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Grand Jury Subpoenas & Investigation Defense Tips

Skilled Federal Grand Jury Legal Defense Team

Last Updated:

If you receive a federal grand jury subpoena, that means that you or someone you know or were affiliated with is the target of a federal criminal investigation by the Department of Justice. In order for someone to be indicted, the Fifth Amendment to the United States Constitution mandates the use of a grand jury for all capital and infamous crimes. In practice, all federal felonies must be indicted by a grand jury unless a defendant waives the right and instead pleads to a so-called “Information.” Grand juries consists of 16-23 individuals. Grand juries determine if probable cause exists to secure an indictment. A grand jury does not decide if someone is actually guilty. All people indicted by a grand jury are considered innocent until they either plead guilty to the offense or are proven guilty beyond a reasonable doubt at trial.

What is a Grand Jury?

Federal juries in the United States are comprised of citizens who are chosen by the courts. The process of choosing a grand jury is somewhat similar to the process of picking a petit or trial jury. However, grand juries normally sits for an extended period of time and review numerous cases compared to a petit jury that sits for the duration of a single trial. Grand jury secrecy is important. Grand juries also have the power to issue a subpoena for documents and grand jury witness testimony that will help it evaluate the case. These subpoenas are issued at the request of the government. The subpoenaed materials are then returned to the grand jury in order to further its investigation.

There are hundreds of grand juries throughout the United States. Some federal districts have more than one sitting at one time while smaller districts will employ only one. Grand juries meet on a schedule that is determined by the district in which it sits. Some may meet every two weeks or every month depending on the criminal case-load that exist in their particular district. The jury can hear numerous cases in one day and at the end of the session will vote to either approve the indictment (True Bill) or disapprove of the indictment (No Bill). If a True Bill is returned they have determined that probable cause exists to believe that the stated crime has been committed. At this point the individual(s) named in the indictment are officially charged with a crime.

What Is a Grand Jury Subpoena?

When conducting grand jury investigations, the U.S. Attorney’s Office has a number of investigative tools at its disposal. One of these tools is the grand jury subpoena. Despite its name, this type of subpoena is issued by the U.S. Attorney ’s Office – not the grand jury – and the U.S. Attorney’s Office has the power to issue these subpoenas without the need for judicial approval.

There are two kinds of subpoenas from a grand jury. The first category of subpoena requires someone to deliver tangible evidence such as documents, pictures, videos, tape recordings, test results, bank records, corporate documents, accounting statements etc. to the jurors. This subpoena type is often referred to as a subpoena duces tecum. The second category of subpoena instructs someone to actually testify before the grand jury. This subpoena type is referred to as a subpoena ad testificandum. Both types of subpoenas require the person who receives them to respond.

As a practical matter, however, not all individuals who receive a grand jury subpoena duces tecum will actually be required to appear. Oftentimes, it will be possible to satisfy the requirements of a subpoena duces tecum by turning over documents or electronic files (or both) to the U.S. Attorney’s Office. There are grounds available to challenge federal grand jury subpoenas as well; and, in many cases, it will be in a subpoenaed party’s interests to either attempt to negotiate a reduced production obligation with federal prosecutors or file a motion to quash the subpoena in federal district court.

From asserting Constitutional protections (such as the privilege against self-incrimination) to preserving the attorney-client privilege, there are numerous other critical factors to consider when responding to a federal grand jury subpoena duces tecumas well. As a result, upon being served with a subpoena duces tecum, the recipient must begin the process of responding to the subpoena immediately.

What Does It Mean to Receive a Grand Jury Subpoena?

Witness, Subject, Target

A “target” is a person as to whom the prosecutor or the 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. An officer or employee of an organization which is a target is not automatically considered 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. A “subject” of an investigation is a person whose conduct is within the scope of the grand jury’s investigation. In terms of criminal exposure, a “subject” falls on the spectrum somewhere between a “target” and a “witness.” The prosecutor may believe a “subject” has engaged in criminal activity but does not have the corroborating evidence yet to label this individual as a “target.” A “witness” is an individual who may information that law enforcement believes might be relevant in a criminal investigation to help prove either the guilt or the innocence of another individual. The criminal exposure of a “witness” is low – the prosecutor generally believes a “witness” did not do anything wrong but has information to aid the pending investigation.

Indictment

Irrespective of status as grand jury witnesses, subjects, or targets, the end result of a grand jury’s investigation is to end up with an indictment against a defendant or defendants. After all, it is the job of the grand jury to evaluate information to then decide against whom felony charges should be brought. Because an indictment is thus always the end goal of the process, anyone involved in the grand jury process must understand the danger of ending up being charged.

Responding to a Grand Jury Subpoena Duces Tecum

1. Identifying, Collecting, and Producing Documents in Response to a Federal Grand Jury Subpoena Duces Tecum

The burdens of responding to a federal subpoena duces tecum in the United States can be significant. It is not uncommon for these types of grand jury subpoenas to be extraordinarily broad, often requesting years’ worth of documents that are described in extremely general terms. For corporations and other business organizations in particular, responding can be a task that requires the devotion of substantial internal and external resources – and even then it may be a struggle to produce all of the subpoenaed records within the prescribed timeframe.

Responding to a United States federal grand jury subpoena duces tecum involves producing all hardcopy and electronic records that are responsive to the demands of the U.S. Attorney’s Office. This applies to all records within the subpoenaed party’s custody or control. For corporations and other business organizations, the task of responding to the subpoena will be assigned to the organization’s records custodian, who must effectively stand in the organization’s shoes in order to determine what documents and files need to be produced.

Responding to a Grand Jury Subpoena

It is not unusual for a compliant production to include tens of thousands, hundreds of thousands, or even millions of files. In order to ensure that no responsive files are overlooked (which can potentially lead to federal contempt charges), it is necessary to acquire an understanding of the scope of the universe of responsive documents as quickly as possible. What responsive documents and files are on-site? What responsive files are stored in the cloud? What responsive hardcopy records are in off-site storage? What documents or files are scheduled for destruction? These are all key questions that need to be addressed immediately.

Due to the volume of records at issue, many subpoena recipients will be tempted to hand over their files to the U.S. Attorney’s Office wholesale. This is a mistake. There are many reasons why subpoenaed individuals and corporate entities must take great pains to ensure that their document production in response to a federal grand jury subpoena duces tecum is no greater than absolutely necessary. Not only is a “file dump” likely to be considered non-compliant; but, once a record has been produced, it is most likely in the government’s hands for good. The U.S. Attorney’s Office can use it to earmark you, your company, your organization, your employees, or anyone else; and, even if a file is not damaging in the context of the United States government’s current investigation, it could resurface in a later civil or criminal matter.

2. Challenging a Federal Grand Jury Subpoena Duces Tecum Through Formal or Informal Means

Concurrently with gathering and preparing responsive documents for production, federal grand jury subpoena duces tecum recipients should determine whether – and to what extent – they have grounds to challenge the subpoena through formal or informal means. Formally challenging a federal subpoena involves filing a motion to quash, and it can seek to quash the subpoena either in whole or in part. An alternative, or potentially a precursor, to filing a motion to quash involves negotiating the scope of the subpoena with the U.S. Attorney’s Office.

Why would the U.S. Attorney’s Office agree to limit the scope of a subpoena that it has just issued? Negotiated reductions in scope are common under a few different scenarios. For example, in some cases federal prosecutors may not have an appreciation for the scope of the burden imposed by a subpoena. This is through no fault of their own – they simply have no way of knowing what is (or isn’t) in the subpoenaed party’s custody and control. If fully complying with a subpoena duces tecum is not feasible, and if the U.S. Attorney’s Office can collect the information it needs without full compliance, then it may be possible to negotiate a more-limited production obligation.

If negotiating a reduced production obligation is not on the table, and if fully complying with a subpoena duces tecum either (i) is not practically feasible, or (ii) would be unduly adverse to you or your organization, then the next option is to file a motion to quash. Potential grounds for filing a motion to quash a federal grand jury subpoena duces tecum in the United States include:

  • Procedural issues with the subpoena or its issuance
  • Requests for documents that are irrelevant to the government’s investigation
  • Requests for documents that are not within the recipient’s custody or control
  • Overly-broad and unduly-burdensome production obligations
  • Unreasonably intrusive and oppressive production demands
  • Vague or indefinite production demands

Whether seeking to negotiate with the U.S. Attorney’s Office or pursuing a motion to quash in federal district court, it is highly unlikely for a subpoena to be withdrawn or quashed in its entirety. As a result, subpoena recipients must generally be prepared to produce at least some records (and potentially still a very large volume of records), and this is why any efforts to challenge the subpoena should be undertaken concurrently with efforts to prepare a compliant production.

3. Preserving Constitutional Rights and the Attorney-Client Privilege When Producing Documents in Response to a Federal Grand Jury Subpoena Duces Tecum

In addition to challenging the legality of a subpoena duces tecum, subpoenaed parties can also limit their production obligations by asserting their constitutional rights and the attorney-client privilege in appropriate circumstances. For example, in addition to the constitutional protections that apply throughout the course of a federal investigation, subpoena recipients may also be able to utilize the Fifth Amendment’s protection against self-incrimination to avoid producing responsive documents.

The Fifth Amendment’s protection against self-incrimination does not apply to corporations and other business organizations, and the protection also generally does not apply to the production of documents by an individual in response to a subpoena. However, under the “act of production” doctrine, the Fifth Amendment can be used to protect an individual when the act of producing records itself (as opposed to the contents of the records produced) would have a self-incriminating effect. While the “act of production” doctrine is limited in its application, due to the potentially-severe consequences of handing over evidence to the U.S. Attorney’s Office, assertion of the Fifth Amendment’s protections should be explored in all cases where there is a risk of federal prosecution.

In contrast to the “act of production” doctrine, the attorney-client privilege has broad application in the context of a federal grand jury subpoena duces tecum response in the United States, and both corporate and individual subpoena recipients must take appropriate measures to preserve the privilege to the greatest extent possible. Documents that are responsive to the subpoena do not need to be produced if they are privileged, and producing privileged documents (even inadvertently) can potentially result in the privilege being deemed waived. In order to avoid inadvertent disclosure of privileged records in response to a federal grand jury subpoena duces tecum, once assembled, the entire production should be reviewed (manually, electronically, or both) so that privileged records can be withdrawn.

Subpoena Example

“This letter is to inform you that you are the target of a federal grand jury investigation. The investigation against you is concerning potential violations of federal law at 18 U.S.C. 1347 (Healthcare fraud) and possibly other related offenses. The alleged crimes were committed within the Northern District of Texas. You are hereby invited to appear before a grand jury in the Northern District of Texas to testify about matters related to the above-referenced activity. Your decision to appear and testify will be voluntary. If you decide to testify, your testimony could be used against you if any criminal charges are returned by the grand jury. Please inform me or have your attorney inform me by May 20, 2016 about your decision to accept the invitation to appear before the grand jury.
If you wish to be represented by an attorney, but believe that you are not able to afford one, please contact me directly and I will coordinate your appearance before U.S. Magistrate Judge Smith, who will consider your application for appointment of counsel.
Sincerely,
John Smith
Assistant United States Attorney

Do I Need to Comply with a Subpoena from a Grand Jury?

There are three ways to react to a subpoena: comply, challenge, or ignore.

Comply. Understanding that compliance with a subpoena from a grand jury is not a voluntary but a mandatory act, most people follow the advice of their lawyers and simply comply with the demands of the subpoena. Nonetheless, mechanical compliance with a subpoena may not always be the best or sole choice. Especially in situations in which a subpoena seeks incriminating or a massive amount of information or information not available to the subpoenaed individual, a (partial) challenge of the subpoena may be in order.

Challenge. Challenging a subpoena from a grand jury means that a lawyer needs to file a motion to quash with the court and convince the court that the subpoena does not comply with applicable rules and procedures. For example, it can be argued that the individual subpoenaed has nothing to do with the case, does not possess the information sought, would have to reveal information that is privileged and confidential, or that the subpoena infringes the individual’s constitutional rights by being overly broad, overly burdensome, or unreasonably intrusive and oppressive. In such a case, the court may limit and reduce the scope of the subpoena or declare the subpoena null and void making its compliance unnecessary.

Ignore. Ignoring a federal grand jury subpoena is a dangerous choice. The prosecutor acting on behalf of the grand jury can ask the court to hold an individual in civil contempt for refusing to comply with the subpoena. Unless extraordinary circumstances exist to justify the refusal, a court may order jail time until compliance with the subpoena is assured or the Grand Jury’s term ends, whichever comes first.

What to Expect after Being Served with a Federal Grand Jury Subpoena

1. Obligation to Respond

In the United States when you receive a federal grand jury subpoena, you have a legal obligation to respond. This response can be in the form of a motion to quash the subpoena (if you have grounds to challenge your subpoena’s validity) or in the form of compliance (i.e. showing up in court to testify at the appropriate date and time). In many cases, the best option will be to submit a partial challenge to the government’s subpoena in order to try to limit the scope of the information you must be prepared to provide.

2. Legal Representation

When you are served with a grand jury subpoena, you have the right to seek legal representation. When choosing the best United States attorney to represent you, it is important to understand that not all law practices are alike. There are far fewer attorneys that handle federal grand jury subpoenas than state subpoenas, and fewer still who have extensive experience (and a significant record of success) in federal healthcare fraud and other white-collar criminal investigations.

However, while you are entitled to legal representation as you prepare your grand jury testimony or document protection (and if you choose to challenge your subpoena in federal court), you are not entitled to have your attorney present in the grand jury room. You will need to appear before the jury alone. And if you need legal advice during the grand jury proceedings, you will need to ask to consult with your attorney outside of the grand jury’s presence.

3. Documents, Testimony, or Both

A federal grand jury subpoena can request documents, testimony, or both. As mentioned above, a subpoena that requests documents is known as a subpoena duces tecum, while a subpoena that requests testimony is known as a subpoena ad testificandum. If you have custody of records that are relevant to the United States government’s investigation, you may simply be asked to produce the documents and verify their authenticity. If you are asked to testify, you will need to be prepared to respond to all inquiries truthfully and to the best of your ability – unless it is in your best interests to assert your Constitutional rights.

4. Jury of Your Peers

Similar to a trial jury, a grand jury consist of private citizens who have been called to serve in compliance with their civic duty. However, unlike a trial jury, this type of jury does not weigh evidence presented by both parties and it does not determine guilt or innocence. Instead, the grand jury’s role is to aid in the government’s investigation and determine whether there is sufficient evidence to support an indictment.

5. True Bill or No Bill

Upon hearing testimony from all subpoenaed witnesses and considering all of the documents and other evidence presented, the grand jury will then either issue what is known as a “True Bill” or a “No Bill.” If the jury issues a True Bill, this means that the grand jury has determined that there is probable cause to believe that the subject of the government’s investigation has committed the alleged criminal offense. If the grand jury issues a No Bill, this means that the grand jurors have determined that there is insufficient evidence to support a criminal prosecution.

6. Preparing for a Favorable Outcome

Assuming that you do not have grounds to successfully challenge your jury subpoena in its entirety, you will need to promptly begin preparing your testimony or document production. A grand jury subpoena can demand an extraordinary amount of information and preparing thoroughly is the key to avoiding mistakes and being held in contempt of court.

Important steps to prepare for appearing before a federal grand jury include:

  • Meet with the best attorney – You should meet with your attorney as soon as possible to determine the scope of the subpoena and identify any potential grounds for filing a motion to quash.
  • Determine the nature of the investigation – Are you being targeted in the government’s investigation? Are you being subpoenaed as a witness? In either case, what are the specific allegations involved? Knowing the answers to these questions will help you make informed decisions about how you respond to the government’s request for information.
  • Preserve relevant records – In order to avoid facing court sanctions for “spoliation” or destruction of evidence, you will need to take appropriate steps to preserve any responsive electronic or hard-copy documents within your possession or control.
  • Anticipate questions – Working with your attorney, you should seek to anticipate the questions that you are likely to be asked during the proceedings and make sure you are prepared to respond appropriately.
  • Strategize – Aside from preparing your answers, what is the best overall strategy for protecting yourself against criminal prosecution? When and how should you request to speak with your attorney during the proceedings? What other steps can you take (outside of the grand jury process) to mitigate your potential exposure? The more you strategize in advance, the better able you will be to protect yourself against undesirable consequences.

Strategies for Grand Jury Investigations

While some of our clients react shocked about being served a subpoena, other clients had reason to believe that one was coming. Clients who expected a subpoena were typically contacted by federal agents for interview requests before or were generally aware of a pending grand jury investigation, for example, because friends or business partners have already received a subpoena. Although it is never too late to defend against a government investigation, it may certainly help to prepare for worst-case-scenarios ahead of time. The following three suggestions have proven successful for clients of Oberheiden, P.C..

Plan

The idea behind planning a grand jury subpoena is to put yourself into a position, in which you, if ordered to produce documents, will be able to produce “good” documents that show your “good” intent rather than being caught off guard. Depending on the industry you are in, you should make sure that your corporate paperwork has been checked by attorneys, that pertinent contracts are executed, and that your documentation overall leaves an impression of organization, sophistication, and persuasiveness. For example, if you run a healthcare business, it would behoove you to set up a corporate compliance program and to appoint compliance staff within your company in order to demonstrate your intent to comply with all laws. Similarly, if you have a business with multiple employees, always make sure that you have everyone’s files and taxes and all accounting up to date.

Preserve

It is a really bad idea to think that the destruction or hiding or altering of requested documents is a viable option. In fact, the easiest and fastest way to get charged with a federal felony is tampering with evidence. Federal law is very clear that the lack of cooperation with a subpoena or a lack of document preservation will result in obstruction of justice charges. So, instead of wasting time with such illegal acts, you should pursue an active document preservation policy. Organize, prioritize, and categorize your business records. Make sure you inform your employees proactively and in writing about your company’s policy to cooperate with the government. Show the government that you have, prior and in addition to the subpoena, collected, stored, and saved relevant documents yourself. This could go a really long way.

Prepare Production

When planning and preparing a grand jury production, it is important to understand that not every document asked for can or should be produced. The law recognizes several exceptions that protect subpoenaed individuals from production. The most important legal excuse to not produce are documents that are subject to the attorney-client privilege; that is communication between you and your lawyers. Further, as part of the preparation and defense, a United States attorney experienced with grand jury proceedings will engage with the government and open a dialogue about the case to find out what the case is really about. Those attorneys in our firm that previously served as federal prosecutors can confirm that few things are more important than having good lines of communications with the government lawyers in charge. This dialogue may help to narrow down the document requests, to avoid a target to testify, or to get time extension to better prepare the document production.

How Does a Grand Jury Gather Evidence?

The grand jury uses its subpoena powers to gather evidence. Grand Jurors are lay-persons and not law enforcement officers. Accordingly, the only way they know what to investigate or what and who to subpoena is through the assistance and direction of federal agents and prosecutors who conduct the investigations on behalf of them. In essence, the government is utilizing the grand jury and its powers to further criminal investigations. Ultimately, it is the decision of the Jury to approve an indictment. Normally, investigatory agencies will make presentations to the grand jury that highlight materials received pursuant to issued subpoenas as well as live witness testimony. During this process, grand Jurors have the ability to ask questions to the government and also question witnesses.

Testifying Before a Grand Jury

Most people that testify in front of a grand jury do so after receiving a subpoena. A subpoena essentially forces a person to testify. Many people testify in front of a Jury without criminal exposure; however, some individuals may be deemed to be a subject or a target of an investigation. This presents unique problems that should be dealt with by an attorney. That being said, the government’s prosecutor will normally not force a target of an investigation to testify. However, targets of investigations sometimes request to testify at the proceedings. Although the prosecutor has no obligation to allow this, it is common practice and encouraged to permit such witnesses to testify. In such a case, the testifying targets waive their right against self-incrimination and they consent to a full examination under oath. Targets are informed that the grand jury is investigating whether or not a violation of federal law occurred, that they have a right to refuse to answer if answering the question truthfully may incriminate the target (“Advice of Rights”), that anything that will be said may be used in the grand jury and subsequent proceedings, and that a target has a right to consult with his or her attorney.

An attorney for a testifying witness may not attend the grand jury proceeding. Normally, the lawyer will wait outside the grand jury room. The attorney will be allowed to speak with the witness should the witness request to consult with his lawyer during questioning. At this point the witness will step outside the grand jury room and consult with his attorney. This consultation is permissible and doing so does not adversely affect the witness.

Use of Grand Jury Evidence in Trial

Grand jury materials obtained through subpoena requests and testimony given under oath can be used at trial. Frequently, bank information and large data requests made by the government through the grand jury process will be some of the most important evidence presented at trial. Witness testimony will also be important due to the fact that statements given under oath are admissible and are important tools used by the government and federal prosecutor in building its case at trial.

Why Do Clients Trust Oberheiden, P.C. for Grand Jury Investigations?

Our clients place great trust in us because we understood that trust must be earned, not given. Below are a few reasons why clients facing federal investigations so commonly choose to place their trust in Oberheiden, P.C.

1. Experience

We are a small firm that packs a hefty punch in the form of decades of combined experience at the federal level. We can confidently guide you through the byzantine corridors of federal regulations so that you can avoid a federal investigation in the first place. If it is already too late for that, we can leverage our federal experience to make a decisive difference in the outcome of your case.

2. Government Insights

At our firm, your defense team will include former federal prosecutors who joined our firm after distinguished careers with the Department of Justice (DOJ). Their presence on your defense team ensures that we will be able to see your case from the government’s perspective, providing you with a critical advantage when we develop and execute your case strategy.

3. Outcomes

We don’t play around with the lives or livelihoods of our clients. A great many of our cases have been dismissed or abandoned with no civil or criminal liability; and in other cases our clients have enjoyed outcomes far more favorable than they had dared to hope for. In addition to fighting for favorable outcomes, we also strive achieve these results with a minimal investment of time and expense for the clients whom we serve.

4. Our Teamwork

A group of individuals working independently is like an open hand, while a cohesive team is more like a clenched fist. If you are facing a healthcare fraud investigation, you can be sure that the government has assigned a team of investigators, federal agents, and prosecutors to your case. At Oberheiden, P.C., we will respond with a team of our own that effectively combines our lawyers’ experience and intellectual capital to provide you with the strongest possible defense.

5. Commitment

No one understands better than we do how high the stakes are – a botched defense effort can result in millions of dollars in fines, company bankruptcy, and even time in prison. At Oberheiden, P.C., we consider it our solemn duty to stand by you in these tough times, so that you can enjoy the peace of mind of knowing that we are doing everything that can be done to secure a favorable outcome for you.

Contact the Qualified Legal Defense Team For Help With Your Grand Jury Subpoena

Every year, the Department of Justice issues thousands of federal subpoenas to targets of criminal investigations. While the thought of receiving a subpoena is clearly a scary one, it is important to note that in many cases the intrusiveness of a subpoena can be mitigated by effective defense work. The attorneys of Oberheiden, P.C. have handled many hundreds of grand jury subpoenas, as former federal prosecutors as well as criminal defense counsel.

If you or someone in your company have received a Grand Jury Subpoena you probably have many questions. Oberheiden, P.C.’s defense lawyers can help. Contact us today to discuss your case.

This information has been prepared for informational purposes only and does not constitute legal advice. This information may constitute attorney advertising in some jurisdictions. Reading of this information does not create an attorney-client relationship. Prior results do not guarantee similar future outcomes. Oberheiden P.C. is a Texas PC with headquarters in Dallas. Dr. Oberheiden limits his practice to federal law.

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