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What Every Business Should Know About Federal Investigations Kenneth R The Michigan Business Law JOURNAL CONTENTS Volume 40 Issue 1 Section Matters Spring 2020 From the Desk of the Chairperson 1 Officers and Council Members 2 Committees and Directorships 3 Columns Taking Care of Business Stephen Brey and Lindsay DeRosia 5 Tax Matters—Microcaptives and Other Developments Eric M. Nemeth 9 Technology Corner—FTC Report Highlights Business Risks and Liabilities Related to Privacy and Data Security Michael S. Khoury 11 Touring the Business Courts Douglas L. Toering and Fatima M. Bolyea 13 In-House Insight—Dear Upjohn: The Need for Effective Corporate Miranda Warnings Jordan Segal 16 Articles Article III Standing in the Sixth Circuit After Spokeo Thomas M. Schehr and Theresa A. Munaco 18 Franks v Franks: Shareholder Oppression, Business Judgment, and Specific Intent David Hansma 23 What Every Business Should Know About Federal Investigations Kenneth R. Chadwell 29 Case Digests 36 Index of Articles 38 ICLE Resources for Business Lawyers 43 Published by THE BUSINESS LAW SECTION, State Bar of Michigan What Every Business Should Know About Federal Investigations By Kenneth R. Chadwell Introduction States Code and some portion of the conduct The federal government is investigating its at issue must have been committed within citizens—individuals, organizations and the judicial district investigating the matter. companies—on a continuous basis through- If an individual, organization, or compa- out the United States and abroad. What ny first learns of a federal investigation when unexpected risks could an ordinary person their name appears on a federal indictment, or business face when interacting with the the newly-minted defendant is at a serious federal government, and how can these risks disadvantage. At that point, the defendant be reduced or mitigated? The short answer has missed opportunities to cooperate with is that government investigators can cause the government, to have a sense of what li- untold harm to individuals and businesses abilities it might face, to attempt to per- who are unaware of their methods, tools, suade the government not to charge at all or and proclivities. It is a hazardous arena and to bring less serious charges, to negotiate a should not be traversed without the assis- pre-indictment resolution of the matter, and tance of competent and experienced legal to manage the personal and business fallout counsel. from a criminal charge. Even where someone close to the organization is charged rather Investigations All Around than the company itself (such as an employ- The vast majority of federal investigations ee, officer, or relative), the close association are spearheaded by one of the 93 United to a federal indictment can be quite damag- States Attorney’s Offices located across the ing. A lack of understanding regarding how country, although some investigations are federal investigations proceed can also result initiated and run from Washington, D.C. The in someone inadvertently committing a pro- United States Attorneys are appointed by the cess crime such as making false or mislead- President and subject to confirmation by the ing statements, witness tampering, destruc- Senate. Based upon federal judicial districts, tion of evidence, or obstruction of justice. some states have one United States Attor- A good percentage of federal investigations ney, and others like New York and Califor- fail to achieve their initial charging goal but nia have as many as four. Michigan has two nevertheless result in federal charges against judicial districts—the Eastern District (head- persons or entities who get in the way. quartered in Detroit) and the Western Dis- trict (headquartered in Grand Rapids). While How Innocent People and presidential appointees are in charge of the Companies Get In Trouble offices during their term, the investigations When dealing with the government, it is and cases are handled by non-political career important to remember that the playing field Assistant United States Attorneys. is not fair or equal. The power and resource For the most part, federal investigations differential is enormous. Government offi- are invisible to the public unless and un- cials represent the sovereign, are able to til they bear fruit. Many investigations are impose their will by force, and do not play begun and later closed for lack of sufficient by the same rules that apply to the public. admissible evidence, the age of the relevant Federal agents (as distinguished from pros- offense, competing priorities, cooperation of ecutors) are permitted to trick and deceive investigative targets, or other reasons. Inves- criminal suspects in order to elicit incrimi- tigations are initiated because some type of nating information.1 However, lying to a fed- information suggesting that a crime has been eral agent or prosecutor, concealing a mate- committed comes to the attention of govern- rial fact from them, or using a false written ment agents and prosecutors. The offense statement in dealing with such officials is must be cognizable somewhere within the a five-year felony under 18 USC 1001. This multiple thousands of pages of the United statute snags many a defendant who would 29 30 THE MICHIGAN BUSINESS LAW JOURNAL — SPRING 2020 not otherwise be charged with a crime. The Federal Grand Jury Investigations noncustodial interviews, from which such The ubiquity of federal investigations is charges normally spring, are usually not mostly known to banks, internet service pro- recorded and are always witnessed by at viders, telecommunications companies, and least two agents. Accordingly, when there credit card companies who receive federal is a dispute as to what was said, it will be grand jury subpoenas duces tecum frequent- two professional federal agents against an ly. Federal grand juries are composed of 23 untrained citizen. A truthful person can eas- citizens who serve for up to 18 months and ily be prosecuted for violating section 1001 meet in secret to consider evidence of federal based upon a faulty memory, an agent’s mis- crimes. Every person or entity charged with a understanding, an educational disparity, or federal crime must be indicted by the vote of even a cultural difference in the use of lan- at least 12 members of the grand jury,3 unless guage. It is important to level this playing the accused waives grand jury indictment field by seeking legal representation before pursuant to an agreement with the govern- interacting with the government, especially ment. With limited exceptions, the existence in an unrecorded setting. of a grand jury investigation may not be dis- An easy way to run afoul of the law oc- closed by prosecutors, agents, grand jurors, curs when advice is given to a friend, rela- court reporters, or interpreters.4 Public offi- A good tive, colleague, or employee by a non-attor- cials and grand jurors have been prosecuted percentage ney. Upon hearing from such an associate in the past for violating grand jury secrecy, that “the FBI would like to speak with me,” usually for obstruction of justice in violation of federal an answer of “you don’t have to meet with of 18 USC 1503 or criminal contempt in viola- 5 investigations them” could be viewed as witness tamper- tion of 18 USC 401(3). ing, a 20-year felony, under 18 USC 1512. The Huge amounts of detailed personal infor- fail to achieve simplest way to charge a violation of section mation are gathered, processed by corporate their initial 1512 is to allege that someone “attempted compliance departments, and provided to charging to corruptly persuade or mislead” a poten- the government in response to grand jury tial federal witness “with intent to hinder or subpoenas. The organizations frequently goal but delay” their communication of information waive their appearance before the grand jury nevertheless to a law enforcement officer relating to the and provide the information through an evi- dence custodian to a federal agent, and thus “possible commission of a federal offense.” result in never see the grand jury. A subpoena is is- Again, someone may be charged with hin- sued by an Assistant U.S. Attorney upon re- federal dering an investigation, even when there was quest by a federal investigator, resulting in no actual underlying crime and even though charges an investigative file being opened. Many of the investigation was not actually hindered. against these files go nowhere and are ultimately An attorney who advises a client not to speak closed without any judicial proceeding. A persons or to authorities, on the other hand, is merely federal grand jury sitting in Michigan may is- providing competent advice of constitutional entities who sue subpoenas nationwide. In practice, feder- get in the rights. al agents and U.S. Attorneys issue subpoenas One rather squishy statute casting a broad under the auspices of the grand jury for evi- way. net of prosecutorial discretion is the “omni- dence to any person or organization within bus clause” of 18 USC 1503. This prohibits the United States without judicial approval corruptly “endeavor[ing] to influence, ob- or specific permission of the grand jury. The struct, or impede, the due administration of subpoenas may be issued without probable justice.” A ten-year felony in the most innoc- cause or reasonable suspicion or any requi- uous circumstances, section 1503 has been site facts that a crime has been committed;6 interpreted as requiring pending judicial they “may order the witness to produce any proceedings but does not specify the type of books, papers, documents, data, or other ob- conduct made unlawful.2 A similar catch-all jects the subpoena designates.”7 provision makes it a crime to corruptly en- While broad investigative power is in- deavor to influence, obstruct, or impede “the vested in the grand jury (i.e., the U.S. Attor- due and proper administration of the law” ney), it is not unlimited.
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