony have both been used as pre-indictment defense strategies in target-letter cases, though with mixed results in both cases.

Proffer sessions can sometimes delay indictments, while grand-jury testimony can accelerate the charging process. Whether you should proffer or testify (or neither) is a decision you will make together with your defense lawyer based on your case, your goals, and the specific tactics and strategy your lawyer employs in target-letter cases.

Here, your lawyer will explain the risks and benefits of several options:

Option 1: Do Not Proffer, Do Not Testify

A common defense strategy is to simply not provide the government with any additional information about your case through a proffer session or testifying before the grand jury. This approach lets the prosecutors decide their course based on the information they already have, and it is usually the approach you will want to take if providing additional information will put you at greater risk of indictment.

Option 2: Proffer

A proffer session (or “proffer”) is a session where the government evaluates the information the target has and the target’s willingness to cooperate. If the government finds the target’s information useful, it may offer to deal with the target for his or her information about the case.

Proffering can be beneficial because you can potentially avoid indictment while also creating some risk of indictment for the government’s case. However, target letters do not typically provide complete protection when proffering; proffer agreements typically permit derivative investigative use of the proffered information.

Additionally, a proffer will also often permit use of the proffer in impeachment if the target subsequently testifies and his or her testimony is inconsistent with his or her proffer.

Option 3: Testify Before the Grand Jury

Is Grand-Jury Testimony Common as a Pre-Indictment Defense Strategy?

Grand-jury testimony is not a common or routine part of a target’s defense presentation. A target should only testify before a grand jury if he or she believes that doing so will strengthen the likelihood of a declination, rather than strengthening the likelihood of an indictment.

Can Grand-Jury Testimony Accelerate Indictment?

The issue here is that testifying before the grand jury in pre-indictment target-letter cases can accelerate indictment, especially if the target’s testimony helps prosecutors establish sufficient probable cause. When your lawyer recommends a target-letter defense that involves proffering or testifying before the grand jury, your lawyer should explain why, and how your lawyer intends to make sure that you do not increase your risk of indictment by proffering or testifying.

How Can I Tell if Prosecutors Are Close to Indicting Me?

As previously noted, prosecutors do not need to notify you before presenting additional evidence to a grand jury. With that said, certain actions by the government can strongly suggest that prosecutors are close to returning an indictment. Examples of this include, but are not limited to:

Execution of Search Warrant

A search warrant is a compelling sign that prosecutors are close to indicting, since a search warrant requires probable cause under the Fourth Amendment. If you are subject to a search warrant, this indicates that prosecutors have already learned enough to meet the legal standard for indictments.

Issuance of Grand-Jury Subpoena for Records

A grand-jury subpoena for records indicates that prosecutors are ready to begin compelling production of documents. This means that the government’s investigation is no longer relying on voluntary production (if that was the case) and that it is moving toward compelling production as a step toward indictment.

Interviews with Coworkers and Other Associates

Interviews with coworkers and associates can signal that the government has already worked out its factual investigation and is ready to move forward.

Use of Immunity Orders

A request for immunity can signal a prosecutor believes that he or she has enough evidence for an indictment, but it needs the target’s testimony to bolster its case and make sure that its case is stronger at trial.

Scheduling of Target Testimony

If prosecutors request to schedule a time for target testimony, this is a very strong indicator that a grand jury is already active.

How Long Before an Indictment Do I Have to Prepare?

An indictment itself does not establish guilt, nor does it necessarily mean you will have to be detained by the government. An indictment only establishes that you have been formally charged with a federal offense, which triggers the 70-day timeline for a trial under 28 U.S.C. § 3161(c).

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.