FBI Subpoena

Last Updated: 2023-03-04

If you have received a subpoena from the Federal Bureau of Investigation (FBI), you must quickly learn why, and you must immediately begin your efforts to respond. Our former federal prosecutors and FBI agents represent clients in FBI investigations nationwide.

The Federal Bureau of Investigation (FBI) investigates a broad range of federal offenses, and it has virtually unlimited resources at its disposal. The FBI also has numerous different types of investigative tools it can use to gather in support of civil or criminal allegations.

One of these investigative tools is the subpoena. If you have received an FBI subpoena, you need to be extremely careful about your next steps. While you must respond to the subpoena, you must also avoid unnecessarily disclosing information that could hinder your efforts to avoid prosecution. As a result, it is vital to rely on the advice of experienced federal defense counsel. Any miscues could prove to be incredibly costly, and you need to avoid making mistakes if at all possible.

Former Federal Prosecutors and FBI Agents Serving Clients Nationwide

At Oberheiden P.C., we bring notable experience to representing individuals and businesses in FBI investigations. We have successfully represented numerous clients in investigations across the country, and we have assisted clients in responding to countless FBI subpoenas. Additionally, several of our attorneys previously served as prosecutors with the U.S. Department of Justice (DOJ), and we have several former senior FBI agents available to assist our clients during their investigations as well. This includes:

• A Former Unit Chief of the FBI Criminal Investigative Division in Washington D.C. and Acting Section Chief of the FBI’s Transnational Organized Crime task force
• Multiple former Supervisory Special Agents with the FBI
• Multiple former Special Agents with the FBI

Our attorneys’ and consultants’ prior federal government experience affords them the ability to offer unique insights into the FBI’s investigative process. By understanding when the FBI issues subpoenas, how it pursues the targets of its investigations, and what federal prosecutors need before they will pursue charges, we are able to help our clients make informed and strategic decisions about responding to their FBI subpoenas. We are able to effectively seek to mitigate our clients’ response burdens as well, and we are able to develop custom-tailored defense strategies that are attuned to the nuances of FBI investigations.

If You Have Received an FBI Subpoena, Here’s What You Need to Know

You have received an FBI subpoena. What do you need to know? As your federal defense counsel, here are some of the key questions we will seek to answer right away:

What is the FBI Investigating?

The FBI’s investigative authority is extremely broad; and, as a result, upon receiving an FBI subpoena, one of the first steps that needs to be taken is to discern what allegations are being targeted. Federal offenses falling within the scope of the FBI’s investigative authority include (but are not limited to):

• Bank and mortgage fraud
• Corporate fraud
• Cybercrimes
• Healthcare fraud
• Identity theft
• Intellectual property theft and piracy
• Money laundering
• Organized crime
• Public corruption
• Securities fraud
• Terrorism and foreign intelligence

Each of these types of alleged offenses requires a very different defense strategy; and, whether you have been subpoenaed as a witness, suspect, or target (more on this below), you need to make sure that you do not inadvertently disclose evidence that falls outside of the current scope of the FBI’s investigation and could cause the agency to expand its inquiry.

Are You Being Treated as a Witness, Suspect, or Target?

If you have received an FBI subpoena, this could mean one of a few things: (i) It could mean that the FBI believes you have information about a federal offense committed by someone else; (ii) it could mean that you are being treated as a suspect in an ongoing federal investigation; or, (iii) it could mean that you are being targeted for prosecution and federal authorities are on the verge of having enough evidence to move forward with seeking an indictment. Here, too, each situation is very different, and each requires its own uniquely-tailored response strategy.

What Do You Need to Do in Response to the Subpoena?

In terms of responding to the subpoena itself, what you need to do depends on the type of subpoena with which you have been served. There are two types of federal subpoenas: (i) subpoenas ad testificandum; and, (ii) subpoenas duces tecum. A subpoena ad testificandum requires you to provide testimony at the time and location specified in the subpoena. A subpoena duces tecum requires you to produce documents for the FBI’s review.

If you are being commanded to provide testimony, you will need to prepare thoroughly with your defense counsel. At Oberheiden P.C., our clients work directly with our senior federal defense lawyers as well as our former FBI agents to anticipate questions and carefully craft appropriate responses. We also seek to engage with the investigating agents in advance of the date on which our client is to provide testimony in order to gather additional information about the investigation and limit the scope of questioning.

If you are required to produce records in response to a subpoena duces tecum, you will need to begin preparing the responsive documents immediately. Our attorneys will guide you through this process while concurrently engaging with the investigating agents as discussed above. While you must ensure that your document production is responsive in order to avoid facing a motion to compel and the possibility of being held in contempt, you must also be extremely careful to avoid disclosing records that contain self-incriminating information or that are subject to the attorney-client privilege.

What If You Have Information or Documents that You Don’t Want to Provide?

When responding to an FBI subpoena, you do not have the option to pick and choose what information or documents you provide. If you have a piece of information or a document that is responsive to the subpoena, and if you do not have legal grounds to withhold it, then it must be provided.

As your defense counsel, we will work closely with you to assess the risks involved with your response, and we will evaluate all possible grounds for withholding sensitive (or potentially-damaging) information. We will work with the investigating agents to the extent possible, and we will assert all pertinent legal rights and privileges in order to limit your obligation to respond.

What if You Cannot Comply with the FBI’s Subpoena?

Federal investigative subpoenas are often extraordinarily broad, and in many cases timely submitting a compliant response is simply not feasible. This is especially true with regard to subpoenas duces tecum. If, as a practical matter, you cannot comply with the FBI’s subpoena, our attorneys can seek to negotiate a reduced compliance burden or an extended deadline, and we can file a motion to quash in federal district court if necessary.

Do You Have Grounds to Challenge the Subpoena’s Scope or Validity?

There are various potential grounds for challenging an FBI subpoena. This is true both with regard to the subpoena’s scope, and with regard to its validity in its entirety. If grounds exist to challenge your subpoena and it is not possible to negotiate a favorable resolution with the FBI, our lawyers can file a motion to quash the subpoena—either in whole or in part. Depending on the type of subpoena with which you have been served and the issues it presents, potential grounds for challenging your FBI subpoena may include:

• Procedural deficiencies
• Requests for irrelevant information or copies of documents that are already in the government’s possession
• Requests for information not in the subpoena recipient’s custody or control
• Overly-broad or unduly-burdensome requests
• Vague and indefinite requests

What are the Consequences of Failing (or Refusing) to Comply with an FBI Subpoena?

The consequences of failing (or refusing) to fully comply with an FBI subpoena can be significant. While it might not necessarily have direct legal implications in terms of establishing a presumption of guilt in court, it will certainly raise questions with the FBI agents and government attorneys who are handling the investigation. Additionally, failing (or refusing) to fully comply with an FBI subpoena can have direct legal implications in the form of a motion to compel and, ultimately, a finding of contempt. Under federal law, contempt charges carry penalties of fines and imprisonment.

In order to avoid these risks, it is imperative that you promptly engage experienced federal defense counsel to assist with you response to the FBI’s subpoena. To speak with one of our senior defense lawyers or former FBI agents in confidence as soon as possible, contact us today.

Put our highly experienced team on your side

Dr. Nick Oberheiden

Founder

Attorney-at-Law

John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach

Former Special Agent (OIG)

Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick

Former Special Agent (FBI & IRS-CI)

Kevin M. Sheridan

Former Special Agent (FBI)

Ray Yuen

Former Supervisory Special Agent (FBI)

Dennis A. Wichern

Former Special Agent-in-Charge (DEA)

Speak with a Federal Defense Lawyer about Your FBI Subpoena for Free

If you need experienced defense counsel for responding to an FBI subpoena, we encourage you to contact us promptly. Our senior defense attorneys and former FBI agents make themselves available 24/7. For a free and confidential assessment of your situation, call 888-680-1745 or tell us how we can reach you online now.