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 Federal Criminal Investigations: FAQ’s 

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Michael Santos

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FREQUENTLY ASKED QUESTIONS ABOUT FEDERAL CRIMINAL INVESTIGATIONS

The target of an investigation is a person whom prosecutors seek to charge with a federal crime.

INTRODUCTION

Dealing with a federal investigation is a serious matter that can be intimidating for most people. The prospect of talking to detectives and federal agents is unwelcomed. When federal agents want to talk to someone, whether that person is a suspect or not at the time, the real possibility of facing criminal charges exists. 

For this reason, people should not take federal criminal investigations lightly. Even those who believe they have nothing to hide or have done nothing wrong should still proceed with the utmost care, knowing that the government may assess the situation very differently. 

People should be wary about attempting to handle questions from federal investigators on the fly without understanding whether the person is a person of interest, a witness, a subject, or a target. Moreover, these labels are not static. A person who is a witness or subject at one point can become a target throughout the course of an investigation, as well as a criminal defendant.

WHAT IS A TARGET OF A FEDERAL CRIMINAL INVESTIGATION

The target of an investigation is a person whom prosecutors seek to charge with a federal crime. The DOJ proposes the target of investigation definition for anyone that prosecutors or the grand jury have substantial evidence linking them to the commission of a crime.

Knowing one’s designation as a target should clearly warn the target of a serious risk of criminal exposure. A person is usually designated as a target when prosecutors are ready to file criminal charges. A target is more likely to assert their Fifth Amendment right against self-incrimination and refuses to cooperate.

*Pro-Tip: Anyone believing to be the target of a federal criminal investigation should consult with legal counsel regarding their case at their earliest available opportunity. An early realistic assessment of potential criminal exposure is always recommended. 

WHAT IS THE DOJ DEFENITION OF TARGET OF AN INVESTIGATION?

The definition of a target in an investigation comes directly from the Department of Justice manual, which states that “a person is a target where the prosecutor or Grand Jury has substantial evidence linking him to the commission of a crime.” 

Some common signs that a person is under criminal investigation include agents contacting relatives, friends, and partners to ask questions. Other signs are being followed, the presence of unmarked cars in a person’s neighborhood or work area, and, of course, being asked to give a statement or sit down for an interview. 

WHAT IS A TARGET LETTER?

Suppose an individual is a target of a grand jury investigation. In that case, prosecutors may inform that person of their status through a “target letter” to allow them the opportunity to hire criminal defense counsel and possibly testify before the grand jury before an indictment.

Target letters put people on notice that they are under investigation for violations of federal law. A target letter often contains a written request to testify before a grand jury or meet with federal law enforcement.

Specific language in a target letter often reads: 

“You are advised that you are a target of the Grand Jury’s investigation. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you.” 

According to the DOJ, a target must receive this warning about their Fifth Amendment rights before testifying to a grand jury.

Legal practitioners consider target letters mainly as a way to encourage unrepresented targets to retain counsel and begin plea or cooperation discussions. For the most part, prosecutors do not expect targets to testify to a grand jury.

Click here to read more about the reality of cooperating in a federal criminal case: Cooperating on a Federal Case.

By the way, prosecutors are under no obligation to tell people where they fit within a criminal investigation, except that DOJ policy does require prosecutors to inform a subject or a target of their rights if called to testify before the grand jury.  

TARGET LETTER VS. INDICTMENT IN A FEDERAL CRIMINAL INVESTIGATION

The main difference between a target letter vs. an indictment is the issue of formal notice.

A target letter is not a formal charge of a crime—some people who receive target letters never end up facing criminal charges. Still, the target letter makes people aware of likely criminal charges in the future.

On the other hand, an indictment gives the defendant formal notice that law enforcement agents believe they committed a crime. The indictment contains the basic information required under the Constitution, informing the person of the criminal charges against them.

WHAT IS A WITNESS IN A FEDERAL CRIMINAL INVESTIGATION?

A witness in a federal criminal investigation is someone the government considers to have information relevant to an investigation. They are not facing criminal exposure directly at the moment (although there are never guarantees). 

Witnesses can help the government fill in the factual picture and the chronology of events. They often sit for interviews with federal agents and testify to a grand jury.

WHAT IS A SUBJECT IN A FEDERAL CRIMINAL INVESTIGATION?

A subject is someone who falls somewhere between a witness and a target. 

The definition of a subject in the DOJ manual is “a person whose conduct is within the scope of a Grand Jury’s investigation.” That is to say that a subject’s role or conduct appears suspicious, and prosecutors need more evidence before deciding whether to file charges—their investigation is still ongoing. According to the DOJ manual, law enforcement agents and prosecutors should warn subjects before testifying to a grand jury, advising them of their Fifth Amendment right against self-incrimination.

What Is A “Person of Interest” In A Federal Criminal Investigation?

Somewhere along the spectrum, from witnesses to subjects and targets, another category of people may become involved in a federal criminal investigation. We often hear of a “person of interest” when law enforcement is in the process of investigating a crime.

The Federal Bureau of Investigation and other federal law enforcement agencies use the term “person of interest” to describe someone law enforcement wants to talk to regarding an ongoing criminal investigation. Unlike subjects or targets, a person of interest has no defined meaning in the DOJ manual. It often means that law enforcement believes that the “person of interest” was involved in a crime somehow, but they do not have enough information to charge them with a crime.

Persons of interest can be anyone who might have information pertinent to a crime, including information that could lead to a suspect. It happens that persons of interest sometimes become suspects themselves. Other times, a person of interest needs protection from police because they have certain types of information. 
*Pro-Tip: Should any federal law enforcement agent reach out for a statement or “to answer some questions,” the most prudent thing a person can do is to seek advice and legal counsel first. An Earning Freedom company, Prison Professors regularly helps witnesses, subjects, targets, and persons of interest locate and vet experienced criminal counsel.

WHAT IS THE DIFFERENCE BETWEEN SUBJECT AND TARGET OF AN INVESTIGATION?

The difference between a subject and target of an investigation lies in the prosecutor’s level of certainty about a person’s participation in a crime. With the target, they are pretty confident that the person should be charged with a federal crime. With a subject, prosecutors need more evidence to nail down the person’s participation in criminal conduct.

The DOJ manual (officially known as the US Attorney’s Manual or USAM) is the internal operating policy guidance for federal criminal investigations. As noted above, the DOJ manual defines three classes of people in a federal criminal investigation: those who are mere “witnesses” to an event and those who are either the “target” or “subject” of an ongoing criminal investigation. 

Under the definitions in section 9-11.151 of the USAM, the difference between subject and target is as follows:

A target is a person as to whom the prosecutor or the grand jury has substantial evidence linking them to the commission of a crime and who is a putative defendant in the prosecutor’s judgment.

A subject of an investigation is a person whose conduct is suspicious and within the general scope of the grand jury’s investigation. Prosecutors are still investigating. Subjects often become targets, although this is not always the case.

WHAT HAPPENS DURING A FEDERAL INVESTIGATION?

A federal investigation is the first step in a criminal justice proceeding. What happens during a federal investigation is that the government attempts to find out the facts and circumstances about whether someone committed a federal crime.

As such, law enforcement agents get assigned to investigate a case and work with federal prosecutors to determine potential crimes if any. The prosecutor provides legal guidance and support, such as helping the agents obtain the subpoenas and search warrants necessary during the investigation process.

A federal investigation is only the first step in a criminal justice proceeding. It is a detailed, sometimes lengthy, probe into alleged federal crimes. People wonder how long most federal investigations take, and the short answer is that a federal investigation can take months or years. The government has until the end of the statute of limitations period to complete its investigation and file charges. 

Federal criminal investigations can be complex and take significant time and resources to complete. Therefore, it often takes the entire period allowed by law (i.e., the statute of limitations) to complete a federal investigation. In fact, it is not uncommon for prosecutors to file charges on the eve of the statute of limitations expiring. 

For most federal crimes, the statute of limitations is five years. That is how long a government investigation can last. Bank fraud has a statute of limitations of ten years.

WHAT ARE THE MAJOR GOALS OF A CRIMINAL INVESTIGATION?

The major goals of a criminal investigation include, in a nutshell, determining the actual facts of what occurred and the roles of the people involved.  

A criminal investigation is a process for legally gathering information and evidence about a possible crime. The goals of a criminal investigation are establishing:

  • whether a crime occurred; 
  • who committed the crime; 
  • arresting the suspect(s); and 
  • gathering the evidence necessary to convict the suspect(s) in a court of law beyond a reasonable doubt. 

5 KEY TAKEAWAYS ABOUT FEDERAL CRIMINAL INVESTIGATIONS

  1. Approach federal criminal investigations with significant care. The stakes are very high for all those involved, not the least of which are those receiving target letters, i.e., the targets of an investigation.
  2. Remember that making a misrepresentation or mistake when speaking to federal law enforcement can lead to additional criminal charges. This is true for persons of interest, witnesses, subjects, and targets of an investigation. Making false statements to federal agents, or obstructing justice, are serious federal crimes that carry up to 5 years in prison.
  3. Retaining counsel when dealing with a federal criminal investigation is prudent and wise, especially for a target of an investigation. It is not a sign of a guilty conscience or an admission of guilt to retain legal defense counsel. The stakes are too high to worry about that.
  4. Anything said to federal law enforcement during an investigation can and likely will be used against the speaker in a subsequent criminal proceeding. Suspects and targets of an investigation especially can avail themselves of their rights under the 5th Amendment.

Remember that witness, person of interest, subject, or target of an investigation are just labels used during an investigation that can change at any time. They are not binding on the government. Nor do prosecutors have to tell people where they fit within their investigation.

Click here if you are a business professional involved in a government investigation: Government Investigations: Executive Summary From Prison Professors.

CONCLUSION

No one should take a federal criminal investigation lightly, especially people who have reason to believe they are the target of an investigation. People who believe they have nothing to hide or have done nothing wrong should still proceed with the utmost care, as the government may assess the situation differently. Many people get into increased trouble by attempting to handle questions from federal investigators on the fly or on their own, without understanding whether they are a person of interest, a witness, a subject, or a target in a federal investigation.

Regardless of the underlying criminal conduct under investigation, people dealing with federal investigators should not compound an already challenging situation by making false statements or obstructing justice. These are federal crimes that carry up to 5 years in prison.

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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