Individuals & DOJ Interaction
Anyone can imagine the alarming nature of being contacted by a federal agent charged with investigating criminal conduct on behalf of the most powerful government in the world. Such contacts are frequently made in person and unannounced. Of course, with the exception of a grand jury subpoena, citizens are typically under no obligation to speak to federal agents and/or prosecutors in response to substantive questioning. This general rule, however, has been tempered by recent caselaw which holds that silence in the face of non-custodial interrogation may be taken as an inference of guilt. The salient question is whether someone is a target or merely a collateral witness. The answer to this question is often not known even to the investigator at the time of an initial questioning. Furthermore, a collateral witness may nonetheless become a target of a federal investigation at a later point. For these reasons, there are virtually no circumstances where someone would benefit by speaking to the government without first consulting competent counsel. Therefore, when faced with government interrogation, it is advisable to specifically articulate that, “I would like to have my attorney present before I speak with you.”
Searches - Individuals & Corporations
In the white-collar context, it is imperative that counsel first determine whether his or her advice is being sought individually or in the corporate capacity. This inquiry will form the basis and scope of any attorney-client privilege. Corporate employees are often questioned during the course of the execution of a search warrant. If the corporation is provided with advance notice, counsel may advise employees that they are free to speak with the government but are under no obligation to do so. Employees should also be provided, at company expense, an independent attorney to represent their interests. In cases where no advance notice of a search is provided by the government, employees are under no obligation to remain on site or submit to substantive interviews. Clients should never alter or destroy evidence or otherwise obstruct the government’s investigation. From the perspective of representing an individual, it might be preferable to have the corporation prosecuted for criminal wrongdoing, rather than a director, officer or employee. (although the strategy of pursuing a corporate plea is rarely successful). Conversely, if representing the corporation, it might be advisable to segregate any individuals who might have engaged in criminal wrongdoing. Counsel should arrive on scene as soon as possible to provide advice to the client.
Grand Jury Subpoenas
The other area of interaction between federal prosecutors and the public is within the realm of a grand jury investigation. Frequently, federal investigators will attempt to speak with witnesses/employees in the course of delivering a grand jury subpoena. Anyone served with such a subpoena should consult a lawyer immediately. A subpoena will list the Assistant United States Attorney responsible for the investigation, which will provide a point of contact for the lawyer. There are three types of subpoenas, testimonial, duces tecum (calling for production of documents), or both. In the case of a straight duces tecum subpoena, it is important to get an understanding of the scope and narrow it down in writing. It’s generally preferable to avoid having a client testify before the grand jury. If possible, arrange delivery of documents by mail or courier. While individuals have a broad right against self-incrimination in the grand jury context, remember that an entity has no such privilege.