Table of Contents
What is the purpose of a Grand Jury?
In the United States, federal juries are made up of citizens chosen by the courts. The procedure for selecting a grand jury is similar to choosing a petit or trial jury. In contrast to a petit juror, which sits for the duration of a single trial, grand juries typically sit for a more extended period and evaluate multiple cases. The confidentiality of grand juries is crucial. Grand juries can also issue subpoenas for documents and grand jury witness testimony to aid in the case’s evaluation. These grand jury subpoenas are given at the government’s request. The grand jury then receives the subpoenaed materials to continue its inquiry.
If you receive a federal grand jury subpoena, it signifies the Department of Justice is conducting a federal criminal investigation into you or someone you know or were involved with. For all capital and notorious offenses, the Fifth Amendment of the United States Constitution requires the use of a grand jury to be indicted. In practice, unless a defendant waives their right to a grand jury indictment and instead pleads to “Information,” all federal felonies must be indicted by a grand jury. Grand juries are made up of 16 to 23 people.
Grand juries decide if there is enough evidence to warrant an indictment. A grand jury does not determine whether or not someone is guilty. Everyone charged by a grand jury is presumed innocent unless they plead guilty or are found guilty beyond a reasonable doubt at trial.
Hundreds of grand juries exist around the United States. Some federal districts have numerous grand jury sittings going on simultaneously, while smaller districts will only have one. Grand juries meet on a schedule set by the district in which they are convened. Depending on the number of criminal cases in their region, some may meet every two weeks or every month. The jury can hear multiple cases in a single day and decide at the end of the session to approve or disapprove of the indictment (True Bill) (No Bill).
They have determined that there is reasonable cause to think that the claimed offense has been committed if a True Bill is returned. Therefore, the person(s) identified in the indictment have now been officially charged with a crime.
What Is a Grand Jury Subpoena and How Does It Work?
The US Attorney’s Office has a variety of investigative methods at its disposal while conducting grand jury investigations. The grand jury subpoena is one of these tools. Despite its name, this form of subpoena is issued by the United States Attorney’s Office, not a grand jury, and the US Attorney’s Office has the authority to issue these subpoenas without judicial permission.
A grand jury can issue two types of subpoenas. The first type of subpoena demands the delivery of tangible evidence to the jurors, such as documents, photographs, videos, tape recordings, test results, bank records, company documents, accounting statements, and so on. This sort of subpoena is known as a subpoena duces tecum. The second type of subpoena requires someone to testify in front of a grand jury. A subpoena ad testificandum is the name for this form of subpoena. Both sorts of subpoenas demand a response from the person who receives them.
In practice, however, not everyone who receives a grand jury subpoena duces tecum is compelled to appear. Frequently, the criteria of a subpoena duces tecum can be met by turning over documents or electronic files (or both) to the United States Attorney’s Office. There are grounds to contest federal grand jury subpoenas as well, and it is often in a summoned party’s best interests to either try to negotiate a reduced production obligation with federal prosecutors or to file a move to quash the subpoena in federal district court.
There are numerous other crucial aspects to consider while answering to a federal grand jury subpoena duces tecum well, ranging from asserting constitutional safeguards (such as the privilege against self-incrimination) to safeguarding the attorney-client privilege. As a result, when a subpoena duces tecum is served, the recipient must immediately begin the process of replying to the subpoena.
What Does It Mean to Be Subpoenaed by a Grand Jury?
Subject, Witness, and Target
A “target” is someone who the prosecutor or jury has sufficient evidence relating to the conduct of a crime and who, in the prosecutor’s opinion, is a prospective defendant. Even though the action of an officer or employee of a target organization contributed to the commission of the crime by the target organization, the officer or employee is not automatically constituted a target. The same lack of automatic target status applies to organizations that employ or have employed a target officer or employee. A person whose conduct falls within the scope of the grand jury’s investigation is referred to as a “subject” of the investigation.
A “subject” is halfway between a “target” and a “witness” when it comes to criminal exposure. The prosecutor may suspect a “subject” has committed a crime, but he or she lacks the necessary proof to name this person a “target.” A “witness” is someone who has knowledge that law enforcement believes could be useful in proving the guilt or innocence of another person in a criminal inquiry. A “witness” has a minimal risk of being prosecuted since the prosecutor feels the “witness” did nothing wrong but has information that will help the ongoing investigation.
Regardless of whether they are grand jury witnesses, subjects, or targets, the end outcome of a grand jury inquiry is an indictment of a defendant or defendants. After all, the grand jury’s responsibility is to assess evidence before deciding whether or not felony charges should be filed. Because the eventual goal of the grand jury procedure is always an indictment, anybody engaging in the process must be aware of the risk of being prosecuted.
Duces Tecum: Responding to a Grand Jury Subpoena
- Responding to a Federal Grand Jury Subpoena Duces Tecum by Identifying, Collecting, and Producing Documents
Responding to a federal subpoena duces tecum in the United States can be time-consuming and costly. It’s not uncommon for grand jury subpoenas to be quite broad, asking years’ worth of documents characterized in vague terms. Responding to subpoenas may be a difficult undertaking for businesses and other commercial organizations, requiring significant internal and external resources — and even then, it might be difficult to deliver all of the subpoenaed information within the specified timeframe.
Responding to a subpoena duces tecum issued by a federal grand jury in the United States entails producing any hardcopy and electronic records relevant to the demands of the US Attorney’s Office. This rule applies to all records in the custody or control of the subpoenaed party. The responsibility of responding to the subpoena will be entrusted to the organization’s records custodian, who must effectively put themselves in the shoes of the organization in order to identify what documents and files must be produced.
Tens of thousands, hundreds of thousands, or even millions of files are not uncommon in a complying production. It is critical to gain a rapid knowledge of the scope of the universe of responsive documents in order to ensure that no responsive files are overlooked (which could result in federal contempt penalties). What kind of responsive documents and files do you have on hand? What kind of responsive files do you have in the cloud? What hardcopy records are in off-site storage that are responsive? What documents or files are set to be discarded? All of these are critical questions that must be answered right away.
Many subpoena receivers will be enticed to send over their files to the US Attorney’s Office in bulk due to the volume of records at issue. This is a blunder. There are numerous reasons why people and corporations who have been subpoenaed must go to considerable lengths to ensure that their document production in response to a federal grand jury subpoena duces tecum is limited to what is absolutely essential.
Not only is a “file dump” likely to be deemed non-compliant, but once a record is made, it is very certainly permanently in the hands of the authorities. The US Attorney’s Office can use it to target you, your company, your organization, your employees, or anybody else; and, even if a file isn’t harmful in the context of the US government’s current investigation, it could reappear in a subsequent civil or criminal case.
- Using Formal or Informal Means to Challenge a Federal Grand Jury Subpoena Duces Tecum
Federal grand jury subpoena duces tecum recipients should decide whether – and to what degree – they have grounds to dispute the subpoena through formal or informal procedures while gathering and preparing responsive materials for production. A motion to quash is used to formally challenge a federal subpoena, and it might attempt to quash the subpoena in its entirety or in part. Negotiating the scope of the subpoena with the US Attorney’s Office is an alternative, or maybe a precursor, to filing a move to quash.
Why would the United States Attorney’s Office agree to narrow the scope of a subpoena it had recently issued? Negotiated scope reductions are typical in a variety of situations. For example, federal prosecutors may not understand the scope of the burden imposed by a subpoena in some situations. This is due to no fault of their own; they simply have no means of knowing what is (or is not) in the custody and control of the subpoenaed party. If fully complying with a subpoena duces tecum is not possible, and the US Attorney’s Office can obtain the information it requires without full compliance, a more limited production obligation may be negotiated.
If negotiating a lower production obligation is not a possibility, and fully complying with a subpoena duces tecum is either I not realistic or (ii) would be unreasonably detrimental to you or your organization, the next step is to submit a request to quash. The following are examples of possible reasons for filing a motion to quash a federal grand jury subpoena duces tecum in the United States:
- Difficulties with the subpoena’s issuance or procedural issues
- Document requests that aren’t related to the government’s inquiry
- Requests for documents that the recipient does not have custody or control of
- Unnecessarily extensive and burdensome production obligations
- Production demands that are unreasonably obtrusive and abusive
- Production demands that are ambiguous or uncertain
It’s quite improbable that a subpoena will be withdrawn or cancelled in its entirety, whether you try to negotiate with the US Attorney’s Office or file a request to quash in federal district court. As a result, subpoena receivers must generally be prepared to produce at least some documents (and potentially a significant amount of records), which is why any efforts to oppose the subpoena should be done in tandem with efforts to prepare a complying production.
- When Producing Documents in Response to a Federal Grand Jury Subpoena Duces Tecum, Preserving Constitutional Rights and the Attorney-Client Privilege
Subpoenaed parties can limit their production responsibilities by invoking their constitutional rights and the attorney-client privilege in proper situations, in addition to disputing the legitimacy of a subpoena duces tecum. Subpoena receivers, for example, may be allowed to use the Fifth Amendment’s protection against self-incrimination to avoid producing responsive records in addition to the constitutional safeguards that apply throughout the course of a federal inquiry.
The Fifth Amendment’s prohibition on self-incrimination does not apply to corporations or other commercial entities, and it also does not apply to an individual’s submission of records in response to a subpoena. The Fifth Amendment can be utilized to shield an individual when the act of producing records (rather than the contents of the records provided) would have a self-incriminating impact, according to the “act of production” doctrine.
While the “act of production” theory has limited application due to the potentially severe implications of handing over evidence to the US Attorney’s Office, asserting the Fifth Amendment’s protections should be considered in all circumstances where federal prosecution is a possibility.
The attorney-client privilege, unlike the “act of production” doctrine, has broad application in the context of a federal grand jury subpoena duces tecum response in the United States, and both corporate and individual subpoena recipients must take appropriate measures to preserve the privilege to the maximum extent possible. If documents are privileged, they do not need to be supplied in response to the subpoena, and producing protected materials (even mistakenly) can result in the privilege being waived.
To avoid inadvertently disclosing protected documents in answer to a federal grand jury subpoena duces tecum, the entire production should be checked (manually, electronically, or both) once it has been produced to ensure that privileged records can be withdrawn.
Example of a Subpoena
“This letter is to alert you that you are being investigated by a federal grand jury. The case against you is being investigated for possible violations of 18 U.S.C. 1347 (Healthcare fraud) and perhaps other connected offenses. The alleged offenses took place in the Northern District of Texas. You are hereby summoned to testify before a grand jury in the Northern District of Texas in connection with the above-mentioned activities. It will be entirely up to you whether or not to present and testify.
If you opt to testify, your testimony could be used against you if the grand jury finds you guilty of a crime. Please notify me, or have your counsel notify me, by May 20, 2016, if you have decided to accept the grand jury invitation.
If you want to be represented by an attorney but can’t afford one, please contact me directly and I’ll arrange for you to appear before U.S. Magistrate Judge Smith, who will examine your request for appointment of counsel.
Assistant United States Attorney
Do I Need to Comply with a Subpoena from a Grand Jury?
There are three ways to react to a subpoena: comply, challenge, or ignore.
Comply. Understanding that compliance with a subpoena from a grand jury is not a voluntary but a mandatory act, most people follow the advice of their lawyers and simply comply with the demands of the subpoena. Nonetheless, mechanical compliance with a subpoena may not always be the best or sole choice. Especially in situations in which a subpoena seeks incriminating or a massive amount of information or information not available to the subpoenaed individual, a (partial) challenge of the subpoena may be in order.
Challenge. Challenging a subpoena from a grand jury means that a lawyer needs to file a motion to quash with the court and convince the court that the subpoena does not comply with applicable rules and procedures. For example, it can be argued that the individual subpoenaed has nothing to do with the case, does not possess the information sought, would have to reveal information that is privileged and confidential, or that the subpoena infringes the individual’s constitutional rights by being overly broad, overly burdensome, or unreasonably intrusive and oppressive.
In such a case, the court may limit and reduce the scope of the subpoena or declare the subpoena null and void making its compliance unnecessary.
Ignore. Ignoring a federal grand jury subpoena is a dangerous choice. The prosecutor acting on behalf of the grand jury can ask the court to hold an individual in civil contempt for refusing to comply with the subpoena. Unless extraordinary circumstances exist to justify the refusal, a court may order jail time until compliance with the subpoena is assured or the Grand Jury’s term ends, whichever comes first.
What to Expect after Being Served with a Federal Grand Jury Subpoena
- Obligation to Respond
In the United States when you receive a federal grand jury subpoena, you have a legal obligation to respond. This response can be in the form of a motion to quash the subpoena (if you have grounds to challenge your subpoena’s validity) or in the form of compliance (i.e. showing up in court to testify at the appropriate date and time). In many cases, the best option will be to submit a partial challenge to the government’s subpoena in order to try to limit the scope of the information you must be prepared to provide.
- Legal Representation
When you are served with a grand jury subpoena, you have the right to seek legal representation. When choosing the best United States attorney to represent you, it is important to understand that not all law practices are alike. There are far fewer attorneys that handle federal grand jury subpoenas than state subpoenas, and fewer still who have extensive experience (and a significant record of success) in federal healthcare fraud and other white-collar criminal investigations.
However, while you are entitled to legal representation as you prepare your grand jury testimony or document protection (and if you choose to challenge your subpoena in federal court), you are not entitled to have your attorney present in the grand jury room. You will need to appear before the jury alone. And if you need legal advice during the grand jury proceedings, you will need to ask to consult with your attorney outside of the grand jury’s presence.
- Documents, Testimony, or Both
A federal grand jury subpoena can request documents, testimony, or both. As mentioned above, a subpoena that requests documents is known as a subpoena duces tecum, while a subpoena that requests testimony is known as a subpoena ad testificandum. If you have custody of records that are relevant to the United States government’s investigation, you may simply be asked to produce the documents and verify their authenticity. If you are asked to testify, you will need to be prepared to respond to all inquiries truthfully and to the best of your ability – unless it is in your best interests to assert your Constitutional rights.
- Jury of Your Peers
Similar to a trial jury, a grand jury consist of private citizens who have been called to serve in compliance with their civic duty. However, unlike a trial jury, this type of jury does not weigh evidence presented by both parties and it does not determine guilt or innocence. Instead, the grand jury’s role is to aid in the government’s investigation and determine whether there is sufficient evidence to support an indictment.
- True Bill or No Bill
Upon hearing testimony from all subpoenaed witnesses and considering all of the documents and other evidence presented, the grand jury will then either issue what is known as a “True Bill” or a “No Bill.” If the jury issues a True Bill, this means that the grand jury has determined that there is probable cause to believe that the subject of the government’s investigation has committed the alleged criminal offense. If the grand jury issues a No Bill, this means that the grand jurors have determined that there is insufficient evidence to support a criminal prosecution.
- Preparing for a Favorable Outcome
Assuming that you do not have grounds to successfully challenge your jury subpoena in its entirety, you will need to promptly begin preparing your testimony or document production. A grand jury subpoena can demand an extraordinary amount of information and preparing thoroughly is the key to avoiding mistakes and being held in contempt of court.
Important steps to prepare for appearing before a federal grand jury include:
- Meet with the best attorney – You should meet with your attorney as soon as possible to determine the scope of the subpoena and identify any potential grounds for filing a motion to quash.
- Determine the nature of the investigation – Are you being targeted in the government’s investigation? Are you being subpoenaed as a witness? In either case, what are the specific allegations involved? Knowing the answers to these questions will help you make informed decisions about how you respond to the government’s request for information.
- Preserve relevant records – In order to avoid facing court sanctions for “spoliation” or destruction of evidence, you will need to take appropriate steps to preserve any responsive electronic or hard-copy documents within your possession or control.
- Anticipate questions – Working with your attorney, you should seek to anticipate the questions that you are likely to be asked during the proceedings and make sure you are prepared to respond appropriately.
- Strategize – Aside from preparing your answers, what is the best overall strategy for protecting yourself against criminal prosecution? When and how should you request to speak with your attorney during the proceedings? What other steps can you take (outside of the grand jury process) to mitigate your potential exposure? The more you strategize in advance, the better able you will be to protect yourself against undesirable consequences.
Strategies for Grand Jury Investigations
While some of our clients react shocked about being served a subpoena, other clients had reason to believe that one was coming. Clients who expected a subpoena were typically contacted by federal agents for interview requests before or were generally aware of a pending grand jury investigation, for example, because friends or business partners have already received a subpoena. Although it is never too late to defend against a government investigation, it may certainly help to prepare for worst-case-scenarios ahead of time. The following three suggestions have proven successful for clients of Heath Hyde Law.
The idea behind planning a grand jury subpoena is to put yourself into a position, in which you, if ordered to produce documents, will be able to produce “good” documents that show your “good” intent rather than being caught off guard. Depending on the industry you are in, you should make sure that your corporate paperwork has been checked by attorneys, that pertinent contracts are executed, and that your documentation overall leaves an impression of organization, sophistication, and persuasiveness.
For example, if you run a healthcare business, it would behoove you to set up a corporate compliance program and to appoint compliance staff within your company in order to demonstrate your intent to comply with all laws. Similarly, if you have a business with multiple employees, always make sure that you have everyone’s files and taxes and all accounting up to date.
It is a really bad idea to think that the destruction or hiding or altering of requested documents is a viable option. In fact, the easiest and fastest way to get charged with a federal felony is tampering with evidence. Federal law is very clear that the lack of cooperation with a subpoena or a lack of document preservation will result in obstruction of justice charges. So, instead of wasting time with such illegal acts, you should pursue an active document preservation policy. Organize, prioritize, and categorize your business records.
Make sure you inform your employees proactively and in writing about your company’s policy to cooperate with the government. Show the government that you have, prior and in addition to the subpoena, collected, stored, and saved relevant documents yourself. This could go a really long way.
When planning and preparing a grand jury production, it is important to understand that not every document asked for can or should be produced. The law recognizes several exceptions that protect subpoenaed individuals from production. The most important legal excuse to not produce are documents that are subject to the attorney-client privilege; that is communication between you and your lawyers. Further, as part of the preparation and defense, a United States attorney experienced with grand jury proceedings will engage with the government and open a dialogue about the case to find out what the case is really about.
Those attorneys in our firm that previously served as federal prosecutors can confirm that few things are more important than having good lines of communications with the government lawyers in charge. This dialogue may help to narrow down the document requests, to avoid a target to testify, or to get time extension to better prepare the document production.
How Does a Grand Jury Gather Evidence?
The grand jury uses its subpoena powers to gather evidence. Grand Jurors are lay-persons and not law enforcement officers. Accordingly, the only way they know what to investigate or what and who to subpoena is through the assistance and direction of federal agents and prosecutors who conduct the investigations on behalf of them. In essence, the government is utilizing the grand jury and its powers to further criminal investigations.
Ultimately, it is the decision of the Jury to approve an indictment. Normally, investigatory agencies will make presentations to the grand jury that highlight materials received pursuant to issued subpoenas as well as live witness testimony. During this process, grand Jurors have the ability to ask questions to the government and also question witnesses.
Testifying Before a Grand Jury
Most people that testify in front of a grand jury do so after receiving a subpoena. A subpoena essentially forces a person to testify. Many people testify in front of a Jury without criminal exposure; however, some individuals may be deemed to be a subject or a target of an investigation. This presents unique problems that should be dealt with by an attorney. That being said, the government’s prosecutor will normally not force a target of an investigation to testify.
However, targets of investigations sometimes request to testify at the proceedings. Although the prosecutor has no obligation to allow this, it is common practice and encouraged to permit such witnesses to testify. In such a case, the testifying targets waive their right against self-incrimination and they consent to a full examination under oath.
Targets are informed that the grand jury is investigating whether or not a violation of federal law occurred, that they have a right to refuse to answer if answering the question truthfully may incriminate the target (“Advice of Rights”), that anything that will be said may be used in the grand jury and subsequent proceedings, and that a target has a right to consult with his or her attorney.
An attorney for a testifying witness may not attend the grand jury proceeding. Normally, the lawyer will wait outside the grand jury room. The attorney will be allowed to speak with the witness should the witness request to consult with his lawyer during questioning. At this point the witness will step outside the grand jury room and consult with his attorney. This consultation is permissible and doing so does not adversely affect the witness.
Use of Grand Jury Evidence in Trial
Grand jury materials obtained through subpoena requests and testimony given under oath can be used at trial. Frequently, bank information and large data requests made by the government through the grand jury process will be some of the most important evidence presented at trial. Witness testimony will also be important due to the fact that statements given under oath are admissible and are important tools used by the government and federal prosecutor in building its case at trial.
Why Do Clients Trust Heath Hyde Law for Grand Jury Investigations?
Our clients place great trust in us because we understood that trust must be earned, not given. Below are a few reasons why clients facing federal investigations so commonly choose to place their trust in Heath Hyde Law
We are a small firm that packs a hefty punch in the form of decades of combined experience at the federal level. We can confidently guide you through the byzantine corridors of federal regulations so that you can avoid a federal investigation in the first place. If it is already too late for that, we can leverage our federal experience to make a decisive difference in the outcome of your case.
- Government Insights
At our firm, your defense team will include former federal prosecutors who joined our firm after distinguished careers with the Department of Justice (DOJ). Their presence on your defense team ensures that we will be able to see your case from the government’s perspective, providing you with a critical advantage when we develop and execute your case strategy.
We don’t play around with the lives or livelihoods of our clients. A great many of our cases have been dismissed or abandoned with no civil or criminal liability, and in other cases, our clients have enjoyed outcomes far more favorable than they had dared to hope for. In addition to fighting for favorable outcomes, we also strive to achieve these results with a minimal investment of time and expense for the clients whom we serve.
- Our Teamwork
A group of individuals working independently is like an open hand, while a cohesive team is more like a clenched fist. If you are facing a healthcare fraud investigation, you can be sure that the government has assigned a team of investigators, federal agents, and prosecutors to your case. At Heath Hyde Law, we will respond with a team of our own that effectively combines our lawyers’ experience and intellectual capital to provide you with the strongest possible defense.
No one understands better than we do how high the stakes are – a botched defense effort can result in millions of dollars in fines, company bankruptcy, and even time in prison. At Heath Hyde Law, we consider it our solemn duty to stand by you in these tough times, so that you can enjoy the peace of mind of knowing that we are doing everything that can be done to secure a favorable outcome for you.
Contact Heath Hyde Today
Contact Heath Hyde for Help With Your Grand Jury Subpoena today call 903.439.0000 for a free confidential evaluation.
Every year, the Department of Justice issues thousands of federal subpoenas to targets of criminal investigations. While the thought of receiving a subpoena is clearly a scary one, it is important to note that in many cases the intrusiveness of a subpoena can be mitigated by effective defense work. The attorneys of Heath Hyde Law have handled many hundreds of grand jury subpoenas, as former federal prosecutors as well as criminal defense counsel.
If you or someone in your company have received a Grand Jury Subpoena you probably have many questions. Heath Hyde Law’s defense lawyers can help. Contact us today to discuss your case.
This information has been prepared for informational purposes only and does not constitute legal advice. This information may constitute attorney advertising in some jurisdictions. Reading of this information does not create an attorney-client relationship. Prior results do not guarantee similar future outcomes. Heath Hyde is a Texas-based Federal Criminal Defense Lawyer with headquarters in Dallas, TX and Sulphur Springs, TX. Heath Hyde limits his practice to federal law and Super State cases only.
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