Federal Defense

Fundamentals of Government Investigations and Enforcement: Individuals

How Federal Investigations Begin

An individual’s involvement in a federal investigation can be revealed in many ways, and an individual’s role in that investigation can vary.  

Common ways individuals find out they are a part of an investigation include:

• receiving a request for an interview from a federal agent

• receiving a grand jury subpoena to provide records to a grand jury or to testify

• hearing from others involved in the case that an individual is a potential witness or is being considered for charges

• the execution of a search warrant that implicates the individual

• or through an internal corporate investigation relating to potential misconduct by the individual. 

In each of these instances, it may appear to an individual that they are caught up in a potential criminal investigation. Evaluating potential risks as early as possible is critical to eliminating or minimizing those risks.  

Talking to an attorney who understands federal investigations and has experience with them will allow them to identify information that the individual may know that can help understand the investigation, identify publicly known information that could help, speak with others who may be involved in the investigation, and to identify and possibly communicate with the federal investigators involved in the case to fully understand the individual’s role, risk, and best next steps.

Determining the Individual’s Potential Role in the Investigation

Generally speaking, individual roles in an investigation fall into one of three categories: 

• witness

• subject and 

• target

A necessary, early step in responding to potential involvement in a federal criminal investigation is to determine an individual’s role. This can be done through a phone call or meeting between an attorney representing the individual and the prosecutor or investigating agent on the case. A “target” is an individual linked to the commission of a crime by substantial evidence and a putative defendant. This indicates that an individual is being directly investigated and considered for criminal charges. A “subject” of an investigation is a person whose conduct is within the scope of the grand jury’s investigation - so not a target, but someone who is being investigated and could become a target. A “witness” is not someone under suspicion but instead someone who may have information about a crime or case. Most prosecutors and investigators, especially in South Carolina, will make a good faith effort to let an individual know their role in a case, and if they cannot, they will say as much. However, a role in a case can change, and there is little comfort in being a subject, as this role can quickly develop into being a target and eventually someone who is charged with a crime.  

Getting an Attorney From Your Company

It’s common for individuals who believe they are part of a federal investigation to have that investigation relate to their employment. 

Perhaps they receive a phone call from a federal agent who wants to interview them regarding practices at their workplace, or they receive a subpoena to testify about actions taken by coworkers.  

In those situations and many others, the employer may have an attorney representing the corporation or company who offers to also represent the individual employee. This is considered “joint representation,” where one attorney represents the employee and the company the employee works for.  

This can be problematic - especially early on in an investigation. It may not be clear whether any wrongdoing occurred and, if so, the roles of any individual or the company.  

As a result, there could quickly be a divergence of interest, where the individual has information that could harm the company, and the attorney’s loyalty to his clients becomes split. These types of conflicts are generally prohibited; however, they can be waived. 

Any individual who is a part of a criminal investigation should be clear about their role and clear with any employer’s counsel about whose interests the attorney represents.  

In most cases, the individual can request separate, independent counsel to represent them.

Talking to Government Agents or Company Counsel

Federal investigations (and most criminal investigations, for that matter) often involve a request from investigators for a voluntary interview.

In federal cases, this request can sometimes be compelled by a grand jury subpoena, requiring a witness to either provide documents or testimony in front of a grand jury.

In the employment context, an employer may have an attorney for the employer request an interview.

In all of these situations, it’s important to act strategically. Since these requests often come early in an investigation or with little information being provided, it’s critical to assess the value of providing information early in a case with the danger of providing incriminating information that could hurt the individual.

Individuals who may incriminate themselves can assert their Fifth Amendment right not to speak. However, there are risks to doing this - an individual could miss out on cooperation benefits and in the employment context, could lose their job for refusing to cooperate.

Plus, cooperating in the employment context is no guarantee that an individual will keep their job if they have otherwise been involved in wrongdoing.

Speaking With Company Counsel

Counsel for a company under investigation may seek to interview employees.

Several factors must go into any consideration of such a request - there are advantages and disadvantages to agreeing to speak to company counsel.

Primarily, there is no guarantee that what an individual says to a company’s attorney will be confidential and could be used against the individual, either in an employment context or by the company turning the information over to law enforcement.

However, an individual’s job may be at stake if they do not speak to company counsel, so there is a lot at stake.

Further, some companies will agree to give an individual separate legal counsel, but only if they agree to give a statement.

Grand Jury Subpoenas

Federal agents and prosecutors often use a grand jury as an investigative tool in their efforts to determine whether there is probable cause to believe a crime has been committed.   

A grand jury subpoena for individual testimony compels an individual to testify before the grand jury. However, such a subpoena cannot be used to compel a target of the investigation to testify or anyone who properly asserts their Fifth Amendment privilege not to testify.   

As well it is common for agents and prosecutors to accept an interview in lieu of grand jury testimony if that can be arranged in advance of the grand jury session. 

Proffer Sessions

A “proffer” is an interview between an individual and an investigative agent and often includes the prosecutor on the case, where the individual provides information with the benefit of certain protections, primarily that the information will not be used against the individual if the individual is truthful and the government is not otherwise made aware of the information.

There are other considerations that go into a decision to enter into a proffer, however generally, a proffer allows an individual to provide information to the government so the government can assess the value of the proffer, and at the same time, the individual is protected from the information being used against them.

In this fashion, individuals can often limit their exposure and get ahead of investigations without creating liability in many instances.

There is certainly risk in a proffer, especially if an individual lies in the proffer session or is not completely candid.

However, for less culpable individuals, especially those who are willing to cooperate, a proffer is an opportunity to get information to government investigators and prosecutors early that demonstrates a willingness to cooperate that can be beneficial later in the case.

Working With the United States Attorney’s Office or Local Prosecutors

Whether it is part of an effort to cooperate early in a case or an attempt to present an optimal outcome to an investigation, it is important for counsel representing an individual to consider having a dialogue with prosecutors in a case. 

To be sure, there are often times when working with prosecutors is not the best strategy or when prosecutors are not interested in dialogue. 

However, having a discussion early on can clarify an individual’s role in a case and allow the individual to make critical decisions about whether to cooperate or how to approach evidence that may be a part of the case. 

Further, it gives an individual a chance to get ahead of potential charges and talk with investigators or prosecutors before charges are considered, effectively avoiding them altogether. 

In most cases, prosecutors welcome presentations from counsel to assist them in making investigative and prosecutive decisions. 

It is critical to shaping the course of the investigation and ultimate resolution that these communications and presentations be handled effectively. 

A few points need to be considered in this regard. 

Your attorney needs to be familiar with the prosecutor.  

Federal prosecutors want to ensure that justice is done in each case. 

However, each prosecutor is different, and each United States Attorney’s office is different. Knowing how federal prosecutors in South Carolina handle cases, as well as prosecutors in each of the offices (Columbia, Charleston, Greenville and Florence) is important. 

Each office has its own culture, and each prosecutor and investigative agent their own individual approach to cases. 

It is critical that counsel be familiar not only with the culture of each office in the District of South Carolina but the specific federal prosecutor and their supervisors on a specific case and what process they use in discussing cases with counsel. 

Available Outcomes

The main purpose of engaging in a dialogue with investigative agents and prosecutors, as well as making presentations to them, is to reach a fair resolution in a case that fully takes into account information about an individual, and alleged wrongdoing, and the individual’s efforts to be cooperative. 

Ultimately, prosecutors have a wide range of options in deciding how to conclude an investigation - from declining to prosecute to federal indictment, with several options between those extremes.

Declining to Charge  

In some instances (and the ideal instance for an individual) the ongoing dialogue between counsel, investigators and prosecutors can lead to the determination that there is no evidence of criminal activity or that any prosecution would not be appropriate. 

It is critical to this decision that counsel communicate early with investigators and prosecutors and that counsel be thorough in uncovering information to share. 

It is truly unfortunate when a person provides information to prosecutors after they are criminally charged, which would have prevented the charges from ever being filed had it been provided early on and before the charging decision was made. 

Pre-trial Diversion (PTD) 

Certain individuals may qualify for pre-trial diversion, which does not result in a criminal conviction. 

Although each United States Attorney’s office is different, generally speaking, individuals should not be facing serious charges, not be involved in violence, and not have a criminal record. 

In the District of South Carolina, in a PTD case, charges are filed, the individual is referred to the probation office for oversight for a pre-determined period, such as eighteen months, are required to do certain things such as pay restitution, abide by bond conditions, and have no further criminal activity, and if those conditions are met, the charges are dismissed at the conclusion of the PTD term.

Alternative Courts 

The District of South Carolina, as well as other districts, have diversionary programs in addition to PTD, such as the BRIDGE Drug Court program. 

These programs are high-intensity supervision programs designed to address specific aspects of individual defendants. 

The BRIDGE program focuses on defendants with substance abuse problems. Under heightened and direct supervision, these defendants are given an opportunity to gain control of their substance abuse addictions and reform the criminal behavior that often comes with their addictions. 

Should they succeed, they are often rewarded with a less significant sentence, and in some instances a dismissal.

Criminal Charges 

In some instances, a prosecutor will decide to criminally charge an individual. 

It is rare for a person to take a federal case to trial. Though it happens in the District of South Carolina - see the case studies here and here. 

Guilty pleas often offer significant benefits to an individual, and as a result, are a common form of resolution. 

Federal guilty pleas are almost always entered by written agreement, and the plea agreement can have a host of conditions included. 

The main benefit to an individual though is cooperation credit in the form of a motion under United States Sentencing Guideline § 5K or Federal Rule of Criminal Procedure 35(b). 

In both instances, when a defendant provides substantial assistance to the government, the government will move a departure from the suggested Guidelines sentence range in consideration of that assistance. 

Plea agreements can also dictate the charges that are being pled to, and dismiss other, often more serious counts, in exchange for the guilty plea; allow certain issues to be preserved on appeal; or agree upon a certain sentence, with or without including the court in the agreement. 

Although a criminal conviction is not an ideal case result, skilled counsel can negotiate the terms of any plea agreement to minimize, and in some instances remove, the harm to an individual and ideally tailor the plea agreement to have the best possible outcome for the person charged. 

Skillful and experienced counsel is necessary to get the right result and avoiding the impact a federal investigation can have on a person. When the necessary effort is appropriately applied, an individual being federally investigated, or charged, can benefit tremendously.