Grand Jury Subpoenas
If you have been served with a federal grand jury subpoena, you are at risk for being indicted on criminal charges. Our federal defense lawyers are here to protect you.
In the federal criminal justice system, the empanelment of a grand jury is a significant step toward prosecution. When federal prosecutors at the U.S. Department of Justice (DOJ) request a grand jury, this means that they believe they have (or will be able to obtain) sufficient evidence to establish the “probable cause” required in order to take their case to trial. If the grand jury issues an indictment, the suspect becomes a defendant, and the options for obtaining a favorable result become more limited.
If you have been served with a federal grand jury subpoena, there is a lot you need to learn – and there are a lot of steps you need to take – in a very short period of time. You need to leverage every available opportunity to avoid an indictment; and, in order to do so, you need to rely on the advice of experienced federal defense counsel. At Oberheiden P.C., we provide defense representation for federal grand jury cases nationwide, and our attorneys rely on past experience as DOJ prosecutors to execute defense strategies that are tailored specifically to helping our clients avoid being indicted.
Understanding Your Federal Grand Jury Subpoena
A federal grand jury subpoena is a formal request for testimony, documents, or both issued by a federal district court judge at the request of a federal prosecutor. Once the decision to empanel a grand jury has been made, the DOJ prosecutors handling the case must then work to gather sufficient evidence in order to allow the members of the grand jury to conclude that there is probable cause to believe that the suspect has committed a federal crime (or, as is often the case, multiple federal crimes). In order to do this, DOJ prosecutors have a number of investigative tools at their disposal, one of which is the federal grand jury subpoena.
1. A Federal Grand Jury Subpoena Can Request Testimony, Records, or Both
There are two types of federal grand jury subpoenas: (i) a subpoena ad testificandum, and (ii) a subpoena duces tecum. A subpoena ad testificandum requires testimony, and may also require the production of records supporting the witness’s or suspect’s testimony. A subpoena duces tecum requires the production of records, and the burden of complying with a subpoena duces tecum will often be substantial. When directed to the records custodian of a corporate entity, a subpoena duces tecum may require limited testimony regarding the entity’s document storage, preservation, and collection methods as well.
Upon being served with a federal grand jury subpoena, one of the first steps that must be taken is to review the subpoena in detail and assess the burden that it imposes (we discuss the steps to take in response to a federal grand jury subpoena in greater detail, below). Preparing testimony in response to a subpoena ad testificandum and collecting documents in response to a subpoena duces tecum are two very different processes, and each requires its own strategic and targeted approach.
2. Federal Grand Jury Subpoenas Can Be Challenged on Limited Grounds
While it is possible to challenge a federal grand jury subpoena, the grounds for doing so are limited. By law, federal grand jury subpoenas are presumed to be valid, which means that it is up to the recipient to affirmatively demonstrate a reason why enforcement is unjustified.
When we represent clients that have been served with federal grand jury subpoenas, we meticulously examine not only the subpoena itself, but also its practical implications in order to determine whether any grounds to challenge the subpoena exist. Is the subpoena overly broad and unduly burdensome? Does it conflict with fundamental principles of fairness or federal jurisprudence? While it is possible to challenge a federal grand jury subpoena in its entirety, it is possible to file a partial challenge as well; and, in many cases, filing a targeted partial challenge will be sufficient to secure the necessary protections that allow for timely compliance while also preserving the recipient’s fundamental rights.
3. Preparing a Response to a Federal Grand Jury Subpoena is a Time-Intensive Process
Regardless of whether you have received a subpoena ad testificandum or a subpoena duces tecum, preparing your response will be a time-intensive process, and you will want to get to work immediately. This is true whether you are being subpoenaed as a witness or as the target of a federal criminal investigation.
If you fail to fail to sufficiently prepare and this results in either being ill-equipped to testify or submitting a non-compliant document production, you could have severe negative ramifications. Not only could you expose yourself to prosecution unnecessarily, but you could also potentially expose yourself to being held in contempt.
Understanding the Steps to Take in Response to a Federal Grand Jury Subpoena
Given the risks involved with responding to a federal grand jury subpoena (or failing to adequately respond), what steps should you take upon being served? When we represent clients in federal grand jury proceedings, our steps include (but are not necessarily limited to):
1. Communicating with the U.S. Attorney’s Office
Once we are engaged, one of our first steps when dealing with a federal grand jury subpoena is to make contact with the U.S. Attorney’s Office handling the case. Our lawyers will engage with the prosecutors handling your case in order to gather as much information as possible. Not only will this give us a better understanding of why you have received a subpoena, but it will also allow us to explore opportunities for negotiating the scope of the subpoena without needing to file a motion to quash.
Depending on the circumstances involved, the U.S. Attorneys assigned to your case may be willing to engage in discussions, or they may be set on taking your case to trial. Regardless, there are insights that can be gained from any communications received, and engaging with the U.S. Attorney’s Office as early as possible is a key step in the federal grand jury subpoena defense process.
2. Simultaneously Preparing Our Client’s Substantive Response and a Motion to Quash
Concurrently with seeking to engage with the U.S. Attorney’s Office, we will also begin working to prepare your substantive response to the subpoena. If you are being called to testify, we will work with you to anticipate potential questions and carefully craft your responses. We will also provide you with a game plan for responding to any unanticipated questions, we will advise you regarding the assertion of your right to remain silent, and we will make sure you know when you can (and should) request to speak with counsel outside of the grand jury’s presence.
If you have been served with a federal grand jury subpoena duces tecum, we will assist you in all aspects of preparing a compliant document production. This includes withholding or redacting any records that are protected by the attorney-client privilege or the privilege against self-incrimination. We will structure a document review and collection plan that ensures you will be able to meet the subpoena’s response deadline; and, if you will need to provide testimony as a records custodian, we will thoroughly prepare your testimony as well.
While we are taking these steps, we will also be preparing a motion to quash the subpoena, if warranted. We have extensive experience in federal grand jury matters, and we can use our experience to strategically pursue a motion to quash that is designed to limit your obligation to provide testimony or documents to the greatest extent possible.
3. Providing Testimony, Documents, or Both As and When Required
Finally, when the time comes, we will represent you in providing testimony or records to the grand jury. While you are not entitled to representation in the grand jury room, you are entitled to speak with your counsel during the proceedings outside of the grand jury’s presence. If you need to produce records in response to a subpoena duces tecum, we will arrange the production and ensure that your confidential files remain secure during the process.
Understanding the Potential Consequences of Failing to Respond Appropriately
When responding to a federal grand jury subpoena, it is important to understand the consequences of failing to respond appropriately. This includes both devoting insufficient time and effort to preparing your response as well as ignoring the subpoena entirely. Inadequate preparation could result in the disclosure of self-incriminating information and loss of the attorney-client privilege; and, as discussed above, ignoring the subpoena (or failing to submit a compliant response) could result in a finding of contempt and the potential for criminal prosecution.
Speak with a Former DOJ Prosecutor about Your Federal Grand Jury Subpoena
If you have been served with a federal grand jury subpoena, we encourage you to contact us immediately to discuss your next steps. To speak with one of our senior federal defense attorneys in confidence, call 888-680-1745 or request a complimentary consultation online now.