By Solomon L. Wisenberg
Solomon L. Wisenberg is a partner and co-chair of the white collar criminal defense practice group of Nelson Mullins Riley & Scarborough, LLP.
Federal grand juries have enormous power within our criminal justice system. Responding incorrectly to a federal grand jury subpoena for your testimony or documents, or your company’s documents, can have disastrous consequences. Here are 10 critical things to know about federal grand juries and federal grand jury subpoenas.
1. FEDERAL GRAND JURY BASICS: STRUCTURE AND POWER. Federal grand juries have a maximum of 23 members, 16 of whom must be present to form a quorum. Indictments are returned by a vote of 12 or more members. Federal grand juries typically sit for a term of 18 months and meet at regular intervals. Although federal judges empanel federal grand juries and formally supervise them, these judges do not usually interfere with federal grand jury investigations. The federal prosecutor, or Assistant United States Attorney (“AUSA”), is the primary government official interacting with the federal grand jury. The federal prosecutor leads all grand jury sessions, although he cannot testify or be present during grand jury deliberations. As a practical matter, a federal grand jury will almost always return an indictment presented to it by a prosecutor. This is the basis for Judge Sol Wachtler’s famous dictum that a prosecutor can get a grand jury to “indict a ham sandwich.” In conducting investigations, a federal grand jury can pretty much do what it wants, but also must respect certain testimonial and constitutional privileges. Federal grand jury subpoenas are almost never quashed on grounds that they call for irrelevant information or go beyond the grand jury’s authority. Under the seminal Supreme Court case of United States v. R Enterprises, Inc., federal grand jury subpoenas are presumed to be reasonable and the burden of showing unreasonableness is on the recipient. A motion to quash a federal grand jury subpoena on relevancy grounds must be denied unless, “there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.” Obviously, testifying or providing documents to such a powerful body entails grave risks. You should never attempt to face these risks without the help of an experienced white collar criminal defense attorney.
2. ROLE OF THE ATTORNEY DURING THE FEDERAL GRAND JURY SESSION. Your lawyer can’t be with you in a federal grand jury room, but he can be right outside the room and you have the right to consult with him after each and every question. In fact, you can spend as much time as you need conferring with your lawyer, as long as you are not attempting to disrupt the federal grand jury process. You can also leave the grand jury room in order to brief your attorney about the questions being asked and your responses. (Of course, doing this too frequently runs the risk of angering the grand jurors.) In most jurisdictions, you can take notes of questions asked during the grand jury session. These can later be shared with your attorney.
3. PRE-GRAND JURY INTERVIEWS. You are under no obligation to talk to government agents before the federal grand jury process begins. Some Assistant United States Attorneys trick unrepresented persons into interviewing with federal agents prior to the beginning of the federal grand jury session. The letter accompanying the witness’ subpoena may ask or direct the witness to appear an hour or two early at the grand jury room or the U.S. Attorney’s Office. These pre-grand jury interviews are dangerous and ill-advised and the government has no authority to compel them. Lying to government agents during an interview, like lying to the federal grand jury, is a federal crime. At the grand jury session, however, there will be an official recording and transcript of the proceedings, so there will be no dispute about what you say. The pre-grand jury agent interview will not be recorded. Two federal agents will take notes of what you say and it will be their word against yours in the event of a dispute.
4. GRAND JURY SECRECY FOR THE WITNESS. Federal grand jurors, grand jury court reporters and the prosecutors running the federal grand jury are under a strict duty to keep any “matter occurring before the grand jury” a secret. This duty is codified in Rule 6(e) of the Federal Rules of Criminal Procedure. Violations of this rule can result in sanctions or criminal contempt. The rule of federal grand jury secrecy does not apply to federal grand jury witnesses . If you are a federal grand jury witness, you have the right to tell the whole world about your grand jury testimony. But some federal prosecutors attach cover letters to grand jury subpoenas, informing the witness that revealing the contents, or even the existence, of the subpoena “may impede” a criminal investigation. These cover letters then “request” that the witness not disclose the subpoena (and/or the documents requested in the subpoena) and ask the witness to notify the prosecutor if the witness has any “problems” with the non-disclosure. You should by no means put up with this nonsense. When my clients receive a cover letter like this, I usually write a polite response to the prosecutor or the case agent including the following language: “Your cover letter requests non-disclosure of the subpoena (and/or the documents requested in the subpoena) and asks to be notified if there are problems with such non-disclosure. I am reluctant to have my client take on a formal affirmative obligation, regarding either non-disclosure of the subpoena or notification of problems with such non-disclosure, beyond the requirements, if any, found in Fed. R. Crim. P. 6(e) or in some other statutory or court authority you can point me to. Rest assured, however, that my client has absolutely no desire to compromise your investigation or to publicize the existence of either the subpoena or your investigation.”
5. GRAND JURY SECRECY FOR THE GOVERNMENT. As mentioned, Rule 6(e) prohibits the government from revealing “a matter occurring before the grand jury.” This prohibition of course covers the content of federal grand jury testimony. But it goes much further. The government cannot even reveal that you appeared before the federal grand jury or that you have been subpoenaed or scheduled to appear . Many prosecutors and agents get sloppy about this and reveal that a person or company has been subpoenaed. In addition, some federal grand juries have waiting rooms where multiple witnesses are invited to wait until they are called. In these situations, each witness is told, in effect, that the other witnesses waiting with him have been summoned to appear “before the grand jury.” On other occasions, members of the press, who know what day the federal grand jurors meet, have been tipped off to be at the courthouse entrance, so that they can see a grand jury witness enter and draw the obvious conclusion. Your white collar criminal defense attorney should be vigilant in guarding against these abuses and should warn the federal prosecutors handling your case not to violate grand jury secrecy with such maneuvers.
6. SERVICE OF THE FEDERAL GRAND JURY SUBPOENA. Your attorney should arrange with the prosecutor to accept service of the federal grand jury subpoena on your behalf. This spares you the embarrassment of being personally served by FBI agents at your home or in the workplace. What if the agents don’t know or care that you have an attorney, and decide to serve you personally anyway? You should politely accept service, tell the agents that you have an attorney, and decline to answer any substantive questions about the case. Refer all questions to your attorney. What if you don’t yet have an attorney when you are personally served with the grand jury subpoena? Politely accept service and tell the agents that you will decline to answer any substantive questions until you have had the opportunity to obtain an attorney. You are under no obligation to do anything other than accept service of the subpoena . If you say anything about the case to the agent, anything at all, you could be making dangerous admissions that may be used against you at a later time.
7. FEDERAL GRAND JURY SUBPOENAS: TESTIMONY OR DOCUMENTS? INDIVIDUAL OR CORPORATE CUSTODIAN? Federal grand jury subpoenas can be for (a) testimony ( ad testificandum ); (b) documents or objects ( duces tecum ); or (c) both. The face of a federal grand jury subpoena reveals which of these types you have received. You should be subpoenaed either as an individual or as a custodian of records for a business entity. In many instances, individuals have the right to refuse to answer grand jury questions by invoking the Fifth Amendment’s Privilege Against Self-Incrimination. Corporations and other business entities, however, cannot invoke this privilege. But since a corporation operates through human agents, it must designate a custodian of records when subpoenaed by the federal grand jury. Under Supreme Court case law the corporate custodian is only required to answer a narrow category of questions, related to how the subpoenaed documents were gathered . If you are properly subpoenaed as a business custodian, it is very important that you limit your answers to this narrow category of questions. Prosecutors love to get corporate custodians into the grand jury room and ask extra questions. These questions might seem innocuous, but they are often very dangerous. You need to have your white collar criminal lawyer with you for consultation, right outside of the grand jury room, to insure that you are not tricked into answering one question too many. Some federal prosecutors have recently started the practice of issuing one subpoena to a person in that person’s individual capacity and his corporate custodial capacity. This tactic is dangerous, confusing, and, in my view, unauthorized. It is tantamount to issuing one subpoena to two persons or companies. In such situations, your attorney should insist on two separate subpoenas-one for you as an individual and one to the company’s custodian of records.
8. PRIVILEGE AGAINST SELF-INCRIMINATION. As mentioned above, if you are subpoenaed for testimony in your individual capacity, you may be able to avoid answering substantive questions by invoking the Fifth Amendment’s Privilege Against Self-Incrimination. The right to invoke this privilege is much broader than most witnesses and attorneys realize. If a truthful answer to a grand jury question would even tend to incriminate you, you can invoke the privilege and refuse to answer . How can an answer tend to incriminate you? If it furnishes a link in the chain that might lead to your conviction. Can a person who is totally innocent of wrongdoing invoke the privilege? Absolutely! The Supreme Court has ruled that the privilege protects the innocent as well as the guilty . Why would an innocent person want to invoke the privilege? To keep from being ensnared by a mistaken, incompetent, or unscrupulous prosecutor. Take the following example. The federal grand jury is investigating a corporation for accounting fraud. You work in the corporation’s accounting department. The prosecutor believes that any accounting department employee who reviewed Document X and later booked entries related to Document X is guilty of fraud. You booked entries related to Document X. You also briefly reviewed Document X before you booked the entries, but nobody is aware of this and no record establishes that you reviewed Document X. Even though you don’t believe you defrauded or intended to defraud anyone, if you testify at the grand jury and truthfully admit that you reviewed Document X, you will tend to incriminate yourself, because you will furnish a link in the chain that the prosecutor may use to indict and convict you. You are therefore entitled to invoke the privilege against self-incrimination and refuse to answer questions about your conduct.
9. REVIEWING YOUR OWN FEDERAL GRAND JURY TESTIMONY. Some federal prosecutors like to call witnesses back to the grand jury to testify on multiple occasions. This is dangerous, because it can cause you to inadvertently give inconsistent testimony under oath. Under §1623(c) of the federal criminal code, the government can prosecute you for testifying to two irreconcilably contradictory statements under oath, and the government does not even have to prove that either of the statements in question was false. When you are called back to the federal grand jury to testify for a second time, your attorney should insist on your right to review ahead of time the official transcript of your first session . In this way, you can refresh your recollection as to your earlier testimony, correct any mistakes, and prepare yourself for the upcoming session. The United States Court of Appeals for the District of Columbia Circuit recently ruled that federal grand jury witnesses, even if they have not been called back to testify for a second time, have an inherent right to review a transcript of their earlier testimony.
10. If you have the money, your attorney can often conduct what is known as a shadow grand jury. Friendly witnesses will sometimes inform you if they have been subpoenaed to the federal grand jury and you and your defense team can often figure out who else the government may call . Grand jury witnesses are then interviewed, before or after they testify, giving you valuable information on where the investigation is heading. Of course, federal grand jury witnesses are under no obligation to cooperate with your defense team, and the use of shadow grand juries often infuriates prosecutors. You should proceed with great caution and make sure that all interviews are carefully documented so that your defense team is not accused of witness tampering or obstructing justice. And it should go without saying that your attorney and his staff should conduct and arrange all interviews-not you.
My article demonstrates the potential pitfalls involved in dealing with federal grand juries. It does not constitute legal advice. I hope I have alerted those citizens receiving federal grand jury subpoenas to the danger of proceeding without immediate legal advice from an experienced federal white collar attorney.