Available To Serve You Nationwide On All Federal Cases
By Karren Kenney, Federal Criminal Defense Attorney & Certified Fraud Examiner
Most people assume they will know if the FBI is investigating them. That is often not the case.
A federal criminal investigation may continue for months, or sometimes longer, before the person being investigated receives formal notice. Federal agents may interview witnesses, subpoena financial and business records, review electronic communications, analyze financial transactions, or conduct surveillance before approaching the person at the center of the investigation.
Sometimes the first indication is subtle: an employee receives a subpoena, a former business partner is contacted by an FBI agent, or a bank receives a request for records.
Other times, there is nothing subtle about it. Federal agents arrive at your home or business with a search warrant, you receive a grand jury subpoena, or a federal prosecutor sends you a target letter.
If you believe you may be under federal investigation, what you do next can have a significant effect on what happens later.
One of the clearest signs of a federal investigation is contact from federal agents.
Agents may appear at your home or business or call and ask whether you would be willing to answer a few questions.
The request may sound informal.
That does not mean the investigation is informal.
An FBI interview can be an investigative tool even when no charges have been filed. Depending upon the investigation, agents may already have reviewed documents, interviewed other witnesses, or developed substantial information before approaching you.
You should therefore avoid assuming that the agents are contacting you simply because they need help understanding what happened.
Before agreeing to an interview, you should understand why the government wants to speak with you and what your status may be in the investigation.
Sometimes a person learns about a federal investigation from someone else.
A current or former employee may report that FBI agents interviewed them. A business associate may receive a subpoena. An accountant may be asked about particular transactions.
That can be an important warning sign.
Federal investigators commonly develop evidence from multiple sources rather than beginning with the person whose conduct they are examining. DOJ materials concerning investigative techniques expressly contemplate interviews, grand-jury tools, confidential sources, physical surveillance, search warrants, financial investigations and electronic surveillance, among other methods.
If several people connected to you or your company suddenly begin receiving government inquiries about the same subject, you should take that seriously.
A federal grand jury subpoena may require testimony, production of documents, or both.
Receiving one does not automatically mean you will be charged.
But it should not be treated like an ordinary request for records.
The Department of Justice distinguishes between a subject and a target of a grand jury investigation. A subject is someone whose conduct falls within the scope of the investigation. A target is someone whom prosecutors or the grand jury believe substantial evidence links to a crime and whom the prosecutor considers a potential defendant.
That distinction can be extremely important.
Before producing documents or appearing before a grand jury, counsel can evaluate the subpoena, the potential criminal exposure and, when appropriate, communicate with the prosecutor about the client's status.
A target letter is considerably more direct.
The Department of Justice defines a target as a person whom prosecutors or the grand jury believe substantial evidence links to the commission of a crime and whom the prosecutor considers a putative defendant.
A typical target letter advises the recipient that the grand jury is investigating possible federal crimes and warns about the Fifth Amendment right against self-incrimination. DOJ's sample target letter also warns against destruction or alteration of documents and explains that statements can be used in subsequent proceedings.
Receiving a target letter does not mean that you have already been convicted—or even indicted.
But it is a serious development.
DOJ policy also makes clear that target letters are not required in every investigation. In appropriate circumstances, prosecutors may proceed without providing advance target notification.
Related: Federal Target Letter: What It Means and What to Do Next
A search warrant is one of the most unmistakable indications that a federal criminal investigation has reached a serious stage.
Agents may search:
A federal search warrant does not itself mean that the person whose property was searched will ultimately be indicted.
It does, however, mean that a federal judge or magistrate judge found probable cause sufficient to authorize the search described in the warrant.
If agents execute a search warrant, the period immediately afterward can be particularly important. Counsel can obtain and analyze the warrant, identify the suspected offenses, determine what was seized, assess potential constitutional issues and begin investigating the government's allegations.
Not every federal investigation begins with agents knocking on someone's door.
White-collar investigations frequently involve documents.
Bank records, accounting records, corporate records, contracts, invoices, emails and transaction histories can allow investigators to reconstruct events without initially interviewing the person under investigation.
This is particularly significant in investigations involving alleged:
By the time agents make direct contact, investigators may already possess substantial documentary evidence.
Federal investigations frequently develop through witnesses and cooperating individuals.
A business partner, employee, alleged co-conspirator or other person may provide information to investigators without your knowledge.
Sometimes people become suspicious because someone's behavior suddenly changes. Perhaps a former partner begins asking unusual questions, requests old records or tries to discuss past events.
That alone does not establish government cooperation.
But if there are other indications of a federal investigation, unusual communications should be handled carefully. Do not confront suspected witnesses, attempt to coordinate stories, destroy records or encourage anyone to withhold information.
Those actions can create additional problems independent of the allegations originally being investigated.
Yes.
There is no general requirement that the FBI immediately notify someone simply because that person has become part of an investigation.
In fact, notifying someone too early could interfere with evidence collection, witness interviews or other investigative activity.
Even DOJ's policy encouraging target notification recognizes circumstances in which notification may be inappropriate, including situations involving possible flight, destruction or fabrication of evidence, danger to witnesses, undue delay or other interference with the investigation.
That is why some people do not discover the investigation until relatively late in the process.
No.
Investigation and prosecution are not the same thing.
The government may investigate allegations and ultimately decide not to bring charges. The investigation may also change direction as additional evidence is developed.
This is one reason pre-indictment representation can be so important.
When appropriate, a defense attorney may communicate with the prosecutor, investigate facts independently, identify inaccurate assumptions, provide relevant information, address legal issues and attempt to influence the government's charging decision before an indictment is returned.
Whether any of those approaches is advisable depends entirely upon the circumstances.
Sometimes the smartest defense strategy involves providing information.
Sometimes it involves saying very little.
The decision should be made strategically, not impulsively.
You should generally speak with a federal criminal defense attorney before deciding whether to participate in an interview.
The fact that you have not been arrested does not make an interview risk-free.
People sometimes believe they can simply explain everything and clear up a misunderstanding. But an interview can become problematic if investigators believe an answer conflicts with documents, another witness's statement or other evidence.
An attorney can first determine what is known about the investigation and then help decide whether an interview serves the client's interests.
Declining to participate immediately while you obtain legal advice is very different from lying to investigators or destroying evidence.
Sometimes.
An attorney can contact the Assistant United States Attorney or investigative agency and ask about the client's status.
The government may identify the person as a witness, subject or target, although prosecutors are not necessarily required to provide all information about an ongoing investigation.
DOJ policy expressly defines subject and target status in the grand-jury context, and federal prosecutors have procedures for advising known targets and subjects of certain rights.
Even when prosecutors provide limited information, communication with the government can sometimes reveal valuable information about the nature and stage of the investigation.
This is one of the most important misconceptions about federal criminal defense.
You do not necessarily have to wait to be indicted before hiring a lawyer.
Pre-indictment representation may include:
In fraud and white-collar investigations, understanding the underlying transactions can be particularly important. A transaction that appears suspicious when viewed in isolation may look very different when contracts, communications, industry practices and the complete financial history are considered.
Federal Fraud Investigations Require More Than Criminal Law Experience
Federal fraud investigations can involve thousands, or even millions, of pages of financial records, emails, contracts and electronic evidence.
Attorney Karren Kenney is both a federal criminal defense attorney and a Certified Fraud Examiner (CFE). That combination can be particularly valuable when defending allegations involving financial transactions, accounting records, business operations or alleged fraudulent schemes.
Kenney Legal Defense represents clients in federal investigations involving allegations such as healthcare fraud, wire and mail fraud, money laundering, conspiracy, bank fraud, investment fraud and other federal white-collar offenses.
Do not panic, but do not ignore the warning signs.
Most importantly:
Do not destroy documents. Do not delete communications. Do not lie to federal investigators. Do not contact potential witnesses in an effort to coordinate accounts of what occurred.
Instead, preserve relevant information and obtain legal advice before deciding whether to communicate with investigators.
The earlier defense counsel understands what the government is investigating, the more options may be available for developing a strategy before the government's position becomes fixed.
Speak With a Federal Criminal Defense Attorney
If you have been contacted by the FBI, received a federal subpoena or target letter, learned that agents are interviewing people around you, or believe you may be under federal investigation, you do not have to wait for an indictment to seek representation.
Kenney Legal Defense represents individuals and businesses during federal criminal investigations and after federal charges have been filed.
Representation is available in California and in federal matters nationwide where permitted.
Call 855-505-5588 to schedule a confidential consultation.
