Inside the Grand jury investigation

Determining the “Target” of a Federal Investigation

A federal criminal investigation touches many people, all with a different role in the investigation. While not every person that an agent interviews is suspected of wrongdoing, it is vitally important that anyone who sits down for an interview with federal agents understands their role in the investigation, the investigation’s scope, and whether they are the target of an investigation. While the federal agents are not required to inform an attorney of their client’s role in the investigation they usually do if you just ask.

How does the DOJ Define “Subject” “Witness” and “target”?

The words “target,” “subject,” and “witness” are derived from DOJ policy guiding conduct during grand jury investigations. These three categories are important distinctions to Federal prosecutors who must be aware of an individual’s status to properly approach them, advise them of their right to counsel, and ensure that an investigation is not tainted by improper conduct. DOJ policy “encourages” federal prosecutors to notify the target of a grand jury investigation that they are a target in order to afford him or her an opportunity to testify before the grand jury but this is rarely (read: never) employed by defense counsel in the current grand jury environment. While these three categories are borne out of grand jury policy and jurisprudence – investigators are always cognizant of an individual's status when making contact so as to not taint the investigation with improper conduct.

The DOJ provides the following definitions for “target” and “subject”:

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. An officer or employee of an organization which is a target is not automatically considered a target even if such officer’s or employee’s conduct contributed to the commission of the crime by the target organization. The same lack of automatic target status holds true for organizations which employ, or employed, an officer or employee who is a target.

A “subject” of an investigation is a person whose conduct is within the scope of a grand jury’s investigation.

You’ll notice that “witness” is missing here: A “witness,” while not defined in the DOJ manual, tracks its common definition. A witness is someone who has information that the government considers important to the investigation – at that time.

Can a Witness in an Investigation Become a Target?

This distinction between these three categories is vitally important for counsel to determine the best defense. However, a person’s status may shift between witness, target, and subject over time. Federal investigations are fluid and often displace focus on minor facts. Defending a witness of an investigation still requires a full knowledge of the facts surrounding the investigation so that an attorney can analyze the culpability of the witness and determine if the federal agents may discover facts that would change the individual’s status.

Defending a witness in an investigation is much different than defending a subject or target. If someone is simply a witness and there is no threat of prosecution, they may freely engage in open discussions with the prosecution and defense counsel about the facts of the case. Before deciding that a client should be represented as a mere witness, counsel must be absolutely sure that the witness’s status will not change. This is a question that hinges on the scope of the investigation which is often a carefully guarded secret in federal criminal investigations. An honest and truthful assessment of the individual’s knowledge and involvement in an area of interest to federal prosecutors must take place at the earliest opportunity to determine their ultimate status. Counsel must learn all facts and lean forward into any possible area of investigation to determine if their client’s status may change.

Representations of FBI agents or federal prosecutors, while usually not intentionally disingenuous, are meaningless as more light is shed into the investigation – the status of the individual will change. In United States v. Foster, the Sixth Circuit reversed a conviction because a prosecutor informed counsel for a witness who testified before a grand jury that if the witness testified for the defense at trial his immunity would be revoked, and charges would be filed against him. Federal prosecutors also attempted to conceal the witness’s grand jury testimony from the defendant because it tended to establish his innocence.

How to Defend a Target of a Federal INVESTIGATION?

Targets of federal investigations generally learn of their status through a trickle of information as the federal government begins investigating from the periphery. A friend or colleague may be questioned by federal agents. A former or current business partner may receive a subpoena. Or, the FBI may execute more aggressive efforts such as a search warrant or a grand jury target letter.

One thing that targets of an investigation all have in common is that they are the subject of a grand jury investigation into their alleged conduct. Grand juries are not truth-seeking devices. They are a tool of the prosecution to seek evidence in secret before proceeding with prosecution. They are a tool to coerce witnesses to cooperate with the Federal Government under threat of indictment to secure. In order to understand how to defend the target of a grand jury investigation, one must commit to the principle that the grand jury is not a forum for fairness but designed to increase the secrecy, power, and compulsory nature of federal investigations.

How is a Federal Grand Jury Conducted?

From its inception, the United States grand jury was designed to guard the accused against hasty and oppressive prosecution. It was a buffer between the citizen and the power of the criminal justice process, and was created to ensure that some modicum of due process is provided before a person becomes a target of the state.

Just as with many other aspects of the criminal justice system, its protections have eroded over time; what was once a protective effort has leaned into another tool in the government’s arsenal. Its older origins began with a grand jury in England, which was abolished in 1933 but maintained considerable independence from government prosecutors. Today's American grand jury is organized by the prosecution and only hears the prosecution’s side of the case. The prosecutor organizes the jurors, decides which witnesses to call, which documents to present, instructs the grand jury on the law, and makes arguments absent a voice from the other side.

A grand jury is comprised of twelve to twenty-three members selected from the general public who sit and hear a number of cases over a set term. The federal government is required to use grand juries for all felonies (no misdemeanors), to return an indictment – a formal criminal charge against a defendant. While the federal government continues to use grand juries for federal prosecutions, most states typically use the more adversarial procedure of a “preliminary hearing” to return criminal charges against a defendant. In great contrast to a grand jury, at a preliminary hearing the defense can question witnesses, call its own witnesses, and argue to a judge or magistrate that criminal charges are not appropriate.

The grand jury returns an indictment if at least twelve of its members determine that there is “probable cause” that a felony was committed and that the target of the grand jury committed it. Federal rule of Criminal Procedure 6 covers grand juries and provides that grand jury proceedings are to be kept secret. While a court reporter generally transcribes grand jury proceedings, the records are sealed and can only be disclosed under very rare circumstances. In Douglas Oil Co. of California v. Petrol Stops Northwest[1], Justice Powell of the Supreme Court determined that “if pre-indictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily”. Justice Powell was understandably concerned that defendants may attempt to influence a grand jury witness and disrupt an investigation of the United States. As a result, grand jury transcripts are kept secret and not disclosed unless the defendant can prove that “without the transcript a defense would be greatly prejudiced or that without reference to it an injustice would be done”. While this may seem like a standard capable of being met by a defendant in many cases, the request must be made with particularity and without knowledge of the actual testimony before the grand jury. It is nearly impossible to make such a request with particularity.

Are Prosecutors Required to Present Exculpatory Evidence at a Grand Jury?

At a grand jury, federal prosecutors are not required to present evidence that might tend to show the target did not commit the crime - “exculpatory evidence”. To put it differently, in this alleged truth-seeking forum, prosecutors have zero obligation to provide evidence that a crime wasn’t committed, or the defendant didn’t commit the crime.

Think about it this way: A prosecutor has two witnesses to a bank robbery. One is a 52-year-old minister at a Baptist church across the street who observed the robbery while walking to his late model Oldsmobile. The other witness is a twice-convicted felon who is testifying pursuant to an immunity deal and was involved in the bank robbery. The minister states that the target of the investigation did not commit the robbery while the two-time felon working off an immunity deal implicates the target. The prosecutor is not required to call the minister or even mention the existence of the minister and his testimony.

The grand jury is better thought of as a second opportunity for prosecutors to obtain and lock in witnesses within its control. A talented prosecutor will only bring evidence to the grand jury that helps solidify its case and exclude evidence that hurts its case. This is because at a later stage of prosecution, the government will be required to hand over testimony of witnesses pursuant to the Jencks Act.

ABOUT THE AUTHOR

Ron Chapman has spent his career defending federal defendants in high-profile federal criminal cases. He is also the author of the Amazon best selling book Fight the Feds: Unraveling Federal Criminal Investigations. During his career he has learned that many federal defendants facing the power of the federal government lack resources and understanding of this complex field of law. The book and this companion website and guide were designed to close the informational gap between the federal government and federal criminal defendants by providing tactics and tips learned during my career fighting the federal government and its immense power. If you haven’t already, go to the beginning of this guide and review sections that are relevant to you and consider purchasing Fight the Feds to grow your knowledge of federal criminal law and investigations.