Articles Posted in White Collar Crime

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.

Being served with a Grand Jury subpoena by federal agents, a government attorney, or both can be a frightening experience. While the initial inclination may be to simply explain to the government agent everything that you know about the investigation, it is important to keep in mind that any statements you make could be used against you (and/or your company) down the road. While the information may very well be transmitted to the government at a later date, an experienced white-collar criminal defense attorney can guide you through this process and help protect you and your rights until the matter is resolved.

The first thing after speaking with you, the attorney will want to review the federal grand jury subpoena itself and that is the focus of this blog post. The subpoena, which is defined as “a writ commanding a person designated in it to appear in court under a penalty for failure”[i], must be complied with or there can be consequences. It will tell you if you are being subpoenaed for in-person testimony, to produce documents, or both. Being subpoenaed for in-person testimony requires you to appear before a Grand Jury on a certain date to answer questions under oath that will be asked by a government attorney, who is referred to as the prosecutor. The Grand Jury is a secret process so while your attorney cannot be present during your testimony, they can wait outside and be available to you if you have questions during the process. More information on the Grand Jury process will be available in a later post in this Federal Grand Jury Subpoena series. If the subpoena is a request for documents (or both testimony and documents), it will also provide a description of the documents to be produced. This request for documents could be served to you individually or as a Custodian of Records for a company. Once you are served, you will need to preserve any and all documents related to the requests to review with your attorney.

The grand jury subpoena can also provide some initial information that will be helpful to both you and your attorney, especially if you are not aware of the pending investigation. It can tell you the jurisdiction or Court where the Grand Jury is being convened and the Assistant United States Attorney, or lead prosecutor handling the investigation. The prosecutor handling the case may also clue your attorney in to the type of investigation at issue, for example, if it is healthcare fraud, anti-trust, tax fraud, etc. If the subpoena includes a request for documents, the documents requested, and any time limitations on the document requests will also assist your attorney in gathering more information on the investigation and the various federal statutes at issue.

Last month, I attended a seminar put on by the Federal Defender Program for the Northern District of Georgia that focused on how to handle large scale discovery in criminal cases. The seminar also provided a good discussion of ways to describe to Judges in quantifiable terms the discovery produced by the government in a case. While there is no one right approach, the seminar reaffirmed for me what we have implemented here at Finch McCranie and I took away some tips to improve upon our process. I appreciate them sharing their ideas on organizing and analyzing large scale discovery in criminal cases.

The quantity of discovery that can be produced in a White-Collar case is now largely talked about in terms of gigabytes and terabytes, thumb drives and hard drives. However, being able to quantify it in terms of number of pages, documents, or bankers’ boxes in addition to the electronic file size may provide a visual image that is helpful to a Judge, if and when a motion to extend pretrial discovery deadlines needs to be filed to allow defense counsel time to review the discovery.

To track and analyze the discovery, there are three key control documents that we create and build upon as we work through each case. The first document is an Overarching Discovery Index. In almost all the Federal White-Collar cases I have worked on, the discovery productions are ongoing, not all at one time, and that is where this index comes in. It summarizes the productions and usually includes the following column headings: Date Produced, Bates-Range (including any bates-prefix or other file name), and Description. A Comments column is also included to note any follow up that is needed. Not only does this document create a snapshot of each production that can be used to quantify the data, but it also creates a road map to track and focus the discovery review.