Federal Grand Jury Subpoena Defense

A federal grand jury subpoena is a command to appear and testify before the grand jury, to produce documents or other records, or both. It is issued under the court’s seal at the prosecutor’s request and filled in by the prosecutor; no judge reviews it before it is served. It names a return date, is delivered to the person named in it or accepted by their lawyer, and can be served anywhere in the United States. Disobeying one without adequate excuse can be punished as contempt of court.

The subpoena is often the first sign that an investigation exists. It goes to witnesses, to the custodians of a company’s records, to banks and employers, and to the subjects and targets of the investigation themselves; a subject’s or target’s subpoena ordinarily arrives with the government’s advice of rights. The subpoena itself does not say which of those the recipient is.

Bedi & Singer represents people and companies served with grand jury subpoenas in the Northern District of Illinois, at the Dirksen courthouse a block from its office, and in federal courts across the country. A person who has received a letter naming them as a target will find that situation on Bedi & Singer’s Target Letters page.

A federal grand jury has 16 to 23 members, sits for up to 18 months unless the court extends it, hears the evidence the government presents, and can indict only if at least 12 jurors agree. When a witness testifies, the people in the room are the grand jurors, the prosecutors, the witness, the court reporter and an interpreter if one is needed. No judge is present, and no defense lawyer. Counsel waits outside, and under Justice Department policy the witness is given a reasonable opportunity to step out and consult.

A subpoena for testimony requires the person to answer questions under oath. The witness asserts the Fifth Amendment, question by question, when a truthful answer could incriminate them. The government cannot override that refusal except by obtaining a court order of immunity, after which the testimony and anything derived from it cannot be used against the witness in a criminal case, except in a prosecution for perjury, a false statement or a refusal to comply with the order (18 U.S.C. §§ 6002, 6003). A knowingly false, material answer under oath before a grand jury is a separate felony carrying up to 5 years (§ 1623), and so is a knowingly and willfully false, material statement to the agents who serve the subpoena or ask for an interview (§ 1001; 8 years in terrorism and sex-offense matters).

A subpoena for documents may call for any books, papers, documents, data or other objects, including email, messages and the contents of phones and computers. An individual asked for their own records, or a sole proprietor for the business’s, may have a Fifth Amendment privilege against the act of producing them, where the production itself would testify to their existence, possession or authenticity; that depends on the facts. A corporation, partnership or other business entity has no Fifth Amendment privilege, and the person who keeps its records cannot refuse to produce them on that ground. Before anything is produced, the documents are reviewed for attorney-client privilege and work product, and what is withheld is listed on a privilege log.

The return date is the starting point for a negotiation, not a wall. Counsel contacts the prosecutor, learns what the investigation concerns and whether the client is a witness, a subject or a target, and negotiates the scope of the request, the form of the production and the date. Where complying would be unreasonable or oppressive, the court may quash or modify the subpoena on a motion made promptly.

The risks are in the handling. A production that is incomplete because something was overlooked is a problem to be fixed; a production that is incomplete because something was deleted to keep it from the government is a crime. Knowingly altering, destroying or concealing a record with intent to obstruct a federal investigation carries up to 20 years (18 U.S.C. § 1519), and so does corruptly persuading another person to withhold or alter one (§ 1512(b)). From the day the subpoena arrives, automatic deletion is suspended, devices are preserved, and the people who hold the records are told in writing to keep them.

The witness may talk about the subpoena. The grand jury’s secrecy rule binds the jurors, the prosecutors and the agents working with them, the court reporter and the interpreters; it imposes no obligation on the witness, who is generally free to disclose the subpoena and their own testimony. Whether to do so is another matter: a conversation with a colleague who is also a witness, or with the person under investigation, can be read as an attempt to shape testimony. Counsel decides who is told, and what.

A subpoena is not an accusation, and many of the people who receive one are never charged. Counsel’s work is to learn, before the client testifies or produces anything, whether the government sees the client as a witness or as something more, and to keep a witness a witness.

Where the client has exposure, the subpoena is the start of the defense: the documents are read for what they show before the government reads them, the client is prepared, the question of testimony is decided, and counsel presents the client’s position to the prosecutor before any charging decision. A subpoena about billing, a government contract, pricing or an environmental permit is often the first step of a matter covered on Bedi & Singer’s health care fraud, government contract fraud, criminal antitrust and environmental crimes pages.

Jonathan Bedi and Dena Singer handle Bedi & Singer’s grand jury matters together. If testimony is required, clients will be thoroughly prepared to testify before stepping foot in a courthouse. Clients are told what the subpoena asks, what the government is likely to be investigating, and what each choice risks, and every matter is handled as though it may become a case to be tried.