In this article, we answer how a person might know if they are under investigation by federal law enforcement.  But first, we let’s cover the basics about the federal criminal investigation process.

What is a federal investigation?

A federal investigation is the first step in the federal criminal justice process. In this stage, federal law enforcement agents are investigating potential violations of federal law. Their goals are to determine: (1) whether a federal crime has been committed; (2) the parties responsible; and (3) the evidence pertaining to the crime, if any.

How does a federal investigation begin? 

In most cases, a federal investigation is triggered by the filing of a credible crime report. Sometimes, it may also commence as a result of information law enforcement agents receive from defendants in pending criminal cases who are hoping to receive leniency (i.e., cooperators). In other cases, a federal investigation may result from data gathered by a federal intelligence agency, such as the CIA, or from a parallel civil investigation performed by a regulatory agency, such as the SEC or the FDA.

Who is involved in a federal investigation? 

The law enforcement agents, such as FBI special agents, are the primary actors in a federal investigation. The agents perform the bulk of the work during a federal investigation, such as gathering evidence and interviewing witnesses. However, they do not work alone.

In a federal investigation, agents assigned to the case work closely with a federal prosecutor. The prosecutor gives the agents legal guidance, and helps the agents with obtaining legal documents such as subpoenas and search warrants. In addition, the prosecutor is the one who will decide whether to bring any formal criminal charges at the end of the investigation. Thus, the prosecutor’s opinion on the merits of the case is important to the agents working the case.

For certain kinds of federal investigations, such those involving violent transnational gangs, or large scale white collar crimes, it is not uncommon for multiple federal agencies, or even for federal and state agencies, to cooperate in a joint investigation. In these situations, one or more agents may take the charge and serve as the “lead” or “case” agent overseeing the investigation.

What happens in a federal investigation?

Federal law enforcement agents have a large toolbox of investigative techniques at their disposal. These are just some examples:

• wiretapping the suspect’s phone
• performing physical surveillance over a period of weeks or months
• monitoring the suspect’s online activity
• recording consensually monitored conversations (i.e., having someone wear a “wire” or record phone calls for the agents)
• reviewing a suspect’s financial documents, such as bank records or tax returns
• issuing grand jury subpoenas for testimony and documents
• executing search warrants and analyzing the materials obtained, such as computers and smart phones
• conducting witness interviews and proffer sessions.

In a federal investigation, agents and prosecutors work with the end goal of bringing a federal indictment and securing a conviction. Federal law enforcement agents are well-trained to accomplish this task. For example, agents may show up unannounced at a suspect’s home in the early morning to ask questions and interrogate the individual, at a time when the individual is not fully alert or prepared, to gain a psychological edge. As another example, law enforcement agents may use deception as part of their investigative technique. The agents may tell the suspect that that the investigation is not focused on the suspect, and that they are simply looking for information concerning another individual. The suspect may then be lured into making incriminating statements about him or herself.

Because federal law enforcement agents have the advantage in resources, training, and expertise over the ordinary defendant, it is important that any individual who is the target of a federal investigation immediately seek guidance from an experienced attorney familiar with the federal investigative process.

How do you know if you are under federal investigation?

A federal investigation can take a long time. In some cases, agents may investigate a case for years before bringing any federal criminal charges. Moreover, federal investigations tend to be conducted in secret; documents and reports pertaining to the investigation may be classified; agents involved in the investigation may be instructed to not discuss it in public. During this time, the subject of the investigation may not even be aware that he is under investigation until agents are knocking on his door to make an arrest.  Individuals frequently only find out that they are under federal investigation when one of the following things occur:

• A federal prosecutor formally notifies you that you are the target of an investigation through a target letter.
• A federal law enforcement agent contacts you by phone and asks for a meeting.
• Federal agents show up unannounced at your home, place of business or other location that you frequent, and try to interrogate you.
• Federal agents execute a search warrant at your home or place of business.
• You receive a grand jury subpoena requiring you to testify or provide documents.
• Former colleagues or business associates tell you that they have been interviewed, searched, or subpoenaed to testify in connection with activities that you were involved in.

These events can occur in tandem. For example, an individual may find out that he is under investigation when, one morning, federal agents show up at his home to execute a search warrant. During that search, agents also attempt to interrogate the individual about the crime. After the search, the individual is handed a target letter from the local U.S. Attorney’s Office. In addition, the individual receives calls from colleagues later during the day informing him that the FBI has contacted them. Of course, finding out that one has been under investigation for years can be a nerve-wracking experience.

What should I do if I am under investigation? What if federal agents want to speak with me?

There is an old adage that you should not speak to the police about a crime, because anything you say can be used against you. The more accurate advice is that you should not speak to anyone about a crime, because anything you say or write can be used against you.

If you are implicated in a federal investigation, especially as a target of the investigation, you should follow two rules: (1) obtain legal representation immediately; and (2) do not speak or write to anyone else about the investigation without first consulting an attorney experienced in handling federal criminal investigations.

The reasons why you need to obtain an attorney or not speak to law enforcement should be obvious. However, it may be less obvious to some why you should not speak to third parties about the investigation without consulting an attorney. There are several reasons for this.

• First, the individuals you speak to about the investigation may eventually be interviewed by federal agents. You can expect that federal agents will eventually find out what you have told these individuals. Worse, the individuals you speak to may already be working with federal agents as cooperators.
• Second, if anything you say to third parties could be interpreted—even vaguely—as an attempt to cover up the facts, you could be charged with obstruction of justice, which is a separate crime. Even in the best case scenario where you are not charged with obstruction of justice, those statements you make to third parties are still admissible as evidence in court to be used against you. Prosecutors are very skilled at making even innocent statements sound sinister in a courtroom.

How can an attorney help in a federal investigation?

Once you have obtained legal representation, your attorney, who should be experienced in federal criminal law and familiar with federal investigations, can help you answer important questions and help put you in the best position possible.  Here are some examples of the issues that your attorney will advise you on:

Does the government consider me a target, a subject, or merely a witness in the prosecution?  The way the government views your role in an investigation can have important implications on what you should do, so this is an important question for your attorney to answer.

Should I meet with federal prosecutors and agents for an interview, or proffer session?  As we discuss in another article, the decision to meet with the government to answer questions in a federal investigation is one that must be made with extreme caution.  On one hand, meeting with prosecutors to answer questions can sometimes convince them that you are not at fault, or that your role was so minimal that prosecuting you is not worthwhile.  On the other hand, statements made during such a session can have the opposite effect; they can convince prosecutors that you are guilty, they can give the impression that you are dishonest, and they can give prosecutors statements that will later be used against you.  Given the high stakes involved, it is important to have a federal defense attorney advise you as to whether you should meet with prosecutors, and if so, to negotiate the ground rules for such a meeting.  It is also important to have your attorney prepare you thoroughly for a proffer session, and advise you as to whether you should sign a proffer letter.

I received a grand jury subpoena to testify and/or produce documents.  What do I do?  If you have been subpoenaed to testify, it is important to understand what your rights are, and what you should do to protect those rights.  For example, a federal defense lawyer can advise you whether you may have violated the law, and whether you can protect yourself by asserting you Fifth Amendment right against self-incrimination.  Frequently, an attorney can reach out to the prosecutors on your behalf and provide them the information they need, relieving you from having to appear before a grand jury.  Similarly, if you receive a subpoena requiring you to produce documents, an attorney can often reach out to prosecutors and significantly narrow the scope of what should be produced.  An attorney can also advise you as to what documents you may have a right to withhold from production.

Should I cooperate with a federal investigation?  The decision to cooperate, or to decline to cooperate with a government investigation is rarely straightforward.  There are many factors at play, and federal prosecutors often exert tremendous pressure to get you to do what they want.  Every case will require a careful evaluation by a skilled defense attorney, whose duty is to protect your interests at all stages of the process.

Speak with an experienced federal criminal investigation attorney.   

At Burnham & Gorokhov, PLLC we frequently represent people who have become involved in federal criminal investigations. These individuals may be targets, subjects, or witnesses in an investigation.  In many cases, we were able to resolve these difficult situations quickly and discreetly without federal charges being filed. When criminal charges are inevitable, we make sure our clients are in the best position possible to defend against those charges when they come.

Our white collar crime attorneys have successfully represented many individuals in federal criminal investigations. Below are a few examples of past results:

• A pharmacist was under investigation for healthcare fraud and controlled substance violations in the Western District of Virginia. No charges filed.
• An IT professional was investigated for accepting kickbacks in the Eastern District of Virginia, Alexandria Division.  No charges filed.
• An employee of a trade association was investigated for fraud in the Eastern District of Virginia, Alexandria Division.  No charges filed.
• The director of a nonprofit organization was investigated for fraud by the United States Attorney’s Office for the District of Columbia.  No charges filed.
• A real estate loan officer was implicated in a mortgage fraud investigation in the Eastern District of Virginia, Alexandria Division.  No charges filed.
• An individual was questioned by federal agents and prosecutors in a securities fraud investigation in the Eastern District of Virginia, Richmond division.  No charges filed against our client.

This article provides only the most basic information about federal investigations. In practice, each case is unique and requires thorough investigation and analysis by a qualified federal criminal investigation lawyer before the above questions can be answered.

If you believe you may be implicated in a federal criminal investigation and would like to discuss your case with an attorney, please contact us.