Federal Investigations:  Target Letters, Proffers, and Plea Deals

Invitations to Testify before a Grand Jury Can be a Red Flag You Need a Criminal Defense Lawyer

Federal agencies along with the prosecutors at the Office of the Attorney General for the United States (“AUSAs”) undertake criminal investigations throughout the State of Texas that are independent of any state or local (county, city) law enforcement efforts.  Agents from a variety of agencies (e.g., FBI, DEA, etc.) coordinate in federal criminal investigations that often include the use of a federal grand jury, where testimony is given upon subpoena of any number of people.

What is a Federal Grand Jury?

A federal grand jury is an independent body composed of a group of jurors who work together in two ways: (1) to investigate crime and initiate criminal proceedings; and (2) to protect citizens from having to face criminal charges that are without sufficient or proper evidentiary foundation.  Essentially, the federal grand jury decides if there is probable cause to believe that a federal criminal law has been violated by one or more people.   If the grand jury finds probable cause to exist, then an “indictment” is issued.  If not, then the case is “no billed.”

The AUSA is the only lawyer appearing before the grand jury; no defense attorney is involved in federal grand jury proceedings.  The federal prosecutor, as an officer of the court, advises the grand jury on the applicable law of the case.  He or she also presents evidence to the grand jury for consideration.  This evidence may be documentary or it may be provided by live testimony.

For details, read: GRAND JURY IN TEXAS: DEFENDING WITNESSES AND TARGETS OF GRAND JURY INVESTIGATIONS.

Federal Grand Jury Subpoena:  Witnesses, Subjects, and Targets

Those who testify before a federal grand jury do so pursuant to an official grand jury subpoena.  Some of the people who appear before a federal grand jury are there simply to provide information about the circumstances or details of the investigation’s subject matter.  They are witnesses.  Witnesses must testify under oath, but they are not suspected of committing any crime.

However, not everyone approached in a federal criminal investigation to testify before a grand jury is considered a mere “witness” in the proceedings.  There will be those who are considered “subjects” by the federal investigators.  Subjects are people that are under suspicion of wrongdoing.

• Subjects are defined as follows by the Justice Department: A “subject” of an investigation is a person whose conduct is within the scope of the grand jury’s investigation.

Finally, there will be those who are asked to testify before federal grand juries that are considered to be “targets.”  A target is at the other end of the continuum from a “witness” from the government’s perspective.

Targets are those individuals that the federal prosecutor (AUSA) believes to have committed illegal acts and who is within the focus or scope of the investigation itself.  Targets are asked to appear before the grand jury to give testimony with the prosecution’s goal of obtaining sworn testimony that will help solidify a criminal conviction against the target(s).

• Targets are defined as follows by the Justice Department: 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.

Witnesses, subjects, and targets are three categories within the federal prosecution’s case file.  They are not set in stone:  the AUSA can change an individual’s label as he or she sees fit, as time passes and the case develops.

There is no federal law that requires the federal prosecutor to tell the individual (or his defense lawyer) what category has been assigned to him; however, the current policy of the Justice Department to advise anyone that they are being considered as either a “subject” or a “target” in a pending grand jury investigation.  See, United States Department of Justice Manual, 91.11-151.

This is done by mail, through what is commonly called a “target letter.”

The Target Letter

In a “target letter,” the witness is advised that he or she is being considered as a “target” of an investigation into their conduct as being in violation of one or more federal criminal laws.  The Justice Department requires its AUSAs to include a specific “Advice of Rights” in this correspondence.

The target letter itself may be a separate piece of correspondence or it may be attached to the grand jury subpoena itself.  Either way, it will include the following “Advice of Rights” language:

• The grand jury is conducting an investigation of possible violations of Federal criminal laws involving the general subject matter of inquiry, e.g., conducting an illegal gambling business in violation of 18 U.S.C. § 1955.

• You may refuse to answer any question if a truthful answer to the question would tend to incriminate you.

• Anything that you do say may be used against you by the grand jury or in a subsequent legal proceeding.

• If you have retained counsel, the grand jury will permit you a reasonable opportunity to step outside the grand jury room to consult with counsel if you so desire.
• The witness’s conduct is being investigated for possible violation of federal criminal law.

See, United States Department of Justice Manual, 91.11-150.

The Assistant United State Attorney in charge of the investigation will write the letter.  An example of this type of target letter is provided online by the Justice Department here.

Target letters can also be delivered by federal agents involved in grand jury proceedings.  In a recent representation, an agent of the Federal Bureau of Investigation hand-delivered a target letter to my client.  The FBI agent then attempted to interview her about the underlying allegations related to health care insurance fraud.

Image: Redacted Copy of the Target Letter received by my client in November 2020.

The letter encourages the target to hire a lawyer; at the time she received the target letter, she had not hired me and had no criminal defense counsel.

After taking the case and reading the target letter, I understood the AUSA who drafted the letter did so with the hope that the target would hire a competent federal criminal defense lawyer who knows what to do.  It was clear to me that the AUSA very much viewed my client as a valuable witness in a much larger conspiracy case.

It was true that while my client did have a lot of knowledge about the overall conspiracy under federal investigation, she had a much lower level role in the conspiracy.  While she did have criminal liability – that was for sure – it was also true that she could be of great assistance to the government’s case.

Defense Negotiations after a Target Letter: The Proffer Agreement

Accordingly, this client’s case provides a clear example of how an experienced federal criminal defense lawyer can get the government to offer a limited form of immunity in exchange for truthful statements.  It’s a plea negotiation on the federal charges at the grand jury investigation stage, because the target is in the position to help the AUSA get a conviction against the “bigger fish.”

This is done through a Proffer Agreement.

What is a Proffer Agreement?

A proffer agreement is an informal immunity agreement “…shaped … by the language of the contract conferring the immunity.” United States v. Hogan, 862 F.2d 386, 388 (1st Cir.1988).

The purpose for a proffer agreement is to protect the witness from their potentially incriminating statements.  The proffer letter is absolutely necessary before a client can begin cooperating with the federal government.

Obviously, from a defense perspective, cooperation with the AUSA doesn’t happen in a federal case unless it’s already very clear that: (1) either the client has no criminal culpability or (2) the client has very clear criminal culpability.  These agreements are negotiated between the AUSA and the defense attorney in a meeting where the prosecution team, the defense lawyer, and the target / client are all present.

At the proffer meeting, there are no formal procedural rules to follow; this is not a courtroom proceeding.  This is not a place where a contested case is tried or where different defenses are presented.  It is an informal conference between the government and the target, who will be proffering to the government pursuant to their negotiated agreement.

The proffer agreement is not the same as a formal plea agreement.  The proffer is made in an informal negotiation with the AUSA.  Afterwards, assuming that the target /client has been forthcoming and given truthful details about what they know of the subject matter of the investigation, the defense lawyer and the prosecutor will hammer out a formal plea bargain agreement (that may include lesser sentencing and/or limited immunity from prosecution).

Why Would a Target Enter Into a Proffer Agreement?

When someone gets a “target letter” either in the mail, attached to a subpoena, or by hand-delivery by a federal agent, there’s always a choice to be made.  The target can always opt to ignore the letter, wait for the grand jury indictment, and assert a vigorous criminal defense of the charges.  There is no law that mandates a response to the “target letter” itself (you do have to comply with a federal subpoena).

However, a “target” may want to cooperate with the federal government for several reasons that offer a huge advantage to them.

1.  Cooperating Witness – Sympathetic View

First of all, a cooperating party can present evidence of the overall conspiracy (or other criminal activity) to the government in a way that better places the “target’s” conduct into the proper context.  This can result in a more sympathetic view toward the cooperating witness.

2.  Negotiate a Better Plea Deal

Another reason someone may want to cooperate with the AUSA after getting a “target letter” is to negotiate a better plea deal.   Often, as described above, an AUSA may be open to negotiating a plea deal if doing so will lead the investigation (and the grand jury proceedings) to bigger things.

Defense Considerations

For any client that receives a target letter from a federal prosecutor, it is vital that experienced federal criminal defense counsel be involved as soon as possible.  After reading the correspondence and discussing matters with the target /client, the defense strategy has to focus upon investigating the underlying circumstances and the suspected goals for the prosecution.

The defense lawyer should not begin negotiating in a target letter situation until after he or she has a throughout understanding of the case. It is only then that proffer negotiations should begin, as the lawyer will be able to show the government how his client can help their investigation.

For instance, if my client is among the first group of cooperators in the conspiracy, my client stands to gain much more from his/her cooperation than someone else who fails to hire a lawyer and seize upon this great opportunity to make a plea deal.

Another defense consideration here: the cooperating “target” can continue to cooperate as the conspiracy case goes to court.  There is no requirement for a set deadline on the target / client’s cooperation.  Why is this important?  Continued cooperation by a target can result in downward departure USSG 5k1.1 Motion filed under seal by the AUSA, where “…substantial assistance in the investigation or prosecution of another person who has committed an offense may justify a sentence below a statutorily required minimum sentence.”

Finally, cooperation can be extremely important in certain types of federal criminal prosecutions. For instance, cooperation in drug case with a mandatory minimum established under the law can also help the defendant receive a sentence below that minimum sentence through statutory guidance given to the judge when imposing sentence under 18 U.S.C. 3553(f).  For more, read: Mandatory Minimum Penalties in Federal Sentencing.

Criminal Defense for Anyone Receiving Grand Jury Target Letter

Anyone who receives a letter from the federal prosecutors regarding the giving of grand jury testimony that includes any “advice of rights” language is wise to seek out experienced federal criminal defense representation as soon as possible.

In these federal investigations, the target letter recipient should be aware of the many ways that federal investigators work to gather facts in these cases.  The federal government may be listening in to phone conversations at work or at home under legal wiretaps ordered by a judge, for instance.  Agents may have the ability to search and seize paperwork and computer drivers in cars, homes, or offices.  Friends, family members, colleagues, or coworkers may be secretly providing information to the federal investigators, as well.

For more, read:

• FBI INVESTIGATIONS AND DOJ PROSECUTIONS: FIGHTING FOR YOUR PRIVACY RIGHTS;
• CHILD PORNOGRAPHY: DEFENDING AGAINST OVERREACHING INVESTIGATIONS USING THE INTERNET; and
• FBI’S NEW GLOBAL HACKING RULE: AMENDED FEDERAL RULE 41 DANGER TO YOUR PRIVACY.

Accordingly, anyone believing they are being investigated for a federal offense – and especially anyone asked to testify before a grand jury as a “target” of an investigation — is wise to obtain experienced federal defense counsel as soon as possible.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”