What You Should Do When You Receive Letters from the United States Attorney’s Office
Oberheiden & McMurrey LLP
Former State & Federal Prosecutors
Receiving a letter from the U.S. Attorney’s Office is a scary event. No one knows this better than the former federal prosecutors at Oberheiden & McMurrey that previously worked at the U.S. Attorney’s Office. Whether you receive a Target Letter (formally notifying you that the government believes that you committed an offense or helped someone else commit an offense), a Grand Jury subpoena, or any other correspondence—you should immediately consult with lawyers that are familiar with the federal justice process and that have the experience to assist and defend you.
What Is the United States Attorney’s Office?
The United States Attorney’s Office is located within the United States Department of Justice (DOJ) and serves the role of federal prosecutors. Each federal district court has at least one U.S. Attorney’s Office, although more populated districts may have multiple U.S. Attorney’s Offices. Federal district courts are divided up by state, with each state having between one and four federal districts. One United States Attorney is assigned to each U.S. Attorney’s Office, and many Assistant United States Attorneys help handle the case load.
The United States Attorney’s Office is responsible for enforcing the federal laws created by the United States Congress. Each United States Attorney’s Office has both a civil division and a criminal division. The civil division prosecutes individuals suspected of improperly benefiting at the federal government’s expense, but who are not suspected of activity that rises to the level of fraud. The purpose of such cases is to disgorge the improper benefit and return it to the state. The criminal division prosecutes criminal cases. While most criminal cases are handled in state courts, the types of criminal cases prosecuted by the United States Attorney’s Office include white collar fraud, Medicare fraud, drug trafficking, tax evasion, and immigration crimes.
The federal prosecutors in the United States Attorney’s Office work closely with federal agencies within the DOJ, such as the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA), and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), as well as other federal departments, such as the Department of Health and Human Services’ Office of the Attorney General (OIG) and the Department of Homeland Security. Oftentimes, federal agents will handle investigative tasks, such as interviewing witnesses or executing search warrants, and then the United States Attorney’s Office will rely on those investigative efforts to build a case for trial.
What Types of Letters Come from the United States Attorney’s Office?
The United States Attorney’s Office will generate letters to individuals or entities that they have identified as witnesses or targets of a criminal or civil investigation. Most often, letters from the U.S. Attorney’s Office request documents from the recipient. In civil cases, these types of letters are called “civil investigative demands,” whereas in criminal matters, these letters are generally accompanied by a grand jury subpoena. A grand jury subpoena is a court order demanding that the recipient produce documents and/or testify at a given time. Importantly, compliance is mandatory for both civil investigative demands and grand jury subpoenas. Although letters requesting documentation generally do not indicate whether the recipient is a target of the investigation or a mere witness, anyone who receives a letter from the U.S. Attorney’s Office should assume that he or she is a focus of the investigation and act accordingly.
Another type of letter that can be issued from the United States Attorney’s Office is a “target letter.” Target letters inform the recipients that they are the target of a federal investigation, meaning that the government intends to press civil or criminal charges against that person. Additionally, target letters may include a request for further follow up from the target. For example, some target letters may invite the recipient to meet with the Assistant United States Attorneys and investigators assigned to the recipient’s case. At some meetings, known as proffers, targets will provide the government with all of the information they have related to the investigation in exchange for limited immunity. In other cases, called reverse proffers, the prosecutors and investigators will demonstrate all of the information that they have regarding the target in order to induce the target to agree to a monetary settlement or plea agreement.
Limitations on Document Requests
While the United States Attorney’s Office has extensive power to demand documentation from individuals and entities within the course of a federal investigation, this power is not unlimited. Federal law limits the types of requests that the U.S. Attorney’s Office can make and the scope of the documentation that it can request. Nevertheless, the requests contained in civil investigative demands and grand jury subpoenas often exceed the appropriate boundaries of what can be asked for. This is because the Assistant U.S. Attorneys who issue the letters often copy the requests directly from federal investigators who have not been to law school themselves. As most letter recipients also have not attended law school, they may not recognize requests that are improper or exceed the scope of what the U.S. Attorney’s Office may demand. Thus, it is crucial for anyone who receives a letter from the U.S. Attorney’s Office to obtain experienced defense counsel before responding to the letter.
A request from the U.S. Attorney’s Office may only demand documents. In other words, they cannot elicit narrative responses from the target. Notwithstanding this limitation, many letters will include requests that invite narrative requests from the recipients. It is important to remember: The recipient of a letter from a U.S. Attorney’s Office never needs to provide a narrative response to an investigative request.
Below are examples of correct and incorrect requests from a U.S. Attorney’s Office:
- Proper: For each employer for whom you have worked within the past five years, documents evidencing the name and address of each officer, director, or manager of those employers and documents evidencing each person’s position.
- Improper: For each employer for whom you have worked within the past five years, provide the name and address of each officer, director, or manager of those employers and documents evidencing each person’s position.
While at first glance the examples seem very similar, the first example limits the request to documentation, whereas the second example asks the recipient to draft a narrative response detailing information. Recipients are not required to respond to improper requests; however, if a recipient does respond to a request with a narrative answer, the federal prosecutors can – and usually will – use the information provided against the recipient.
Similarly, recipients are never required to produce documents that do not exist in order to respond to a request. For example, if a request asks for an organizational chart of a corporation, and no such chart exists, the recipient does not need to create an organizational chart in order to respond to the request. Importantly, if a recipient does create such a document in response to a request, that recipient will likely be required to produce the document. Therefore, a recipient of a U.S. Attorney’s Office letter should never draft a document to respond to a request where no such document would otherwise exist. Instead, the recipient may simply state that no such documents exist.
Another is limitation on requests from the U.S. Attorney’s Office is that the recipients are only required to produce documents that are in their possession, custody, or control. Generally, this means that recipients only need to produce documents that they already have on hand. In some cases, recipients may need to obtain their own records from a third party, such as requesting copies of their account statements from their banks. However, recipients of letters from the U.S. Attorney’s Office do not need to obtain documents from third parties that they do not control.
What Should You Expect to See in Letters from the United States Attorney’s Office?
Oftentimes, letters from the U.S. Attorney’s Office include explanatory instructions for how the recipient should respond to the letter. Target letters will usually give information about how the targets may contact the Assistant U.S. Attorney assigned to their cases. Investigative letters typically contain instructions about how to respond to the production requests. Such directions may include the types of formats that electronic files may be produced in or how the files should be labeled. The instructions may also request that recipients include a cover letter with their productions and explain what details should be included in the cover letter. Most letters will include a section labeled “Definitions” that instructs the recipient about how to interpret key words within the text of the requests.
Additionally, many letters from the U.S. Attorney’s Office will include a blank “Business Records Affidavit” for the recipient to fill out and have notarized. The Business Records Affidavit is a legal mechanism through which the recipient authenticates the documents provided for use in future legal proceedings. By signing the Business Records Affidavit, the recipient attests that the documents provided are true and correct copies of the original documents and that the documents are kept in the normal course of business.
What Are Typical Document Requests from the United States Attorney Office?
Because every investigation has unique facts and circumstances, the documents requested in each investigation vary. That said, there are common categories of documents that the United States Attorney’s Office often requests from individuals. Based on our experience handling hundreds of federal investigations, we have compiled the following list of typical documents requested in federal subpoenas and CIDs.
- All documents from the past six years relating to the purchase, sale, and/or lease of your company.
- All documents from six years ago to the present relating to the purchase, sale, order, shipping, receiving, delivery, payment, or accounting of your products or services.
- All contracts and agreements for billing, consulting, or any other services provided to your company.
- All documents relating to your policies or procedures concerning the sales, marketing, or promotion of your products or services.
- All documents relating to [a particular business associate], to include contract information, address, associated employees, and contracts between you and the business associate.
- All documents relating to the employment of current and former sales representatives employed by your company. Include full name, title, job responsibilities, and dates of employment, compensation, and current contact information, if known.
- All documents relating to the compensation structure, bonuses, and incentives for employees (including but not limited to sales representatives and their supervisors) who sell, market and/or promote any prescriptions.
- All documents relating to the employment records relating to the employment, hiring, firing, appointment, compensation, discipline, of you, or any other employee, owner, director, independent contractor, consultant and/or anyone with a financial interest in your company, and its holdings or subsidiaries, and current contact information, if known.
- All documents that identify ordering physicians and/or referring physicians who received anything of value from your company, including but not limited to cash, checks, wire transfers, equipment, supplies, discounted products, or other things of value.
- All documents relating to [a particular business associate], to include communications, contact information, address, associated employees, and contracts between that business associate and your company.
- For a time period of six years ago until the present, any and all records of financial transactions by you and/or your company, with or on behalf of [a particular business associate].
- For a time period of six years ago until the present, any employment agreements, consulting agreements, sales agreements, and/or business contracts with [a particular business associate].
- For a time period of six years ago until the present, any correspondence with [a particular business associate].
- For a time period of six years ago until the present, records of payments received from or paid to [a particular business associate].
- All documents related to your relationship with ordering physicians, referring providers, and customers, including but not limited to, agreements, contracts, sample contracts, approval forms, order forms, equipment, policies, sales materials, instructional materials, statements, and records of payment.
- All records related to the reimbursement, billing, or coding of prescription drugs to any government health care program.
- Any documentation providing guidance, directions, policies, or procedures regarding the waiver of prescription co-payments.
- All documentation of any and all state licenses you have obtained, including non-resident state licenses.
- All documents relating to internal audit reports, including working papers and management responses, concerning regulatory compliance.
- All minutes of, and agendas and other documents prepared for, boards of directors and executive board meetings.
- All documents related to complaints, objections, or concerns about your compliance with federal law.
- All documents related to complaints, objections, or concerns from ordering physicians, referring providers, and/or customers.
- All documents, including but not limited to invoices, records, and communications, to and from any pharmaceutical wholesalers.
- All documents, including but not limited to invoices, records, and communications, related to the purchase of parts or components used in manufacturing your products or services.
- All documents relating to the ownership, management, corporate structure, governance, of your company, and its holdings or subsidiaries.
- All organizational charts relating to your company, including but not limited to any organizational charts reflecting any and all owners or investors of your company, and its holdings and subsidiaries.
- All financial documents or statements, including but not limited to, billing records, bank records, bank accounts, investment statements, profits and loss statements, accounts receivable, accounts payable, tax records (state and federal), for the time period of six years ago to the present.
- All documents associated with assets of your company, and its holdings or subsidiaries, to include but not limited to assets, vehicles, buildings, real property, or any other material items purchased for company use by the company or its employees.
- All billing, ownership, or other documents from six years ago to present associated with or relating to all telephones, email addresses, computers, and electronic devices used or owned by your company and its employees, manager, directors, independent contractors, consultants or anyone with a financial interest in your company, and its holdings and subsidiaries.
- For a time period of six years ago until the present, the entire patient file for the individuals listed in Exhibit A.
If you are under investigation, subject to prosecution or audit by the U.S. Attorney’s Office, you should contact the former state and federal prosecutors at Oberheiden & McMurrey today. You can reach one of our senior attorneys seven days a week, including weekends.
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