When does a Person become a Grand Jury Target?
In United States v. Myers, ___ F.3d ___ (6th Cir. 8/6/97), unofficially reported at 1997 U.S. App. LEXIS 20868, the Court addressed the issue of when a person becomes a target or subject of a grand jury investigation. The consequences of that status addressed in Myers is that, if the person is called to appear before the grand jury to testify, the person becomes entitled to certain warning rights, similar to Miranda warnings. There are other consequences of the status which we shall address below, but first we turn to Myers. The issue in Myers was whether the prosecutor adequately advised Myers of his rights prior to the testimony.
The DOJ Manual advises federal prosecutors that provide a person who is a target or subject of a grand jury investigation that, prior to having such a person testify before the grand jury, the person is given written notice of his status and an Advice of Rights Form. Further, the Advice of Rights Form must be read to the target/subject witness immediately prior to his or her testimony before the grand jury. The court observed that the critical status is defined in the manual as follows:
A target is defined by the DOJ Manual as "a person as to whom the prosecutor or the grand jury has substantial evidence linking him/her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant." Id. The Manual defines a subject of an investigation as "a person whose conduct is within the scope of the grand jury's investigation."
In this case, the Court found that the witness in question (Myers) was a target of the grand jury investigation for there was ample indication that he was a putative defendant. Hence, the Court concluded that this requirement of the DOJ Manual was applicable and the Court was concerned that the prosecutor had not followed the manual.
Nevertheless, the Court held that the oral warning given to Myers prior to his testimony, while not as complete or formal as the target/subject letter and Advice of Rights required by the Manual, was nevertheless sufficient to meet any constitutional warning requirements. The strict Manual requirements, the Court held, were not constitutionally mandated and the more limited warning that the prosecutor actually gave met the minimal warning requirements. In this regard, the Court fell in line with other courts that found that the stricter Miranda requirements did not apply in the context of this particular case, but that some level of warning was required and given.
We were particularly interest in this aspect of Myers because we have a case in which a potentially critical issue is when a person becomes a target of the grand jury investigation. In the case we are handling, the IRS agents assisting the grand jury, under some level of guidance or advice of the prosecutor of a grand jury, obtained and executed a search warrant to seize documents. Those same IRS agents, under some level of guidance or advice of the prosecutor of the grand jury, turned those documents over to the State Comptroller's office without a Rule 6(e)(3)(C) order. (Rules references are to the Federal Rules of Criminal Procedure.) The question is whether that act of disclosure to the State violated Rule 6(e).
If the documents were "grand jury matters," then the act of turning over the documents without a Rule 6(e)(3)(C) order, was illegal and subject to contempt against the IRS Agents and /or the prosecutor. We think that issue turns upon whether the search warrant was executed incident to the grand jury investigation and, since the prosecutor apparently had not formally "jacketed" a grand jury case naming this individual, we think the issue turns upon whether our client was a "target" of the grand jury investigation when the search warrant was obtained and executed. As noted above, the Manual provides no litmus, black or white test of target status. Rather, the inquiry is whether the prosecutor has sufficient indication of potential defendant status that the status attaches. Similarly, as the Court noted in Myers, the general interpretations as to when a person becomes a target provide no litmus test, but if anything are broader than the Manual definition. In our case, we think that the prosecutor's mere approval or affirmative agreement for the agents to seek the search warrant establishes that the prosecutor had reasonable cause to believe that a crime within her purview to prosecute had been committed and that this handily meets the definition of target. Stated otherwise, if the prosecutor could determine that there was reasonable cause to believe that a crime had been committed (the sine qua non for adequacy of a search warrant), the prosecutor had reasonable cause to believe that the individual was a grand jury target under these definitions. Stated still otherwise, the prosecutor cannot manipulate the formal "jacketing" of a grand jury case specifically naming an individual, and the Government's designated witness on this aspect of the case so testified. (In our case, despite the Government's own designated witness's testimony, the Government takes the position in its defense of the prosecutor that our client became a grand jury target only when the prosecutor formally "jacketed" the file, some 27 days after the search warrant was issued.)
Attorneys having similar issues turning upon when a person becomes a target will find Myers very helpful.