April 19, 2021

Volume XI, Number 109

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DOJ Defense – What to Do When the DOJ Comes Knocking

Introduction: What is the DOJ?

The U.S. Department of Justice (DOJ) is a department of the U.S. government whose mission is to enforce federal laws, defend the United States against violations of the law, ensure public safety, seek punishment for unlawful conduct, and guarantee the “fair and impartial administration of justice for all Americans.” 

The DOJ contains many agencies within its organizational structure including the Antitrust Division, the Criminal Division, the Drug Enforcement Administration (DEA), the Federal Bureau of Investigation (FBI), the Federal Bureau of Prisons (BOP), and the Tax Division, as some examples.

If the DOJ is investigating you or your company, it is important to understand what is at stake, how investigations proceed, what to expect, and how to prepare a DOJ defense when they come knocking.

The Preliminary DOJ Investigative Process

Individuals often do not know that the DOJ is investigating them until one of the following events occurs: (1) a federal agent appears at their doorstep; (2) the recipient receives a target letter; or (3) the individual receives a grand jury subpoena. 

If federal agents arrive at your doorstep, typically with a search warrant, do not divulge any information. While it is true that you may merely be a witness in the investigation, it is always safer to assume that you are a target and therefore need to protect your rights by remaining silent until you retain a DOJ investigation defense attorney. 

Target letters are sent by the DOJ and contain information that informs the individual that they are the target of a federal investigation for allegedly violating one or more criminal statutes.  Receiving a target letter is generally a good indicator that an indictment will follow.  Additionally, individuals may discover that they are being investigated by the DOJ upon receipt of a grand jury subpoena, which indicates that the individual is either a target of the investigation or has knowledge of the crime. If any of the foregoing situations occur, it is critical that you act to retain the legal services of a federal DOJ defense attorney as soon as possible.

The Investigative Powers of the DOJ

The DOJ has broad investigative powers to analyze the conduct of individuals and companies for violations of federal law, particularly criminal violations. Examples of crimes for which the DOJ has the authority to both investigate and prosecute include the following:

  • Bank fraud;

  • Mail and wire fraud;

  • Aggravated identity theft;

  • Making false statements to the government;

  • Making fraudulent claims in connection with a government program;

  • Counterfeiting;

  • Cyber-crimes or other internet-based crimes;

  • Attempt and conspiracy;

  • Tax evasion;

  • Hate crimes;

  • PPP loan fraud;

  • Child pornography;

  • Unlawful distribution of illicit drugs; and

  • Violations under the Racketeer Influenced and Corrupt Organizations Act (RICO).

Violations of criminal statutory provisions can lead to devastating penalties such as criminal fines, disgorgement orders, permanent injunctions, probation, loss of license, inability to do business with the government in the future, reputational harm, and jail time. 

On certain occasions, the DOJ will coordinate its investigation with other federal agencies such as the Securities and Exchange Commission (SEC), the Federal Bureau of Investigation (FBI), the Commodity Futures Trading Commission (CFTC), as well as state and local law enforcement authorities. This underscores the importance of knowing how to respond to a DOJ investigation in order to protect your liberty, reputation, and future.

“If the DOJ is investigating you, the charges are likely to be criminal, and the government will therefore seek criminal penalties and jail sentences. The Justice Department may also share the details of your case with other federal agencies in certain instances, thus exposing you to additional liability under other federal statutes. Retaining legal counsel to liaise and negotiate on your behalf can make a significant difference on your case’s outcome including by reducing possible jail time and criminal penalties.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

Determining Your Status in a DOJ Investigation

The government may consider you a “witness,” “subject,” or “target.”  If you are considered a “witness,” then the government believes that you have knowledge or access to knowledge pertaining to the commission of the crime under investigation. The government expects witnesses to assist in the investigation by divulging such information to the best of their ability; witnesses are typically not charged for the crime(s). 

If the government deems the individual a “subject,” the government has reason to believe that the individual is connected to the crime; therefore, subjects may be charged for the crime(s). If the individual is deemed a “target,” there is substantial evidence that connects the individual to the crime. Targets can expect to receive an indictment for alleged crime(s).

One of the most stressing parts of an ongoing federal investigation is not knowing your status in the investigation. It can sometimes be possible for your attorney to ascertain your role in the investigation by reviewing the materials you received such as the subpoena and examining the requests. However, this cannot be guaranteed. It is therefore critical to proceed as if you are a target by taking the following steps: retain a federal defense attorney; examine the details of the documents you received from the government; know your constitutional rights and when to use them; keep your case confidential; and, cooperate with federal authorities. These steps are explained in greater detail in the next section.

How to Respond to an Investigation by the DOJ

As soon as you become aware that the DOJ is investigating you, there are important steps to follow to protect yourself.  A good defense is oftentimes strengthened with prompt action. 

The first step to take when responding to a DOJ investigation is to research and select a federal DOJ defense attorney. The attorney should have ample experience in the federal process, criminal prosecutions, grand jury investigations, criminal defense strategies, and the law that the alleged crime violates. 

Your attorney can help you accumulate documentation that would help your DOJ defense. Never destroy evidence, as this will be detrimental to your case. Listen to your attorney who is there to help you. Some of the tasks that your attorney will undertake include preparing a personalized DOJ defense strategy to fight the federal criminal charges, negotiating with the DOJ on your behalf, and working to secure a settlement or other result that most favors your case. 

It is important to carefully examine the documents that were sent to you, such as a subpoena.  Your attorney can help you make sense of the document and guide you on complying with its terms, including all deadlines. Failure to follow the deadlines outlined in the subpoena could lead to additional criminal penalties such as contempt charges. 

If you have already been indicted, your attorney can then help you decide whether it would be better to plead guilty, move to dismiss the indictment, or request your right to a jury trial and contest the indictment. 

In addition, individuals must have a solid understanding of the constitutional rights that are applicable to them in a criminal investigation and proceeding. This includes understanding when to assert your Fifth Amendment right against self-incrimination or determining whether any evidence seized by law enforcement agents should be suppressed under the Fourth Amendment. 

Responding to a federal investigation also requires that you keep the details of your case confidential. Do not share or divulge information to any party except in the presence of your attorney and with your attorney’s advice. Law enforcement agents or government staff will sometimes attempt to contact individuals who are a part of the investigation. However, this can be dangerous because anything you say can and will be used against you. Everything about your case must be kept confidential, which includes refraining from online discussions and social media posts.

Lastly, the individual under investigation by the DOJ must try to maintain a cooperative attitude with federal authorities. Cooperation can lead to reduced sentences and fines because it demonstrates a willingness to work with the government. It also helps your attorneys in negotiating a favorable settlement with the prosecution, if that is in your best interest. 

Conclusion

The DOJ is a federal department within the U.S. government with the mission of enforcing federal laws and prosecuting those who violate its provisions. The Justice Department strives to defend the United States against both domestic and foreign threats and works every day to ensure justice and protect society. The Department contains numerous sub-agencies within its organizational structure that each have different objectives.  

It is important to be proactive when responding to an investigation by the DOJ. This includes securing the assistance of an experienced defense attorney, keeping your case confidential, accumulating documentation to build your DOJ defense, and maintaining an attitude of negotiation and cooperation.

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Oberheiden P.C. © 2021 National Law Review, Volume XI, Number 63
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About this Author

Dr. Nick Oberheiden Federal Defense Lawyer Oberheiden PC

Dr. Nick Oberheiden focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation. He has defended clients in PPP Loan Fraud cases and COVID-19 investigations. Nick also directs internal corporate investigations and he leads defense teams in whistleblower actions, corporate defense cases, as well as cases involving national security and elected officials.

Clients from more than 45 U.S. states have hired Nick to seek effective protection against government...

888-680-1745
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