Federal criminal cases can broadly be divided into four phases: (i) the government’s investigation, (ii) grand jury proceedings, (iii) pretrial practice, and (iv) trial. The empanelment of a grand jury is a critical juncture, as the grand jury’s decision regarding indictment determines whether the case moves forward.

Defending against a federal indictment involves (or can involve) much more than just challenging the sufficiency of the government’s evidence in front of the grand jury. A comprehensive approach to avoiding a conviction will begin with seeking to prevent prosecutors from empaneling a grand jury during the grand jury investigation stage, and it will continue through challenging the indictment during the pretrial and trial phases—and on appeal if necessary.

“There are several ways to defend against a federal grand jury indictment. While each case presents its own unique challenges and opportunities, there are broad strategic considerations that apply at each stage of the federal criminal justice process. By asserting timely and relevant strategies, targets of federal investigations can significantly mitigate their risk of prosecution before, during, and after the grand jury phase.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

Strategies for Preventing Empanelment of a Grand Jury

Of course, the best way to defend against a grand jury indictment is to avoid going before a grand jury. This involves executing a proactive defense strategy during the federal government’s investigation.

During federal government investigations, targets should work closely with their defense counsel to try to prevent charges from being filed. This will be a feasible outcome in many cases with the right approach. Targets and their defense counsel must carefully balance cooperation with confidentiality—exhibiting a willingness to help without prematurely disclosing information that could facilitate an indictment.

1. Showing that Further Governmental Action is Unwarranted

In some cases, targets can defend against an indictment by showing that the government’s investigation is misguided and that further governmental action is unwarranted. Federal criminal investigations require substantial resources, and authorities including the Federal Bureau of Investigation (FBI) and U.S. Department of Justice (DOJ) can only stretch their resources so thin. If a target’s defense counsel can illustrate that the allegations underlying the investigation are flawed, that the government is targeting the wrong individual or entity, or that the facts aren’t there to justify prosecution, this can bring a case to a close at the earliest stages of the process.

2. Keeping the Case Civil

When a federal investigation is not entirely misguided, another strategy can be to focus on keeping the case civil in nature. While civil charges can lead to fines and other monetary penalties, they do not carry the risks of a criminal indictment. Since most federal criminal charges involve some element of knowledge or intent, challenging these subjective elements of the government’s case can often be particularly effective for convincing the DOJ not to devote resources to pursuing criminal prosecution.

3. Negotiating a Deal

Whether a federal investigation is civil or criminal in nature, negotiating a deal can afford the opportunity to secure a favorable result when it is not possible to avoid penalties entirely. In criminal cases, negotiating a deal ensures that a grand jury indictment stays off the table—and it can also ensure that the case maintains a low profile that does not cause significant harm to the target’s reputation.

Negotiating a deal when the DOJ is prepared to seek an indictment requires a strategic approach. If prosecutors have the opportunity to make a splash and build their resume, they will want to take it. To open negotiations, targets must have something they can offer; and, to secure a deal, they must generally be prepared to make concessions that are on par with those they are seeking from the federal government.

Strategies for Preventing a Grand Jury Indictment

When seeking an indictment, federal prosecutors will serve the target with a grand jury subpoena which will be the start a grand jury process, and this will trigger a series of events culminating in the grand jury’s decision to return either a “no bill” or a “true bill.” If the grand jury returns a “no bill,” this means the grand jurors have concluded that the DOJ lacks probable cause to pursue criminal charges at trial. However, if the grand jury returns a “true bill,” this means that the grand jurors have determined probable cause exists, and this will set off yet another series of events leading up to trial in federal district court.

1. Filing a Motion to Quash the Grand Jury Subpoena

With this in mind, once a federal criminal case proceeds beyond the investigative stage, the next strategy to consider is filing a motion to quash the grand jury subpoena. Potential grounds for filing a motion to quash include:

• Technical or procedural deficiencies
• Requests for irrelevant information, information that is already in the government’s possession, or information that is not in the target’s custody or control
• Overly-broad, vague, unduly-burdensome, unreasonably intrusive, or oppressive requests

It is important to note, however, that filing a motion to quash the grand jury subpoena may only provide temporary relief. Even if the motion is successful, this may only result in modification of the subpoena or issuance of a new subpoena that complies with the federal law. Even so, this temporary reprieve can provide more time for preparations or open the door (or reopen the door) to negotiations, so filing a motion to quash is a strategy that will be worth considering in many cases.

2. Asserting the Attorney-Client Privilege

As referenced above, in federal grand jury proceedings, the question is whether federal prosecutors have the evidence they need to establish probable cause. Targets do not need to disprove the government’s allegations against them, and limiting the amount of information that is available to the grand jury can steer the proceedings toward a “no bill.”

One way targets can limit the grand jury’s access to relevant information is by asserting the attorney-client privilege. Even if the information is responsive to a federal grand jury subpoena and relevant to the government’s case, it is not subject to disclosure if the attorney-client privilege protects it. This privilege is a foundational element of jurisprudence in the United States, and grand jurors may not draw negative inferences from the privilege’s exercise.

3. Asserting the Privilege Against Self-Incrimination

The same is true of the privilege against self-incrimination. The Fifth Amendment to the U.S. Constitution provides that no one, “shall be compelled in any criminal case to be a witness against himself.” When asked incriminating questions on the witness stand, targets can refuse to answer based on their Fifth Amendment rights; and, if the government’s overall body of evidence is unconvincing otherwise, this can leave the members of the grand jury with no choice but to conclude that probable cause is lacking.

Strategies for Challenging a Grand Jury Indictment

If a federal grand jury issues an indictment, this is not the last word. Federal defendants can challenge their indictments on various grounds—and they can do so before, during, and after trial. The key is being able to identify the grounds that exist, and knowing how and when to preserve and assert these grounds following the grand jury proceeding.

1. Filing a Motion to Dismiss the Indictment

The first, and most direct, option for challenging a grand jury indictment is filing a motion to dismiss. Similar to grand jury subpoenas, grand jury indictments are subject to judicial review on various grounds. These grounds include:

• Excessive reliance on hearsay
• Grand juror bias or prejudice
• Prejudicial publicity of the government’s investigation or the grand jury proceedings
• Prosecutors’ failure to disclose false statements
• Prosecutors’ failure to present exculpatory evidence

2. Filing Other Pre-Trial Motions and/or Negotiating a Plea Deal

In addition to challenging the indictment itself, federal defendants can also challenge the government’s evidence, individual charges against them, and various other aspects of the government’s case. These challenges can be used to set the stage for a motion to dismiss, acquittal at trial, or plea deal negotiations. At this stage, defendants must carefully weigh their options with their defense counsel in light of the reality of the circumstances presented, and they must be able to rely on their defense counsel to strategically target a favorable result.

3. Executing Defenses and Preserving Appellate Arguments at Trial

If necessary, defense counsel can challenge grand jury indictments at trial (in addition to challenging the government’s case on other grounds). During the trial, defense counsel should also be sure to preserve all issues related to the defendant’s indictment for appeal. Failure to preserve these issues can limit the defendant’s post-trial options; and, since no trial outcome is ever guaranteed, this is not a mistake that defense counsel or the defendant can afford.

The list of strategies discussed in this article is by no means exhaustive. The circumstances involved in federal cases can vary widely, and each case requires its own unique and custom-tailored approach. When faced with the prospect of a grand jury indictment or going to trial on federal criminal charges, targets (or defendants) and their defense counsel must carefully assess the circumstances at hand and develop an informed and flexible strategy focused on achieving a favorable outcome in light of those circumstances.