Why FBI Investigations Drag On for Years.

There is no prescribed length of time for an FBI investigation, and there are no standard deadlines for completion. As a result, many federal criminal investigations continue for several months or even years before charges appear. However, it is important to note that many investigations remain secret, at least until you are served with a subpoena or search warrant, or until you are arrested.

This lack of insight into the duration of federal criminal investigations can lead to considerable anxiety. Unfortunately, the Department of Justice does not publish comprehensive median FBI investigation durations as official DOJ benchmarks, and there is no definitive answer to the question as to how long federal investigations typically take. The process will depend on the evidence to be considered. FBI agents will gather all pertinent evidence before referring a case to a U.S. Attorney’s Office for grand jury action and prosecution.

If charges are to be filed, they must generally originate through the federal grand jury process. Federal grand jury proceedings are secret under Federal Rule of Criminal Procedure 6(e). A grand jury is composed of sixteen to twenty-three people, and a grand jury may return an indictment only upon the concurrence of twelve or more jurors based on evidence presented to it. Defense lawyers are not allowed to present or question witnesses during grand jury proceedings. Once the grand jury returns a true bill, prosecutors can file criminal charges.

With this in mind, many individuals who find themselves the subject of a federal investigation’s target letter or subpoena are surprised to find out that their case was not resolved shortly after they first became aware of it.

How Long Do FBI Investigations Take by Type of Case?

While there is no uniform timeframe for FBI investigations to complete, many of the DOJ’s investigations have run for the following amounts of time:

Complex RICO Cases

Complex Racketeer Influenced and Corrupt Organizations Act (RICO) cases may take several years to bring to indictment. Often these cases will take two to four years of investigation before the targets of the case are indicted, and prosecution proceedings can add several more years to the time it takes for the government to successfully prosecute individuals that have been arrested.

White-Collar Investigations

FBI white-collar investigations are among the most time-consuming of all criminal investigations. These investigations may take anywhere from one to five years before the FBI presents its case to the prosecuting U.S. Attorney’s Office. As a result, white-collar crime has become one of the most time-intensive areas of investigation.

Healthcare Fraud Investigations

FBI healthcare fraud investigations often take anywhere from two to five years before a federal healthcare-related arrest is made. In many cases, federal agents will have already completed their investigation before the target of the investigation is arrested.

Drug Conspiracy Investigations

Drug conspiracy investigations run the gamut from six months to three years. Drug conspiracy investigations are handled differently from drug abuse investigations. The goal of a drug conspiracy investigation is to uncover high-level drug operations, which involves an enormous volume of evidence.

Public Corruption Investigations

Public corruption investigations may take five years or longer to prosecute public figures of the state and federal governments. Many public corruption investigations are handled with extreme secrecy in order to maintain national security and preserve public order. In some cases, public corruption cases will run for years before the public has any clue that the federal government is building its case against someone.

Other Types of Investigations

Other investigations that commonly involve the FBI include:

• Child exploitation (which usually runs three months to two years)
• Human trafficking (typically last six months to three years)
• Internet crimes
• Violent crime
• Counterintelligence investigations

While statistics of these types of investigations exist, they have yet to be published as a definitive FBI source, possibly because of the fact that these cases will have been handled by local law enforcement agencies before being handed over to federal law enforcement.

Why aren’t there statistics on FBI investigation length?

The lack of available data on FBI investigation lengths is due to a handful of factors. First, the DOJ’s publicly released data focuses on filed cases, not open cases. The statistics that the public sees relate to the cases that have already been charged and put forward for prosecution. However, statistics do not track the length of time it takes for covert pre-charge investigations, including how long it takes for the FBI to have enough evidence to refer a case to the DOJ, for a grand jury to be empaneled, and for the grand jury to return an indictment.

Second, it is believed that the federal government considers such information to be classified and sensitive for the FBI to release and for the U.S. Attorney’s Offices to publicly disclose. Local law practice does not allow establishing a nationwide timeline for investigations, as timelines vary from jurisdiction to jurisdiction.

Is there a deadline that forces the FBI to finish investigating?

While it is true that federal charges cannot be filed indefinitely, there is no set deadline for federal criminal investigations to complete. As a result, the DOJ and FBI have the latitude to investigate cases as long as the Statute of Limitations does not prevent them from charging defendants.

The Statute of Limitations restricts the amount of time the government has to formally charge an individual with a crime. With the vast majority of federal offenses, the Statute of Limitations is five years, as set forth under 18 U.S.C. §3282. But, while the Statute of Limitations sets deadlines for charging, it does not impose deadlines for investigating. The Statute of Limitations generally begins to run the day the alleged offense is committed. As long as the government can file charges within this five-year timeframe, it may take its time with the investigation. In many cases involving fraud or financial crimes, the DOJ and the FBI will not even begin an investigation until four years after the alleged crime was committed, yet they will still file charges at the end of the five-year period.

As discussed previously, prosecutors will either seek an indictment or an information before charging a suspect with a federal felony. In order to seek a grand jury indictment, the U.S. Attorney must first seek or use a federal grand jury. A federal grand jury is impaneled for eighteen months. If the U.S. Attorney wants more time for grand jury proceedings, he may request a six-month extension from the district judge. A district judge may grant such an extension if he determines that more time is necessary to complete the case. So what happens after twenty-four months if an investigation has not been resolved? If an investigation lasts longer than twenty-four months, the prior grand jury will expire, and a successor grand jury will continue to examine evidence and interview witnesses. This process will continue until a grand jury decides to return a “true bill” or until the statute of limitations on the charges expires.

The last topic we need to discuss is the concept of speedy trial rights. While it is true that the Sixth Amendment guarantees the right to a speedy trial in criminal cases, this right only “attaches” to the accused. This means that the Sixth Amendment only applies after you have been formally accused of a crime. While the Sixth Amendment is the foundation of the Speedy Trial Act, it does not apply to the pre-charge stage of criminal proceedings.

The Speedy Trial Act’s relevant section generally provides a timeline for the government to bring a criminal case to trial. This timeline is generally seventy days, starting from either an indictment or from the time of the defendant’s initial appearance in court, whichever occurs later. So, too, does the statute limit the amount of time it will take for the DOJ to put a case forward. Again, while this deadline may force a case to move forward and can result in the DOJ and FBI considering whether a successful prosecution is warranted, it still only applies to the timeline after an indictment is handed down.

While many individuals assume the case ends once a criminal charge is filed, this is not the case. Even after an indictment is handed down, FBI agents can and do continue to gather evidence. With a new indictment, the agent can apply for new search warrants, execute warrants, and interview additional witnesses.

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.

When is an FBI investigation officially over?

To answer this question, it is important to understand that an investigation may reach different types of endpoints. For example, a referral of the FBI’s investigation to a federal prosecutor is an endpoint for the FBI and the beginning of an endpoint for the case as a whole. Similarly, an arrest, indictment, or even a declination could also serve as endpoints for investigations in various cases.

A prosecutor’s declination means a decision not to file charges. While the prosecutorial declination means the investigation is over, it does not necessarily mean the person has not committed a criminal offense or will not be charged at a later date. It also may mean that prosecutors have not yet obtained enough evidence to pursue criminal charges. However, this decision may mean that the investigation has ended and the DOJ is closing the case.

Administrative Closure

Closures of federal criminal investigations may take on a variety of forms. Some cases can close without criminal charges, while in other cases they may lead to criminal arrest. Again, administrative closure is different from the prosecutorial declination by a U.S. Attorney’s Office. Closing an investigation administratively can mean one of two things:

1. The case was referred to a prosecuting U.S. Attorney, or

2. The case is closed without the FBI agents collecting enough evidence to refer to a prosecutor for charging.

In either scenario, the FBI can reopen its investigation when new evidence appears that may affect the outcome of the case. Administrative closure may occur because of the lack of investigative resources, FBI agents having concluded their search, or simply because the statute of limitations has run out.

Inactive Cases

While the vast majority of the DOJ’s closed investigations, the latter does not mean the case is considered “inactive.” With a broad array of criminal activities such as hacking, fraud, and other white-collar offenses, investigations can be dormant for years, even though they are open. FBI agents may not take a single step in an investigation for years. However, as soon as new information surfaces, agents can start an investigation to locate the suspect, gather evidence, and refer the case to the prosecutorial U.S. Attorney’s Office. Once evidence is gathered, the prosecutors may decide whether to pursue the case or decline criminal charges.

Outcomes of a Federal Criminal Investigation

Many different investigations end in a variety of ways. While there are too many outcomes to enumerate, here are three of the most common criminal investigation outcomes:

• FBI agent closure;
• prosecutorial declination;
• grand jury no-bill.

A sealed indictment occurs when a criminal case has already been decided at the grand jury level and charges were returned. However, this differs from an open criminal investigation because the grand jury has already voted to charge; the indictment simply has not yet been served on the accused. A sealed indictment allows investigators and prosecution lawyers time to gather more evidence or execute warrants prior to the defendant learning of the charges against them. While this may be a common outcome in high-profile criminal cases, the DOJ often chooses to serve the indictment to the accused when it is returned. A prosecutor will normally choose this path in straightforward criminal cases to allow for a more-rapid resolution. With a sealed indictment, the prosecution process could take months or years from the indictment date, as the prosecutors may need to secure a search warrant or arrest the accused.

Why is my FBI investigation taking so long?

While many investigations get dragged out by the sheer volume of documents to be processed and analyzed, many other factors can delay federal criminal cases. Some factors that can delay charging decisions include:

Volume of Evidence

While there is no set limit for the volume of documents the government can process to bring criminal charges, the DOJ’s Justice Manual instructs that prosecutors should commence a prosecution only when they believe “the admissible evidence will probably be sufficient to obtain and sustain a conviction.” This means that the more documents the FBI gathers, the longer it takes the DOJ to review them. Additionally, even if there aren’t many documents to process, the nature of the evidence obtained can prolong the time the FBI and the DOJ have to make a charging decision.

Digital Forensics

As more devices are seized, there are more hours devoted to digital forensics. In many cases, the DOJ’s prosecutors will not make a decision as to whether charges are warranted until after digital forensic analysis has been completed. Furthermore, since the Federal Bureau of Investigation employs a small number of digital forensic experts, requests for device forensics can go into queues that take weeks or months before processing begins. Once the investigation results are ready, the agents will then forward the results to a U.S. Attorney’s Office for prosecutorial decision making.

Filter Teams

In some cases, filter teams examine seized documents for privileged information, and these filter teams have the authority to exclude the investigation’s targeted information from the prosecutor’s review. These filter teams may also need to consult with courts regarding attorney-client privilege, privilege under 24 hours, or the statute of limitations before they make their final determinations. As a result, these investigations can get delayed for months by reviewing privileged documents and ensuring that the relevant documents remain out of the hands of prosecutors and FBI agents.

Classified Information Procedures Act (CIPA)

In cases involving national security and the Classified Information Procedures Act (CIPA) that involve allegations such as espionage, terrorism, or other high-profile offenses, they take months or years before any charges are filed. Many of these investigations will be classified, meaning, when the evidence reveals a security breach, the government will not inform the public. Again, these cases will go in and out of active investigation and FBI agents will only continue their investigation after uncovering a relevant lead.

Mutual Legal-Assistance Requests

Mutual legal-assistance treaties provide federal criminal investigators with the authority to seek assistance from other governments to seek documents or other evidence from foreign countries. If a foreign citizen has been accused of a crime, the FBI may need additional evidence before making a decision to refer a case to a prosecuting U.S. Attorney’s Office.

Corporate Document Collection

In many corporate fraud cases, the volume of corporate documents can last several years. Especially in cases involving numerous transactions of financial records, the process of gathering evidence takes a considerable amount of time. With this in mind, the FBI agents often have to coordinate with third-party entities when it comes to obtaining a corporate subpoena and securing sufficient evidence to justify referring the case to a prosecutor.

Expert Accounting Analysis

In white-collar investigations, accounting and other financial forensic analysis will often take months or years before a decision to file criminal charges is made. In cases of allegations involving wire fraud, money laundering, tax evasion, or the RICO statute, these types of crimes involve complex financial activities that can take federal prosecutors a considerable amount of time to analyze.

How can I find out if the FBI is still investigating me?

As a target of an investigation, you are generally not entitled to periodic updates from the FBI, unless the FBI allows you to communicate with the FBI agent in charge of your case. To date, the FBI has not officially confirmed targets’ rights to receive periodic status updates. Similarly, FBI agents do not have an official obligation to provide targets with official letters documenting the administrative closure of investigations.

FBI agents may not confirm whether a criminal investigation is ongoing to prevent the possibility of destroying documents or influencing future investigations. Similar to FBI investigations involving national security, an FBI agent may not tell the target, “The case has not yet been closed,” as doing so would encourage you to stop communicating with anyone about the alleged crimes. Again, FBI agents can refuse to answer any question about the existence or duration of your criminal investigation.

Similar to the above, FBI agents are not obligated to confirm or deny your status as a witness, subject, or target of a federal investigation. While a witness has no legal exposure in a federal investigation, however, the status may change over time.

Along with directly interviewing you, FBI agents often interview others who may provide relevant information about you. FBI agents can seek information about your financial accounts, employment, internet usage, and phone communications through a third-party subpoena. This subpoenas can target third parties such as banks, employers, and internet providers, as well as phone companies and hospitals.

Along with directly serving individuals, subpoena recipients may not inform the target of an investigation. In many cases, the recipient will immediately comply with the subpoena without notifying the target. However, whether notice is required depends on the statute and legal process used to obtain the records in federal investigations. For example, there are federal statutes under 18 U.S.C. § 2705, 18 U.S.C. § 3124, and 42 U.S.C. § 1951. These statutes explain the different ways the federal government can obtain private records. For instance, most subpoena responses require a notice given in advance, while some investigations have a delayed notice. Delayed notices can postpone disclosure of any government record request for ninety days. When this is delayed, the government can request longer periods of time to preserve secrecy.

While you may have to wait several months to find out whether FBI agents requested your private records, sometimes it will not be longer than ten years if you have received a federal grand jury subpoena. If you do not have any insight into how long the investigation will last or if you can find out if FBI agents are still investigating you, it is important to discuss the options for your case with a federal criminal defense attorney.

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.