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Federal Subpoena

Understanding Federal Subpoenas: How the Government Can Force You to Appear

No Federal agent with the FBI, IRS, Secret Service nor any Assistant United States Attorney can force you to come his or her office for any reasons. While you may choose to do so after speaking with your attorney or counsel, there is no mechanism in the law that can force you. Having said this, a courtroom, as opposed to an office, is something different. That is, while you still would have a right to remain silent, in some circumstances you can be forced to ap-pear before a court or similar body.

Right or wrong, ignorance of the law is no defense. It is this precise reason that the Federal criminal lawyers at Saland Law routinely and strenuously advise clients of their “right to remain silent” in the face of questioning by any branch of Federal law enforcement. While you may believe you are exonerating yourself with your statements or sharing records and docu-ments (you are being cooperative by meeting with them without a subpoena) you are poten-tially providing law enforcement with the evidence that they will use to convict you at trial. Just as most people may not be aware that the right to remain silent is grounded in many le-gal decisions (the right to remain silent and request an attorney is often called one’s “Miranda Rights,” named after a court decision), they are also unaware they can refuse to speak to a Federal agent or meet in an office. Again, if you speak with or meet with Federal law en-forcement or provide them with certain documents without securing counsel, you are poten-tially giving law enforcement the tools to build their criminal case while crippling your own defense. Whether you are served with a subpoena or not, do not make a grave mistake.

Types of Federal Subpoenas

You, or your company, may receive a Federal subpoena. A subpoena is a written document requiring your appearance (again, you have a right to remain silent) not in an office, but be-fore a court or Grand Jury. There are several types of subpoenas. First, there is a trial sub-poena. This is a subpoena issued through a Federal court commanding your appearance at a certain place at a certain time to give testimony in court in a Federal criminal case.

Second, there is a Grand Jury subpoena. A Grand Jury is a group of 23 citizens who are gath-ered by a Federal court to hear preliminary evidence to determine if there is enough proof that a particular individual or company committed a Federal crime. It is a secret proceeding. This type of subpoena is issued by an Assistant United States Attorney on behalf of a Grand Jury either commanding your testimony before the Grand Jury or commanding that you pro-vide documents or records to the Grand Jury. This latter kind is called a subpoena duces tu-cum. Because it is a secret proceeding, the prosecutor or Federal agent may or may not tell you what they are investigating.

Third, there is an administrative subpoena. This type of subpoena almost always requests documents or records related to an ongoing Federal investigation – a duces tucum subpoena. It is issued by a Federal agency to gather information about potential crimes.

Must You Comply with a Subpoena?

While the simple and easy answer is that you must comply with a subpoena, like just about everything in the law, there are exceptions. The subpoena must be legally valid, be reasona-ble in its request, not overly burdensome and not violate one of your Constitutionally granted individual rights.

Do You Need Counsel or an Attorney if Served with a Subpoena?

Purely on a technical level, you in no way are required to have a lawyer appear with you be-fore the body that issued the subpoena. However, experienced legal counsel can first help you determine if the subpoena was issued lawfully and if you must comply with it. If a sub-poena can be legally circumvented and you do not wish to disclose the information the Feder-al government seeks, challenging or “quashing” the subpoena may be your first line of de-fense.

What is more common and likely if the Federal Government served you with a subpoena, an attorney can help you determine what and how to turn over materials and how to prepare for any potential testimony. Tied to this, in lieu of going before a Grand Jury, you may be able (again, it is not required) provide information directly to prosecutors. Regardless of how you respond to the subpoena - whether by challenge or compliance - forgoing counsel could very likely result in catastrophic consequences.

Not only could you provide information that has not been demanded, incriminate yourself through your own words or records, but “half truths,” white lies” or outright misrepresentation can, and likely will, result in your arrest for Lying to a Federal Law Enforcement Officer or Obstruction of Justice. Both are serious Federal felony offenses. Each is punishable by a term of incarceration of up to five years. Unfortunately, even if you believed you were complying in good faith, the appearance of misrepresentations and fraud against the government could up end your life. Regardless of the inquiry and type of subpoena you are faced with, it is crit-ical to obtain a competent attorney to not merely protect your rights and prevent future criminal liability, but to efficiently navigate the criminal process.

Call the criminal lawyers and former prosecutors at (212) 312-7129 or contact us online today.

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