Under Investigation Part II

UNDER INVESTIGATION PART II: AM I A TARGET, SUBJECT, OR WITNESS?

Am I a target, a subject, or a witness? In this Article which is Part II in the “Under Investigation” series, we will discuss these various designations used by the Government to describe a person’s relative culpability during the course of a criminal investigation and will focus on targets and subjects. Such designations are a harbinger of robust investigations targeting businesses operating in regulated industries such as health care, securities, banking, mining, transportation, logistics, insurance, aviation, and telecommunications.

Targets and Target Letters

If someone or something (a corporation) is a target, then this means that the Government has substantial evidence linking the person or thing (a corporation) to a federal crime and the chances are greater that the Government will present evidence before a grand jury to return an indictment.

The Government has a few ways of telling (or not telling) someone or something that they are a target.

The US Attorney’s Office responsible for the investigation can send a target letter to that person in the mail.

The federal agents primarily responsible for the investigation of the target, can show up at the targets business or home and hand her the target letter.

The federal agents can show up at the target’s home or business and try to interview her during which they may or may not tell the target she is in fact a target.

The target may receive a grand jury subpoena to appear for testimony or produce documents.

In the third and fourth scenarios, notice that the Government has not come right out and said “you’re a target” and these are the situations where even sophisticated, highly educated professionals might make the biggest tactical error they can make during the investigation and predetermine their fate.

To ensure this does not happen, a person receiving the subpoena or a visit from federal agents should retain an experienced government investigations lawyer before making any statements to federal law enforcement or responding to a subpoena. Once retained, the attorney will contact the federal prosecutor assigned to the investigation and ask her whether the client is a target, subject, or witness.

Sounds simple enough, right? In practice, however, there have been (and will continue to be) countless episodes where the person receiving the subpoena or the visit will employ a “do it yourself” approach to the investigation and decide to speak to the agents or respond to the subpoena without consulting an attorney first.

This mistake should be avoided at all costs.

Subject- You are Within the Scope of the Investigation

A subject is someone who is within the scope of the Government’s investigation. If that seems vague and confusing to you then you are not alone.

What if the scope of the investigation spans three continents and involves 25 companies?

If I work at one of the companies then am I “within the scope of this investigation?”

What if I am only a former employee or executive of one of the companies?

These questions abound in this context, but the bottom line is: if a person were designated by a federal prosecutor as a “subject” then that person has potential exposure to criminal charges. That does not mean that federal agents will arrive at your doorstep armed and ready to make an arrest next week. Nor does it mean that a person designated as subject may not be in a position to obtain a redesignation to a witness. Rest assured though, depending on the factual nuances in the particular case, the Government may send subpoenas, request interviews with counsel, and/or request active cooperation with the Government from a subject.

Whether a person is a subject or a target, it is incumbent upon that person to consult with an experienced government investigations attorney when it becomes clear that a government investigation is underway.