Many good people, from highly educated professionals to blue collar industrial workers, at some point find themselves unexpectedly interviewed by FBI or other federal agents. Often this is part of a larger investigation into a current or former employer, an industrial accident or some other matter. But other times, it is something more personal that is or may become very serious. In any event, it is not a time to go it alone, even if one has done nothing wrong or has nothing to hide.
THERE ARE THOUSANDS OF FEDERAL CRIMES THAT CAN ENSARE GOOD PEOPLE AND HONEST BUSINESSES
There may be more than 10,000 federal crimes, but according to the Wall Street Journal, efforts to precisely identify them have failed on numerous occasions. More troubling, many of the most common crimes prosecuted have been interpreted so broadly by the courts that predicting their application can be impossible for many lawyers, to say nothing of lay people who have no training or experience with federal criminal law. Think tanks such as the Heritage Foundation and Cato Institute have done tremendous work documenting this trend and the legal minefield that confronts businesses and average American citizens with no intent to violate the law.
This overcriminalization can be a legal morass that many well-meaning individuals and companies may find themselves unintentionally wading into. Unrepresented and unadvised, this can become quicksand, in which any way the person moves, their situation becomes worse. They may innocently believe that they can talk their way out of any problem, but more often, they do not even realize they may be talking their way into one.
AN ALPHABET SOUP OF AGENCIES EACH HAVE THEIR OWN LAW ENFORCEMENT OFFICERS
This may be complicated because there are many types of federal agents beyond those most Americans think of when thinking of federal law enforcement, e.g., the FBI, DEA, and ATF. In fact, many other federal agencies have their own internal law enforcement agents who may investigate potential crimes, even those that may not have an obvious connection to the name of their agency. For example, a health care fraud case may involve agents from not only the FBI or HHS, but also the DEA, IRS, and RRB.
Simply because an investigator is from an agency with no obvious connection to the matter being asked about or crime in general, doesn’t mean they shouldn’t be taken seriously. Regardless of one’s profession or education level, talking to federal agents can be a precarious position because, making false or fictious representations, or knowingly using or making false documents is a federal crime, even if one is not under oath. See 18 U.S.C. 1001. However, it is important to remember that this is not a two-way street. Law enforcement does not have the same obligation to be truthful to the people being interviewed as the people being interviewed do to them.
Federal agents are among the most well-trained and most experienced of law enforcement personnel anytime anywhere. They conduct interviews on a routine basis and certainly much more often than the vast majority of people they interview. They know what they’re doing.
ONE CAN BE PROSECUTED FOR LYING TO A FEDERAL OFFICIAL EVEN IF NO OTHER CRIME IS ACTUALLY COMMITTED
Again, it is a federal felony to obstruct justice or to provide false material information to any federal employee, not just lying under oath on the witness stand. That includes what appear to be casual encounters when two agents appear at one’s home or office to ask a few questions about something that happened years ago. And, according to the U.S. Supreme Court, even falsely denying the commission of a crime can be the basis of a false statement prosecution. See Brogan v. United States, 522 U.S. 398 (1998).
More confusingly, people are prosecuted for false statements made during an investigation, even when they are not charged with anything related to whatever conduct caused the investigation in the first place.
KNOW YOUR RIGHTS BEFORE YOU WAIVE THEM
Unlike swearing out affidavits, depositions, or courtroom testimony, where an oath is administered to the witness and they can be charged with perjury for lying, the requirement to be honest may not be obvious to someone answering questions in a conference room at work or their front door. And, because the person has not been arrested and is not in custody, Miranda warnings are not required to be given which may remind someone of their right to remain silent or to a lawyer and exercise those rights rather than make incriminating statements.
Also unlike in a courtroom or many post-arrest interrogations, these non-custodial interviews are not transcribed verbatim by a court reporter and are very rarely recorded. Instead, the agents may (or may not) simply take notes. These notes are not a transcription of the conversation and may not even be complete. They are an interpretation and may not be accurate. These rough notes may then, hours, days, or weeks later be typed into a “Memorandum of Interview” (MOI) on the standard form for the relevant agency (FBI 302, DEA-6 etc.) which may contain more, less, or different information than the rough notes.
When reporting on the release of the FBI 302s from its interview of Hilary Clinton about her email servers, NBC News related that “[a]n FBI policy paper explains that ‘the presence of recording equipment may interfere with and undermine the successful rapport-building interviewing technique which the FBI practices.'” NBC went on to repeat the State Department’s admonition to it that “302s are not transcripts – they are summaries.”
If there is a dispute about what was said, federal prosecutors, defense lawyers, judges, and juries, must then rely on the two agents’ recollection of what was said. When prosecutions often turn on the precise questions asked and answers given, the use of this practice in the twenty-first century, when most Americans probably have the ability to record using their phone is shocking to many, particularly those accused of crimes who assert they made no incriminating or false statements.
The Bill of Rights to the U.S. Constitution guarantees every American has the right to remain silent and the right to counsel, even when not in custody or under investigation. The subject of an investigation often does not know they are under an investigation and people can go from being potential witnesses to targets in the blink of an eye or the slip of the tongue. More people talk their way into prison than talk their way out of it. That is why it is important to seek the advice of competent, experienced counsel, before answering questions from law enforcement.
YOU MAY CONTACT AN ATTORNEY BEFORE ANSWERING QUESTIONS
If one politely declines to answer their questions without a lawyer (beyond confirming certain personal identifying or contact information as required by law) or asserts their 5th Amendment right, asks for their business card, and says they will have a lawyer contact them, they will understand; they are professionals.
Experienced attorneys then may reach out to the agent to assert their clients 5th Amendment rights or arrange an interview. This may include talking to an Assistant U.S. Attorney who may be willing to arrange the interview under a proffer letter.
Attorneys often present witnesses under a “proffer agreement” or “queen for a day” letter. This allows the interviewee to give honest information to the government under a type of immunity without fear that information they provide will be used against them. The details and limitations of these letters are negotiable and matter, a lot. It is important that an individual carefully consider and understand what they are agreeing to before submitting to an interview under such an agreement.
Things the Government is already aware of or discovers making derivative use of the information provided are rarely included in the protections provided by the agreement. Lying in the meeting, just as any other material dishonesty to federal officials, is a crime. Testifying differently at a later point in time will allow the prosecutors to use the statements from the proffer to impeach (contradict) the witness. On the other hand, information, even admissions, about criminal wrongdoing the Government was not aware of usually cannot be used against the individual.
That is why it is important, and also advantageous, for the interviewee to be not only honest, but completely candid in a proffer meeting about what they know or may have done. This requires preparation as the events being discussed often happened months or years in the past over an extended period of time that be reflected in hundreds or thousands of emails, bank statements, or other documents.
Human beings typically do not remember everything all at once when first asked. A prosecutor or agent may ask a witness about something they had forgotten or show them a document or photograph they had not seen or thought about in many years. Reviewing relevant matters prior to any meeting helps the witness recall events and their context. It may also be important to locate and review e-mails and other documents that may assist the government or help the witness refresh their memory. Prepared witnesses, whether during an investigation or litigation, are more likely to be accurate and helpful, to the government and themselves.
Being caught off-guard and unprepared often causes people to make misstatements and be misunderstood. Many people accused of crimes are presented with a MOI of a seemingly harmless interview they gave to agents years before any charges were filed only to frustrated by the numerous inaccuracies and misunderstandings reflected within.
Occasionally, a properly advised individual may decide that the better course of action is to assert their 5th Amendment right to remain silent, so that their own words cannot be used against them. This is important because although what someone says can be used against someone in Court, it can rarely be used for them, because it is hearsay. Recall, Miranda warnings say “can and may be used against you,” not for you.
KNOW WHO’S LOOKING OUT FOR YOU
Deciding whether to talk to law enforcement or other investigators is a serious decision that requires sound legal advice by a lawyer representing the individual, not just their employer or a third-party. It is important that an individual meeting with a lawyer know who that attorney’s client is and who the lawyer’s duty of confidentiality is to and the attorney-client privilege protects. If one is not sure, it may be prudent to ask.
In corporate investigations, whether being conducted by government agencies, inside or outside counsel, companies sometimes provide outside attorneys for the employees so that they may have independent advice who are ethically bound to them, rather than the company. They may also have insurance policies that cover the costs of representation for certain current or former employees, officers, or directors. Even if they do not, it is important for individuals to make educated, informed, decisions about what to do; their future may depend on it.