Bob Connolly  bob@reconnollylaw.com

Acting Assistant Attorney General Richard Powers recently delivered (virtually) prepared remarks (here) covering several criminal enforcement topics including: Compliance; Deferred Prosecution Agreements and Engagement with Targets on Charging Decisions.[1]

In his remarks about “Engagement With Targets on Charging Decisions” Mr. Powers explains that an individual about to be indicted may not receive notice via a target letter if the Division staff believes defense counsel has not been “interested in meaningful good-faith interactions.”  While there have always been exceptions to sending a target letter based on the need for secrecy, it has, to my knowledge, never been the Antitrust Division’s policy to not issue a target letter based on what staff attorneys believe to be uncooperative conduct by defense counsel. This is too subjective a standard, improperly punishes an individual about to be indicted, and is inconsistent with the Antitrust Division’s well-earned reputation for civility and fair play.

The Target Letter

A “target letter” typically informs the subject of a grand jury investigation that he has graduated from being a subject (falling within the scope of the conduct of the grand jury investigation) to “target“ status.  Target status means that the Antitrust Division believes the investigation has produced indictable evidence linking an individual to a price-fixing/bid rigging scheme. The target letter also typically notifies the target that he may appear before the grand jury provided: he waives his Fifth Amendment privilege, consents to a full examination under oath and understands that anything the target says before the grand jury may be used against him.

While under no obligation to notify a target prior to indictment, the government typically does so, only refraining in the rare case where, “notification…might jeopardize the investigation because of the likelihood of flight, destruction or fabrication of evidence, endangerment of other witnesses, undue delay or otherwise would be inconsistent with the end of justice.”  JM 9-11.153-Notifcation of Targets [2].  In his speech, Mr. Powers laid out another basis upon which the Antitrust Division may decline to issue a target letter:

“Occasionally, we cannot delay our investigation for targets to be notified, and sometime situations arise where notification creates other risks we cannot bear.  Otherwise, the Antitrust Division typically takes a generous approach, particularly when a subject and counsel have engaged productively and affirmatively with staff throughout the investigation.[3]  But this process is a two-way street.  When a subject and counsel make clear they are not interested in meaningful, good-faith interactions—the kind that enhance the Division’s ability to reach a just result rather than serving as a distraction—the Division’s prosecutors are under no obligation to notify a target of its status. (emphasis added).

As the Justice Manual further provides, “[i]n investigations handled by the Antitrust Division, a target’s counsel is usually afforded an opportunity to meet with staff and the office or section chief regarding the recommendation being considered.”[4]  But that is far from absolute.  If the target and counsel have declined to engage throughout the investigation, or made apparent to staff that further engagement will not be productive, then the Division will not continue to spend its valuable time and resources on pointless meetings—and if we have decided not to notify the target of its status, of course there will not be an opportunity for a meeting.”(emphasis added).

The Justice Manual does not list “productive and affirmative” engagement by defense counsel with the staff as a criteria for issuing a target letter. This subjective standard could be interpreted as an attempt to chill vigorous representation by a defense attorney of her client.  Below are a few additional thoughts on why I believe target letters should be sent unless doing so would threaten the integrity of the investigation.

Issuing A Target Letter And Affording A Staff Meeting Is The Right Thing To Do

1)         Sending a target letter and granting a meeting are two different things. A target letter gives to request a meeting, but even if the request is denied the target has been informed that indictment may be imminent. The target letter gives the individuals’ counsel an opportunity to prepare the “target” for the negative publicity that is about to come his way. Getting indicted is a traumatic event for any person.  It is important to remember that it is not the defense counsel who will be indicted–it is an individual, who at this point, is presumed to be innocent. That individual most likely will have a family who will also be severely impacted by the publicity of the indictment.  Prior notice of indictment is an act of civility; warranted even if thought to be unearned.

To my knowledge,⁴ it has been the Antitrust Division’s long-standing practice that a target letter will be sent, unless there is a threat to the integrity of the investigation as noted above.  I have never seen public remarks by the Antitrust Division’s leadership indicating that a target letter may not be sent based on staff’s perception of the defense counsel’s conduct. It has long served the Antitrust Division’s best interest to take the high road of fairness, decency and civility, even if that level of professionalism is not being reciprocated.  In that sense, it is not “a two-way street.”  Prosecutors are public servants and sometimes you have to take some, um, stuff, and still do the right thing.

2)         There are good reasons for staff to grant a meeting with defense counsel if one is requested.[5] Previously stated defense arguments may sound different at this stage of the investigation. A new argument/position may be advanced. It is to the prosecutors’ advantage to learn what they can in these meetings, even with all due caution that defense counsel will not be putting all their cards on the table. The Division staff lawyers may sit stone silent in this meeting, or choose to provide some feedback which possibly may encourage a pre-indictment plea.  Indicting without notice “poisons the well” and, to state the obvious, removes the possibility of a pre-indictment plea.

3)         Humility also compels a prosecutor to sit through a “don’t indict my client” pitch meeting, even if it seems likely to be a waste of time and perhaps not a very cordial event. Indicting an individual is a tremendous responsibility and while every Antitrust Division prosecutor I have ever known has tried their best to make the right decision, no one is infallible. A boring or even contentious pitch meeting is the price to pay to take every measure to ensure that the momentous decision to indict is the correct one and is in the interests of justice.

Conclusion

            There is no dispute that target letters are not a matter of right. The perceived conduct of defense counsel, however, should not be the basis for decling to give notice of indictment.  Granting a pre-indictment meeting is a separate question, but one that should also be answered in the affirmative.  It is not only in the interest of the particular case in question, but in the long-term interest of the Antitrust Division as an institution to maintain its reputation of conducting itself with the highest level of fairness, decency and civility.

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[1] Criminal Antitrust Enforcement: Individualized Justice in Theory and Practice, July  21, 2021, Acting Assistant Attorney General Richard A. Powers Delivers Remarks at the Symposium on Corporate Enforcement and Individual Accountability Hosted by the University of Southern California Gould School of Law.

[2]  When a target is not called to testify pursuant to JM 9-11.150, and does not request to testify on his or her own motion (see JM 9-11.152), the prosecutor, in appropriate cases, is encouraged to notify such person a reasonable time before seeking an indictment in order to afford him or her an opportunity to testify before the grand jury, subject to the conditions set forth in JM 9-11.152. Notification would not be appropriate in routine clear cases or when such action might jeopardize the investigation or prosecution because of the likelihood of flight, destruction or fabrication of evidence, endangerment of other witnesses, undue delay or otherwise would be inconsistent with the ends of justice.

[3] U.S. Dep’t of Justice, Antitrust Div., Antitrust Division Manual, Ch. 3 § G.2.c (updated July 2019) (“Staff ordinarily will inform defense counsel that it is seriously considering recommending indictment.”).

[4] Justice Manual § 7-3.400.

[5]   I am not advocating that further requests by defense counsel for meetings with the front office be routinely granted.  The Deputy Assistant Attorney General for Criminal Enforcement rightly relies on staffs’ recommendations.

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