The Federal Criminal Investigation - What to Expect
This article tracks an Antitrust Division investigation from its
early stages and shows counsel's role in guiding a client through
that investigation. Although we have tailored this content to the
somewhat unique policies and procedures followed by the Antitrust
Division, many of the descriptions and illustrations that follow
would be applicable in an investigation, plea negotiation and
prosecution by the U.S. Attorney's Offices and the various divisions
and sections of the U.S. Department of Justice.
Most often, a federal grand jury investigation into anticompetitive
behavior is instituted based on the strength of the statement of a
whistleblower. Because of the secrecy requirements surrounding a
federal grand jury investigation, the prosecutors are unable to
reveal the identity of the whistleblower. Typically, the first stage
in a grand jury investigation is either the issuance of subpoenas
calling for the production of documents or - as is often the case
these days - the execution of a search warrant.
In what has become known as the “dawn raid,” the government executes
a search warrant by swooping unannounced into a company's offices
and seizing documents and hard drives, often resulting in a literal
shutdown of company for a period of time.
Of course a search warrant is most unsettling to a company not
accustomed to having a team of FBI agents in its reception area at
dawn or shortly thereafter to seize documents and computers and to
attempt to interview employees. And because the government usually
does not consider its “mere” execution of a search warrant to
involve a deprivation of a company's employee's freedom of movement,
custodial Miranda warnings are not provided. As a result, the
employees often act as a deer in the headlights and do nothing to
contact company superiors or company counsel.
An attorney should try to educate a company's personnel before the
surprise dawn raid occurs in order to educate them regarding their
rights and provide guidance on how to deal with the government
without obstructing the investigation. Upon receiving that urgent
call from an awe-stricken employee, counsel's initial task is to try
to control the damage. It is advisable to immediately attempt to
gather as many facts as possible from those believed to be
responsible for the conduct that is being investigated. Sometimes
the nature of that conduct can be gleaned or deduced from the types
of materials sought by the search warrant.
When the search warrant is unenlightening, a call to the responsible
agent or prosecutor is essential. In that initial conversation, the
prosecutor is obliged to reveal - upon request - whether the company
at issue is a fact witness, subject or target of the grand jury's
investigation. See U.S. Attorney's Manual Chapter 9-11.151. After
getting a feel for the scope and contour of the investigation, it is
appropriate for counsel to sit down with management to identify
those individuals who are reasonably believed to have information
that is within the grand jury's investigation. In this regard, a
decision that needs to be made quickly is when and under what
circumstances to conduct interviews of affected individuals. This is
especially true in antitrust investigations because of the
significant benefits that can be realized by a company that
qualifies for an award of leniency under the Antitrust Division's
leniency program, which is discussed in greater detail below.
It is expedient and most effective to gather facts from the
individual representatives of the company by using the company's
outside counsel to conduct the interviews. At some point, usually at
the conclusion of the witness interviews, the company can, but is
not necessarily compelled, to offer to arrange for counsel for the
individual. (This requirement may be governed by an employee's
employment agreement or, in the case of officers and directors,
applicable state law of the state of the company's organization.)
Contemporaneously with undertaking the interview process, the
company must institute a document hold (that is, the suspension of
the company's document retention/destruction policy) on all of its
documents, especially electronic data. Often the agents executing
the search warrant will seize computers or hard drives that contain
electronic data in the form of documents and electronic mail, among
other things, and the government has resources that could reveal the
timing of any deletions of such electronic data. A timely instituted
document hold allows the company to avoid being accused of document
destruction, which could constitute obstruction of justice.
Even though things may look bleak for a company on the receiving end
of a search warrant, there is still hope that the company could
qualify for the antitrust division's leniency policy (Part B) and,
if successful, avoid prosecution of not only itself, but its
officers and employees as well. The key to obtaining leniency is to
be the first to arrive at the front door of the Antitrust Division's
office to apply for it. Of course, before the company can apply for
leniency, it must conduct its own internal investigation in order to
determine whether wrongdoing has taken place and, if so, the nature
and scope of that conduct. If criminal conduct is discovered during
that initial investigation, the company must attempt to determine
who was involved, when the conduct occurred and what the conduct
was. Once that preliminary investigation has been conducted and the
company and counsel are satisfied that the company - through its
officers and employees - has engaged in criminal conduct, the
company must make the decision whether to seek leniency from the
Antitrust Division.
Under the Division's leniency policy, if the company otherwise
provisionally qualifies for leniency, the Division issues a
“marker,” which equates to a kind of placeholder that designates the
company as the first in the door, based upon the company's success
in winning the leniency race. From that point forward, the company
must conduct a thorough investigation in as short a time as
possible; at the conclusion of that investigation, the company's
lawyers must present a “proffer” to the Antitrust Division in order
to obtain conditional leniency.
Counsel must be sensitive to the need for speed, thoroughness and
decisiveness in conducting the internal investigation and evaluating
whether applying for leniency is in the best interest of the
company, its employees and officers (it usually is). Because winning
the leniency race sometimes comes down to a matter of hours. A
company who arrives 48 hours after its rival in seeking the leniency
program's protections could face a sizable fine and prison time for
the company and/or its principal while the rival who won the race
(and its employees) escape prosecution entirely in exchange for
cooperation with the government.
If leniency is unavailable, other options remain available to the
client who is a subject or target of the investigation. If the facts
developed from the internal investigation reveal unequivocal
wrongdoing, it typically is best to discuss with the client the
possibility of entering into plea negotiations with the government.
On the other hand, if the facts developed instead show an
explanation for the conduct or a defense to the anticipated charges,
then it is appropriate to put the government to its proof and let
the prosecutor know that it does not appear that a crime has been
committed.
Under these circumstances, the Antitrust Division offers a review
process that typically begins with the defense counsel trying to
talk the local prosecutor out of the anticipated criminal case. If
the local prosecutor remains unconvinced, there is a further appeal
to the Deputy Assistant Attorney General, which is known as the
“Last Supper” meeting. There can be both legal and factual reasons
to support the pitch that is made at this meeting. In this regard,
care must be taken not to reveal too much in the way of defenses;
otherwise, the government may be able to use the information
provided to plead around the defense. On the other hand, if a strong
defense exists that could carry the day, consideration must be given
to evaluating the risks and rewards for revealing the defense. The
Last Supper meeting should be viewed as the time to reveal the
client's health problems or to argue that otherwise-uninvolved
company employees' jobs could be put at risk if the company's “key
man” in a closely held business could cripple the company. Such
facts can be persuasive in convincing the government either not to
prosecute or to find some alternative such as a deferred prosecution
or non-prosecution agreement. Of course these types of alternatives
may not be available if the client can provide little or no evidence
or cooperation to assist the government.
If these various alternatives are exhausted and it appears that
prosecution will ensue, it is always advisable to attempt to agree
with the government to turn the client in to avoid an arrest and the
sometimes attendant publicity. There should be no reason for the
government to refuse such an offer.
If an indictment is returned by the grand jury, the clock begins to
tick regarding the filing of pretrial motions and the commencement
of pretrial discovery. Strong motions to dismiss the indictment, to
demand certain discovery and, in the proper case, to seek further
particulars from the government regarding the charges are all
important in setting the stage for trial. Each case is different and
pre-trial motions must be tailored to the unique facts and
circumstances. In this regard, counsel should send a signal to let
both the judge and the prosecutor know that it will not roll over at
any stage of the proceedings and will force the government to its
proof from day one.
Meticulous trial preparation is a must in order to mount a
successful defense of an indictment. The government has largely
unlimited investigative resources to obtain documents and review
them, to identify witnesses and interview them and to use experts to
bolster its case. Also, it must be remembered that the government
usually has devoted a number of months, if not years, to developing
the facts that it believes supports its prosecution, and the defense
has far less time to accomplish similar tasks.
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