Who decides when a person should be investigated in a federal criminal prosecution?

Many of our clients ask us who decides to investigate someone relating to a possible federal criminal case regarding cases such as drug trafficking, mortgage and Medicare fraud, mail fraud, wire fraud, public corruption, other white-collar crimes or any other federal crime including lying to federal agents, child pornography, counterfeiting, alien smuggling or tax evasion. The question is very legitimate yet complicated to answer.

In most instances, the federal law-enforcement agency involved such as the FBI, DEA, ICE, IRS or Secret Service receive a complaint from a victim of a federal crime or from a financial or banking institution which is required to report certain unusual transactions under federal law. In other instances, the investigative agency receives information from established sources or informants who indicate that an individual or group are involved in some type of criminal activity. Finally, federal criminal investigations are undertaken by a particular federal law-enforcement agency due to information provided to them by other law enforcement agencies whether it be from agencies at the federal level, county or municipal police.

An investigation is thereafter opened by the federal law enforcement agency and they began to gather facts to determine if there is enough evidence relating to a particular violation of federal law to warrant a full-blown federal investigation. Once it has been determined that there is enough evidence indicating that an individual or a group of people are involved in a particular activity which constitutes a federal crime investigators generally continue to collect evidence through interviews, electronic surveillance, physical surveillance, the use of informants and a variety of other investigative techniques until they are ready to present the case with a report to the U.S. Attorneys Office for a prosecutorial opinion.

Many times, an Assistant United States Attorney who is presented the facts in a report by a particular federal law enforcement agency advises that he will not prosecute the case for whatever reason. Some reasons for declinations of prosecutions include lack of evidence, difficulty in prosecution or due to the fact that the case has not reached a particular threshold in terms of monetary loss or importance for federal prosecutors to proceed. The threshold level may be very different depending on which federal district is involved. For example in Miami and New York City, the threshold for prosecution in a drug trafficking or fraud case may be very much higher than in the District of Colorado or Oklahoma where there are fewer cases to be prosecuted.

If the case is approved for prosecution, generally speaking, representatives from the federal law enforcement agency investigating the federal crime will usually attempt to interview the subject of the case in order to obtain a confession or more information which can be used in a prosecution against the accused defendant or defendants. In many cases, federal investigators will seek the cooperation of a member of a group of individuals who are involved in committing federal crimes such as members out a group of persons involved in a series of federal crimes relating to drug trafficking or fraud schemes. Once information is obtained from one or more of the members of the group involved in a continuing criminal enterprise which incriminates other members of the group the federal agents often present the case once again to the federal prosecutor involved seeking either an arrest warrant or an indictment. In many cases a federal prosecutor will present the facts of the case to a federal grand jury for an indictment against one or more defendants. In most federal districts throughout the United States there is a federal grand jury impaneled on a regular basis to hear requests from federal prosecutors for indictments against accused individuals or groups of accused people.

This process of seeking a prosecutorial opinion from a federal prosecutor by special agents of one of various federal law-enforcement agencies is nearly always the process that is used during a federal criminal investigation. It is important that a person who is formally accused of a federal crime or who has been interviewed by federal law enforcement agents contact the law firm of Youngs and Associates in the early stages of a federal investigation. It may be possible to prevent the prosecution of a client if federal law-enforcement authorities are contacted early on by an attorney from our office before additional evidence is obtained including statements by the client given to federal law enforcement. Remember to contact our office before giving any statement to federal law enforcement authorities. A person who is the focus of a criminal investigation at the federal level may believe that if they try and contact federal law enforcement without legal representation it may help them in some way. However, the absolute opposite effect may take place and the information provided by the accused can be used against him or her in a federal prosecution. Legal counsel should be sought before contacting or being interviewed by federal law enforcement.