New York Criminal Defense Blawg

Criminal arrests are upsetting to everyone but can be particularly problematic for financial and securities professionals because of the possible employment and licensure consequences.  Brokers, traders, bankers, financial advisors, and other financial professionals typically have to be licensed through FINRA, the Financial Industry Regulatory Authority.  Some of the most common licenses include Series 7 and Series 63, but there are many.  For those licensed professionals, criminal arrests and convictions may trigger updating of the U4 FINRA form.   (Note: Employers may also have company policies requiring disclosures above and beyond what is required by FINRA).  The registration form demands the following questions:

If you receive a federal grand jury subpoena in the mail, you absolutely must retain the services of an experienced criminal defense attorney as soon as possible.  The subpoena indicates that the federal prosecutor that issued it (probably an Assistant United States Attorney) believes that you have knowledge or information relating to a significant criminal investigation.  Obviously, the prosecutor may therefore also believe that you have committed a crime.  Also, you cannot ignore a subpoena without serious criminal repercussions.

An experienced defense attorney can help you determine the following:

1)   What the subpoena is asking of you;

Federal grand jury subpoenas come in two forms: personal subpoenas requiring the testimony of a witness, and subpoenas duces tecum requiring the production of documents in the person’s control.  The subpoena duces tecum can be just as perilous as a personal subpoena and should be responded to with equal prudence.

2)   Whether you are a “target” of the federal investigation, or merely a “subject” of it;

A target of a grand jury investigation is “someone as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of the crime, and who, in the judgment of the prosecutor, is a putative defendant” (citing the US Attorney’s Manual).   In other words, a target is someone hat the prosecutor believes has committed a crime.  A subject of an investigation is someone “whose conduct is within the scope of the grand jury investigation”.  In a nutshell, a subject is someone who might be a defendant at some point, but at this point, appears to be a witness, in the least.  The subpoenas and their cover letters are rarely so explicit as to tell the person receiving it whether he or she is a target or a subject; an experienced criminal defense attorney can help you figure it out by discussing the facts of the matter being investigated and possibly communicating with the prosecutor.

3)   Whether you would have the right to assert the Fifth Amendment during your grand jury testimony, or whether any other privileges might allow you to avoid testifying;

Depending on your level of involvement in the conduct being investigated by the grand jury, you may or may not have the right to assert the Fifth Amendment protection against self-incrimination.  Specifically, a grand jury witness has the right to refuse to answer a question if the answer would directly implicate him or her in a crime, or “furnish a link in the chain of evidence needed to prosecute.”  Hoffman v. United States, 341 U.S. 479 (1951).  An experienced attorney can help you understand whether you have the right to assert the Fifth Amendment in light of the circumstances of the investigation, and also whether the exercising of that right is the best course of action for you.

4)   Whether you should seek to cooperate with the criminal investigation;

The receipt of a federal grand jury subpoena may be a good reason for an individual to cooperate with law enforcement in the investigation.  Frequently, culpable parties can receive leniency by agreeing to provide information or testify honestly and truthfully about co-conspirators.  However, the decision to enter into a cooperation agreement with law enforcement is not one that should be done lightly, and an experienced criminal defense attorney is absolutely necessary to proffer a potential witness or propose such a course of action to a prosecutor.

5)   What your potential charging exposure could be.

Finally, the decision as to whether or not to cooperate with the government is ultimately just a question of the risks and rewards in doing so.  To make an informed decision about your course of action, you absolutely need an attorney that understands federal criminal law as well as the federal sentencing guidelines.

Conclusion

The criminal defense attorneys at Galluzzo & Johnson LLP include three former prosecutors with over 20 years of combined experience as prosecutors.  As prosecutors, they personally spearheaded a substantial number of grand jury investigations resulting in hundreds of indictments.  Thus, they are particularly good at deducing the purpose of grand jury subpoenas and anticipating the focus and direction of the underlying grand jury investigation.  If you have received a grand jury subpoena, give them a call today to schedule an appointment and discuss your best options going forward.