What’s The Difference Between a Federal Target, Subject, and Witness?
A federal criminal investigation is a virtual danger zone for the unwary. Even if you believe you’ve done nothing improper, you should never assume that the government sees the situation the same way. And if you are worried that you did something wrong, it is unwise to think that you can finesse the situation or explain away the problem on your own.
All individuals coming into the orbit of the federal prosecutor and grand jury fall into one of three categories: witness, subject or target. It is crucial to understand your status in a federal investigation to make the right decisions.
• Witness: Being a witness in a case involving the FBI, Secret Service, IRS or other Federal Agency does not necessarily mean that you observed or saw a crime happen. You may have information that law enforcement believes might be relevant in a criminal investigation to help prove either the guilt or the innocence of another individual or business. Although you may only be a witness, it’s critical to recognize that if you speak to Federal law enforcement your words are not protected without a proffer agreement and should you make a misrepresentation, you can be charged with the crimes of Lying to a Federal Agent and Obstruction of Justice, each of which is punishable by as much as five years in a Federal penitentiary
• Subject of an Investigation: The term “subject of an investigation” has a particular meaning within the United States Department of Justice (DOJ). According to the DOJ Handbook, a “subject” is: “a person whose conduct is within the scope of a Grand Jury’s investigation.” A subject is somewhere between a target and a witness. A subject has engaged in conduct that may look suspicious or unethical, but the prosecutor isn’t certain that a provable crime has been committed and wants to do more investigating in order to be sure.
• Target: The term “target of an investigation” is also specifically defined by the DOJ. A person is a target where the prosecutor or Grand Jury has substantial evidence linking him to the commission of a crime. Designation as a target provides a clear warning of a person’s criminal exposure.
Even though your status as a witness, subject or target may be important in guiding your strategy during a particular phase of a federal white collar crime investigation, the key thing to remember about these categories is that they are ultimately meaningless and offer you no protection. Why? Because even if you’re currently a witness or subject, there’s no guarantee that your status will remain unchanged. It is necessary, therefore, from the outset of a white collar crime investigation, to base any strategy on a realistic assessment of your potential criminal exposure after consulting with an experienced federal crime defense lawyer.
Never Submit to an Interview Without Legal Representation
Even assuming your absolute innocence of the wrongdoing being investigated, the federal law enforcement agent has had the luxury of minutely studying all of the relevant paperwork surrounding that investigation. You, on the other hand, may not have thought about the subject matter, much less the underlying details, and you will probably not be shown any of the pertinent documents before the interview begins.
You could easily make factual mistakes during your interview. What happens then? Maybe nothing, if you are dealing with an experienced agent who believes that you are trying to tell the truth. But if the agent is inexperienced and unsure of your culpability or if you are not confirming his version of events, your mistakes can easily be interpreted as intentional falsehoods under federal law. Usually, the safest course of action in these situations is to politely tell the agents that although you want to be helpful and cooperate, you have an attorney, or are in the process of hiring a lawyer and that you are not going to discuss anything with them before consulting with an attorney. In order to protect yourself, assume the worst case scenario and remain silent.
Conduct that you considered to be completely acceptable when you engaged in it may now be thought of as wrongful by the government. Remember, many federal white collar crimes do not require the government to prove that you knew you were violating the law. If you admit to the conduct, you may be admitting to the crime. It is ill-advised, therefore, to speak with a federal agent or prosecutor, or respond to a grand jury subpoena, without first discussing your case with an experienced federal white collar criminal defense lawyer.
The Federal criminal defense attorneys at Duffy Law are experienced trial lawyers. Felice Duffy was a federal prosecutor for over ten years, during which time she prosecuted many white collar cases, and she is prepared to share her years of experience to present a legal defense on your behalf. Call Duffy Law today at 203-946-2000.