Grand Jury Subpoenas Part 2 – Assessing A Client’s Level of Exposure

To briefly summarize the previous post on Federal Grand Jury Subpoenas, we understand that receiving a Grand Jury subpoena can be a frightening experience, especially if you are not aware of the ongoing investigation. While your instinct may be to tell the federal agents or prosecutor everything you know, it is important to speak with an attorney first, so that your rights are protected if and/or when you do talk to the government. Typically, a review of the subpoena will direct our next steps.

After reviewing the subpoena and talking with you to get a general idea of the situation, we would want to meet with you to discuss what you recall about the matter under investigation and to determine whether you have any documents that will need to be produced to the government. Depending upon the scope of the subpoena, this could require more than one meeting. Another initial step we generally take when a client receives a grand jury subpoena is to contact the lead prosecutor. This is important both to establish a rapport early on and to gain valuable information about the investigation, including how the government views your role in the case, or has “categorized” you. During a grand jury investigation, the government will typically categorize individuals as “witnesses,” “subjects,” or “targets,” each of which corresponds to a different, and increasingly higher, level of alleged culpability and potential criminal exposure. Understanding early on whether you are a witness, a subject, or a target is critical, as that categorization often drives our advice and determines how we proceed.

The Department of Justice’s (“DOJ”) Justice Manual defines a target as “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.”[1] If you are a “target,” then that means the prosecutor believes there is enough evidence to bring charges against you. On the other end of the spectrum are witnesses. A witness is simply someone whom the prosecutor believes has information concerning the investigation. In between targets and witnesses are “subjects.” A subject is defined in the Justice Manual as “a person whose conduct is within the scope of the grand jury’s investigation.”[2] This means that while the government does not have enough evidence to support a target classification, it is still investigating your actions and views you as more than merely a witness.

It is important that we discuss your categorization with the prosecutor so that we, and you, understand how the government has evaluated your involvement in the matter. However, because your status, or categorization, can evolve as the investigation continues and additional facts are discovered, it is also equally important that we monitor the government’s evaluation of your involvement and adapt our advice and strategy if necessary.  The prosecutor will typically share this information with us because it is part of DOJ’s policy “to advise a grand jury witness of his or her rights if such witness is a ‘target’ or ‘subject’ of a grand jury investigation.”[3] Once we know how the government has categorized you, we can assess your level of exposure and determine the best course of action. How we advise clients in light of these varying levels of exposure will be the subject of another blog post.

As mentioned in the previous post, this post is not legal advice. Please contact us for a consultation if you or your company needs legal representation in connection with a Federal Grand Jury Subpoena.

[1] https://www.justice.gov/jm/jm-9-11000-grand-jury#9-11.150 (last viewed March 4, 2020)

[2] https://www.justice.gov/jm/jm-9-11000-grand-jury#9-11.150 (last viewed March 4, 2020)

[3] https://www.justice.gov/jm/jm-9-11000-grand-jury#9-11.150 (last viewed March 4, 2020)