Defending Against Michigan Grand Jury Subpoenas

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Brian Kuester
Attorney Brian Kuester
Michigan Grand Jury Subpoenas Team Lead
Former US Attorney
Former District Attorney
Ellen Comley
Attorney Ellen Comley
Defense Team Lead
Senior Counsel
Roger Bach
Roger Bach
Team Consultant
Former Special Agent (OIG)

The Criminal Defense Firm is a team of former U.S. prosecutors, former Department of Justice trial attorneys, and respected defense lawyers with significant experience in representing clients in federal grand jury proceedings. Throughout our careers, we have handled over 1,000 grand jury proceedings across the United States.

How Does a Grand Jury Proceeding Work?

A grand jury consists of 16 to 23 randomly selected citizens whose job it is to determines whether to bring criminal charges, or an indictment, against a targeted person or entity. To bring an indictment, the Grand Jury must conclude that “probable cause” exists that this person committed a crime. There are typically two ways for the jurors to gather the information and facts needed to reach a conclusion in favor of against probable cause: Grand Jury subpoenas and witness testimony.

On What Basis Does a Grand Jury Indict Someone?

Witness Testimony. A grand jury’s subpoena for testimony requires a person, generally a witness to the alleged crime, to come before the grand jury and testify, under oath, as to what they know about the incident(s) being investigated. This process can be extremely inconvenient for witnesses as grand jury proceedings often are long and tedious. Furthermore, because any defense counsel is prohibited from being present during the grand jury proceeding or subsequent deliberation, persons may become subject to legal risks including potential exposure to self-incrimination. Given these risks, the attorneys at The Criminal Defense Firm are often able to convince the government that our clients become released from their obligation to testify before the grand jury.

Document Subpoena. A grand jury’s subpoena for documentary evidence orders the recipient to produce documents and records within a particular deadline. A subpoena for documentary evidence is called a subpoena duces tecum, and often includes a request for the recipient to produce corporate records, contracts, communications between certain individuals, financial information, videos, pictures, and other items that the government believes will be informative on whether to bring criminal charges.

Grand Jury Decision Process

After the grand jury receives the testimonial and documentary evidence it believes to be needed to determine whether probable cause exists to charge a person with a crime, it will either approve the prosecutor’s indictment, and the case will then move into actual litigation, or the grand jury will issue a “No Bill,” at which point the prosecutor’s case for that person and that crime ends. If the grand jury does approve the indictment, the alleged person will be formally notified of the charges by the government.

Indictment Does Not Mean “Guilty”

Targets of grand jury indictments are often unaware that the government is investigating them and considering bringing criminal charges. Although receiving notification of an indictment can be a surprising and scary occurrence, targets of grand jury indictments should recognize that the grand jury’s decision is only that probable cause of a crime exists, not whether the indicted person is guilty of a crime. The latter is a completely different issue litigated in the criminal proceedings that take place after the indictment, and in which more stringent rules of evidence apply.

Grand Jury Investigations in Michigan

In recent years, Michigan has had a spike in the number of federal investigations. This has led to a correlative increase in grand jury proceedings. Michigan residents and businesses have particularly been targeted in these areas:

  • Healthcare Fraud
  • Securities Fraud
  • Computer Crimes
  • Government Program Fraud
  • Tax Fraud
  • Mortgage Fraud
  • Embezzlement
  • Bank Fraud
  • Procurement Fraud
  • Foreign Corrupt Practices Act

If you are the target or witness of a grand jury proceeding, or more critically a grand jury indictment, you should consult experienced attorneys right away. Federal indictments and federal criminal proceedings are grave and a lack of action or the wrong advice can harm someone’s life.

What to Avoid Before and After an Indictment

The main purpose of a grand jury is to decide whether someone should be indicted. This purpose must be taken seriously and should incline targets and witnesses to prepare an effective plan of action in defending themselves from criminal charges. Targets and witnesses who present ill-prepared responses or careless testimony can make, and have made, potential witnesses into criminal targets. On the other hand, a grand jury proceeding can be an opportunity for well-prepared targets or witnesses to shield themselves from criminal charges. Effective defense work can, and has, downgraded potential criminal targets to merely potential witnesses. To be effectively prepared, potential targets and witnesses should avoid these mistakes:

Underestimating the Seriousness of a Grand Jury Subpoena

Subpoenas are fully enforceable legal instruments that must be taken seriously by any recipient unless proper legal objections are made by legal counsel. Upon receipt of their subpoena, potential targets and witnesses should immediately consult experienced lawyers who can identify objections and develop an effective defense plan. Timely and accurate response to the subpoena is of utmost importance and should not be delayed or disregarded.

Talking to Agents

Federal agents often approach targets or witnesses in person, and often at the target or witness’s place of business. It is critical not to submit to their interview, no matter what the agent says or promises. There is simply no potential gain from providing the agent with information without having a defense lawyer present. This is true because agents may, and often do, lie to you, but you are strictly prohibited, by law, from lying or misrepresenting any information to a federal agent. Not complying with the questioning of a federal agent can be an intimidating position to take. The best approach is to first state your name and provide a form of identification and then demand the presence of your attorney before you proceed with any questioning. No matter what the agent might tell you, this is your constitutional right, and can save you from a great deal of trouble.

Destroying Potential Evidence

Once you receive notice, whether actual or constructive, that you are under investigation or subject to a grand jury subpoena, you must not destroy, alter, or tamper in any way with any documents, records, communications, pictures, videos, or other things that may be relevant here. This is true of even though items that might only be slightly relevant. The government has many ways in which it can detect the destruction or manipulation of evidence, including forensic investigation and witness comparisons. Destroying evidence constitutes obstruction of justice, a federal felony, which the government takes very seriously.

Volunteering Information that Has Not Been Requested

Being cooperative with the government’s demands is important, but being overly cooperative can harm your case. Subpoenas are generally specific as to what is or will be requested. Targets and witnesses should stay within the terms of the subpoena and refrain from handing over everything in possession at that time. They should consult an experienced lawyer in deciding whether certain information needs to be produced or not in adequately responding to the subpoena. Our attorneys at The Criminal Defense Firm can help you gather, filtering, selecting, and organizing your record before forming an appropriate response to the subpoena.

How to Organize Subpoena Responses

Government investigations and grand jury subpoenas are serious matters that can have a severe effect on an individual’s rights and freedom. Therefore, responses that are provided to the government here should be accurate and should avoid unnecessary self-incriminating information. Targets and witnesses who are part of an investigation or have received a subpoena should consult an experienced attorney who knows how to minimize exposure. Doing this can transform either an investigation or subpoena from another risk to an opportunity to limit the scope of the investigation and its potential consequences. Taking these steps, helped by experienced attorneys, helps ensure a favorable result in an investigation or grand jury proceeding.

Prepare Ahead of Time

If you have any reason to believe that you may become a recipient of a grand jury subpoena, it is vital to organize your defense ahead of time. This includes ensuring proper organization of corporate records, re-organizing your business as needed. For example, relevant preparation for healthcare providers would include making sure that all compliance systems and training manuals are up-to-date and ensuring that all employment and independent contractor contracts were reviewed and approved by legal counsel. Another wise form or preparation for most individuals or businesses would be to have all financials and tax filings reviewed and approved by an accountant.

Preserve Relevant Information

Destroying, altering, or tampering with relevant information in any way constitutes obstruction of justice, which itself can result in separate criminal charges and prosecution. Any business that receives a grand jury subpoena should immediately institute a document preservation notice to inform all owners, officers, and employees of the company to save and preserve all records and communications that might be relevant to the subject of the subpoena. In our experience, we have found that a voluntary preservation effort conveys to prosecutors your willingness to comply and can therefore improve the resolution of the case.

Produce Requested Information

Just after you receive a grand jury subpoena, you should retain an experienced attorney to contact the lead prosecutor on the case to discuss the subpoena, negotiate a less intrusive set of requests and a longer deadline to respond. Besides these communications between attorneys, the recipient of the subpoena should begin to gather any records and documents that might be relevant. Although the government is limited, to a small extent, in what it can ask for and how far in time the subpoena’s requests can go, many subpoena requests can be very extensive, and take up to several weeks to respond to. After you have collected relevant documents and records, your attorney should carefully examine the files and determine which ones should be produced and which ones should be legally withheld from the government.

If you received a grand jury subpoena, contact us today. Call us and request to speak with one of the experienced attorneys of The Criminal Defense Firm. Initial consultations are free and confidential.

Our Record

The Criminal Defense Firm represents individual and corporate clients in federal grand jury proceedings with the goal to avoid criminal charges. Our attorneys assist clients in federal criminal cases, government investigations, and Grand Jury proceedings across the United States and we have most recently appeared on behalf of our clients in New York, New Jersey, Missouri, Tennessee, Texas, New Mexico, California, Arizona, Florida, South Carolina, Colorado, and Michigan.

If you received a government subpoena, contact us today. Speak to the experienced attorneys of The Criminal Defense Firm and request a free and confidential consultation to assess your case.

The Criminal Defense Firm
Serving Detroit & Michigan
CriminalDefense.com
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