A prospective client has recently received a grand jury subpoena or been contacted by a federal agent. What now?
There are some considerations that occur at the beginning of a criminal case that you may be overlooking. The Department of Justice’s Justice Manual (Manual) can help defense attorneys understand decisions made by U.S. Attorneys’ Offices (USAOs) about whether to take a case, how to initiate contact with a defendant, and how to conduct a proffer. Although the Manual is not binding on the USAO and cannot be cited in the course of litigation, understanding the government’s process is important to forming your strategy, identifying weaknesses in its case, and securing the best possible result for your client.
A significant difference between state and federal prosecutions is that USAOs mostly have discretion over their caseloads. This, in large part, explains why the offices have high conviction and plea rates.
Often, the office first hears about a case from a federal agent who has been investigating and thinks that there is enough evidence to prosecute. The USAO considers three important questions before commencing a proceeding:
The first consideration—identifying a federal crime—is not difficult once criminal activity is identified; there are many bases for federal jurisdiction. Some commonly charged crimes include wire fraud, mail fraud, and theft of federal money. If the facts do not give rise to any apparent basis for federal jurisdiction, this could be grounds for a motion to dismiss.
Second, in evaluating the federal interest, the Manual sets forth nine factors:
Manual § 9-27.230. This list can help defense attorneys understand the extent of the USAO’s interest in the case and their clients, particularly if the ongoing investigation changes how the factors apply.
Third, the government must be able to prove its case. The existence of probable cause is a constitutional requirement; its absence is an absolute bar to prosecution and may also preclude referral to other prosecuting authorities. The Manual makes clear, however, that the existence of probable cause is a minimum requirement for indictment and does not automatically warrant prosecution. Ultimately, the prosecutor should determine whether there is sufficient evidence to obtain a conviction.
There are several ways that your client may first be contacted by the government concerning a federal criminal proceeding. The nature of that first contact is another important variable that can influence defense counsel’s overall strategy. Sometimes your client is unaware of an investigation until the arrest. Other first contacts involve an approach by a federal agent or receipt of a subpoena.
If your client is arrested, that is an indication that—in addition to alleged involvement in an offense—the USAO believes that there is some urgency in stopping your client’s alleged activity. An arrest can also indicate that the government has little interest in, or hope of securing, your client’s cooperation or assistance in its investigation.
An approach by federal agents provides more options for defense counsel. An approach indicates that the government believes that your client has, and may be willing to share, information that could aid in the investigation. The fact that an agent conducted an approach will likely be a factor in evaluating the strength of your position in plea negotiations and deciding whether a proffer is an appropriate path forward.
Finally, first contact may be a subpoena for testimony and/or documentary material. Subpoenas often leave considerable ambiguity regarding the extent to which the USAO believes your client is involved in criminal activity. The Manual distinguishes between a subpoena sent to a “target” or a “subject” of an investigation. The prosecutor considers a target to be a “putative defendant.” A subject is merely “a person whose conduct is within the scope of the grand jury’s investigation.” Id. § 9-11.151. The Manual requires an “Advice of Rights” form to accompany both types of subpoenas, but for targets requires “a supplemental warning that the witness’s conduct is being investigated for possible violation of federal criminal law.” Id. It may be a relief for your client to learn that he is not a target. However, the USAO can change these designations as an investigation proceeds.
An important, but risky, potential tool for prosecutors and defense attorneys alike is the proffer. The proffer gives your client the opportunity to sit in a room with federal prosecutors and investigating agents and present his knowledge about the alleged criminal activity to the government in the hopes of some benefit, including a more favorable plea agreement or a nonprosecution agreement. However, there are several risks associated with proffers.
First, your client may be admitting sometimes substantial involvement in criminal activity. To that end, the government may offer some type of immunity in exchange for the proffer. However, most proffers involve only limited-use immunity. Such immunity means that the government cannot use your client’s statements made at the proffer meeting in a subsequent criminal prosecution against him, but the government can use those statements to further investigate the case, which can uncover additional evidence that can be used at trial against your client. The government also can use the proffer as impeachment evidence, which may effectively preclude your client from testifying at trial.
Additionally, if the client lies during the proffer, the client can be charged with obstruction or making a false statement. Also, you should ensure—to the best of your ability—that your client has not withheld information from you in advance of the proffer, which would add a considerable amount of uncertainty to the entire procedure.
One way to mitigate risk is for defense counsel to request an attorney proffer, in which the attorney meets with the government first without the client being present. An attorney proffer can benefit both the defense and the prosecution by giving the government an idea of what your client will likely say at a later proffer and allowing defense counsel to learn what information the government is looking for and what it already knows.
Understanding how the government decides to prosecute cases and make first contact with your client can help you understand how the government views its own case, which will help you formulate a defense strategy. When considering whether a proffer may benefit your client, these considerations, as well as an understanding of the risks inherently involved in a proffer, should come into play. At any stage of the proceeding, it is critical to understand how the government makes its decisions about its case.
