While federal law investigations can target a broad range of offenses, the stakes in these investigations are almost invariably high. When a federal agency devotes resources to pursuing an investigation, it has a vested interest in seeing the investigation through to its conclusion—whether that conclusion involves deciding not to prosecute, entering into a plea agreement, or pursuing charges at trial.

Federal law enforcement investigations can proceed through various means, and federal agents and prosecutors have various investigative tools at their disposal. One of these investigative tools is the “target letter.” If you have received a target letter, you need to carefully plan your next steps, and you need to make informed and strategic decisions based on the advice of experienced federal defense counsel.

For some individuals, receiving a target letter can be a matter of formality. For others, it can come as a total and utter surprise. In either case, a swift response is required, and targets must carefully prepare their grand jury testimony giving due consideration to the significant risks involved.

What is a Target Letter?

So, what is a target letter, and what is its legal effect? A target letter is a written letter issued to a witness who has been subpoenaed to testify before a federal grand jury. Target letters are issued by United States Attorney’s Offices, which form the prosecutorial arm of the U.S. Department of Justice (DOJ). Each federal district has a U.S. Attorney’s Office, and Assistant U.S. Attorneys can issue target letters in connection with federal investigations that are pending in their respective jurisdictions.

The DOJ has made a number of sample target letters publicly available in its Civil and Criminal Resource Manuals. For example, Section 160 of the Criminal Resource Manual contains a sample target letter which would be used to notify a grand jury witness that he or she was the target of the government’s investigation. The sample target letter in Section 160 states, in part (emphasis added):

“This letter is supplied to a witness scheduled to appear before the federal Grand Jury in order to provide helpful background information about the Grand Jury. . . .

“We advise you that the Grand Jury is conducting an investigation of possible violations of federal criminal laws involving, but not necessarily limited to [pertinent statutory citations to be inserted]. . . .

“You are advised that you are a target of the Grand Jury's investigation. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything that you do or say may be used against you in a subsequent legal proceeding. If you have retained counsel, who represents you personally, the Grand Jury will permit you a reasonable opportunity to step outside the Grand Jury room and confer with counsel if you desire.”

In some cases, the issuance of a target letter will be a matter of formality. By the time federal prosecutors seek to empanel a grand jury, the target will already be well aware that he or she is under investigation. In others, however, the receipt of a target letter may be an individual’s first indication that charges are on the table.

What Does it Mean to Be the “Target” of a Federal Grand Jury Investigation?

So, that is a very brief overview of the federal target letter. Now, let’s step back and address the bigger question: What does it mean to be a “target”?

As a citizen or resident of the United States, you can play essentially three roles in a federal law enforcement investigation. You can be either: (i) a witness, (ii) a subject, or (iii) a target.

As a witness, your role is limited to supplying information in support of the government’s investigation—to the extent that you are legally required to do so and the information you have in your possession is not subject to a legal or constitutional privilege. You have not been implicated in the acts or omissions at issue, and you are not at risk for being charged. However, while this may be the case, you must still proceed cautiously, and it is strongly recommended that you engage legal counsel to advise you in responding to your federal grand jury subpoena.

If the U.S. Attorney’s Office as information which suggest that your past conduct “falls within the scope of the grand jury investigation,” then you are considered a subject. Charges are not imminent, but they are a possibility. Prior to testifying and/or producing documents, you will need to consult with federal defense counsel to ensure that any information you provide will not increase your risk of facing prosecution.

If the U.S. Attorney’s Office has, “substantial evidence linking him or her to the commission of a crime,” then you are considered a target. At this stage, an indictment is a very real possibility, and you must thoroughly prepare your grand jury subpoena testimony while working in close conjunction with your attorneys. This may or may not save you from an indictment (depending upon what “substantial evidence” prosecutors already have in their possession), but in any case it will ensure that you preserve every available opportunity to avoid a conviction at trial.

When Does a U.S. Attorney’s Office Issue a Target Letter?

In terms of timing, Assistant U.S. Attorneys issue target letters subsequent to the issuance of grand jury subpoenas. This timing has both practical and strategic elements, and it is noteworthy for the limited opportunity it provides for targets to prepare their defenses. Again, if you are already aware of the risk of prosecution this is less of a concern (assuming that you have undertaken efforts to defend yourself during the government’s investigation); however, if your target letter comes as a surprise, then you will have a lot of work to do in a fairly small amount of time.

In a broader sense, U.S. Attorney’s Offices issue target letters when they believe that they have sufficient evidence to pursue criminal charges in federal district court. Target letters may be issued in connection with investigations conducted by a broad range of federal agencies including, but not limited to:

• Consumer Financial Protection Bureau (CFPB)
• Department of Health and Human Services Office of Inspector General (DHHS OIG)
• Department of Homeland Security (DHS)
• Drug Enforcement Administration (DEA)
• Federal Deposit Insurance Corporation (FDIC)
• Immigration and Customs Enforcement (ICE)
• Internal Revenue Service (IRS)
• Secret Service (SS)
• Securities and Exchange Commission (SEC)
• U.S. Postal Inspection Service (USPIS)

It is worth noting that these and other agencies may issue their own “target letters” as well. These are not target letters in the same sense as those issued by U.S. Attorney’s Offices, but rather relate specifically to the conduct of these agencies’ own investigative efforts. While you might not be facing a grand jury indictment if you receive one of these agency target letters (or at least not yet), you could still be at risk for substantial civil or criminal penalties.

What Should You Do After Receiving a Target Letter?

If you receive a target letter from a U.S. Attorney’s Office, what should you do? Key steps to take after receiving a target letter include:

1. Read the Target Letter Carefully

Upon receiving a target letter you should read it carefully. These letters are generally short, but they also generally contain a lot of important information. In particular, your target letter most likely contains a warning against destroying or altering documents (including electronic records) that may be relevant to the grand jury’s investigation. If you destroy any documents (or allow any documents to be destroyed), either intentionally or inadvertently, this on its own could lead to federal criminal charges.

2. Re-Read Your Grand Jury Subpoena

At this point, you should also carefully re-read your grand jury subpoena. Make sure you know when and where you are being called to testify, and make sure you know whether you have been asked to bring documents with you as well.

3. Engage Federal Defense Counsel

Now is also the time to engage federal defense counsel—if you have not done so already. You will want to choose counsel with specific experience handling federal grand jury investigations, as the laws and procedures at the federal level are very different from those involved in state-level criminal proceedings.

4. Prepare Your Grand Jury Testimony

It will take time to prepare your grand jury testimony. Working with your defense counsel, you will need to try to anticipate as many questions as possible, and you will need to carefully consider what you say – and choose not to say – in court.

5. Make Sure You Know What to Expect in Court

Finally, when preparing for your grand jury proceeding, it is important to prepare for what you can expect in court as well. For example, you are not entitled to have your attorney present during the grand jury proceedings (although the court must provide you a “reasonable opportunity” to confer with your legal counsel outside of the presence of the grand jury). As the target of a federal investigation, you need to be proactive about your defense, and you need to make sure that you do not make miscues simply as a result of being unprepared.