Joel Cohen ()
Colleagues, and others, occasionally recommend that I write on a subject that, for one reason or another, interests them. After the troubling, and eye-opening, article by the influential James B. Stewart of The New York Times in his Common Sense column on March 15, 2014 (“A Dragnet at Dewey & LeBoeuf Snares A Minnow”),1 requests came out of the woodwork. Simply stated, this author was repeatedly asked “How can it be that a white-collar suspect, indeed a target, could be asked to attend a meeting (e.g., with the SEC) where the district attorney’s office is present, and not be told that he is a criminal target, perhaps even just days away from being indicted for crimes that are being ‘discussed’ at the meeting?”
For certain, the term “suspect” is not a term of art, unless you consider a phrase employed in a Law & Order episode to be such. The term “target” is, and in the Justice Department’s lexicon, a “target” is a person as to whom the prosecutor has “substantial evidence” linking him to the crime.2 A “subject,” on the other hand, is defined more loosely by the Justice Department as an individual “whose conduct is within the scope of the grand jury’s investigation”3—basically a definition with the elasticity of a rubber band. Accordingly, the word “suspect,” for our purposes in this article, is an individual at whom law enforcement is taking a very serious look, and who may possess the requisite goods needed to charge him.
Is There a Legal Duty?
Law enforcement officials are not required to advise individuals who voluntarily offer to speak with them that they are suspects (or targets, or subjects, for that matter).4 So long as the individual has no reason to believe that he is in custody (i.e., that he is free to leave of his own volition at any time during or before questioning), a suspect can be questioned on the street, in his home, at the police station or, indeed, anywhere, without being Mirandized.5 In other words, he has the right not to speak to law enforcement and, of course, a Fifth Amendment right to not incriminate himself.6
Spinning the Warren Scenario
So why is it that Stewart’s column caused such a commotion when describing what happened to Zachary Warren? Warren is a 29-year-old, Georgetown-educated lawyer who was asked to appear at the Securities and Exchange Commission. When he arrived, an assistant district attorney, who was also investigating the collapse of Dewey & LeBoeuf, reportedly took over the interrogation in circumstances where, as it turns out (and perhaps should have been obvious), Warren was already a target of a joint investigation between the SEC and the district attorney’s office without being told.7
Yes, Warren was a target (to employ the federal lexicon)—the district attorney already presumably had, in its view, substantial evidence linking him to the alleged crime. Putting aside the fact that Warren should have had some sophistication as to what he was facing, given his Georgetown education and enviable circuit clerkship, should a prosecutor who “shows up” at an interview be required to let the to-be-interviewed “witness” know precisely where he stands in the investigation? Does the answer change if the prosecutor is directly asked?
And somewhat parenthetically, does a presumably sophisticated white-collar target deserve more by way of a “warning” than a presumably unsophisticated blue-collar defendant who is asked probing questions by uniformed or plain-clothed police who, as long as the target is not in a custodial setting, is entitled to no warning that he verges on incriminating himself mortally? To fail to question this discrepancy is to seem downright classist—as though assuming that the law should accord greater rights, as it were, to the business crime suspect than the street crime offender equally within the cross hairs of law enforcement. As a practical matter, there is probably nothing to legally distinguish between a prosecutor cold-calling a white-collar suspect to his office for an interview and a detective who cold-calls a blue collar suspect to the local precinct for an interview. In both instances, if the individual is not in custody, there is seemingly no legal or ethical imperative requiring that law enforcement tell the suspect that he’s a suspect, or even a target.
Now, to date, the facts in People v. Warren8 are unclear, having not yet been litigated—particularly on this point. So, let’s put aside the Warren case and create our own factual scenario. Let’s call the hypothetical defendant Burger. One would ask, precisely what were the circumstances under which Burger was “invited”—or was it “seduced?”—to an SEC interview at which the district attorney would be present? Was he told that the meeting was with the SEC, say in Washington, and only when he arrived did he discover that the assistant district attorney was present? Was he told when he was invited, by whoever invited him, that it was an SEC inquiry or investigation? Did he ask if he “needed” counsel to be present? Was he given cold comfort when he arrived—by anyone in attendance—that this was an SEC matter, and that the district attorney’s office was simply going to be monitoring the interview (basically, along for the ride?)
Indeed, since this is an ethics column, was Burger misled into subjecting himself to an interview that he wasn’t obliged under law to attend? Because if, indeed, there was an affirmative act of deception by a prosecutor or an SEC attorney, that might, indeed, implicate or trigger an ethics violation.9 Yet, even if there was an ethics violation, it might not necessarily mean that Burger would be entitled to any redress on a motion to suppress the statement or, even less likely, on a motion to dismiss the case.
Short of affirmative deception, particularly addressed to an unrepresented individual when he voluntarily attends an interview—assuming it wasn’t a tactical ploy to deflect his need for a criminal lawyer­—it is unlikely that the prosecutor acted improperly, as an ethical or legal matter, in capitalizing on the opportunity to interview a subject, or even a target. And, presumably, that would be so even if the prosecutor had scheduled grand jury time to indict Burger the very next day and deliberately chose not to tell him so, lest Burger wrap himself in the guiding hands of criminal counsel, and accordingly decline an interview.
Now, to be sure, the circumstance would have been entirely different if Warren, or someone in his target status, during the investigation, were actually subpoenaed to the grand jury. The Department of Justice Manual, addressing federal investigations, states that the policy of the Justice Department is to advise a grand jury witness if he is a “target” or “subject” of the grand jury investigation10—notwithstanding that the Supreme Court has, on several occasions, declined to decide if it is required as a matter of law.11 Furthermore, the department compels its prosecutors to warn a grand jury witness of his or her Fifth Amendment privilege.12 In addition, the manual provides where the individual is a target, the prosecutor must give the witness a supplemental warning that “the witness’s conduct is being investigated for possible violation of federal criminal law.”13
But this is only if the suspect is called as a grand jury witness. The rules of engagement compelled by the manual as a matter of (non-enforceable) Justice Department policy simply do not apply if the suspect is not in custody and is being called to a “meeting,” regardless of whether law enforcement already has sufficient evidence that the suspect committed a crime.
But assume this hypothetical, and indeed it is a hypothetical: A prosecutor and, say, the SEC, or the Commodity Futures Trading Commission (CFTC), are conducting parallel investigations of the same conduct. They communicate from time to time with each other, intending to comply with Rule 6(e) of the Federal Rules of Criminal Procedure, which bars a prosecutor from disclosing grand jury testimony to her agency counterparts.14
The prosecutor is on the verge of indicting a particular target, but wants to interview him first. She is concerned, however, that if she calls him in for an interview, he will lawyer-up, whereas if the SEC calls him, he will be less likely to do so (sort of like in the Warren case). So, she asks the SEC to make the call, and when the interview is scheduled, by pre-arrangement, the prosecutor shows up at the SEC office, and participates heavily in the interview process. With the SEC as the “face” of the interview, the prosecutor obtains important admissions.
Of course, the suspect wasn’t told anything false and, indeed, in this hypothetical, the prosecutor was properly introduced to the witness as such before the interview began. No technical falsity, no ethics violation, one supposes. But, were the SEC attorney and the prosecutor acting appropriately by engaging in what can only be called a ruse directed at the witness who is already a target? Yes, they were truthful, and the prosecutor was introduced as such, but still—this likely perfectly legal and ethical scenario has to give one pause!
The nub of the problem is that, prosecutors ideally shouldn’t use the civil process to further a criminal investigation.15 If an SEC investigation were truly parallel to a criminal investigation, it would of course be proper for the SEC to conduct an interview and afterwards decide to turn over interview memoranda to the prosecutor’s office, or vice versa. In fact, SEC enforcement attorneys typically advise witnesses before they are interviewed, although not in these words, that the SEC may, at its prerogative, turn the results of the interviews over to prosecutors.16
Clearly, if the two investigations were truly parallel, the risk of misleading the suspect/target would be minimal. Not so, however, in the instance of joint or related investigations, where prosecutors are in attendance or pop up, often late, in the “invitation” process, when through a classic “bait and switch” the ostensibly non-criminal questioning is taken over by law enforcement. The hypothetical describes the clearest potential vice in a joint investigation where the legal ethics of the prosecutor and regulatory attorneys might be questioned because of what may well be forensically misleading conduct.
We don’t suggest in any way that this scenario is what occurred in Warren. Indeed, it appears, from having interviewed relevant individuals, that Warren was actually told by telephone the day before he appeared for the interview that a representative from the district attorney’s office would attend. Of course, given Warren’s legal pedigree, he would not be a particularly sympathetic “victim” of alleged prosecutorial/regulatory gamesmanship, if that is what it was. Being asked to attend an SEC interview (even if no prosecutor were expected to attend) should have raised for him enough of a red flag to suggest the need for counsel to attend the meeting, or at the very least to call the district attorney to determine his status in the investigation, even if it turned out he was intended to be no more than a fact witness.
Under any view of it, one is asked to wonder by Stewart whether the SEC and the prosecutor did intend to downplay the district attorney’s role in Warren—thus to induce him to attend the interview. This, even though, it seems clear, neither was legally obliged to tell Warren that he was a target of the criminal investigation or that it would be prudent for him to retain counsel—that is, unless Warren made the specific inquiry: “Am I a target, a subject or a witness?” Or, to use the terminology that might be employed by a skillful, case-hardened criminal lawyer: “Based on evidence or information obtained by you (to date), is your Office looking to prosecute my client?”
This analysis—while brought to the attention of many in the white-collar debacle concerning the law firm named for Governor Thomas E. Dewey himself—as aggressive a U.S. attorney and later district attorney as there ever was—equally applies to any target, suspect or subject. When someone is asked even informally to speak with law enforcement, or a regulatory counterpart, he should want to know exactly why. Maybe the practice should indeed move in the direction of according him that information, even if he doesn’t have the presence of mind, or the legal knowledge, to ask.
Joel Cohen, a former prosecutor, is of counsel at Stroock & Stroock & Lavan. He teaches professional responsibility at Fordham Law School. Elizabeth C. Carter, a Strook associate, assisted in the preparation of the article.
1. James B. Stewart, “A Dragnet at Dewey & LeBoeuf Snares a Minnow,” N.Y. TIMES, March 15, 2014, at B1.
2. U.S. Attorneys’ Manual, “Advice of ‘Rights’ of Grand Jury Witnesses,” Title 9, Chapter 11.151.
4. See U.S. v. McFarland, 424 F.Supp.2d 427, 437 (N.D.N.Y. 2006) (holding that “failure to disclose the details of an investigation, or the fact that the suspect is a target of an investigation” does not constitute affirmative deceit for purposes of due process inquiry) (citing Colorado v. Spring, 479 U.S. 564, 575 (1987), Deshawn v. Safir, 156 F.3d 340, 349 (2d Cir. 1998)).
5. See, e.g., Berkemer v. McCarty, 468 U.S. 420, 435-42 (1984) (holding that roadside questioning of a motorist detained pursuant to a routine traffic stop was not a “custodial interrogation” for purposes of requiring Miranda warning). Miranda v. Arizona, 384 U.S. 436 (1966).
6. Id at 427-429.
7. Stewart, supra note 1.
8. People v. Davis, No. 00773-2014 (Sup. Ct. filed Feb. 27, 2014) (Warren is a co-defendant in this case).
9. See New York Rules of Professional Conduct Rule 8.4(c) (stating that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation”); see also People v. Rice, 69 N.Y.2d 781 (1987) (actions of prosecutor in deliberately misleading defense counsel into believing that victim of crime was still alive when he was not constituted “a serious violation of his duties as an attorney”).
10. U.S. Attorneys’ Manual, “Advice of ‘Rights’ of Grand Jury Witnesses,” Title 9, Chapter 11.151.
11. See United States v. Washington, 431 U.S. 181, 186 and 190-191 (1977); United States v. Wong, 431 U.S. 174 (1977); United States v. Mandujano, 425 U.S. 564, 582 n.7 (1976).
12. See U.S. Attorneys’ Manual, supra note 10.
14. Fed. R. Criminal Procedure 6(e).
15. SEC, Division of Enforcement, Enforcement Manual, §5.2.1, Parallel Investigations, www.sec.gov/divisions/enforce/enforcementmanual.pdf (stating that in the context of a parallel investigation, “[i]t is important that the civil investigation has its own independent civil investigative purpose and not be initiated to obtain evidence for a criminal prosecution”).
16. SEC, Form 1662 (08-13), Supplemental Information for Persons Requested to Supply Information Voluntarily or Directed to Supply Information Pursuant to a Commission Subpoena, §H, Routine Uses of Information, www.sec.gov/about/forms/sec1662.pdf (stating that the “Commission often makes its files available to other governmental agencies, particularly United States Attorneys and state prosecutors,” and further disclosing that “[t]here is a likelihood that information supplied by you will be made available to such agencies where appropriate”).