At the heart of most white-collar crime investigations is an Assistant United States Attorney with a bevy of federal agents working under him. The prosecution team is aided by an investigatory grand jury, a group of 16 to 23 citizens empowered to subpoena individuals to appear before them in order to answer questions or turn over documents. The grand jury also issues indictments. All individuals coming into the orbit of the prosecutor and grand jury fall into one of three categories: witness, subject or target. A target is someone who stands a 50% or more chance of being criminally charged. As a practical matter, once an individual has been branded a target, the prosecutor has decided that the individual is guilty. The prosecutor is simply looking for strong enough evidence to indict. A witness is not under any suspicion, as yet, but simply has information of interest to a grand jury. A subject is somewhere in-between a target and a witness. He has engaged in conduct that may look suspicious or unethical, but the prosecutor is not certain that a provable crime has been committed and wants to do more investigating in order to be sure.
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 are currently a witness or subject, there is no guarantee that your status will remain unchanged. A prosecutor's written statement to your attorney that you are a mere witness, and should thus have no qualms about talking to investigators or testifying before the grand jury, is not worth the paper it is written on. A witness appearing before the grand jury (or in front of a federal agent) appears utterly exposed, unless he or she is testifying under some additional form of protection such as use or transactional immunity. 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, rather than on the crumbs and empty promises thrown at you by an Assistant United States Attorney.
There are many intangibles involved in federal white-collar crime prosecutions. There is much unfairness as well. A corporate insider who has knowledge of a white-collar crime may, in one federal district, turn and blow the whistle and be hailed as a hero, becoming in the process a star prosecution witness. A virtually identical insider, in another federal district, may be required to enter a felony guilty plea and serve time as part of his co-operation agreement with the government. These breathtaking disparities in treatment may be accounted for by many factors, such as: the character of individual prosecutors; the differing policies of various United States Attorneys offices; or, the speed with which a defense attorney first approaches the government.
No one plan of action can protect you against all of these intangibles and injustices that occur every day in the criminal justice system. This white-collar crime primer doesn't pretend to do so or to sugarcoat a thing. But it is a brief roadmap to the official and unofficial rules of white-collar crime inquiries, which may: 1) keep you from committing deadly mistakes during the critical stages of an investigation; 2) make you a more intelligent consumer of legal services and advice; and, 3) turn you into a strategist and tactician capable of significantly aiding your own case.
The white-collar crime crash course will focus on the real-world defense of individuals, as opposed to corporations, during the pre-indictment stage of a federal white-collar crime investigation. Most large companies can avoid indictment by cooperating with the federal government, waiving the attorney-client privilege and turning over the results of corporate internal investigations to the United States Department of Justice ("DOJ"). Today, more than ever, it is the individual businessperson, corporate employee or government official who is in need of personal representation from the very start of a white-collar crime inquiry.