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Grand Jury Indictments: Defense Strategies Before and After

In federal criminal cases, the grand jury’s decision regarding indictment is a pivotal point in the process. If the grand jury returns a “no bill”, the case is over. However, if the grand jury returns a “true bill”, the case will be set for trial, and the risks for the target (now officially a defendant) will continue. 

“While many people view a grand jury subpoena as a harbinger of worse things to come, it is possible to avoid an indictment in many cases. There are various options for avoiding a conviction, and even avoiding trial, following a federal grand jury indictment as well.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C. 

As a result, when facing the possibility of a grand jury indictment, the target of a federal investigation must defend itself by all means available. There are several strategies for seeking to avoid an indictment in federal criminal cases, although the specific strategies that can be utilized in any particular case are dependent on the specific legal and factual issues involved. 

If efforts to avoid an indictment are unsuccessful, then the focus must shift immediately to defending against the charges filed—and the defendant must evaluate any available grounds for seeking a pre-trial dismissal while also considering the desirability of pursuing a plea deal and simultaneously preparing for the possibility of trial. 

In short, regardless of whether an indictment is pending or has already been issued, there is a lot of work to be done. 

Defense Strategies for Avoiding a Federal Grand Jury Indictment

If a grand jury proceeding has been scheduled but not yet taken place, this means that the target still has an opportunity to avoid being indicted. Depending on the circumstances involved, some examples of potential defense strategies for avoiding a federal grand jury indictment include: 

Filing a Motion to Quash the Grand Jury Subpoena

One of the first options that should be considered when facing a potential indictment is whether the target has grounds to file a motion to quash the grand jury subpoena. There are several potential grounds for filing a motion to quash, including: 

  • Procedural deficiencies

  • Requests for irrelevant information

  • Requests for information already in the government’s possession

  • Requests for information not in the target’s custody or control

  • Overly-broad or unduly-burdensome requests

  • Unreasonably intrusive and oppressive requests

  • Vague and indefinite requests

Even if efforts to quash a grand jury subpoena only serve to provide temporary or partial relief from the obligation to testify or produce documents, this could be enough to provide a window for negotiating a favorable outcome or positioning the case for a favorable in-court result. 

Opening a Dialogue with the U.S. Attorney’s Office

In addition to, or possibly in lieu of, filing a motion to quash, targets facing potential grand jury indictments should rely on their defense counsel to open a dialogue with the U.S. Attorney’s Office. Not only can this set the stage for future plea deal negotiations (if necessary), but it can also serve to help facilitate a favorable outcome at the grand jury stage as well. 

Defense counsel will need to make informed and strategic decisions about matters such as whether to file a motion to quash or attempt to negotiate first, whether to offer cooperation in a related investigation, and whether there is a reasonable possibility of securing a favorable pre-charge result. Based on the assessment of these matters (among others), defense counsel can then determine the most advantageous path forward in light of the circumstances at hand and the information that is available. 

Asserting the Attorney-Client Privilege

When federal prosecutors take their case before a grand jury, the question the members of the grand jury must answer is whether prosecutors have established probable cause to pursue criminal charges. This means that prosecutors must present evidence sufficient to substantiate each element of each alleged offense. 

With this in mind, targets who are forced to provide records or testimony (or both) to a grand jury must seek to limit the information that is available to the members of the grand jury by all legal means. In many cases, one highly-effective way of restricting the information to which grand jurors have access will be by asserting the attorney-client privilege. 

Information that is protected by the attorney-client privilege is not subject to disclosure in federal grand jury proceedings. This is true even if the information is requested in the government’s subpoena. However, it is up to targets to assert the privilege both before and during their grand jury proceedings. 

Once a target waives the attorney-client privilege, previously protected information will become fair game for prosecutors and grand jurors—even if the waiver was inadvertent and unintentional. As a result, targets must work closely with their defense counsel, and defense attorneys must ensure that their clients have a clear understanding of both (i) what information is privileged, and (ii) how to assert the privilege when providing grand jury testimony. 

Asserting the Privilege Against Self-Incrimination

In addition to asserting the attorney-client privilege, asserting the privilege against self-incrimination can be an effective—and hugely important—defense strategy in federal criminal cases as well. The Fifth Amendment to the U.S. Constitution entitles targets to withhold information based upon the principle that no one, “shall be compelled in any criminal case to be a witness against himself.” Effective asserting the privilege against self-incrimination (or “pleading the Fifth”) ensures that grand jurors are not able to use targets’ own words against them. 

However, targets should not automatically assert the privilege against self-incrimination or rely on the Fifth Amendment to avoid providing any testimony in front of a grand jury. Rather, deciding whether and when to assert the privilege requires a strategic approach based on a clear understanding of the allegations at issue and the evidence already within the government’s possession. 

Challenging the Underlying Basis for Seeking an Indictment

Ultimately, due to the nature of federal grand jury proceedings, the options for avoiding an indictment once a grand jury has been empaneled are limited. A grand jury proceeding is not a “mini trial”, but rather an evidentiary exercise focused on determining whether prosecutors have secured enough evidence to establish probable cause to bring charges.

Thus, while there are certainly options for avoiding an indictment within the confines of a grand jury proceeding itself, the more-prudent approach is typically to work toward achieving a favorable result prior to the grand jury phase. This can be done by challenging the underlying basis for prosecutors’ efforts to seek an indictment. 

Executing a proactive defense strategy during the investigative phase of a federal criminal case is by far the best strategy for avoiding a grand jury indictment. The sooner a target engages defense counsel to intervene in the investigation, the greater the target’s chances will be of achieving a favorable pre-charge resolution. Raising constitutional concerns with regard to federal agents’ investigative tactics, exposing holes in the prosecution’s case, challenging the reliability of government witnesses’ testimony, and asserting affirmative defenses can all be highly-effective means for avoiding an indictment under the right circumstances.  

Defense Strategies Following a Federal Grand Jury Indictment

Once an indictment has been issued, defense efforts must focus on avoiding a conviction at trial. While this may ultimately mean executing a trial strategy in federal district court, there are other possibilities as well. Depending on the circumstances involved, some examples of potential defense strategies for avoiding a conviction following a federal grand jury indictment include:

Filing a Motion to Dismiss the Indictment

There are various grounds for filing a motion to dismiss a federal grand jury indictment. If grounds exist, challenging an indictment can be the most-effective and most-efficient way to avoid a conviction following a true bill. Potential grounds for filing a motion to dismiss a federal grand jury indictment include: 

  • Bias or prejudice of the grand jury

  • Prejudicial publicity 

  • Excessive reliance on hearsay

  • Failure to disclose false statements 

  • Failure to present exculpatory evidence

Negotiating a Plea Bargain

If an indictment is likely to withstand a motion to dismiss (or has already withstood a motion to dismiss), then it might be time to consider a plea bargain. The decision to pursue a plea bargain is not one that can be taken lightly, and defendants and their defense counsel must work together to arrive at an informed conclusion about: (i) whether to pursue a plea bargain, (ii) when to pursue a plea bargain, and (iii) what type of plea bargaining strategy to pursue. 

Filing Motions to Exclude Evidence or Dismiss Charges

Pre-trial practice affords a number of opportunities to limit the issues that are left to be resolved at trial. It also affords the opportunity to avoid trial completely in some cases. Following a federal grand jury indictment, defense counsel must examine all relevant substantive and procedural issues and work to hamstring the government’s case to the fullest extent possible. 

Executing a Defense at Trial

When going to trial is a defendant’s best option, defense counsel must be prepared to fully litigate the case in federal district court. Of course, trial practice is a world unto its own, and there are myriad strategies federal criminal defense attorneys can use to protect their clients under varying sets of factual, legal, and procedural circumstances. 

Preserving Opportunities to Seek Appellate and Post-Conviction Relief

Finally, when providing defense representation in a federal criminal case, defense counsel must not overlook the critically important step of preserving issues for appeal and post-conviction relief. If a grand jury indictment leads to a conviction, efforts should begin immediately to determine what options remain on the table. 

Oberheiden P.C. © 2022 National Law Review, Volume XI, Number 231

About this Author

Nick Oberheiden Criminal Defense Attorney Oberheiden PC
Federal Criminal Defense Attorney

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...