Federal Subpoenas - FBI, DOJ, & Grand Jury Investigations
Understanding Your Federal Subpoena
A federal criminal subpoena is typically a legal order issued by a grand jury in a federal criminal investigation. The purpose of this subpoena is to compel individuals or entities to produce documents, testify, or provide evidence relevant to the case being investigated. Grand juries are used to determine whether there is enough evidence to charge someone with a crime.
In reality, the subpoena itself is typically issued by or preceded by contact from an Assistant United States Attorney (“AUSA”) or FBI Agent, both acting as agents of the Department of Justice (DOJ). These officers have the authority to contact civilians and request cooperation, whether it be through a “proffer” meeting or grand jury testimony or document production.
Federal agents typically come to your door or workplace unannounced and serve you with a grand jury subpoena for documents and/or testimony, and then leave without providing many more details. This in and of itself should alert you to call a criminal defense attorney. If contacted by an AUSA or FBI Agent, whether an actual subpoena is issued or not, it is critical to have a federal defense lawyer represent you in the pivotal stages which will follow. This holds true for those who are categorized as witnesses, targets, or subjects of an investigation.
Being served with a federal criminal grand jury subpoena can be a serious matter, as it indicates that you or your business may be involved in a federal criminal investigation. It's essential to consult with an attorney if you receive such a subpoena to understand your rights and obligations.
Types of Federal Subpoenas
A grand jury subpoena is issued from the federal or state prosecuting agency under the guise of a grand jury investigation into suspected criminal activity. The subpoena may seek years of documents and testimony regarding those documents and other relevant matters to the investigation.
There are two main types of grand jury subpoenas:
- Subpoena duces tecum: This type demands that the recipient produce documents, records, or physical evidence related to the investigation.
- Subpoena ad testificandum: This type requires the recipient to testify before the grand jury. It is worth noting that oftentimes, a subpoena may be “for testimony” but will include a clause that in lieu of testimony, the individual can provide certain documentation which may suffice and satisfy the subpoena itself.
Can You Ignore a Federal Subpoena?
No, you cannot simply ignore a federal grand jury subpoena. Failing to comply can lead to serious legal consequences, including contempt of court charges, which may in turn result in jail time or a fine. Yet, there are avenues to challenge or narrow a subpoena without simply providing any and all documentation or testimony which has been requested.
Your Legal Rights & Options
- A federal criminal defense lawyer can, in some instances, make a motion to quash the subpoena if it is overly broad, unreasonable, or violates your rights (e.g., the request for documents is too extensive or privileged).
- Negotiation and Proffering: In lieu of testifying at a grand jury, where your lawyer cannot be present, you can instead have your lawyer negotiate for a proffer session. This is essentially an off-the-record meeting with prosecutors and federal agents, where you can provide certain information and documentation to satisfy the subpoena request. Importantly, prosecutors cannot use what is said during a proffer as direct evidence against an individual if that person is later arrested and tried in court. However, a prosecutor can use statements at a proffer to impeach the individual should they later testify at a trial inconsistent with what is said during this meeting.
- Immunity: Individuals in receipt of a federal grand jury subpoena often inquire about immunity in exchange for testimony. In reality, the department of justice rarely will confer immunity upon these individuals. Of course, if the testimony or document production itself is privileged and/or would violate an individual’s right against self-incrimination, the person can’t simply be compelled by a subpoena. Rather, the individual would need their federal defense lawyer to pursue one of the first two methods above to ensure that the individual can satisfy the subpoena without being held in contempt.
Derivative Use, Immunity, and Kastigar Hearings
A Kastigar hearing is a legal proceeding in federal court that arises when a defendant or a target of a criminal investigation is concerned that their testimony or evidence obtained from them under immunity may be used against them in a criminal prosecution.The term comes from the 1972 Supreme Court case Kastigar v. United States. In that case, the Court ruled that the government can grant immunity to a witness to compel them to testify, but the testimony or any evidence derived from it cannot be used against them in a criminal case. However, the government is still allowed to prosecute the person if they can show that the evidence they are using comes from sources independent of the compelled testimony.A Kastigar hearing is held when a defendant believes that their immunized testimony or evidence derived from it has been used improperly in the prosecution of their case. The hearing is used to determine whether the prosecution has violated the terms of the immunity agreement and whether the government has used any of the immunized testimony or evidence in their case against the defendant.During a Kastigar hearing, the government must prove that the evidence it plans to use against the defendant is independent of any testimony or evidence obtained under immunity. If the government cannot show this, the defendant’s charges could be dismissed or certain evidence could be excluded from the trial.In essence, the purpose of a Kastigar hearing is to protect the constitutional right of a defendant not to have self-incriminating testimony used against them after they’ve been granted immunity.
Criminal Defense Strategy for Federal Subpoenas
As outlined above, there are various strategies that a federal defense lawyer can employ when a client is served with a federal grand jury subpoena.Whether you are a witness, target, or subject, a time-tested tactic is to first delay the production of documents or testimony so that your lawyer can be fully briefed and familiar with the facts of this specific situation. A seasoned defense attorney will first contact the requesting agency to determine the status of the matter and whether the client is simply a witness or may have criminal exposure. If the client has potential exposure, then additional time will be required to understand the facts and to carefully review the documents before forwarding copies pursuant to the subpoena. There may be privileged items that counsel may attempt to withhold under certain circumstances. If testimony is required, the person may invoke his right not to testify under the Fifth Amendment or seek immunity to testify.Often times, the scope of the subpoena is broad, and the production of the requested documents can be burdensome, time-consuming, and expensive to locate, collect and copy. Defense counsel will narrow the scope of the subpoena and show the government that, in reality, you do not have the firsthand knowledge to provide a specific piece of testimony or documents being requested. Counsel may also discuss an extension of time to gather, review and organize the documents to make sure that they are responsive.While this process may sound harmless, albeit tedious, it can lead to numerous issues that are best handled by an attorney well-versed in this area. Purposely withholding or even destroying relevant documents can lead to serious criminal charges. The act of production alone can at times be used against the person.
Your Defense Begins Today
Ultimately, a federal defense lawyer will work to assure that you are not left exposed to a criminal prosecution following the receipt of a grand jury subpoena. Securing a non-prosecution agreement or another form of immunity is critical here. If you have been contacted by an AUSA, FBI Agent, or served with a federal grand jury subpoena, it is imperative that you call our office today.
