Things To Know If You Get a Federal Grand Jury Subpoena In Texas

Federal grand juries are actively on the job all around the State of Texas during the year. How many are convened; where they are meeting; what they are doing; and who sets as jurors on all these grand juries is not known. For safety reasons, grand juries operate under a mysterious veil of secrecy. Read, Federal Grand Juries in Texas: Criminal Defense.

They are busy, and they are amazingly powerful. Under longstanding precedent, federal grand juries can do almost anything they want (or what the federal prosecutor desires) insofar as questioning people or getting documents or other things (like hard drives) that may lead to the discovery of admissible evidence. Their only boundaries are constitutional protections given to those who are subject to their subpoena power.

In their investigations, they will issue all sorts of subpoenas. It’s wide and wild. And anyone who is on the receiving end of a grand jury subpoena here in Texas is very wise to have the help of an experienced federal criminal defense attorney as soon as possible. See, Why You May Need a Federal Criminal Defense Lawyer in Texas.

For those who suspect they may be in the sights of a federal grand jury investigation here in Texas, as a witness; someone to provide documents and things; or as a potential target or person of interest, consider the following:

What is a grand jury subpoena?

A subpoena is a court order signed by a federal judge. It may demand that someone appear to give testimony at a specific place and time. It may require that specific documents or other tangible things be produced at a particular location on a certain date. It may do both.

The word itself, “subpoena,” derives from the Latin phrase “sub poena” for “under penalty,” giving warning by definition that failure to respect the request will have serious consequences. What do they look like? The federal court system provides an online example of a blank subpoena form commanding someone to testify before a grand jury and to bring documents, electronically stored information, or objects at USCourts.gov.

When a grand jury is at work, lots of subpoenas may be issued in the course of their investigation. They are far-reaching: subpoenas from a federal grand jury in Texas can be served anywhere within the entire United States. Grand jury subpoenas can also be served in a foreign country, if certain hoops are jumped by federal investigators and prosecutors in conjunction with the Office of International Affairs of the U.S. Department of Justice (“DOJ”). In Texas, this is important to know since investigations may jump borders into Mexico, the Cayman Islands, etc. For more, read §9-11.140 of the Justice Manual of the United States Office of the Attorney General (“Justice Manual”).

Grand jury subpoenas are different than subpoenas issued in a criminal court case. The U.S. Supreme Court (“SCOTUS”) explains that “a grand jury subpoena is much different from a subpoena issues in the context of a prospective criminal trial…. the Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists.” United States v. R. Enterprises, Inc., 498 U.S. 292, 297 (1991).

Why the difference? Since a grand jury’s role is “...to inquire into all information that might possibly bear on its investigation,” a grand jury subpoena “paints with a broad brush.”  Thus, the grand jury subpoena has a wider range than a subpoena in a criminal trial. Id.

There are also situations where even the federal judge can be avoided. For instance, AUSAs are able to use grand jury subpoenas to get consumer credit reports without judicial review or approval of the request, pursuant to the Fair Credit Reporting Act. See, §9-11.141 of the Justice Manual.

For criminal defense attorneys, it is important to monitor every aspect of any grand jury subpoena because SCOTUS makes it clear that a federal grand jury’s investigatory powers are “not unlimited,” and the grand jury is “not licensed to engage in arbitrary fishing expeditions.“ R. Enterprises, 498 U.S. at 298-9.

Of note, grand jury subpoenas are controlled by Rule 17 of the Federal Rules of Criminal Procedure. If someone is served with a subpoena and decides to ignore it, they can be found in contempt of court pursuant to Rule 17(g). Result? They can be arrested for the crime of criminal contempt and face a jury trial on that criminal charge. See, Rule 42 of the Federal Rules of Criminal Procedure.

Receiving a Federal Grand Jury Subpoena in Texas

A police officer or federal marshal, in full uniform, may deliver the subpoena in person. It’s intimidating, right? Being served with a grand jury subpoena can be extremely stressful and scary. Any federal criminal defense lawyer respects this reaction, it’s human.

But we would hope that with that reaction comes a recognition that the first thing to do is read over the document very carefully, to understand exactly what is being commanded for you to do.

Taking time to go over every detail is important. Failure to follow the exact instructions in any way risks being held in contempt of court.

Having Defense Lawyer Review the Subpoena Details

The second thing? It is very wise for anyone who is served with a subpoena to have the support and advocacy of an experienced federal criminal defense attorney who handles grand jury matters here in Texas.

These matters can be complex. Taking any step after getting a grand jury subpoena must be done carefully.

Catch-22?

For one thing, there are duties defined by law, as well as risks that come with compliance. For instance, if health care records are involved, what about HIPPA privacy mandates under 45 CFR §164.501 et seq.? Is there a Catch-22 in the subpoena request?

Are you a target?

Another thing, is figuring out why the person is getting the subpoena. Working together, there can be clarification if the person is being considered as a witness, a subject, a person of interest, or a target which are vital distinctions to be made. There is no federal law that demands someone be warned that they are, or could be, a target of a criminal investigation. No Miranda warnings are required, for instance.

The attorney will help to determine if the person is being subpoenaed because the prosecutor thinks they have important information about a criminal act which will help the grand jury’s investigation and issuance of an indictment. Or is the government pondering arresting the person, and the subpoena to appear before the grand jury is a way to get evidence to use against them? For details, read Federal Investigations: Target Letters, Proffers, and Plea Deals.

How to comply?

The federal criminal defense lawyer can be invaluable to the person served with a grand jury subpoena in the detailed preparation needed for compliance, especially if documents and things have been requested. What things need to be gathered, and what can be left at the office or home? What questions will be asked? Are you being careful not to do anything that might be considered as obstruction of justice (a distinct criminal charge under federal law) by the prosecutor? See, §9-69.100 of the Justice Manual.

Challenging the Scope of the Grand Jury Subpoena

There may be issues to be addressed regarding the requests made in the grand jury subpoena. Once the exact list of everything that is being requested is compiled, the attorney may find legal arguments against the subpoena on its face as being unduly burdensome or overly broad.

In these situations, a motion to quash the grand jury subpoena can be filed in federal court. This motion will argue that the subpoena should be tossed in its totality or in the alternative, substantially rewritten and narrowed in scope.

Attorney-Client Privilege with Grand Jury Subpoenas

There are communications between the federal grand jury attorney and the person subject to the subpoena that are protected as privileged attorney-client communications.

Right to Counsel in the Grand Jury Room

Unfortunately, criminal defense lawyers are not allowed into the grand jury room with their clients when they are called to the stand. All federal grand jury proceedings are closed. Of course, the attorney will be nearby, and it is possible for grand jury witnesses to leave the room for a bit and ask their lawyer questions. It’s not impossible for a grand jury witness to excuse themselves, go out and confer with their counsel, and then return to the stand to testify under oath after each question.

Pre-Grand Jury Interviews After the Subpoena is Served

No one should be surprised if a federal investigator wants to chat with someone who has received a federal grand jury subpoena. There are AUSAs that like a strategy of manipulating people, if they can, with these pre-grand jury interviews. There may even be correspondence inviting the person to come to the AUSA’s office or to the grand jury room a couple of hours before they are scheduled to give testimony or produce documents pursuant to the subpoena.

It is vital to know that these invitations are not legal mandates. They are not powerful parts of the grand jury subpoena itself. It is risky to go to these interviews, especially without legal counsel. Any admissions made in one of these sessions can – and will – be used against the person. And they are not required to be recorded, unlike the grand jury session which will have an official record made.

What About Immunity from Prosecution?

There will be certain situations where the federal grand jury defense lawyer will recognize that the subpoena is part of a grand jury investigation into their client for possible felony criminal charges. In these situations, the impact of the Fifth Amendment of the United States Constitution will likely come into play, which provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The savvy defense lawyer will be proactive. Negotiations will be entered into with the AUSA for one of two types of immunity:

• transactional immunity, where the person will not be prosecuted for crimes related to the subject matter of their testimony; or

• use immunity, where the person will not be prosecuted for crimes related to the topic involved in their testimony that could result in prosecution in the future.

Why would the federal government agree to immunity from prosecution? A key card to play here is that the testimony will lead the grand jury investigation to bigger fish and more serious indictments. For instance, a drug mule might be given immunity from prosecution in exchange for testimony before the grand jury that leads to criminal charges against leaders of a drug trafficking organization.

For more, read Money Mules: Fraud Victims Become Criminals Facing Arrest in Texas and Federal Sentencing for Drug Couriers and Drug Mules.

Federal Criminal Defense Lawyer for Grand Jury Subpoena in Texas

Having legal representation any time someone enters into the federal criminal justice system is wise. Having an attorney licensed to practice in federal court with experience in grand jury matters is invaluable for anyone served with a grand jury subpoena.

The more time to prepare, the better. It is smart to contact a federal advocate as soon as possible after being served with the grand jury subpoena. And if you believe you are about to be served, your counsel may be able to negotiate accepting service so that you avoid the personal service by a federal agent or officer.

Federal grand jury proceedings are deserving of respect. The grand jury is acting in tandem with its affiliated AUSA to issue a number of indictments for serious federal felonies. These are big undertakings with lots of support in time and money.

Any grand jury subpoena is an invasion into someone’s life that may have far-reaching consequences. Even someone considered as a routine witness risks arrest if they do not comply appropriately to the grand jury requests. Having legal counsel is extremely important in these situations.

For more, read:

• How Arrests Happen: From Investigation to Arraignment, Being Charged for a Federal Crime

• The Federal Criminal Justice System: After Arrest, From Arraignment to Sentencing

• Grand Jury in Texas: Defending Witnesses and Targets of Grand Jury Investigations 

• Grand Jury Proceedings in Texas: Indictment and Defense

• The Case of the Drug Trafficking, Money Laundering Indictment in Eastern District of Texas: Supervised Release.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, The Case of the Non-Citizen Facing Felony PPP Fraud Indictment: Innocent of All Charges.