From Witness to Target: Potential Exposure & Consequences of a Federal Investigation

One of the more common Federal agencies that effectuate arrests for the United States At-torney’s Offices throughout the New York metropolitan area is the Federal Bureau of Investi-gations, or, as they are commonly known, the FBI. Using the FBI as a source of reference (it could easily be interchanged with the Internal Revenue Service, Secret Service or Postal In-spection Service), there are generally five reasons an agent will reach out to you. These rea-sons include that you may be a: (1) witness, (2) “person of interest,” (3) “subject,” (4) “target” or (5) the FBI has a warrant for your arrest.

• Understanding Federal Subpoenas: How the Government Can Force You to Appear
• Federal Arrest Warrant: What it Means & Your Next Steps

Being a witness in a case involving the FBI, Secret Service, IRS or other Federal Agency does not necessarily mean that you observed or saw a crime happen. Instead, you, for some rea-son, have information that law enforcement believes might be relevant in a criminal investi-gation to help prove either the guilt or the innocence of another individual or business. It is critical to remember, however, that even though you are not a target, subject or person of interest, you still have the right to counsel and remain silent. Never be intimidated or con-cerned that you will make matters more difficult or be deemed uncooperative if you ask for a criminal lawyer or attorney. No branch or member of the government, from the US Attorney’s Office to the various Federal agencies, can force you to speak to them in your home, your of-fice, their office or anywhere else. You always have the right to speak to counsel before speaking with them. Barring an arrest or a Federal subpoena to a Grand Jury, administrative body, or court, you need not go anywhere with the FBI.

Although you may only be a witness, it is critical to recognize that should you speak to Feder-al law enforcement even as a witness, your words are not protected without a proffer agree-ment and should you lie or misrepresent, you can be charged with the crimes of Lying to a Federal Agent and Obstruction of Justice, each of which is punishable by as much as five years in a Federal penitentiary.

• Lying to Federal Agents and Obstruction of Justice

Whether you were unaware of any wrongdoing as an employee of a company or corporation, were custodian of documents but not their content, possess information that may evidence a crime or you actually observed a criminal offense, it is essential to protect yourself and exer-cise your right to counsel. If nothing else, receiving a call or a subpoena from law enforce-ment, being told you are a witness in a Federal case, can be nerve wracking and confusing. A competent, experienced criminal attorney can help you through the process, preparing you for any eventuality or outcome. He or she can assist you with document production and pre-pare you for any testimony you may be ordered to give while explaining what rights you may have regarding the process. Failure to secure counsel in these circumstances may mean the difference between a relatively smooth and efficient experience to one that exposes you to criminal liability, magnifies your duress and creates serious criminal and collateral hardships.

Ever since the investigation into the 1996 Atlanta Olympic bombing, the FBI and other Federal law enforcement agencies have used the term “person of interest.” This is not a legally de-fined term; but rather, a term of art used to describe someone that law enforcement wants to talk to about regarding an ongoing criminal investigation. It often means that law en-forcement believes that the “person of interest” was involved in a crime in some way, but they don’t have enough information to charge them with a crime.

By the nature of the description and title attached to a “person of interest,” should the FBI, US Attorney’s Office or any Federal agent reach out to you for a statement, to merely answer some questions or serve you with a subpoena, it is tantamount to any step in the legal process that you immediately seek a criminal attorney or legal counsel. Simply stated, anything you say can and likely will be used against you in a criminal proceeding. If you are arrested you will not have the ability to later assert that you would not have spoken to the FBI if you knew you could have been arrested. Again, barring some proffer agreement arranged with your counsel or some means to protect the production of documents or records to law enforce-ment, should you compound your precarious criminal situation by not proceeding with a crim-inal lawyer, your actions and statements may be used against you at a later date.

Federal law enforcement officers from the FBI to the IRS might reach out to you by phone or in person if you are a “subject” to a Federal criminal investigation. In doing so, they may ad-vise you that you are not in any trouble but that they want to speak to you as a witness in a case. Alternatively, they mat state that they believe you have relevant information in an on-going investigation.

Unlike a “person of interest,” the term “subject of an investigation” has a particular meaning within the United States Department of Justice (DOJ). According to the DOJ Handbook (also known as the U.S. Attorney’s Manual) a “subject” of an investigation is: “a person whose con-duct is within the scope of [a] [G]rand [J]ury’s investigation.” See USAM 9-11.151. The De-partment of Justice, by its own rules, must warn an individual that he or she is the “subject” of an investigation before testifying before a federal Grand Jury. USAM 9-11.151. Although by definition a “person of interest” is different than a “subject,” it is equally critical to seek the advice and protection of legal counsel.

The term “target of an investigation” is also specifically defined by the DOJ. A “target” is a person to whom the prosecutor or 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 defend-ant. An officer or employee of an organization which is a target is not automatically consid-ered a target even if such officer’s or employee’s conduct contributed to the commission of the crime by the target organization. The same lack of automatic target status holds true for organizations which employ, or employed, an officer or employee who is a target. USAM 9-11.151. Like “Subjects,” according to DOJ rules, “Targets” must be warned before testifying before the Grand Jury.

If the FBI already has a warrant for your arrest, it is likely that you have already been indict-ed by the Grand Jury or a Judge has approved a criminal complaint against you. A determina-tion has been made that there is enough evidence to allow the US Attorney’s Office to move forward with felony criminal charges that can leave you incarcerated from a few months to multiple decades. In such a case, the FBI will not only take you into custody where you will ultimately be arraigned and bail can be set, but agents may be armed with search warrants to retrieved evidence of criminal acts or proceeds of the same.

• Federal Arrest Warrant: What it Means & Your Next Steps

Irrespective of whether you are a witness, person of interest, subject or target in a Federal criminal investigation or a warrant has already been issued for your arrest, volunteering in-formation whether in the form of a denial, admission or false statement can strengthen an existing criminal case or lead to criminal liability. Exercise your rights. Protect your liberty, career and family. Vet not only your potential criminal exposure with capable counsel but do so expeditiously to best avoid or minimize the grave consequences of a Federal prosecution. Contact the former prosecutors at Saland Law and allow experience, knowledge and advocacy to work for you.

Call the Federal criminal lawyers and former prosecutors at (212) 312-7129 or contact us online today.