WTF Am I Being Investigated???

I occasionally hear from clients — or prospective clients — that they are "sure" the feds are wiretapping them because they hear strange clicks and other stuff when speaking on their phone. Although years ago, in the analog world, there were sometimes telltale signs of wiretapping, nowadays intercepts are digital and you won't hear any clicks or other strange sounds on your phone. Unless, perhaps, you are the type of person that also believes that the feds have planted a receiver in your head.

But that doesn't mean there aren't real signs you are being investigated. What are they? Here are a few.

1. You learn of subpoenas being served or you might be served yourself.

   Subpoenas are one of the government's principal tools for collecting evidence. In a criminal investigation, anyone can be subpoenaed. While grand juries usually issue subpoenas, several statutes also authorize the Attorney General to issue them independently. How would you know that a subpoena has been issued to a third party in an investigation that might concern you? Well, although some statutes explicitly authorize the government to order the recipient to not disclose their receipt of a subpoena (at least for a period of time), in the absence of statutory authority or a judicial order prosecutors cannot direct (although they may request or suggest) the recipient to not disclose the subpoena. So, if you get lucky, if the subpoenaed party is, e.g., a friend, they may disclose the subpoena to you.

   
   

   If you are the recipient of the subpoena your lawyer can call the issuer and ask whether the government views you as a "witness," a "subject," or a "target" and you are generally entitled to an answer. A witness is someone thought to have information relevant to the investigation but who is not suspected of wrongdoing. A subject is someone whose conduct is within the scope of the investigation but with respect to whom no decision has been made to seek an indictment. You can consider a subject a target in training. A target is someone who most certainly is in the prosecutor's sights and against whom the government intends to seek an indictment.

   
   

2. You learn that witnesses have appeared before the grand jury and testified about you.

   Grand jury secrecy (as prescribed in Federal Rule of Criminal Procedure 17) generally prohibits any disclosure of grand jury testimony absent court order with one very important exception: the subpoenaed party may talk about their own testimony. And so, if a subpoenaed grand jury witness chooses to talk about their experience they are free to do so, and if they're willing to talk to you or your lawyer, all the better. Of course, if the target (you) do anything with that information to stymie the investigation you may well be charged with obstruction of justice. There's a saying in criminal defense practice: "it's not the crime, it's the coverup," so don't make your situation worse by doing something stupid.

   
   

3. A federal agent seeks to question you or someone you know.

   If you are approached by a person who identifies themselves as a federal agent and they want to talk to you, you can be pretty sure its not just a training exercise; you, or someone else they want to ask you about is being investigated. Certainly, if you have any conceivable liability, or even if you don't but prefer not to talk, remember that you are under no obligation to answer questions posed to you by an agent in the field — from their point of view it's a "try-fer," that is, they're just taking a shot at getting you to talk; after all, they've got nothing to lose. And if you lie you're setting yourself up for a false statements (i.e., a "section 1001") prosecution. As I said, it's often not the crime it's the coverup. But at least when you are approached in this fashion you can be pretty sure you're being investigated, right?

   
   

4. You receive interest from regulatory agencies.

   If you are a professional or otherwise in a regulated industry, and begin receiving inquiries from regulators or government attorneys, it may well be that their interest is more than merely regulatory and reflects the possibility of an investigation that may be — or may become — a criminal investigation. Any such inquiries suggest the need to engage counsel.

   
   

5. You're stopped while driving for a trivial reason and/or by someone who generally doesn't enforce traffic laws.

   You're driving around minding your own business and you're pulled over for something that seems pretty trivial, like making a turn without signaling (or without signaling a sufficient distance from the corner), or you're told your windows have too heavy a tint. Or the officer who stops you is a DEA agent, not a cop. Well, the odds are that the stop was pretextual, and undertaken because either the agent had some confidential info that you were up to no good or they were just on a fishing expedition. Take the ticket, decline to chit chat or to authorize a search and go on your way. If, through this series of events the agents initiate a seach and seize something of value from you, e.g., a bunch of cash, take the receipt, say thank you, drive away (if you're not arrested) and call a lawyer.

   
   

6. Your bank accounts have been frozen.

   Banks these days are skittish about a million different things because they are required to "know their customers" in order to guard against the bank being used for money laundering and other nefarious purposes. So at the drop of a hat they will freeze a depositor's bank account. This event does not in and of itself mean you are being investigated but it might, for two reasons. First because the bank may have frozen your account after contact with the feds and secondly, if no such contact has yet been made the bank may file a suspicious transaction report with the feds, so if you weren't previously been under investigation you might soon be.

   
   

7. You've received a target letter.

   Probably the clearest, most irrefutable evidence that you are a target is your receipt of a target letter telling you as much. The feds don't have to give you such a letter, and they are likely to do so, if at all, only when the investigation is nearing its conclusion. But if they do, remember, it's not being done out of the goodness of their heart. The letter will probably include an invitation to testify before the grand jury — a request that you should discuss with counsel but which in nearly all cases you will respectfully decline.

So if things are happening that make you paranoid, remember: even paranoids have real fears. If you get the feeling that you are being investigated it's time to speak with a lawyer no less than that strange lump somewhere on your body suggests a trip to the oncologist. And, as with a cancer, early intervention can be key to survival.