Have you or someone you know received a target letter from federal law enforcement? If so, some of the information in this publication may be helpful to you. It is not a substitute for legal advice or an exhaustive treatment of the subject, but it is a good start.

What is a target letter?

A target letter is the means by which the federal government informs individuals that they are targets for criminal prosecution.  In the simplest terms, it means the federal prosecutor believes the recipient has committed a crime.

The letter may come after federal agents have tried to interview you, or it may come seemingly out of the blue.

It is frequently used in white collar cases and is often the first indication that an individual is under investigation.  The United States Attorney’s Manual defines “target” as a putative defendant against whom there is substantial evidence.  The target letter notifies the recipient about a number of things, including:

• the recipient’s status as a target in a federal grand jury investigation;
• the crime or crimes that the recipient is suspected of committing;
• the recipient’s right to assert the Fifth Amendment; and
• information for obtaining court-appointed counsel.

Additionally, the target letter will sometimes caution the recipient against destroying any evidence, stating that such acts may constitute obstruction of justice, and sometimes encourage the recipient to reach out to the prosecutor to discuss the matter.

Here is a sample target letter:

These letters generally follow a similar format, whether it is an FBI target letter, or one from another agency.  You can see another target letter sample here on the Department of Justice website.

If I receive a target letter, does that mean I will definitely be indicted?

No. Although the likelihood of an indictment is high, it is not inevitable. Prosecutors are not always able to gather sufficient evidence to indict their targets. In some cases, an experienced white collar crimes attorney may be able to persuade the prosecutor to close an investigation, or reclassify the target as a witness. Whether this is possible depends upon the specific facts of your case. To learn more about the difference between targets, subjects, and witnesses, read our blog post “Targets, Subjects and Witnesses in Federal Criminal Investigation.”

Is the government required to issue target letters?

In most circumstances, the government is not required to issue target letters.  In fact, they are less common than you might think.  Most of the time, the government does not want targets to know their status, for fear they might obstruct justice or flee.  Most people the federal government indicts never receive target letters.

Can I file a Motion to Dismiss the target letter?

Unfortunately not.  A target letter communicates the prosecutor’s personal decision about your status in his criminal investigation.  It is not filed with the court and a federal judge has no jurisdiction to review it.  To be sure, the court does have supervisory authority of the grand jury that will eventually consider the government’s request to indict you.  However, it does not have such supervisory authority over the government’s investigation writ large.  There is therefore no such thing as a “Motion to Dismiss Target Letter.”

How long does the government have to indict me after it has given me a target letter?

There is no set time limit.  If you are charged in federal court, you have a constitutional and statutory right to a speedy trial.  There are no analogous laws for target letters.  It is common for government investigations to drag on for years, so you may have a long time to wait.

Is the government required to notify me when I am no longer a target?  Can I ask?

The government is not required to notify you if it decides you are no longer a target.  In some cases the government may choose to notify you, but it is not a requirement.

Of course, you are always free to contact the government to ask if you remain a target, but should you?  There is no telling what the government may read into your inquiry – the best strategy may well be to make yourself scarce.  We often advise clients that it is not in their interest to contact the government to inquire about their status in an investigation.

What should I do if I receive a target letter?

Hiring a good federal criminal defense attorney early will give you the best chance of reaching a favorable result.  In some cases, an attorney might be able to persuade the prosecutors to drop the investigation against you. Even if a criminal indictment is inevitable, your attorney may be able to obtain early discovery, evaluate the evidence, and perhaps reach out to the prosecution to negotiate a favorable pre-indictment plea agreement.  Because the prosecutor may not have spent significant time and resources investigating the case at this stage, there may be more room to negotiate than in cases where the grand jury has already returned an indictment with particular charges.

It’s also important to know what not to do after receiving a target letter.  Read below to find out what the common mistakes are, and how they can make your situation worse.

Should I talk to the agents investigating me?

No. Let’s say you got a target letter saying that you’re under investigation by the FBI.  This is a scary moment. You may be tempted to contact the investigating agents to obtain information.  You may want to clear the whole thing up and explain your involvement to them, but this is usually a big mistake.

Your statements can be used against you.  The agents have received extensive training on how to exploit this situation, and they are not there to do you any favors.  Only communicate with the government through your attorney. You should resist the urge, as strong as it may be, to contact the government about your case until you are represented and advised by an experience federal defense lawyer.

Once your attorney carefully evaluates your case, your attorney may then advise you to make statements to the government if doing so would be to your benefit.  For example, this may include meeting with prosecutors and agents in a proffer session, or providing testimony to the grand jury under a grant of immunity.  However, the ground rules and limitations should be clearly explained to you by your attorney.

Is it OK to talk to other person(s) connected to the investigation?

No. As with conversations with agents, your conversations with other people can be used against you if those individuals are subpoenaed at trial or before the grand jury. How can these conversations be used?  For one thing, the prosecution is skilled at using even innocent conversations and making them look bad. Moreover, if the individuals you speak to are potential witnesses in the case, the prosecution may be able to accuse you of obstruction of justice.

What about family members?  Or, if you have to miss work for court appearances, what do you tell your employer?  We understand that these circumstances can be challenging, especially when questions begin to arise from your spouse, parents, children, co-workers, or employer.  The safest course of action is to speak with an attorney who can advise you as to what you should and should not discuss with such people. After considering all the facts and circumstances, your attorney can give you clear guidance as to topics and issues you can and cannot discuss, and advise you on how to deal with people close to you.

Should I cooperate with the government?

Possibly. This is a central question for many people targeted by the federal government, and the answer depends on the specific facts of the case. An experienced federal criminal lawyer can help you weigh such factors as your chances of winning at trial, your probable sentence if you lose at trial, and the advantages of cooperating with the government. You should not cooperate until these and other aspects of your case have been carefully examined.

What else should I be aware of?

You should be aware of the law enforcement techniques the government is using or may use to investigate you. The federal government has vast investigative powers such as the power to tap your phone or search your home or place of business. It is also possible that people you know may be working as informants for the government without your knowledge.

The point is simple: do not do anything without consulting with your attorney.  Under no circumstances should you get rid of evidence or tell anyone to lie.

How should I go about hiring a lawyer?

You should hire a lawyer who has significant experience in federal criminal cases.  To learn more about how to find and hire the best criminal defense attorney, read out page on the subject here.

Although it may be tempting to reach out to a trusted attorney who handled your divorce or real estate closing, this is usually a mistake. That person may be an excellent lawyer, but his or her lack of experience in federal investigations will likely hurt your case, and there is simply too much on the line.