Criminal Investigations: Part I - Precharging Considerations

REPRESENTING A CLIENT DURING A CRIMINAL INVESTIGATIVE
PART 1 - PRE-CHARGING CONSIDERATIONS

Robert C. Bonsib, Esq. -MarcusBonsib, LLC

301-441-3000

robertbonsib@marcusbonsib.com

When a client seeks the assistance of counsel after having been charged with a crime, his status is certain. Contact with the investigators and prosecutors is done under controlled circumstances and the "system" provides certain protections for the client. However, clients often have contact with federal and local law enforcement personnel during the pre-charging stage of a criminal investigation. There are fewer formalized rules governing procedures at this stage in the investigative/prosecutive process. Decisions regarding how best to represent a client during this phase may depend upon how you characterize your client's role in the criminal investigation.

Labeling the client - "target" - "subject" - "witness"

Prosecutors tend to use three common labels as shorthand to define an individual's status during the investigative stage. While these terms may be convenient for the prosecutor, they are pitfall laden for the criminal practitioner and the client. The three terms are "target," "subject" and "witness."

When your client has been identified as a "target," such a designation is clear and puts you and your client on clear notice that the prosecutor considers your client to have been directly involved in some criminal wrongdoing.

A "subject" is generally considered to be an individual whose conduct may be within the scope of the criminal investigation.

A "witness" is an individual who is not believed to have criminal exposure, but is merely a witness to certain events or who possesses certain information.

The problem with these labels is that no label is permanent. Changing circumstances during an investigation can make an individual a "target" who was believed only to be a "witness" during the early stages of an investigation. A change in prosecutors or investigators can also result in a different analysis of the culpability of one earlier identified only as a "witness."

What then does one do when your client is approached by an investigator or receives a subpoena to testify before the grand jury.

Determine the client's status

When your client gets a grand jury subpoena or is requested to talk to an investigator, assuming that your client has enough sense to call you before, rather than after he talks, a preliminary decision must be made as to how to respond.

It is common for the client to think that she should talk because she has done nothing wrong or that she does not want to refuse to cooperate for fear that she may be viewed as having something to hide and must, therefore, be guilty of something.

Initially you will fully debrief the client to get a full understanding of the client's knowledge of, and possible involvement in, the conduct which is being investigated. This, of course, assumes that you and your client can satisfactorily determine the scope of the investigation. It is not unusual to have only the most general of ideas as to the focus of the investigation. Although you may decide to call the prosecutor or investigator to get an informal feel for what the investigation is all about, the investigator or prosecutor may be reluctant to "educate" you as to the scope of the investigation for fear of disclosing confidential investigative information. The prosecutor may also want to insure a "fresh" interview with your client, not tainted or influenced by information imparted to the client, through you, by the investigator/prosecutor prior to the interview.

In financial and white collar investigations, trying to evaluate a client's potential criminal culpability can be a real problem. In a robbery, drug case or murder investigation the crime is known and defined and the roles or potential roles of the parties are relatively easily determined. In a typical white-collar investigation, however, when your client is first contacted, the investigation may be at such an earlier stage that no one is certain if a crime has even been committed and, if something criminal has been done, the precise crime may not yet be determined. To further complicate matters, prosecutors are known to attempt creativity in their prosecutive theories when applying criminal statutes to quasi-civil/criminal financial conduct.

If the prosecution has not yet determined whether a crime has been committed and, if so, what the crime may be, it becomes even more troublesome for the criminal practitioner to attempt to debrief the client and to give advice as to whether the clients conduct may potentially subject the client to criminal prosecution.

One thing is clear. Once the "cat is out of the bag" and your client as talked to the prosecution, there is no taking back the information. Recognizing this fact, it is often the safest practice to limit your reliance of the labels discussed above. Whether your client is identified as a "target" or "subject" may, in the real world, be of no practical difference. If the client is a "subject", you have been put on notice that she is possibly involved in criminal conduct. You must, in the absence of acceptable guarantees from the prosecutions, treat the matter as if your client is a "target." The only real difference in the "target"/"subject" label, is that if the prosecutor has labeled your client as a "subject," it may signal a willingness on the part of the prosecution to cut an earlier deal with your client to provide immunity in exchange for information and testimony. Generally, that will not occur with a "target." A "target's" early deal is more likely to require a guilty plea, cooperation and then a favorable sentencing recommendation.

The client's changing status

Should you rely upon the prosecutor's description of your client as a "witness" for making a decision as to whether to agree to submit to an interview or appear before the grand jury. The answer is not easy. A factor in the decision may well be the confidence that you have in the good faith of the prosecutor with whom you are dealing. Even assuming good faith, however, the prosecutor is not likely to provide an ironclad guarantee that your client will not be charged or that the information provided by the client will not used against your client, particularly where subsequent investigation may disclose evidence of your client's involvement in criminal wrongdoing. The good faith of one prosecutor does not protect you when the government's "revolving door" puts that prosecutor in private practice or in a different assignment and you are now dealing with a prosecutor who does not have the same view of the world or the evidence as the first prosecutor. Imagine that you've your client, on your recommendation, bared his soul to the first prosecutor, perhaps even testified before the grand jury, and now you find that all that evidence is going to be used to make the case against your client because of a change of heart by the prosecutor concerning the characterization or labeling of the role of your client in suspected criminal activity being investigated by the prosecutor.

In a financial investigation it does not take much to be put "in the eye of the tiger." Did your client process a loan, push a piece of paper that was used in the fraudulent scheme, or do something else that is subject to both innocent and guilty interpretations. Today your client may take the position that she simply processed a document as she has processed many thousands of such documents. Tomorrow, the government may hear from a witness who says that when your client processed that document, she knew that others were in the process of committing a fraudulent act and that her conduct was done with knowledge that it was furthering the criminal activity. Your client is now alleged to have knowingly done an act that furthered the criminal conspiracy and now becomes a co-conspirator even though she may have gotten no personal benefit from the transaction. There may be agreement between you and the prosecutor that the document she processed was integral to the fraudulent scheme. The only question was her state of knowledge and her intent at the time that the transaction occurred. One additional witness, perhaps one looking to strike his own "deal," can tell the prosecution that your client knew of the illegal scheme and change your client's status from that of a "witness" to that of being a co-conspirator and "target." Now you wonder whether it made such good sense to be a "nice guy" and trust the prosecutor's expressed belief, but not guarantee, that your client is only a "witness" at this time.

What to do?

What is the answer? Well, as we attorneys know, there is seldom "an answer." If there was, our clients would not need us. They could simply go the "answer book" and get the answer for themselves.

The important point is to avoid reliance on labels. Unless you have a promise from the prosecutor that your client is not going to be prosecuted or, at least that the information provided by your client will not be used against her, you proceed at your risk, or perhaps more accurately at your client's risk.

Important considerations include how to initiate discussions with the prosecutor without unnecessarily exposing your client to criminal prosecution; what promises or guarantees can you reasonably expect from a prosecutor; when may it be necessary to take the risk and talk, even though you have no guarantees; the benefits and limitations of "pocket" or letter immunity; and/or when to push for full statutory immunity and other related issues.

Once you have debriefed your client sufficiently to gain an understanding as to her probable level of involvement, what is the next step?

Make contact or hide?

One of the more difficult decisions to make in the early stage of representation is whether to go the prosecutor. Obviously, if the client has received a subpoena or has been contacted by a law enforcement officer, the question of whether to "lie low" is moot. Often, however, your client may believe that she is within the scope of an ongoing investigation but may be uncertain as to whether or when she will be contacted. The choice is then whether to go to the prosecutor and try to cut an early deal or whether to sit back and hope that your client gets forgotten.

How much evidence?

If you have evaluated the government's case as being weak against your client, you may wish to sit back and wait, hoping that the government will elect not to prosecute your client. If the offense is not one where there are other avenues to get evidence to improve the case, this may be a viable tactic. However, if the criminal activity under investigation involves a large number of individuals who have evidence against your client, things may get worse the longer you wait. In such an instance, particularly when dealing with the federal prosecutors, it may be critical to contact the prosecutor early to attempt to get an immunity or no prosecution agreement from the prosecutor, or at least to minimize your clients exposure. Typically, in large conspiracy cases, such as those involving narcotics or fraud, there will be a number of individuals who approach the prosecutor early on to try to gain an advantage for the client. The prosecutor's willingness to negotiate an early deal is generally determined by the perceived level of your client's role in the criminal activity and the need of the government to get a cooperating witness "on board." Often at the beginning of such an investigation the government has a general idea of scope of the criminal activity, but until it "signs up" that first witness from the inside of the conspiracy, the government usually does not have the type of detail and intelligence information necessary to move the investigation along. That first witness will be used not only to describe the criminal scheme, but also to identify other involved participants and to assist the government in separating those that should be approached as witnesses from those who will be dealt with as subjects or targets. Because the government's need for such a witness is the greatest at the beginning of an investigation, a client whose level of involvement might normally, at a subsequent stage of the investigation, result in criminal charges can often get a "no prosecution" promise from the prosecutor if the approach is made early.

In summary, you must weigh these competing factors in deciding whether to approach the government or whether to sit back and wait.

What is the next step? The answer depends upon whether you are sitting and waiting or whether you have joined the race to the prosecutors door.

Sitting and waiting

Even if you decide to sit and wait, there are some things that can be done to assist the client. The degree to which these things can be done is dependent upon whether the prosecutor knows of your client's identity and possible involvement.

Initially, an effort should be made to track the government's investigation. Where feasible (if your client has the resources to do so and the witness is willing) every time the government interviews a witness and you find out about it, if possible you should seek to debrief the witness, not only about the witness's knowledge generally, but also probe to find out what the government is asking. This will help give you an insight into the areas in which the government has the most interest. A witness is, of course, equally available to both sides. A witness may need to be reminded that simply because the witness may have given a statement to the government or testified before a grand jury does not prevent the witness from fully disclosing to you what information was requested by or provided to the government or the grand jury.

If the government knows of you client's possible involvement in the matter under investigation, contact the government and put them on notice that you are representing your client and that all subsequent client contact must occur through you. Also, if it appears that your client may be charged, try to get an agreement with the government that if charges are filed, that you will be notified so you can surrender your client and avoid the indignity of having her arrested, without warning, perhaps at her home or place of business.

If your client is preparing any notes or collecting any documents or doing anything else in preparation for the defense of the case that results in things being kept at a location other than your office, you should take steps to clearly separate and mark those items as privileged materials. You may have asked your client to prepare a written narrative of the events that occurred relevant to the investigation. If so, give your client a large envelope from your office that clearly indicates that it is from a law office. Write or stamp on the outside of the envelope that the envelope contains "ATTORNEY CLIENT PRIVILEGED MATERIAL" and a warning such as "THE CONTENTS OF THIS ENVELOPE ARE FOR MY ATTORNEY ONLY." This is important because during the ongoing investigation the government may conclude that a search warrant for your client's residence will unearth additional evidence pertinent to the investigation. This precaution helps to avoid any claim that government agents, during the execution of the search warrant, inadvertently looked into the envelope without having any knowledge that the envelope contained privileged material. (Then, of course, hope that your client does not use the envelope to hide drugs or other contraband)

Knocking on the prosecutor's door

Should you and your client determine that a quick trip to the prosecutor's office is the best course for your client, be aware of the likely limitations of what you can accomplish.

Initially the prosecutor may assume a "well, you called this meeting, what do you want to tell me?" approach. This is common and often inhibits the type of exchange that is helpful in your making a preliminary determination of how the prosecutor views your client. You may have to go first and begin the information flow through disclosure of some preliminary information to get the prosecutor interested in the information that your client possesses and to convince the prosecutor that your client is the type of witness the prosecutor really needs to further the investigation. It is seldom wise to tell the prosecutor everything at this first meeting. General discussions about whether the prosecutor may be willing to agree not to prosecute your client assuming truthful and complete disclosure of information about a certain subject can often provide an early "read" as to whether the prosecutor will consider your client one who does not need to be prosecuted. This is a critical stage and it is very important to know that you and the prosecutor are speaking the same language. It has happened that a prosecutor will express a willingness to "give consideration" to your client after having had an opportunity to have a talk with the client. Defense counsel may interpret that remark as meaning that the client will not be prosecuted if the debriefing goes well. Then, after the meeting, the prosecutor says that he is pleased with the information that was provided and, in consideration of the cooperation should by your client, will offer your client an opportunity to plead guilty to a reduced charge with a favorable sentencing recommendation (i.e. six months in jail rather than two years). If the client has been cooperating with the understanding and expectation that a successful debriefing session means "no prosecution" and is then told that she must plead guilty and go to jail, even for a relatively brief period of time, the client will not be a "happy camper." It is critical to know, prior to the debriefing session with the prosecutor, whether you are angling for a "no prosecution" deal or a reduced plea/sentence agreement. You must push this issue as it is often not in the prosecutor's interest to be forced into committing to a position prior to the debriefing session. Insist on a clear understanding as to: (a) how the information provided during the debriefing session will be used in evaluating the final disposition of the matter; (b) how the information in the debriefing will be used in the event that no deal is reached after the debriefing session; and (c) whether a successful debriefing contemplates immunity and no prosecution of the client or whether it contemplates simply a more favorable plea/sentencing disposition in the case.

Prosecutors will, on occasion, offer you and your client an opportunity to participate in a "reverse proffer." This is generally done where the prosecutor has confidence in the strength of the government's case and is trying to persuade a target that it is in his or her best interest to resolve the matter by negotiating an early plea agreement and may also be part of the government's effort to convince your client to cooperate in the government's investigation and prosecution. There is an excellent opportunity to learn about the prosecution's case. It is difficult to think of a downside to participate in a "reverse proffer." At the "reverse proffer" your client is not expected to say anything and should be specifically instructed by you to remain silent, including not exhibiting any body language that communicates to the prosecutor, your client's position regarding the information being disclosed by the prosecutor. At such a meeting, generally the prosecutor and one or more investigators will be there to summarize their investigation and disclose the most significant and compelling pieces to evidence that link your client to the criminal activities under investigation. This gives the client and you an opportunity for a "reality check" at an early stage so that intelligent decision making can be made as to whether an early resolution of the matter is in the client's best interest. If you attend the "reverse proffer" listen, don't talk. Thank the prosecutor for the meeting and the schedule a conference with your client to confidentially and frankly discuss whether there is a viable defense or whether it is time to negotiate.