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Federal Investigations: Are You the Subject or a Target?

Federal Investigations: Are You the Subject or a Target

The federal government considers persons who are involved in criminal investigations to be either a subject or a target.

A subject is a person whose conduct is within the scope of the investigation, but whom the government hasn’t yet determined has committed a crime.  A target is a person against whom the government already has obtained substantial evidence linking him or her to a crime, and who the government already has decided will be a defendant in a forthcoming prosecution.

Subject

Federal law enforcement agents typically advise a subject of his or her status upon first contact.  However, a subject shouldn’t be lulled into believing that he or she won't become a target because of the agents’ representations and agree to an interview: the agents may suspect that the subject has committed a crime and they’re attempting to develop evidence to support that suspicion, or they simply may be unaware of the subject’s criminal conduct, which the the subject may inadvertently reveal in the interview.

A subject should consult with an experienced federal criminal defense attorney who can help him or her become a witness or a person in whom the government no longer has an interest, rather than a target.

Target

A target typically learns of his or her status directly by the government’s mailing, or personally serving through a agent, a “target letter,” or indirectly by an agent's serving grand jury subpoenas for documents and other items of potential evidence on the target, or his or her associates, such as accounts and business partners.  A target shouldn’t ignore either of these events while hoping that the matter will go away, because again, the government already has made the decision that the target will become a criminal defendant.

A target letter advises the target that the government is investigating him or her for a specific crime, and invites the target to retain an attorney to discuss the matter with the assigned prosecutor before the government obtains an indictment.  The government usually gives the target a period of twenty days to respond to the target letter before indicting the target, thereby making him or her a defendant.  Although the purpose of a target letter is cause the target to retain an attorney who’ll negotiate a plea of guilty before the government has to go to the trouble of indicting the case, an experienced federal criminal defense attorney knows that it presents an opportunity to convince the government not to prosecute the target based on some difficulty of proof or evidence in mitigation, of which the government may not be aware—this is the best opportunity in every case to avoid an indictment if possible, and if such isn’t possible, to learn about the evidence that the government has obtained before the formal prosecution so that the target and his attorney can develop an early, effective defense strategy.  The target letter also presents an opportunity in cases in which an indictment is inevitable for the target’s attorney to negotiate a voluntary surrender and release on bond after the government obtains an indictment, thereby avoiding an unexpected arrest and a possible temporary pretrial detention between the time of the arrest and detention hearing before a United States magistrate judge.

A target also should be proactive in response to learning that the government is seeking documents and other items of potential evidence through grand jury subpoenas.  The target should retain an attorney to discern the source of the subpoenas and their purposes, which will allow that attorney to develop a strategy to undermine the investigation, and then engage the government in a dialogue before its obtaining an indictment in an effort to avert the prosecution or negotiate a voluntary surrender and subsequent release on bond.

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