Witness, Subject, or Target in Federal Criminal Investigation
Have you been served or expecting a federal subpoena? Learn the difference between being subpoenaed as a witness vs target vs subject.
What does being a witness to a federal investigation mean?
Being a witness in a case involving the FBI, Secret Service, IRS or other Federal Agency does not necessarily mean that you observed or saw a crime happen. Rather, it means you likely have information that law enforcement deems relevant and believes may help them in a criminal investigation of another person or business.
Notably, even though you are only classified as a witness, you still have the right to remain silent and the right to counsel. On the other hand, federal prosecutors and the FBI are unlikely to alert you of those realities, and instead try to get you talking without a lawyer present. These statements of course could be used against you in the event you go from being a witness to a target to a criminal defendant.
Therefore, it is critical that even as a witness, you reach out to and hire a federal criminal defense attorney to guide the subpoena process. No branch or member of the government, from the US Attorney’s Office to the various Federal agencies, can force you to speak to them. Rather, you always have the right to speak to counsel before speaking with them, and it is best to exercise this right.
Most importantly, even as a witness, you will likely be asked to speak directly with federal agents even if grand jury testimony is not requested. In this sense, any and all statements you make to the FBI must be true and accurate in their eyes - false statements, intentionally or even unintentionally misleading the government could result in obstruction of justice charges, perjury charges, or lying to a federal agent charges, each of which is punishable by as much as five years in prison.
Whether you were unaware of any wrongdoing as an employee of a company or corporation, were custodian of documents but not their content, possess information that may evidence a crime or you actually observed a criminal offense, it is essential to protect yourself and exercise your right to counsel.
What does being a subject to a federal investigation mean?
The FBI, DEA, IRS, or a DOJ prosecutor might reach out to you by phone or in person if you are a “subject” to a Federal criminal investigation. In doing so, they may advise you that you are not in any trouble but that they want to speak to you as a witness in a case. Alternatively, they may state that they believe you have relevant information in an ongoing investigation. By using this vague terminology, and even referring to you as merely a witness, the government is seeking to gather information and statements from you despite your right to remain silent and right to have counsel at this important stage.
The term “subject of an investigation” itself has a particular meaning within the United States Department of Justice (DOJ), which defines “subject” as a “person whose conduct is within the scope of [a] [G]rand [J]ury’s investigation.” See USAM 9-11.151. The DOJ must warn these individuals prior to any grand jury testimony that the person is a subject. Id.
Yet, the same approach rings true as described above - many times, these federal agents will look to set up a proffer with the individual, even one who is a subject, and gather important statements and documents. Lying to a federal agent at this stage or obstructing justice (even if unintentionally), can have disastrous repercussions. It is crucial to have a federal criminal defense attorney represent you during the early stages of a grand jury investigation to assure that you do not incriminate yourself or elevate yourself to a target or criminal defendant.
What does being a target of a federal investigation mean?
The term “target of an investigation” is also specifically defined by the DOJ. A “target” is a person to whom the prosecutor or 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. An officer or employee of an organization which is a target is not automatically consid-ered a target even if such officer’s or employee’s conduct contributed to the commission of the crime by the target organization.
Needless to say, targets of criminal investigations should hire experienced counsel immediately to represent their interests moving forward.
Key Differences
Your Defense Begins Today
If you are on the receiving end of a federal grand jury subpoena, do not try to talk your way out of it without counsel. Do not ignore the subpoena and in turn face criminal contempt charges. Instead, hire an experienced federal defense lawyer to thoroughly and carefully guide this process. Contact the Law Offices of Jason Goldman today.
