Pre-Indictment Defense

The Warning Signs

Recognize the signals

The federal government rarely files an indictment without warning. Before charges come, there are almost always signals. Recognizing them — and acting on them immediately — is the difference between a defensible case and a catastrophic one.

• Target letters — the most serious warning the government sends. It means the U.S. Attorney's Office believes it has substantial evidence linking you to a crime. You have a limited window to respond before the grand jury returns an indictment.
• Grand jury subpoenas — for documents, testimony, or both. A subpoena means you are either a subject, a target, or a witness. Figuring out which is the first step.
• Search warrants — federal agents executing a warrant at your home or office. What you say and do during the search can become evidence against you.
• Agent contact — an FBI, DEA, IRS-CI, or HSI agent wants to "just talk." They are not just talking. They are building a case.

The Strategy

What defense counsel does before charges

Pre-indictment defense is not about preparing for trial — it is about preventing one. An experienced former federal prosecutor who knows how the government builds its cases can:

• Make a prosecutor's case harder to file — present exculpatory evidence, identify weaknesses in the government's theory, and raise legal defenses before the indictment is returned
• Negotiate a non-criminal resolution — civil settlement, deferred prosecution agreement, or declination
• Control the charging decision — if charges are inevitable, shape what they look like. Fewer counts, lower sentencing exposure, negotiated surrender
• Protect your record — keep the investigation off the public docket. No indictment means no public criminal case

John Kirby spent 10 years as an Assistant U.S. Attorney. He knows how prosecutors evaluate cases, what facts move them toward or away from indictment, and how to engage with the government before charges are filed without making the case worse.