Invitations for a conversation
When the United States Government investigates criminal activity, it uses various investigative means to seek information from people, both targets of prosecution and witnesses to crimes. These include: issuing subpoenas from an investigative grand jury for either direct testimony, or the production of documents, and sending target letters.
Grand Jury Subpoenas:
The federal government uses grand juries to investigate crimes. Federal prosecutors present evidence to the grand jury, and the grand jury decides what other evidence is needed, in order to determine whether crime(s) were committed, and, if so, by whom. The grand jury then issues subpoenas in order to require testimony, or the production of documents or other evidence. These subpoenas are issued by order of the District Court, and compliance is mandatory. Failure to comply subjects the recipient to penalties for contempt of court.
At early stages of an investigation, the grand jury and the federal prosecutor may not know whether witnesses from whom they seek information or evidence, may also be a future target of criminal prosecution. For this reason and many others, it is imperative that the recipient of a subpoena to a federal grand jury consult an experienced attorney before deciding how to respond. An attorney can reach out to the Government, in order to discern exactly what information or evidence requested, and why. The attorney, after thorough consultation with the client, can also assess whether or not any privileges may exist (such as the Fifth Amendment privilege against self incrimination) that may be able to be used in order to shield the client from the duty to testify or provide evidence. Should the attorney believe that a privilege against testifying exists, the attorney can inform the prosecutor that the client intends to assert the privilege, or seek other protections for the client, so that any information provided will not be used against the client, such as a proffer agreement.
When a witness testifies before a grand jury, only the federal prosecutor, court reporter, and the grand jury members are allowed to be present. Grand jury proceedings are held in secret. However, defense attorneys are allowed to be present outside the grand jury room, and available to consult with the witness, including whether or not the witness should assert a privilege to any given question(s).
By contrast, a proffer agreement is one in which a person meets with federal prosecutors and agents, with his attorney present, in order to answer their questions. However, proffer agreements typically state that information provided pursuant to the proffer agreement will not be used against the person questioned.
Similarly, when documents are ordered produced, pursuant to a subpoena duces tecum, it is important to consult with an experienced attorney who can both discuss the investigation with the prosecutor, and seek a mutual agreement about the time in which information may be provided. The attorney may also seek an extension of the deadline for producing documents.
Target Letters:
Unlike grand jury subpoenas, target letters are issued directly from the Office of the United States Attorney, rather than a grand jury and court order. Therefore, compliance with a target letter is not mandatory. However, a target letter should never be ignored, as it indicates that the target is under investigated by the Government, and invites the recipient to procure an attorney to contact the Government about the case. Usually, there is a deadline by which an attorney is asked to respond.
Most often, target letters are sent in the hope that a negotiated plea agreement can be reached before any charges are filed, or any arrest is made. However, a target letter does not mean that a federal prosecution is either imminent or certain. Where a prosecution does appear to be certain, however, reaching a negotiated agreement before charges are filed may be advantageous to the client. Having an early opportunity to reach a negotiated agreement may be valuable in several respects. It may allow the opportunity for the target to cooperate before arrest. It also provides the chance to reach a favorable plea agreement, including the choice of the crime to which the client may agree to plead guilty, and the terms of any such agreement. At a minimum, target letters create the opportunity for an attorney to find out information from the Government about its evidence and intentions. It is imperative that anyone in receipt of a target letter seek the service of an experienced federal criminal defense attorney without delay, so that the attorney can respond to the federal prosecutor in a timely manner.
Both federal grand jury subpoenas and target letters demand the assistance of experienced counsel for advice. Both situations may fairly be construed as invitations for a conversation with the United States Government by an attorney. As such, neither should be ignored. Opportunities are often presented early in an investigation that evaporate over time. Witnesses do not always become defendants. There is often a very delicate balance between the two, and even those who are arguably guilty of some crime may escape charge and punishment with the assistance of experienced representation.
At Hale Law Firm, Attorney Robert Hale has represented numerous people subject to target letters and grand jury subpoenas. Many were never charged with any crime. Call us today if you need help from an attorney experienced in these matters. (919)-838-0058.