The decisions you make in the first hours and days after a target letter arrives can change the rest of your life. Here is what to do — and what not to do.
By Don Flanary · Flanary Law Firm, PLLC · San Antonio, Texas
You open your mailbox and find a letter from the FBI. Or the IRS, the DEA, the ATF — one of those three-letter agencies you have only seen on television. Chills run up the back of your neck. Your heart starts beating faster. Your mind races. What does this have to do with me? you ask yourself. What should I do?
In the middle of that fear, good answers are hard to find. People start Googling. Somewhere in the back of their mind, a voice asks: if I get a lawyer, will that make me look guilty? If I did nothing wrong, what do I have to hide? Those questions are traps. Let me walk you through what a federal target letter actually means, and what to do in the hours and days after one shows up.
What a Federal Target Letter Actually Means
If the FBI or any federal agency sends you a target letter, two things are almost always true. First, you are the target of a federal investigation. The government generally does not send target letters to witnesses. Second, the investigation is complex, and it has been going on for some time. Often these letters involve what the government calls white-collar matters — fraud, financial schemes, healthcare billing, public corruption — though they can arise in any federal case.
That timing matters. In federal investigations, the target is almost always the last person agents speak to. By the time you receive that letter, the agents have already pulled the records, subpoenaed the documents, and interviewed every witness they intended to interview. They have a theory of the case, and they have decided who you are in the story they are telling.
By the time the letter reaches you, the government has been investigating for months — sometimes years. You are being invited into a conversation they have already finished.
That is exactly why they want you to talk. Anything you tell them — even something that feels innocent, even something you think is exculpatory — can make the case worse for you.
Why Agents Want You Talking
Federal agents are not usually counting on a confession. They expect targets to lie and deny. What they actually want is more subtle. Sometimes they need you to connect a few dots — that you were at a certain place, that you sent a certain document, that you were responsible for a certain group of people. A small acknowledgement is sometimes the only piece of the puzzle they are missing.
When they cannot get an acknowledgement, they take the next-best thing: inconsistency. Agents frequently ask questions they already know the answers to. If they catch you in any small misstatement, they will use it. The simple fact that you were not credible in your interview becomes evidence against you.
That is why the right answer, almost without exception, is not to speak to federal agents before you have spoken to an experienced federal criminal defense lawyer.
Talking to a Lawyer Does Not Make You Look Guilty
This is the question that keeps people frozen. They worry that hiring a lawyer is an admission. It is not. In federal practice, retaining counsel after a target letter is the expected, professional response.
And it costs you nothing to start. Conversations with a lawyer are protected by the attorney-client privilege — even if you do not hire them. You can, and should, talk to more than one. Ask each how they would approach the case. Listen for a real strategy, not a sales pitch.
What the Lawyer Does Next
The target letter is also a piece of evidence — for you. It tells your lawyer which agency is handling the case, which federal district it is being investigated in, and often the name of the agent or Assistant U.S. Attorney involved.
Calling the Agent
If the letter is from an agent, I sometimes start there. I will call and say: “Hi, my name is Don Flanary. I represent John Smith, the target of your investigation. Please tell me what is going on.” I act as if I know nothing — because, in the early hours, I usually do not — and I tell them I would consider having my client speak with them if they would explain what the case is about. Sometimes that produces real information. Sometimes the agent points me directly to the prosecutor. But I do not negotiate with agents and I do not agree to anything with them, because they cannot bind the government. Only the prosecutor can.
Calling the Assistant U.S. Attorney
The conversation that matters is with the Assistant U.S. Attorney on the case. That is the person who can bind the government to what is agreed. I memorialize every one of those conversations in writing afterward.
The first question I ask is the most important: is my client a target, a subject, or a witness? Those words have very different meanings, and they are defined in the Justice Manual at JM § 9-11.151. A target is a person as to whom the prosecutor or grand jury has substantial evidence linking him or her to the commission of a crime and who, in the prosecutor’s judgment, is a putative defendant. A subject is a person whose conduct is within the scope of the grand jury’s investigation. A witness has information but is not in legal jeopardy. The prosecutor has an ethical duty to give us a truthful answer. Agents, by contrast, can lie under the Supreme Court’s holding in Frazier v. Cupp, 394 U.S. 731 (1969). Prosecutors cannot.
The Proffer Letter — if you are a witness
If the prosecutor tells us my client is genuinely a witness, we have to decide whether it makes sense to participate at all. Sometimes the answer is no. Sometimes the prosecutor indicates my client has potential exposure but is, at the moment, being treated as a witness — and talking on the right terms can keep my client out of the crosshairs.
When that is the path, we execute a proffer agreement letter — sometimes called a Queen for a Day letter. It is built on the framework recognized in Kastigar v. United States, 406 U.S. 441 (1972), and on Federal Rule of Evidence 410, which governs the admissibility of statements made during plea discussions. The terms are reasonably standard. The government agrees that nothing the client says can be used against them in their case-in-chief, with two important exceptions:
- Statements about a separate crime of violence are not covered by the standard proffer. We negotiate specific immunity for those issues before the conversation.
- Everything the client says must be truthful. Lies and material omissions can be used in a later prosecution. The proffer is not protection for dishonesty; it is protection for honesty.
If You Really Are the Target
If the prosecutor confirms my client is a target, the strategy changes. The first thing I do is pump the brakes. I ask the government for time before any charging decision is made, and I open the door, lightly, to the possibility of a future plea agreement if they can actually show me a case. That last part matters. Federal prosecutors strongly prefer plea agreements to trials — they want to dispose of cases efficiently and use cooperators to move up the chain. Dangling that possibility buys us time to investigate, hire experts, and understand what the government has.
The next move is to ask for discovery. Technically, before indictment, we are not entitled to any. But because the government wants the case to resolve, I push: if you want me to plead my client, show me what you have. From day one, even while we are talking with the prosecutor, we are preparing for the possibility that we will be trying this case to a jury.
The Federal Crimes Behind Most Target Letters
Most federal target letters involve fraud. The two big buckets are wire fraud under 18 U.S.C. § 1343 and mail fraud under 18 U.S.C. § 1341. The structure is the same: a false statement, made with intent to deceive, aimed at getting something of value the person was not entitled to. If the statement traveled through the U.S. mail or any private interstate carrier, it is mail fraud. If it traveled through email, text, telephone, or any electronic communication — which today is almost everything — it is wire fraud. Both carry up to 20 years per count, and up to 30 years per count if the offense affects a financial institution or involves federally declared disaster benefits. Conspiracy to commit either is charged under 18 U.S.C. § 1349 and carries the same maximum penalties as the underlying offense.
When the statements were used to obtain money or property from a health care benefit program — Medicare or Medicaid, for example — the conduct is typically charged under 18 U.S.C. § 1347 (health care fraud), with a 10-year maximum that increases to 20 years if the offense results in serious bodily injury and to life if it results in death. Fraud directed at federal funds or federally-backed loans can be charged under statutes including 18 U.S.C. § 1031 (major fraud against the United States), 18 U.S.C. § 1014 (false statements to a federally insured lender), or 18 U.S.C. § 1001 (false statements to federal agents and agencies). Public corruption matters often involve 18 U.S.C. § 666 (theft or bribery in programs receiving federal funds) and 18 U.S.C. §§ 201, 1951 (bribery and Hobbs Act extortion).
Knowing which statute the government is building toward changes the defense. The elements differ. The defenses differ. The sentencing exposure differs. That is why the first task is information — finding out what the case is actually about — before any decision is made about how to respond.
Where you fit in the structure of the case
Federal investigations almost never involve a single person. They involve schemes and conspiracies — often charged under 18 U.S.C. § 371 (the general conspiracy statute) or the offense-specific conspiracy provisions like § 1349 for fraud — which means where my client sits in the structure is critical. Most of the time, the client is not at the top. When that is true, there is almost always a path to cooperate with the government in exchange for favorable treatment: no prosecution at all, prosecution on lesser charges, or pleading to an information rather than an indictment under Federal Rule of Criminal Procedure 7(b).
When a client provides substantial assistance, the government can file a motion for downward departure under U.S. Sentencing Guidelines §5K1.1. That motion is one of the most powerful tools in federal sentencing, and it can dramatically reduce the punishment a person ultimately receives. None of it happens automatically — it requires an experienced federal lawyer building the case for it from day one.
The single most important thing
Federal cases are long. From target letter to resolution can take many months, sometimes years. But the pattern I have watched repeat itself across more than two decades of practice is clear: the clients who contact a competent federal criminal defense lawyer early — when the letter first arrives, before any conversation with an agent — have meaningfully better outcomes. Sometimes there is no prosecution at all. When there is a prosecution, the punishment is usually substantially less severe.
If you or someone you love has received a federal target letter, take it seriously. Do not bury your head in the sand. Find a lawyer who actually practices federal criminal defense, has a clear strategy for your case, and is willing to walk you through what to expect at each stage. Then follow that lawyer’s advice.
What you do in the hours and days after a target letter arrives can change the rest of your life. Do not waste them. Call (210) 738-8383 or fill out a form online to get in touch with the Flanary Law Firm, LLC today.
ABOUT THE AUTHOR
Don Flanary has practiced criminal defense for more than two decades and represents clients in federal criminal matters across the Western District of Texas. His federal practice focuses on drug conspiracy and trafficking, white-collar fraud, healthcare fraud, and public corruption. Flanary Law Firm, PLLC is based in San Antonio.
Flanary Law Firm, PLLC · (210) 738-8383 · flanarylawfirm.com
