A client once shared with me that “nothing gets your attention like a visit from a federal agent.” I would add: “Unless it is a letter from the United States Attorney’s Office notifying you that you are a ‘target’ of a federal criminal investigation.”
A visit from federal agents can lead to several outcomes, including favorable ones. The federal target letter is a formal notice and usually results in federal charges.
We divide clients contacted during an investigation by the federal government into three categories: targets, subjects, and witnesses. When a U.S. Attorney’s Office designates someone as a target of a federal investigation, the person is notified that an assistant United States attorney intends to present substantive evidence of a crime during grand jury proceedings to obtain a federal indictment.
A person designated as a “subject” could be indicted if the federal investigation develops substantial evidence that the subject was involved in the commission of a crime. Unlike the target of an investigation, federal investigators may not have enough evidence to connect the subject to the commission of a federal criminal offense. Depending on the way the evidence develops and the changing objectives of the federal government, the subject may avoid criminal charges.
The “witness” will not be indicted unless a law enforcement officerdevelops new evidence implicating the witness, such as evidence of obstruction of justice.
This post focuses on our top five priorities when representing a “target,” “subject,” or “witness” during of an investigation into federal criminal offenses.
Each person should act with caution.
Everyone should proceed through an experienced federal criminal defense lawyer.
- The U.S. Attorney can change the designation of a subject or witness to a target at any time.
- The advance notice created by a letter from the government can be beneficial.
- But only if we use it to prepare to mitigate or bolster our client’s position.
So, our top five priorities when
our client is a target, subject, or witness follow. y
1. Stop Their Talking, Especially If They’re Innocent
Each should act with caution. Everyone should proceed through experienced counsel. Know that a subject or witness’ status can change at any time. The advance notice created by a letter from the government can be beneficial, but only if we use it to prepare to mitigate or bolster our client’s position.
Let’s focus on our top five priorities when representing a target, subject, or witness during of an investigation.
You’ve seen it on every crime show and in countless movies. The accused is being asked questions in a small, dimly lit room. The response could be, “I want to speak to my lawyer.”
Too often, this isn’t the case in real life. The person questioned offers a story, or part of a story, that may or may not be true. Either way, it could damage their defense.
According to the Innocence Project, many of the people exonerated by DNA evidence made some form of false confession.
Indeed, everyone has a constitutional right not to talk, whether they are approached by a federal agent or called before a federal grand jury. Consulting with an experienced defense attorney is crucial before considering responding to questions.
Remember the following KEY things when an investigator approaches your client to answer questions.
The investigator has reached conclusions already. Many times, federal investigators have reached conclusions before any interview, and the facts are what they believe them to be. I can’t count all the people who told me they sat for an interview with a federal criminal investigator only to have the investigator arrest them as soon as the interview ended. You have little chance of changing their conclusions about the accusations, and an interview may cause more harm than good.
Which leads to the next point.
Honest mistakes will hurt your case. People view an accused person differently. The benefit of the doubt disappears. An honest, everyday mistake is a mistake under ordinary circumstances. An honest, everyday mistake by the accused? It’s a lie! At least, that is the way the investigation will treat it. When it comes to an alleged crime, any information becomes potentially damaging information.
You can talk later but can’t take back what you say today. When our personal ethics are under scrutiny, our natural, human instinct is to defend ourselves. But innocent mistakes compound our problems.
Any story our clients tell today must be consistent with the defense we mount during the trial. Trying to explain a situation without access to background information or crucial documents will force us to explain later why any mistakes are inconsistent with the rest of our defense. One miscue may allow our opponents to frame our uninformed, unprepared statements as dishonesty and lead to a criminal indictment.
That deflects from the truth and weakens our defense.
Prevent uninformed or uncounseled statements. When clients insist on explaining themselves, remind them that working through counsel is always the better practice. Our memories are flawed, and we must conduct our investigation before offering statements. Remind them that they are the target, subject, or witness in a grand jury investigation – conducted by the U.S. Attorney’s Office – that will led to the a criminal prosecution of someone. We don’t want it to be them. The best course of action is to seek the advice of a federal criminal defense attorney with years of experience before making any decisions about their defense.
They can talk later, but they can’t take back what they say today.
2. Begin Building a Collaborative Relationship with Your Client
The first meeting with a client is a critical juncture in the defense of a criminal case. The client is assessing his potential lawyer just as the lawyer is deciding what they think of the client. More important, any story we tell in the early stages of a case must be consistent when we tell the story to the jury.
That does not mean that we are telling any story outside the walls of the law office at this point. But we begin the process of discovering the story, which includes the events that brought the client to the office, their background, and any significant feature of the client’s personality.
Once we realize a client is going to hire us and an attorney-client relationship exists, our questions to the client must be invasive, detailed, and challenging. We need to know as much as possible. Not every client is willing to answer all the questions immediately, but it is critical to get down to business as soon as possible.
We don’t want to run out chasing leads without knowing our client and understanding how others might view them. We search for the experiences, traits, and limitations that form our clients’ personalities, help explain their motivations, and warn us of blind spots.
Without the little details, we are unequipped to fully advocate for them. Knowing their children’s names, their proudest achievements, and their darkest secrets are matters that will help us investigate, evaluate, and argue their cases.
We don’t always get all the information at once. Sometimes we are misled. Other times, clients shut down. But knowing more is always better than finding out something the hard way.
So, you can imagine that some of my more assertive clients may pose their own question in response to some of mine: “What the hell does that have to do with anything?”
When that happens, we learn a lot about our clients. Do they drop their shield and answer questions? Do we get significant parts of the story with the opportunity to learn more as we develop trust? Does the client shut down and walk away?
Any combination of these conscious and subconscious responses is possible, and probable. That does not change the necessity to remain curious, continue to question, and, to the extent possible, verify the stories.
Success may depend on it. And no, their mother, friend, or husband can’t attend our meetings.
Work on trust – not friendship. Clients must trust us on some level to hire us. At the same time, the relationship will be new. We must give our clients reasons to trust us. We can start by doing what we promise to do. Even the little things matter, like returning phone calls, finding answers to questions we said we’d answer, or making calls we offered to make.
Clients always make difficult choices. The more trust they have in their lawyer, the more likely they are to follow the lawyer’s advice. It may seem like a small thing, but we have all been at odds with clients.
We want them to make informed decisions based on our advice. That’s more likely to happen when we have their trust.
Establish the roles – and set boundaries. Prosecutions and defenses take a while to develop. The time can range from months to years. Whatever that time, our client is suffering under the weight of the great unknown.
- Will I be released pending trial?
- How will the case proceed?
- What will the witnesses say?
- Can we resolve the case favorably?
- When will we review discovery?
- What’s a jury trial like?
The answers to these questions unfold as the case proceeds, but the waiting is tortuous for our clients.
Clients deserve clarity about the way cases proceed. They need to understand what kinds of things are happening during the delays. They need to know that being out of sight is not the same as being out of mind.
They need our assurances about how we intend to conduct the defense. They deserve guidelines – and even some predictions – based on our experiences.
- How will the investigation proceed?
- How long will that take?
- What delays are healthy, and which ones are damaging?
- When will they hear from us?
- How quickly will we have answers?
We can establish clear boundaries with open communication about what to expect. We need our clients to know what we can and cannot control.
Anything less than clarity separates us and undermines trust. We cannot make every client reasonable, agreeable, or respectful. But open, clear communication improves our chances of collaborating with our client in positive way and producing a successful outcome.
Manage expectations. There is no certainty in this business. Our experience so often points us toward a particular outcome, only to discover something new. Sometimes that discovery is favorable for our clients. Other times it’s devastating.
We have an obligation to manage expectations as best we can. Our clients and their families want the best outcome. So often, their idea of a best outcome is out of reach.
Overselling our clients’ situations is a mistake. That does not require pessimism or a glass half-empty outlook. It has nothing to do with optimism or pessimism.
We are discussing the unknown. We know the parameters. All clients have the right to plead guilty or not guilty. We can explain the minimum and maximum sentences.
But that does not say a lot about where a client will be and what life will be like for them in five years. Establish a clear vision of best, worst, and practical scenarios.
3. Discourage Changing, Shredding, or Deleting Anything
Our instinct is to protect ourselves. We use passwords to keep our information private. We lock our doors to keep out the public. We draw the curtains to shield ourselves from passing eyes.
We have every right to manage our records, documents, emails, and text messages the same way.
Even an innocent person has every right to get rid of embarrassing details, right?
Why shouldn’t we shield our private information from public view?
Not so fast! First, we all have a legal obligation to archive certain information for a period of time. Tax records are a common example. Deleting things makes our clients look like they have something to hide, even when that’s not true. And, they could be disposing of something important to your defense without even realizing it.
Finally, seemingly inconsequential data may help prove their innocence, undermine an accusation, or support a lower sentence.
Stop the client from destroying information. Save everything! The other side may have it anyway. A good lawyer’s investigation includes discovering the information we don’t like as well as the information that helps. We can’t prepare for that which we don’t know exists.
4. Engage with the State or Government Early
A newspaper reporter once told me: “The key is understanding that everyone has a story and wants to tell it.” The lead investigator on a serious case may not have a story to tell you. But they all have an agenda.
The chance to talk to defense counsel furthers that agenda in many cases. That does not mean we can or should reveal anything about our clients. It does mean that we have every incentive to learn as much as we can early.
Is their version of the evidence dramatically different than our client’s? Where does our client fit in the order of things? Will they allow us to surrender our client without an arrest?
We may not come away from a talk with an investigator with much or any information. But we open a dialogue or start building a relationship that could be useful.
Natural adversaries find common ground sometimes, even in cases that go to trial. That could mean access to evidence, help locating a witness, or just general information. It is always worth a call.
You should also talk to the prosecutor. We can accomplish things informally that we cannot always accomplish formally.
For example, prosecutors control the calendar in North Carolina. Thirty years ago, they routinely used the calendar as leverage, scheduling multiple cases at once, providing no priority, and leaving defense counsel to guess which case was most likely up for trial.
That happens less often today, but we often need their assistance getting hearings and trial dates scheduled. The calendar control gives prosecutors enormous power. It is in our clients’ best interest for the defense to influence how they use that power.
In the Middle District of North Carolina, the Court imposes something akin to a rocket docket. From indictment to trial may be 45 to 60 days. We may influence the timing of an indictment, especially when your client is headed to a plea agreement.
Sharing a respectful relationship with an adversary can help with scheduling evidentiary reviews, interviewing witnesses, and coordinating dates for meetings and hearings. Along the way, we take these opportunities to humanize our clients and debate the merits of the case.
We are dealing with people who work for an elected official or someone appointed by an elected official. They have agendas.
At the same time, they are human beings affected by time pressures, public scrutiny, and the possibility of failure. Use these pressures and your relationship with the prosecutor to gather information, negotiate contested issues, and influence the trial process.
These discussions may accomplish some of the following:
- Influencing the timing of an indictment
- Surrendering a client for service of the indictment
- Negotiating pre-trial conditions of release
- Reviewing a reverse proffer
- Negotiating a more favorable plea on a bill of information
Open lines of communication with the people who yield enormous power over your client’s fate. The goal is not to create a friendship or cultivate a lunch partner. It is to influence critical decisions beyond our control, at least until we get in front of a jury.
5. Start Your Investigation
Gather the things your client would have changed, shredded, or deleted. If our clients could view their cases neutrally, had a firm grasp on the criminal statutes, procedures, and local practices, and understood the nuances of criminal defense, they would qualify to decide what information is important and what is irrelevant. But none of those things is true.
Our clients are almost as likely to ignore, hide, or destroy helpful information as harmful information. If they have that urge, we are well advised to review the information.
My experience is that someone usually discovers the embarrassing or harmful information about my client. I would rather it be me.
More importantly, that seemingly embarrassing or harmful information could be significant or lead to a key discovery. Every situation is different. You can’t get custody of contraband. There may be circumstances where you are better off without information relevant to the government’s investigation. The problem is that someone will know that information. If the information is exculpatory and our client deprives us of the opportunity to review it, we may lose the opportunity to use it.
Encourage your clients to disclose it to you before you learn about it from the other side.
Start interviewing potential witnesses. The time before a client is charged or indicted may not be the most fruitful time for discovering and tracking down witnesses. After all, you don’t know the elements of the offense, much less the details of the investigation.
But, if you practice the critical priorities listed above, you will uncover information that will lead to potential witnesses. It is a good time to find out who has interviewed them, what they said, and what they know.
Of course, they may not talk. They may be hostile. Or have no idea what you are asking about. All these responses are answers to important questions.
Start investigating potential witnesses’ backgrounds. Keep in mind, we are discussing pre-charge priorities. If we intend to rely on witnesses to exculpate our client, mitigate a sentence, or convince a judge to release them pending trial, we must know something about the potential witness’ background, character, and standing in the community.
That is doubly true if the witness has potentially damaging information about our client.
- What’s the agenda?
- Is the witness vulnerable in the investigation?
- Does the witness stand to gain something?
- Does the witness have a mental health or substance abuse history that impacts their credibility?
This is a short list of possibilities. The more eager the witness, the greater the likelihood of an ulterior motive.
Seize the time before an indictment, using it to your client’s advantage.
Practicing these top five priorities when your client is a target of a government investigation will position your client for a stronger defense and may just help you avoid an indictment.