Under Federal Investigation in South Carolina? What to Do Before You Are Charged

By the time federal agents contact you, the investigation may already be well underway.

Agents may have spent months collecting records, interviewing people who know you, tracing transactions, reviewing electronic communications, and, in some cases, presenting evidence to a grand jury.

Most people think a criminal case begins with an arrest. In a federal case, however, substantial investigative work may occur before anyone is charged. The pre-indictment period is where some of the most important strategic decisions can be made.

How You Find Out You Are Under Federal Investigation

Sometimes the government's interest is obvious. Often you learn about it indirectly.

Possible warning signs include:

• FBI, DEA, ATF, IRS-CI, HSI, or other federal agents ask to speak with you

• Agents interview your coworkers, business associates, friends, or family members

• You receive a federal grand jury subpoena

• Agents execute a search warrant at your home, business, or office

• Phones, computers, financial records, or other property are seized

• You receive a federal target letter

• You learn that someone else connected to the matter has been arrested or charged

You may never receive a formal warning. The government generally does not have to tell you in advance that an indictment is coming.

That is one reason the first decisions you make after learning about an investigation matter.

Federal Criminal Cases in the Upstate

South Carolina is one federal judicial district, but federal cases are organized into divisions and regional groupings.

The Upstate federal divisions cover much more than the cities of Greenville and Spartanburg. They include cases arising in Greenville, Laurens, Spartanburg, Cherokee, Union, Anderson, Oconee, Pickens, Greenwood, Abbeville, Edgefield, McCormick, Newberry, and Saluda Counties.

Where a particular case is heard depends on the division, the judge assigned to the case, and the court's scheduling and administrative structure. For someone facing a federal case in the Upstate, the important point is that a case arising in Anderson, Oconee, Pickens, Cherokee, Laurens, Greenwood, or another surrounding county remains part of the same District of South Carolina federal system serving the Upstate.

I am based in Greenville, but my federal criminal practice is not limited to Greenville County. I represent clients in serious federal matters arising throughout the Upstate, including cases from Greenville, Spartanburg, Anderson, Cherokee, Greenwood, and surrounding counties.

Federal cases here also do not always begin as obviously federal matters. An investigation may start with local officers, involve a joint state-federal task force, or begin as conduct first investigated by state authorities.

Drug conspiracies, firearm cases, fraud investigations, and other serious matters can change significantly once federal prosecutors become involved. The applicable statutes, sentencing exposure, investigative tools, and procedural environment may all be different from what someone expects from a state prosecution.

Do Not Assume You Can Just Explain It

The most common instinct after agents make contact is to sit down and clear everything up.

That instinct can create serious problems.

When a federal agent asks you a question, do not assume the agent is asking because he does not know the answer. By the time agents approach you, they may already have bank records, messages, surveillance, or statements from people you know.

The interview may be designed as much to test your account against existing evidence as to gather new information.

An interview you walk into without knowing what the government has can give prosecutors information they did not have, lock you into details that later turn out to be wrong, or point investigators toward evidence they had not found.

There is another problem. Under 18 U.S.C. § 1001, knowingly and willfully making a materially false statement in a matter within federal jurisdiction can itself be a felony, separate from whatever conduct agents originally came to investigate.

An imperfect memory is not automatically a crime. But an unplanned conversation with federal agents can create risks that did not exist before the interview.

If You Have Already Spoken With Federal Agents

Many people do not call a lawyer until after they have already spoken with investigators.

That does not mean the damage is done or that getting counsel involved now is pointless. It means the next steps need to be deliberate.

One of the first things I want to do is reconstruct the interview as accurately as possible—not what you wish you had said and not what you think would sound better now.

Federal agents often document significant interviews in reports or memoranda. Those reports are not necessarily word-for-word transcripts, and I need to understand exactly what was asked, what you said, and the circumstances in which you said it.

Do not call the agent back on your own to clarify an answer or send a follow-up email trying to explain what you meant.

If something you said was materially wrong and may need to be corrected, that decision should be made with counsel after the circumstances of the interview have been evaluated.

The instinct to fix an answer can create another problem. If a follow-up communication contains another knowingly false and material statement, it can create additional exposure under § 1001.

Before your memory fades, be prepared to tell your lawyer:

• who was present

• which agency was involved

• where the interview occurred

• how long it lasted

• what questions were asked

• what answers you gave

• what documents, photographs, messages, or other evidence agents showed you

• whether agents asked you to contact them again

If you already made notes about the interview, preserve them and bring them to counsel. Before creating a new written account, discuss with your lawyer whether and how that should be done.

You cannot change the conversation that already happened. You can avoid making the situation worse while your lawyer assesses what it means.

Witness, Subject, or Target

In a federal investigation, you may hear three labels: witness, subject, and target.

A person described as a witness may simply have information investigators want.

A subject is someone whose conduct falls within the scope of the grand jury's investigation.

A target is someone as to whom the prosecutor or grand jury has substantial evidence linking that person to a crime and whom the prosecutor views as a potential defendant.

The Department of Justice explains the formal distinction between a subject and a target in § 9-11.151 of the Justice Manual.

Those labels are not permanent. A witness can become a subject. A subject can become a target. That can happen without the government ever formally notifying you.

One of the first things a defense lawyer tries to learn is where the client stands, knowing that prosecutors may disclose little or nothing.

Do Not Destroy, Delete, or Clean Anything Up

Once you know about a federal investigation, preservation becomes important immediately.

Do not shred documents. Do not delete texts or emails because they look bad. Do not wipe a phone or computer. Do not alter business records. And do not ask anyone else to do any of those things.

18 U.S.C. § 1519 addresses the knowing destruction, alteration, concealment, or falsification of records with intent to impede a federal matter, including conduct undertaken in contemplation of one. 18 U.S.C. § 1512 also addresses obstruction and witness-related conduct.

Routine deletion is not automatically obstruction. Intent and circumstances matter.

But once you know the government is looking, trying to "clean up" records can create an entirely new problem.

Let your lawyer help determine what needs to be preserved and how.

Be Careful Who You Call

The other common instinct is to start calling people.

You want to know what the coworker told investigators. You want to know whether your business partner was interviewed. You want to find out what someone else has said.

Two people discussing an investigation is not a crime.

But a conversation intended to influence someone's account, coordinate a story, conceal evidence, or interfere with an investigation can create separate exposure under 18 U.S.C. § 1512.

Before you start calling people about the investigation, talk to your lawyer.

What a Defense Lawyer Actually Does Before Charges

People sometimes assume there is nothing for a criminal defense lawyer to do until someone is arrested.

In federal practice, that can be exactly backwards.

Before indictment, I am generally trying to answer several questions:

• What does the government believe my client did?

• What evidence supports that belief?

• Does the government view my client as a witness, subject, or target?

• Is there information we should put in front of the prosecutor before a charging decision is made?

• Are there subpoenas, documents, witnesses, or evidence that need immediate attention?

When I become involved before indictment, one of the first things I am trying to determine is what the government actually has, what it believes my client did, and what it wants from my client.

At the same time, the Assistant United States Attorney may be trying to determine whether my client has information the government wants and whether my client is willing to cooperate.

Those conversations can go in very different directions depending on the strength of the government's evidence.

If the case appears weak, my focus is on showing the prosecutor why it should not move forward. That may mean identifying weaknesses in the government's theory, providing records or other information that changes the factual picture, or explaining why conduct that initially appeared suspicious does not support a federal charge.

If the government's evidence is strong, the discussion changes. My client and I may need to consider whether cooperation is in the client's interest and whether a proffer makes sense.

A proffer is not simply a conversation with federal agents.

When I advise a client to participate in a proffer, I generally want the process governed by a written proffer agreement and undertaken with counsel involved, after we have assessed as much as we reasonably can about the government's evidence and the client's exposure.

The exact terms of a proffer agreement matter. A prosecutor is not required to offer a proffer simply because the defense asks for one, and a written proffer agreement does not necessarily make everything the client says unusable for every purpose.

The protections and permitted uses depend on the agreement itself. Such agreements commonly permit the government to use information provided during the proffer in particular ways later, so agreeing to one is a significant strategic decision.

Sometimes the purpose of a proffer is cooperation—providing information concerning other people or conduct.

But that is not the only reason to consider one.

In the right case, a proffer can also give a client an opportunity to explain why the government's evidence does not mean what investigators think it means. The client may be able to confirm facts, provide context, or explain conduct that looks very different when viewed only through records or statements collected by investigators.

That is a carefully considered legal strategy. It is not the same thing as sitting down with agents because you believe you can simply explain your way out of an investigation.

Before making that decision, I want to know as much as I reasonably can about the government's evidence. I may ask the prosecutor for incident reports, investigative reports, or other material that implicates or involves my client.

The government may provide some information and refuse to provide other information. Pre-indictment discovery is not something the defense can simply demand.

There are also circumstances in which I may provide documents to the government on a client's behalf. If my client has received a subpoena, part of my job is to help the client comply with legitimate obligations without unnecessarily producing privileged material, information outside the subpoena's scope, or material that creates avoidable problems.

If there is a legitimate dispute over scope, privilege, or another legal issue, counsel should address it promptly through the appropriate process—whether by communicating with the government or, when warranted, asking the court to quash or modify the subpoena—not simply ignore the demand or unilaterally withhold responsive material.

The government does not have to show me its entire case. An AUSA may tell me very little.

But even limited information can matter when deciding whether the next step should be a defense presentation, a document production, a proffer discussion, an independent investigation, or simply making sure the client does not make the situation worse while we learn more.

The objective during this stage is to improve the client's position as early as possible.

Sometimes that means correcting a mistaken factual premise and persuading the government not to charge the client. Sometimes it means narrowing the potential charges or exposure. Sometimes it means recognizing that an indictment is likely and making decisions early that put the client in a better position when it happens.

The government may never formally tell me whether it considers my client a witness, subject, or target, and I cannot require prosecutors to change that assessment. The strategy therefore has to follow the evidence rather than the label.

You can learn more about Gibson Law's federal criminal defense and other serious criminal practice areas.

A Grand Jury Subpoena

A federal grand jury subpoena can demand testimony, documents, or both.

Ignoring it is not an option. Neither is complying blindly.

Before anything is produced, the questions may include scope, privilege, preservation, deadlines, Fifth Amendment exposure, and what the subpoena may reveal about your own status in the investigation.

Rule 17(c)(2) of the Federal Rules of Criminal Procedure allows a court to quash or modify a subpoena that is unreasonable or oppressive, but prompt action matters. Simply believing that a subpoena is improper does not excuse compliance.

If you are called to testify before a grand jury, your lawyer is not permitted to stand beside you in the grand jury room during your testimony.

You can, however, request a reasonable opportunity to step outside and consult with counsel.

The Department of Justice's grand jury policies also address advance notice to targets in some circumstances, but those policies are not a promise that you will receive a target letter or advance notice before indictment.

If Agents Show Up With a Warrant

Do not physically interfere with the search. Do not destroy evidence. Do not try to obstruct the agents.

But a search warrant is not an invitation to turn the search into an interview.

You are not required to answer substantive questions simply because agents are standing in your home or business. Tell them you want to speak with a lawyer.

Keep the copy of the warrant and the inventory or receipt the agents leave.

Those documents can tell your lawyer what agents were authorized to search for and what they took. When electronic devices are seized, the inventory may list the phone, computer, or drive rather than every piece of information later reviewed.

The affidavit supporting the warrant may also be sealed and unavailable for some time.

Even so, the warrant and inventory can reveal important information about the government's focus. What agents were authorized to search for often tells you something about what investigators believe exists.

Some of the Most Important Decisions Are Made Early

In serious federal cases, some of the most important decisions are made months before anyone walks into a courtroom.

Whether to sit down with agents. How to answer a subpoena. Whether to proffer. What gets preserved. Whether to provide documents. Whether someone needs to go out and find witnesses while memories are still fresh.

Those choices can affect the evidence that exists, the charges prosecutors ultimately bring, the leverage available in negotiation, and what a jury may eventually hear.

Talk to a Federal Criminal Defense Lawyer Before You Talk to Anyone Else

If federal agents have contacted you, if you have received a target letter or grand jury subpoena, or if agents have executed a search warrant at your home or business, the next conversation you have should be with a lawyer.

Not with an agent. Not with a coworker. Not with the person you think got you into this.

When someone calls me about a federal investigation, I want to know what happened before the call.

Who contacted you? What agency were they with? What did they ask? Have they contacted anyone else? Has anyone received a subpoena? Was anything searched or seized? Did the agents leave paperwork?

Most importantly, what have you already said?

From there, the immediate question is not how to make the investigation disappear.

It is:

What do we need to do next, and what do we need to stop doing right now?

That may mean contacting the prosecutor or case agent. It may mean preserving records. It may mean reviewing a subpoena. It may mean telling you not to call another witness or not to agree to an interview until we understand more about the investigation.

At Gibson Law, I represent individuals facing federal investigations and prosecutions in the District of South Carolina, including matters arising in the Upstate.

If you believe you may be under federal investigation, have already spoken with federal agents, received a subpoena or target letter, or been served with a search warrant, getting legal advice before your next substantive step can help you avoid making decisions without understanding the government's position or your own exposure.

Contact Gibson Law or 📞 Call (864) 241-6699 to schedule a consultation.

This article is provided for general informational purposes only and does not constitute legal advice. Every case is different. Reading this article or contacting the firm through this website does not, by itself, create an attorney-client relationship.