You Got a DEA Target Letter: What Happens Next.

What Does a DEA Target Letter Signal Before Prosecutors Charge You?

A federal target letter is not an indictment, nor is it a criminal charge. While it has the effect of signaling that federal authorities believe they have a criminal case against you, it is an informational document, rather than an accusatory pleading. It is also distinct from a grand jury subpoena; the latter is a request for records or testimony and is more common in the early stages of a federal investigation, whereas target letters generally only come into play when the evidence is deemed sufficient to warrant indictment.

How Does the U.S. Attorney’s Office Define a “Target” ?

Justice Manual §9-11.151 explains that a “target” is a person whom the U.S. Attorney’s Office believes to be a putative defendant in an indictment. Under that section, it states:

“A "target" is a person 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.gov)

Justice Manual §9-11.153 states that, in appropriate cases, prosecutors are encouraged to notify a target a reasonable time before seeking an indictment, although federal law generally does not require prosecutors to issue target letters. (justice.gov)

Do DEA Investigators Send Target Letters?

The DEA investigates hundreds of cases annually, many of which involve issues that federal grand juries need to consider, and many of which that could lead to federal charges. When prosecutors believe it is appropriate to issue a target letter, it will be sent to a person (or potentially a company) who is under investigation by the DEA. Often, the target letter will identify the grand-jury investigation and include (or reference) the U.S. Attorney’s Office’s justification for thinking that you are a target. It will also provide guidance on next steps, including when you will need to reach out to a federal prosecutor, and the potential consequences of failing to properly intervene.

Do Federal Prosecutors Have to Send Target Letters?

No. Federal law generally does not require prosecutors to send target letters to individuals who may be subject to criminal charges. While the Justice Manual suggests that prosecutors should send target letters to ensure fairness and encourage targets to work with prosecutors, this guidance is not mandatory. In practice, however, it is common for the U.S. Attorney’s Office or DOJ to issue target letters during investigations involving the DEA.

Article Plan: Which DEA-Letter Instructions Can Create Risk Before Indictment?

I. Common target letter instructions (counsel and silence)

• Explain that silence and retaining counsel are standard advice.
• Discuss the purpose of silence for both the recipient and the prosecutors.

II. The warning about evidence destruction

• Discuss the warning against altering or destroying evidence.
• Explain how this warning, while common, carries legal weight.

III. Requests for grand-jury testimony

• Discuss target letters that request grand-jury testimony.
• Explain that these requests are common but subject to various factors.

IV. Communicating with potential witnesses

• Discuss the risks of communicating with witnesses, including obstruction of justice and witness tampering.

V. Preserving relevant materials

• Explain the need to preserve relevant materials such as emails, text messages, financial records, and other evidence.

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

Which DEA-Letter Instructions Can Create Risk Before Indictment?

Most target letters provide general information about the investigation and include instructions that recipients should be prepared to follow. This includes advice about silence (especially when speaking with the media or the public) and about retaining defense counsel. While most recipients will need to keep their silence as they work with their lawyers to mount a defense against any charges that will be brought against them, the target letter may also include other instructions that are more targeted in nature. With this, for example, some target letters warn that destroying evidence may be viewed as an attempt to obstruct justice. Others specifically state that it is imperative to stop communicating with anyone who could potentially be deemed a witness to the investigation, for the same reason.

Should You Agree to Testify at a Grand-Jury Hearing?

Occasionally, target letters explicitly request that the target agree to testify at a grand-jury hearing. The likelihood of receiving such a request is largely case-dependent and depends on a variety of factors beyond the nature of the allegations. As we’ve already discussed, if you have received a target letter from the DEA (or any other agency), it will be imperative to discuss how to respond with your attorney immediately.

What Other Risks Are Present?

Beyond the risk of witness tampering, communicating with potential witnesses may lead to additional accusations of witness tampering, or at least evidence of a conspiracy to impede the investigation. As a result, taking necessary steps toward the preservation of evidence may be in order as well. If you have received a target letter from the DEA, you should work with your attorney to understand exactly what information you need to keep, but this includes, at a minimum:

• Emails, texts, and online messages
• Financial records
• Emails, texts, and online messages
• Contracts and communications with third parties
• All other materials that may be relevant to the investigation at hand

When Might an Indictment Follow a DEA Target Letter?

Does receiving a DEA target letter guarantee that you will eventually face an indictment? No. While receiving a target letter is a clear indication that federal prosecutors believe they have a criminal case against you, it also gives them an opportunity to reconsider that conclusion. If a federal prosecutor decides to abandon a prosecution before filing charges, for instance, because they determine that there is not enough evidence for a conviction (or because they decide to focus their time and resources on other targets that they believe are likely to lead to a conviction), they do not necessarily have to tell the recipient of the target letter. In fact, under federal law, there are no specific rules that require federal prosecutors to notify individuals that they are no longer considered targets of an ongoing DEA investigation. If it is in the prosecutor’s interest to keep you in the dark, they will do so.

How Long After a Target Letter Should You Expect to Face an Indictment?

Again, there are no federal requirements that state when or if a target should face an indictment. For example, the Justice Manual encourages prosecutors to notify a target a reasonable time before seeking an indictment. In fact, target letters are issued by federal prosecutors’ discretion, so the Justice Manual doesn’t establish a timeline for prosecutors to file an indictment in general. Prosecutors and federal agents who are looking to indict target individuals will go about their investigations at their own pace, and they will seek grand-jury charges when it makes sense to do so. However, the timing of indictments can vary widely: as we have already discussed, in many cases, target letters are followed by indictments in a matter of days or weeks. If you or a loved one has recently received a target letter (or if you have a reason to be concerned about receiving one), don’t be afraid to contact Spodek Law Group to find out how we can help you make informed and strategic decisions during this time.

Can Pre-Indictment Cooperation Change the Case?

While you might be surprised to see a target letter from the DEA offer to work with the prosecutors, this is not an unusual or unexpected request. Many target letters end with the recipient being invited to discuss the case with the prosecutor. In order to avoid a criminal indictment, the prosecutor may be open to hearing an explanation of what you allegedly did (or didn’t) do, and what they think they can prove by seeking a guilty verdict in court. This presents an opportunity for your lawyer to contact the prosecutors on your behalf and gather information, while carefully making the strategic decisions necessary for protecting your rights.

Can a Targeted Individual Negotiate a Plea Agreement Prior to Indictment?

Yes. In some cases, targets may find that they are better off negotiating a pre-indictment plea than facing an indictment (and a potential guilty verdict) in federal court. This occurs with relative frequency in DEA cases, as federal prosecutors may be willing to provide a target with more favorable plea terms in exchange for a guaranteed guilty plea. In these scenarios, the target and the prosecutor can agree on the specific charges they intend to file against the defendant, and the defendant will agree to enter a guilty plea at their sentencing hearing without any one or more counts being put to a jury.

• By negotiating a plea agreement before indictment, targets can avoid going to trial, and they may be able to reduce the length of their federal sentence.
• Federal prosecutors and the DOJ may offer more favorable pre-indictment plea deals, as it saves them the time and expense of pursuing a case to verdict in federal court.

Can Targeted Individuals Avoid Facing Criminal Charges Entirely?

Yes. Targeted individuals may also be able to avoid facing charges entirely, if they have strong defenses for the allegations involved in the investigation. For example, a target may be able to convince the assigned Assistant United States Attorney that:

• Either, they did not act with the requisite intent to commit the offense; or,
• There is an issue with the underlying statute’s constitutionality.

Regardless of why it’s in your best interest to avoid facing charges, if you’re a target of a DEA investigation, it’s imperative to contact defense counsel and discuss these issues with them in confidence immediately.

Can You Speak With a Federal Prosecutor After Receiving a DEA Target Letter?

Yes. If you’ve received a DEA target letter and your lawyer suggests that you should speak with the prosecutors, it may be possible to reach a resolution without going to trial (and without facing the possibility of a lengthy federal prison sentence). Your lawyer may call the Assistant United States Attorney assigned to your case to request pre-indictment discovery, a detailed breakdown of the offenses you are accused of, or potentially even request that you not be indicted based on the mitigating circumstances of the situation at hand.

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 888 348 8028.