Counsel Before Contact: Why It Matters With Federal Agents.

It is not unusual for individuals to decline to speak with the FBI (or any federal agents) until they have had the opportunity to consult with counsel. Although federal agents can (and will) compel testimony in some situations, the Fifth Amendment generally protects against compelled self-incrimination. Even if you are compelled to appear at a grand jury proceeding, there are protections against compelled self-incrimination.

Also, federal agents will often approach individuals with questions after they have already collected some evidence. This could include financial records, digital evidence (such as emails, texts, and social media), and/or evidence from witness interviews. With this, they often have what they believe is sufficient to file federal charges, but need just a little more. If you are not advised by counsel, your answers may inadvertently be admissions supporting federal charges. Also, if you answer, but cannot fully remember the truth of something, then prosecutors can argue that you lied to federal agents.

When the FBI or another federal agency approaches you, you could be considered a witness, a subject, or a target of a federal criminal investigation. Agents generally do not have to disclose your status, and agents will not, if they can avoid it. If you ask, the agents may say that you are a witness. This means that they are interested in your knowledge, but not necessarily interested in charging you. If you are a subject of a federal investigation, then you are someone whom the agents believe may have committed a federal criminal offense. If you are a target, then you are someone whom the prosecutors consider to be a likely defendant, which generally means that the prosecutors already have substantial evidence linking you to a federal offense.

What Should I Do When Federal Agents First Contact Me?

While many people think that agents need to read their Miranda rights before questioning them, that statement is only true for custodial questioning (i.e., questioning while someone is in the agency’s custody). In other words, if an agent approaches someone at their home, workplace, or any other location, the agent generally does not need to provide any statements because the agent is not in a custody situation.

If you are approached by agents, you should immediately ask for a lawyer. Requesting a lawyer does not equate to admitting to criminal wrongdoing. Once you (or your lawyer) let the agents know that you will not answer any questions without your lawyer present, the agents should stop questioning you and respect your request.

If you are in an interview with agents, you may ask if you can leave. Unless there is a warrant in hand (or the agents believe that you have committed an offense and just want to speak with you), they generally have to let you leave. You should also ask the agent’s name and agency. You should also ask for the agent’s badge and for a business card. If you have your lawyer’s contact information, you should also provide this information to the agent. If you do not have your lawyer’s contact information, you should tell the agent that you will call your lawyer and let them know your information.

If the agents do not have a warrant, but rather, they have just arrived to speak with you, then the invitation is voluntary and they do not have the right to enter your home or workplace. If you see the agents outside of your home or workplace, then you should not even let them in. This is because interviews conducted by agents outside of your home or workplace are generally voluntary, unless they are backed by some form of compulsory legal process. The FBI will often contact other people (relatives, coworkers, and potential witnesses) during their federal criminal investigation. They may contact your boss or your spouse as well. In most cases, these contacts will occur months before you are ever approached by a federal agent. The federal agent’s investigation will provide information about you and information about others who may be involved in the federal offense that triggers a federal investigation.

What Kind of Federal Document Did Agents Give Me?

The federal document you are handed can mean a lot of things. To name some examples:

A Federal Subpoena

A federal subpoena should not be ignored and requires a response. If you ignore a federal subpoena, then it is likely that you will be accused of obstruction of justice. A subpoena allows federal prosecutors and agents to gather information about you. A subpoena may also be given to others, including third parties, to gather information about you. With this, the information can be used against you in any future criminal case.

An Arrest Warrant

An arrest warrant is used to take someone into custody. If the agents are in your home or workplace, then an arrest warrant means that they have the legal right to arrest you on the spot.

A Search Warrant

A search warrant is a federal court order allowing federal agents to search for and seize evidence in a federal investigation. A search warrant must identify where the agents have permission to search and what they are allowed to seize.

A Summons

A summons is a court order to appear before a federal judge. A summons does not authorize federal agents to take someone into custody.

A Target Letter

A target letter is an informal notice that you are a target of a federal investigation. A target letter does not require any response, unless it accompanies a subpoena, which requires a response.

A Document Subpoena

A document subpoena requires the recipient to produce certain documents, electronic files, or other materials by the stated deadline. If the deadline cannot be met, the recipient must contact the issuing federal authority.

A Grand Jury Subpoena

A grand jury subpoena requires the recipient to testify before a federal grand jury, provide certain documents or other records, or both. While the government does not have to state why they issued a grand jury subpoena, the government must provide information regarding the identity of the person or entity that issued the grand jury subpoena.

If you received a subpoena, you have to be careful. However, before providing the requested information or appearing at the grand jury proceeding, you may have grounds to object to the subpoena. In addition, you could work with federal prosecutors or agents to negotiate the scope of the subpoena. In certain situations, you may be entitled to seek quashing the subpoena.

What Should I Do While Agents Execute a Search Warrant?

If federal agents approach you, you do not have to consent to a search. If you have a lawyer, you should call your lawyer before letting agents search your home, vehicle, office, or any other place you have a right to protect from others. You should not consent to a search unless your lawyer has given you specific instructions to do so.

If federal agents enter a location they have a warrant for, they must leave a copy of the search warrant as well as a receipt for any items they seize. This is required by Federal Rule of Criminal Procedure 41(f). Federal Rule of Criminal Procedure 41(f) mandates this practice.

If you are the owner or occupant of a location being searched, you may identify documents or other evidence that you believe to be privileged. For example, this could include:

• Your attorney’s correspondence
• Your attorney’s correspondence with third parties (including your spouse)
• Your correspondence with your attorney
• Your correspondence with third parties that are privileged under the attorney-client privilege

When federal agents enter a location, they will ask the owner or occupant to open certain files and other items for their inspection. If you point out any items you believe to be protected under a recognized privilege, you should be careful about obstructing agents. While this is important, you do not want to be accused of obstructing the search. Instead of physically blocking agents, you can write down your objection to the search of certain items and give the note to the agent. This allows you to preserve your objection for later, without risking an accusation of obstruction of justice.

Even if federal agents have search warrants, you do not have to consent to the search. Consenting can be risky. While you cannot stop the search, consenting to the search can give agents access to evidence outside the scope of the warrant.

Agents may ask you for a password to a laptop or computer or any other device. This triggers the Fifth Amendment’s act-of-production doctrine. When asked, you should consult your lawyer. A federal attorney can advise you about what you need to do and what you must be careful about.

Agents may also ask you to unlock your devices using a thumbprint or other facial recognition features. This involves different legal issues and does not necessarily trigger the act-of-production doctrine. Again, consult your lawyer before deciding whether to comply with a request to unlock your device.

Declining consent to a search is not the same as obstructing the execution of a search warrant. If agents have a warrant, they can search without your consent. However, you should not be obstructive. If you are unsure of what you can and cannot do, you should call your lawyer immediately.

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

How Can an Interview Create a Federal False-Statement Charge?

The federal false-statement statute, 18 U.S.C. § 1001, prohibits making statements about a “material” matter to a federal agency or “to any department or agency of the United States” that is known to be “false, fictitious, or fraudulent.” A false-statement charge can arise out of your answers to an agent’s questions, regardless of whether you have admitted any criminal wrongdoing. It can also arise if you answered one of the agent’s questions correctly but you answered another of the agent’s questions incorrectly.

Under Section 1001, you can be accused of making a false statement, even if the statement was not made under oath. A prosecutor does not have to prove that you knew you were under oath. In other words, if you answered the agent’s questions, but some of your answers were false or fictitious, then you could still be in trouble.

The phrase “material” is key to Section 1001. Generally, in other words, “material” means that the false statement has the potential to influence the agency’s determination. For example, if you say, “I’ve never been in Texas before,” but the agent has a record of a flight to Dallas or Austin, then the statement is material because it could influence the agent’s determination.

Section 1001 does not require a formal charge related to the underlying conduct for which you are being questioned. If you are being questioned about your involvement in a drug deal, but the prosecutor cannot prove that you committed a drug crime, the prosecutor can still bring a Section 1001 charge against you for lying to the agents.

There are many ways to be charged with making a false statement to federal agents. For example, if you say, “I cannot remember where I was on Friday evening,” but the agents have records of your flights or transactions, this could trigger a federal false-statement charge.

Agents will often ask ambiguous questions as well. For example, agents might ask, “Did you receive any other payments from someone in Germany?” or “Did you do any of this work during the week you were on a trip to France?” These are questions to which you could answer either, “No” or, “I think so.” The ambiguous nature of the question may allow you to preserve your right against self-incrimination, while providing a good defense against any possible Section 1001 charge. A good defense is to say that the question was ambiguous and that the answer could not be interpreted to be knowingly false or willful.

Prosecution under Section 1001 requires showing that the person knowingly and willfully made a false statement. It also requires showing that the person made the statement in relation to a matter within the jurisdiction of the executive, judicial, or legislative branch of the federal government.

What If I Already Spoke to Federal Agents?

Did Agents Create a Form FD-302?

When FBI agents question individuals, they frequently memorialize the interview in a Form FD-302. The Form FD-302 is used for summarizing the content of interviews, rather than transcribing the conversations word for word. Individuals who are interviewed are not usually given an opportunity to review or sign these summaries.

Was My Interview Audio- or Video-Recorded?

Depending on the case and the policies in place at the specific FBI office, some interviews may be recorded via audio and video. However, not all interviews are recorded.

Should I Delete Relevant Emails, Texts, and Documents?

If the government is investigating you, you should not delete any relevant emails, text messages, documents, or other files. Deleting information, as a result, may lead to allegations of obstruction of justice. Even if you think the information is irrelevant or would not be admissible in a trial, you should still preserve the information.

When Will Your Lawyer Analyze Your Answers to Federal Agents’ Questions?

If federal agents already interviewed you, you must work with a lawyer to determine whether the agents’ questioning was voluntary or not. Your lawyer will analyze the responses you gave to see if you admitted to any criminal activity. Your lawyer will also check whether any of your answers were ambiguous and whether the agents may attempt to charge you under the federal false-statement statute. A good federal defense team will then develop a strategy based on these factors.

Can I Try to Correct Prior Statements?

If you have any concerns about an interview with federal agents, you should not contact the agents to try to correct prior statements unless your lawyer has advised you to do so. Correcting statements after the fact is not necessarily the best option. If you committed a federal offense, then correcting it can no longer erase your offense. Admitting to a federal offense can provide the government with the confession they need.

How Do Agents Document Interviews?

Agents generally document interviews using Form FD-302 summaries. If the agents do not record the interview with video or audio, these summaries may be the only documentation available. These summaries include the questions the agents asked, documents they displayed (if any), and the individual’s responses.

Can Cooperating with Federal Agents Ever Help My Case?

In many cases, collaborating with federal agents and prosecutors is better than remaining silent. Working with your lawyer to determine the best approach is key. Here are some examples of how our lawyers can talk to agents and prosecutors on your behalf:

Use Your Lawyer to Communicate with Federal Agents and Prosecutors

We can speak with federal agents and prosecutors on your behalf. We can call the agents to find out what information they have and if you are a witness, subject, or target. From this, we can speak with the prosecutors to determine if a proffer is necessary.

Determine Whether Remaining Silent, Cooperating, or Offering a Proffer Is Your Best Option

After gathering all the information we can, we can then give you specific advice about your next steps. Sometimes, it is in your best interest to remain silent. Sometimes, it can be helpful to cooperate with federal agents and prosecutors. And in some cases, it can be necessary to offer a proffer. Our lawyers can explain why they suggest one of these options rather than others.

Use a Proffer Agreement to Protect Yourself

When it comes to proffer agreements, it is important to keep in mind that there are different types of protections. You can agree to cooperate under the conditions that the evidence will be used in a limited capacity, as a last resort, or not used at all. The protections available under the specific proffer agreement will depend on the circumstances at hand, and we will work with federal prosecutors to negotiate a customized agreement for you.

Use a Statutory Immunity Order

Another example of immunity is a statutory immunity order issued under 18 U.S.C. §§ 6002-6003. However, like other immunity grants, immunity under these sections is not a guarantee that the government will not prosecute you. Instead, it means that your immunized testimony cannot be used against you. Prosecutors can still proceed with your prosecution if they have enough other evidence from an independent source. If a defendant is convicted after receiving immunized testimony, the government will have to prove that their evidence comes from an independent source based on the Supreme Court’s decision in Kastigar v. Department of Justice.

Seek a Queen-for-a-Day Letter

Often referred to as “Queen-for-a-Day letters,” these are informal proffer agreements. They do not grant blanket immunity. Instead, they give you the option to provide information to the government, and we can negotiate for various use protections as well.

Have Your Lawyer Manage Cooperation

If you agree to cooperate, you must make sure you do so through your lawyer. We will help you decide what information you need to share and what information is not necessary or could hurt your case.

Make an Early Defense Presentation

In some cases, an early defense presentation may reduce your exposure. Our lawyers can determine if you should engage with agents and prosecutors right away. While this does not control whether prosecutors proceed with your case, it can influence their charging decisions.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.