What Is a Federal Target Letter? What It Means and What to Do Next

· Written By Jerry L. Garner

A federal target letter tells the person who receives it that he or she is a target of a federal grand jury investigation, and the Justice Department’s manual defines a target as “a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.” The letter is not a charge. Under the manual’s policy, the prosecutor is encouraged, in appropriate cases, to give that notice “a reasonable time before seeking an indictment”.

This post is for someone in Southern Indiana who has received a target letter, or has been contacted by a federal agent, in a case headed for federal court in Evansville, where we provide federal criminal defense.

What a Target Letter Is

The phrase “target letter” appears in the title of an archived sample in the Justice Department’s Criminal Resource Manual, and the sentence that matters in that sample is one line: “You are advised that you are a target of the Grand Jury’s investigation.”

The Justice Manual itself never uses the phrase in its grand jury chapter. Its word is “notify”. When a target is not called to testify and does not ask to, the prosecutor, “in appropriate cases, is encouraged to notify such person a reasonable time before seeking an indictment”, to give that person “an opportunity to testify before the grand jury” (Justice Manual 9-11.153). Whether someone calls it a target letter from the DOJ or from the FBI, the manual makes notice the prosecutor’s decision, and because notice is only encouraged, a person can be indicted without ever receiving one.

All of this is Department policy, not law. The manual “publicly sets forth internal Department of Justice (DOJ) policies and procedures” (Justice Manual 1-1.100), and it “is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal” (Justice Manual 1-1.200).

How a Target Letter Arrives and What It Looks Like

The Justice Manual does not say how a target is notified. Section 9-11.153 does not mention mail, hand delivery, email, an agent, or a lawyer, and it does not say the notice must be in writing. In its sections on targets and subjects (9-11.150 to 9-11.155), the manual’s only delivery language concerns other documents, such as an advice-of-rights letter that may be “mailed to or handed to the witness when the subpoena is served” (9-11.151) and the notice that target status has ended, delivered “to a target or the attorney for the target” (9-11.155).

The archived sample shows what one looks like, with two cautions: its page says the information “may be outdated”, and nothing says real letters follow it. The sample, in order:

  1. Describes the grand jury and its responsibility “to inquire into federal crimes which may have been committed in this District”
  2. Says who may be in the room: “Only the members of the Grand Jury, attorneys for the United States and a stenographer”
  3. Names what the investigation involves, with a blank for the details
  4. Warns against destroying or altering any document required to be produced
  5. States, “You are advised that you are a target of the Grand Jury’s investigation.”
  6. Repeats the advice of rights, including that you may refuse to answer a question if a truthful answer “would tend to incriminate you”

It closes “Cordially,” with no name beneath. It has no letterhead, date, or case number, and it sets no deadline.

Target, Subject or Witness: Why the Label Matters

The Justice Manual defines two labels, target and subject, and it is Department policy “to advise a grand jury witness of his or her rights if such witness is a ‘target’ or ‘subject’ of a grand jury investigation” (Justice Manual 9-11.151). The label decides what you are told and which of the manual’s policies reach you.

Target

The Department’s “longstanding policy” is to advise witnesses who are known targets “that their conduct is being investigated for possible violation of Federal criminal law” (9-11.151). Before a known target is subpoenaed, “an effort should be made to secure the target’s voluntary appearance” (9-11.150), and the notice policy in 9-11.153 is written for targets.

Subject

A “subject” of an investigation is “a person whose conduct is within the scope of the grand jury’s investigation” (9-11.151). That definition says nothing about substantial evidence or a putative defendant. Department policy is that an “Advice of Rights” form be appended to “all grand jury subpoenas to be served on any ‘target’ or ‘subject’ of an investigation”, and a subject, like a target, may ask to testify (9-11.152). The manual has no notice provision for subjects to match the one in 9-11.153.

Witness

The Justice Manual defines target and subject, but it does not define “witness”. What it does say shows that a target or a subject who is called is also a witness: the warnings given to a target or subject “should be given by the prosecutor on the record before the grand jury and the witness should be asked to affirm that the witness understands them” (9-11.151).

The archived sample letter is addressed to a witness. It is “supplied to a witness scheduled to appear before the federal Grand Jury”, and it is also the letter that says “you are a target”. Being called as a witness does not mean you are not a target.

What Not to Do

Until you have spoken with a lawyer:

  • Do not answer an agent’s questions about the facts, even to deny wrongdoing.
  • Do not alter, destroy, hide, or throw away any record, document, or object connected to the investigation.
  • Do not call the prosecutor or the agent to explain your side.
  • Do not put the letter away and wait to see what happens.

Behind the first is 18 U.S.C. 1001. In Brogan v. United States, 522 U.S. 398 (1998), the Supreme Court upheld a conviction under 18 U.S.C. 1001 for a false “no” given to federal agents during an investigation, holding that the statute contained no exception for an “exculpatory no,” a false statement that merely denies wrongdoing. Today the statute reaches a statement made “knowingly and willfully” that is “materially false, fictitious, or fraudulent”, in “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States”. The maximum is five years in prison, or eight in the cases the statute names. Be courteous, take the agent’s name, and say that your lawyer will be in touch.

Behind the second is 18 U.S.C. 1519, which reaches anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States”, with a maximum of 20 years in prison. The sample letter gives its own warning: destroying or altering a document required to be produced “constitutes serious violation of federal law, including but not limited to Obstruction of Justice.”

The third is in the sample letter too: “Anything that you do or say may be used against you in a subsequent legal proceeding.” The fourth is about time. Under the manual, notice is meant to come “a reasonable time before seeking an indictment”, and that time is best spent with a lawyer.

What a Lawyer Does Next

A lawyer starts with the letter, including what it says the investigation involves, and with how federal charges are brought. The Fifth Amendment provides that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury”. Federal Rule of Criminal Procedure 7(a)(1) sets its own rule: an offense other than criminal contempt “must be prosecuted by an indictment if it is punishable: (A) by death; or (B) by imprisonment for more than one year.” Under Rule 7(b), an offense “punishable by imprisonment for more than one year” may instead be prosecuted by information if the defendant, “in open court and after being advised of the nature of the charge and of the defendant’s rights”, “waives prosecution by indictment”. Our post on federal and state crimes in Indiana explains how a case ends up in federal court.

The manual leaves several decisions to make with your lawyer:

  • Whether to ask to testify. Under normal circumstances, a reasonable request by a target or subject “ordinarily should be given favorable consideration”, provided the witness “explicitly waives his or her privilege against self-incrimination, on the record before the grand jury, and is represented by counsel or voluntarily and knowingly appears without counsel and consents to full examination under oath” (9-11.152).
  • Whether to say in advance that you will not testify. If a target and his or her attorney “state in a writing, signed by both, that the ‘target’ will refuse to testify on Fifth Amendment grounds”, the target “ordinarily should be excused from testifying unless the grand jury and the United States Attorney agree to insist on the appearance” (9-11.154).
  • How to answer a subpoena if one is served. The advice of rights says, “You may refuse to answer any question if a truthful answer to the question would tend to incriminate you” (9-11.151).
  • What to ask for if the investigation is dropped. The United States Attorney “has the discretion” to tell a former target that he or she “is no longer considered to be a target”, and “No explanation need be provided for declining such a request”. Such a notice “shall not preclude” the United States Attorney’s Office or a grand jury “from reinstituting such an investigation” (9-11.155).

The manual’s procedures are Department policy, which creates no enforceable rights, and none of them promises a result. The right the advice of rights describes is different: the manual itself calls it the “Fifth Amendment privilege against compulsory self-incrimination” (9-11.151), and the Fifth Amendment says no person “shall be compelled in any criminal case to be a witness against himself”.

Seeing It From the Other Side

Jerry L. Garner is a retired FBI Special Agent, with 23 years of service from 1990 to 2013 among his 36-plus years in the law.

Target letters come from prosecutors, not agents: the Justice Manual puts the decision to notify a target with the prosecutor. His 23 years as an agent give him a working knowledge of how federal investigations are built.

Frequently Asked Questions About Federal Target Letters

How is a target letter delivered?

The Justice Manual does not say. Its notice policy, 9-11.153, names no method of delivery and does not say the notice must be a letter. In its sections on targets and subjects, its only delivery language is about other documents, such as an advice-of-rights letter and the notice that target status has ended.

What does a target letter look like?

The Department’s archived Criminal Resource Manual has a sample: a short letter, closing “Cordially,”, that describes the grand jury, names what the investigation involves, warns against destroying or altering documents, states that you are a target, and repeats the advice of rights. Its page says the information “may be outdated”, and nothing says real letters follow it.

Does the FBI always send a target letter before charging someone?

No. Under the Justice Manual, notifying a target is the prosecutor’s decision, not the FBI’s, and it is encouraged only “in appropriate cases”. Notification “would not be appropriate in routine clear cases or when such action might jeopardize the investigation or prosecution”, the manual says, naming among other things the likelihood of flight and the destruction or fabrication of evidence (9-11.153). A person can be indicted without ever receiving a target letter.

Is being a subject the same as being a target?

No. The Justice Manual defines them differently: a target is linked to a crime by “substantial evidence” and judged by the prosecutor to be a “putative defendant”, while a subject is “a person whose conduct is within the scope of the grand jury’s investigation.” Department policy provides an Advice of Rights for both with a grand jury subpoena. The manual does not use the phrase “subject letter”.

Should I talk to the FBI if I get a target letter?

Not before you have spoken with a lawyer. Under 18 U.S.C. 1001, in “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States”, it is a federal crime to make a statement “knowingly and willfully” that is “materially false, fictitious, or fraudulent”.

A target letter raises decisions under federal statutes, rules, and Department policy before any charge is filed. Jerry L. Garner defends federal cases in federal court in Evansville, and that work can begin at the first contact by an agent. Our page on federal criminal defense covers federal drug, firearm, fraud, and other charges, and our page on the federal court in Evansville explains the detention hearing, pretrial services, and sentencing there.

Contact Us for Help

If you have received a target letter, a federal agent has contacted you, or a grand jury subpoena has been served on you, the earlier a defense begins, the more can be done. Call our office at (812) 301-6221 or contact us online. The first consultation is free.

Remember: a target letter is notice that you are a target of a federal grand jury investigation, not a charge; say nothing about the facts to agents, leave every record as it is, and speak with a lawyer before you decide anything.

This blog post is for informational purposes only and does not constitute legal advice. Every case is unique, and outcomes depend on specific circumstances. Contact our office to discuss your particular situation.