Under federal investigation? How federal investigations work

A federal investigation is the government's effort to learn whether a federal crime was committed and who committed it. Agents from agencies such as the FBI, DEA or IRS gather records, interview witnesses and sometimes search property. Federal prosecutors work with them and decide whether to bring charges, often through a grand jury.

Who investigates federal crimes?

Many federal agencies have agents who investigate crimes. A “federal investigator” is usually a special agent from one of these:

• FBI. The Justice Department’s main investigative agency, covering fraud, public corruption, violent crime, computer crime and much more.
• DEA. Drug trafficking and the diversion of prescription drugs.
• HSI. What does HSI do? Homeland Security Investigations is the investigative agency of the Department of Homeland Security, within ICE, and it investigates crime that crosses borders or reaches online, including exploitation, cybercrime, financial crime and crimes involving global trade.
• IRS Criminal Investigation (IRS-CI). Tax crimes and related financial crimes.
• HHS Office of Inspector General (HHS-OIG). Fraud involving Medicare, Medicaid and other health programs.
• U.S. Postal Inspection Service. Crimes involving the mail, such as mail fraud.
• SEC referrals. The Securities and Exchange Commission brings civil cases, but it can send evidence of securities crimes to the Attorney General, who decides whether to prosecute (15 U.S.C. § 78u(d)(1)).
• Inspectors general. Each agency’s inspector general must report to the Attorney General when it has reasonable grounds to believe a federal crime was committed (5 U.S.C. § 404(d)).

Agents gather the evidence, but federal prosecutors, the Assistant U.S. Attorneys in each district, decide whether to bring charges (28 U.S.C. § 547). A lawyer people sometimes call an “FBI attorney” is simply a federal criminal defense lawyer who deals with agents and prosecutors on the client’s behalf.

How do you find out if you’re under federal investigation?

Often you can’t, at least not right away. The government usually does not announce an investigation, and grand jurors, prosecutors and court staff must keep grand jury matters secret (Fed. R. Crim. P. 6(e)(2)(B)). The usual signs are:

• Federal agents call you or come to your home or workplace to “ask a few questions.”
• You receive a grand jury subpoena for testimony or documents.
• A prosecutor sends you a target letter, saying you are a target of a grand jury investigation.
• Agents carry out a search warrant at your home, office or on your phone or accounts.
• You learn that your employer, a co-worker, a business partner or your bank has received a subpoena or been interviewed.

The Justice Manual encourages prosecutors, in appropriate cases, to notify a target a reasonable time before seeking an indictment, but it is internal policy, not a right, and many people are charged without any warning (Justice Manual 9-11.153). A defense lawyer can sometimes ask the prosecutor about a person’s status, and the answer helps decide what to do next.

How does a federal search warrant work?

A federal search warrant is an order from a judge that allows agents to search a place, a person or a device and to seize what the warrant lists. The Fourth Amendment allows a warrant only on probable cause, supported by oath, that particularly describes the place to be searched and the things to be seized. Under Fed. R. Crim. P. 41:

• What can be seized. Evidence of a crime; contraband or fruits of a crime; property used or meant to be used in a crime; or a person to be arrested (Rule 41(c)).
• Probable cause. The judge must issue the warrant if there is probable cause to search for and seize the person or property (Rule 41(d)(1)). Agents usually show probable cause in a sworn affidavit.
• When. The warrant must be carried out within the time it sets, no more than 14 days, and in the daytime (6:00 a.m. to 10:00 p.m.) unless the judge, for good cause, allows another time (Rule 41(a)(2)(B), (e)(2)(A)).
• Copy and receipt. Agents must give a copy of the warrant and a receipt for what they take to the person whose property is taken, or leave them at the place searched (Rule 41(f)(1)(C)).

What happens during a federal search?

Agents take control of the location, keep people away from the areas being searched, and collect papers, computers, phones and other items. They may also ask questions. You don’t have to answer them (U.S. Const. amend. V), but don’t physically resist or get in the way of the search. Ask for a copy of the warrant and keep the receipt. A person whose property was taken can later ask the court to return it (Rule 41(g)), and a person who is charged can ask the court to keep unlawfully obtained evidence out of the case with a motion to suppress.

Why is talking to federal agents risky?

Lying to a federal agent is a federal crime even when you are not under oath and even when the statement is spoken, not written. Under 18 U.S.C. § 1001, a knowing and willful false statement about a material fact, in any matter within federal jurisdiction, carries up to 5 years in prison, or up to 8 years in some terrorism and sex-offense matters (see our false statements and perjury guide). A person who means to tell the truth can still misremember a date or a detail, and agents write up their own summary of the interview.

You have a constitutional right not to answer questions (U.S. Const. amend. V). The familiar Miranda warnings are required only before questioning in custody (Miranda v. Arizona, 384 U.S. 436 (1966)), so agents who visit your home for a voluntary interview may not give them. You can politely decline to talk and say that your lawyer will contact them.

What should you do with documents and devices?

Under 18 U.S.C. § 1519, knowingly altering, destroying, hiding or falsifying a record or object with intent to impede or influence a federal investigation is a separate crime with a maximum of 20 years in prison. It applies even when the investigation has not started yet but is contemplated. If you receive a subpoena or a request for documents, talk with a lawyer about how to respond to it.

How long does a federal investigation take?

There is no set length. Some investigations take weeks; complex fraud, tax or conspiracy investigations can take years. No one can tell you in advance when an investigation will end or whether it will lead to charges. The main legal limit is the statute of limitations, the deadline for filing charges:

• General rule: 5 years. For most federal crimes, an indictment or information must be filed within 5 years after the offense (18 U.S.C. § 3282(a)).
• No limit. Crimes punishable by death (18 U.S.C. § 3281), and kidnapping of a minor and certain sexual abuse, child exploitation and sex trafficking felonies (18 U.S.C. § 3299).
• 10 years. Bank fraud and certain other crimes involving financial institutions (18 U.S.C. § 3293), and fraud by borrowers in the PPP and COVID-19 EIDL loan programs (15 U.S.C. § 636(a)(36)(W), (a)(37)(P), (b)(16)).
• 6 years. Securities fraud (18 U.S.C. § 3301) and most serious tax crimes, such as tax evasion and willful failure to file (26 U.S.C. § 6531).
• Fugitives. No statute of limitations protects a person fleeing from justice (18 U.S.C. § 3290).

These are only the main exceptions. Which period applies, and when it started to run, depends on the charge and the facts.

Where can you learn about each part of an investigation?

• Federal grand jury and grand jury subpoenas: what a grand jury does, whether you have to testify, immunity and proffers.
• Target letters: what a target letter means and what can happen next.
• Motions to suppress: how a court decides whether evidence from a search or an interview can be used, including geofence warrants.
• The federal case process: what happens after charges are filed.
• Federal criminal defense: what a federal defense lawyer does at each stage.

How can Criminal Center help during an investigation?

If you or someone you love has been contacted by agents, received a subpoena or a target letter, or had property searched, a lawyer can deal with the agents and prosecutors, respond to subpoenas and advise on whether to talk. Criminal Center is a boutique federal criminal defense firm. We take on a limited number of cases at a time, so each one gets close, personal attention.

Book a consultation and tell us what happened.