Refusing to Speak With FBI Agents: What Happens.

In most cases, interviewing with the Federal Bureau of Investigation (FBI) is completely voluntary. If it isn’t, it is generally because a federal agent has presented legal process that requires participation. Unless you are required to do so by law or court order, you can politely but firmly decline the invitation to speak with the FBI. You do not need to explain your reasons for refusing to talk, nor do you need to be rude.

If you decide to respond to the agents’ questions, it is strongly recommended that you invoke your Fifth Amendment privilege against self-incrimination before the Agents attempt to question you. It is safer to raise your right to remain silent “before it is too late,” and this includes during pre-custodial questioning. As with all criminal defense matters, it is also critical that you consult with an experienced criminal defense attorney immediately.

2. Can I Refuse to Answer Questions to Avoid Liability Under 18 U.S.C. Section 1001?

Yes, that is one of the best reasons to decline to answer questions asked by the FBI. If you cannot be certain that you are telling the absolute truth in response to the Agents’ questions, you are better off not answering at all. This is because you can (and should) speak with an attorney privately about whether a statement is materially false.

18 U.S.C. Section 1001 covers any materially false or fraudulent statement made within federal jurisdiction. The United States Supreme Court has upheld the application of the federal false statement statute under circumstances including:

• False statements to FBI agents conducting a criminal investigation
• False statements to Secret Service agents
• False statements on a Department of Defense security questionnaire
• False statements to IRS agents

1. Should I Talk to the FBI Without a Lawyer Present?

You should strongly consider speaking with an experienced federal criminal defense attorney before speaking with the FBI. This is because there are several important factors that an attorney will be able to help you evaluate. The following factors are just some examples of factors that an attorney will be able to help you evaluate.

Although these are just some examples, they illustrate how critical it is to speak with an attorney before speaking with federal agents. With this in mind, keep in mind that there are several important factors you should evaluate before speaking with federal agents. In order to make an informed decision about whether to speak with federal agents, you need to know why it is usually (though not always) better not to speak with federal agents without speaking to an experienced federal criminal defense attorney first. The following reasons illustrate why you should consider speaking with an experienced federal criminal defense attorney before speaking with agents. Although you only need a single reason to make an informed decision, you should make sure you understand all reasons that might be involved in your case. The FBI agent may call you a “witness,” but don’t let that fool you into thinking that you are “safe.” The FBI Agent may call you a “witness,” but this does not guarantee immunity. Even if you are a witness to a federal crime, you can still be facing potential criminal liability. This is because you could have been involved in the commission of a federal crime, or you could be facing criminal liability for something else that the FBI Agent is unaware of. Also, even if you are innocent, any statements you make could be used against you if the FBI or the Justice Department can make a compelling case for guilt.

2. What Are the Risks of Speaking with the FBI Without a Lawyer Present?

The risks of speaking with the FBI without a lawyer present are substantial. The following is a non-exhaustive list of the risks involved:

• Your statements could be used against you if you are charged with a criminal offense.
• Truthful answers can establish elements of a federal offense.
• Your attorney can help you evaluate whether to respond to federal agent questions.
• Your attorney can help you avoid disclosing unnecessary information or information that could create civil liability.
• Your attorney can help ensure that your rights are protected.
• Your attorney will help you avoid giving false statements to federal agents, which can violate 18 U.S.C. Section 1001.
• Your attorney can identify federal agents’ deceptive practices and prevent them from misusing your statements.

You should assume that the FBI is using any statements you make to investigate you as a target in its investigation, regardless of whether you are a witness or suspect. Even if you think that you are innocent, it is still in your best interests to have experienced federal criminal defense counsel involved.

3. Do I Have a Sixth Amendment Right to Counsel Appointed for Me?

Generally, no. The Sixth Amendment applies when judicial proceedings have been formally initiated. While appointed counsel may be appointed for suspects who are eligible for appointed counsel after their arrest, the appointment of counsel for people who are not charged in federal court has recently been restricted. In fact, even if you qualify for appointed counsel, the appointment of counsel for uncharged subjects is limited. Generally, federal defenders are not appointed in uncharged, noncustodial federal law enforcement interviews. This means that you need to engage experienced federal criminal defense counsel directly, rather than waiting for federal authorities to appoint counsel for you.

As you will learn more about how the FBI investigates cases, you will learn that federal agents will summarize the information they have obtained from your interview on an FBI-302 form (or FD-302 form).

If you decide to be interviewed by the FBI or the U.S. Department of Justice without counsel, keep in mind that what you say could be misconstrued or misrepresented by the agents on their form. This creates additional and potentially dangerous risks for you, and another reason to have counsel present during your interview and to speak with your attorney before speaking with federal agents.

1. Do I Have to Answer the FBI Agent’s Questions If They Never Read Me My Miranda Rights?

The FBI agents’ obligation to read suspects their Miranda rights typically arises only in the context of a custodial interrogation. In other words, if you agree to a voluntary interview with the FBI, you are generally under no obligation to receive your Miranda warnings. But this does not mean that you cannot, or should not, seek to protect your Fifth Amendment privilege before the interview. In other words, it is not just because FBI Agents are not required to read you your Miranda warnings that you can still (and should) seek to protect your Fifth Amendment privilege before you agree to be interviewed by them.

As you will read below, the U.S. Supreme Court established that, in certain circumstances, silence can be used against an individual during a pre-custodial, voluntary interview. However, this is a limited scope, and the circumstances are unique. The Supreme Court held that silence in this case was admissible because the suspect never expressly invoked his Fifth Amendment privilege. This is because silence was induced by the government’s implicit or explicit promise of immunity. The case is a product of multiple cases, and thus you need to keep in mind that there are other implications that might also be true in your case. However, the following case has a direct effect:

Salinas v. Texas, 570 U.S. 178 (2013)

2. Can My Silence Be Used Against Me if I Have Not Been Read My Miranda Rights?

The Supreme Court’s decision in the Salinas v. Texas case left many implications open for further interpretation. And the case did not provide one single rationale that would protect everyone. The outcome of the case is that the court upheld the admission of pre-arrest silence. This is an example of a scenario in which pre-arrest silence can be used against a suspect. Lower courts in the United States have a different view of this, and some of the lower courts have also upheld that the silence can be used against a suspect in a pre-arrest situation.

So, while the court held that silence would be used against the suspect, this is not the only scenario where silence can be admissible. Some lower courts have held that silence may be admissible based on what the suspect said. In the context of an interrogation, the suspect’s silence can be used against them. This means that a person can invoke their privilege against self-incrimination if they choose. The subject can request to speak with their counsel or refuse to answer any question that has the risk of self-incrimination. Even if a person starts answering the FBI Agents’ questions, they can refuse to answer the FBI Agents’ questions later in the interview.

Doyle v. Ohio, 426 U.S. 610 (1976), is an example of a case in which the Supreme Court held that the prosecutor can use a defendant’s silence to impeach. However, the Fifth Amendment privilege against self-incrimination prohibits prosecutors from using the defendant’s silence to impute guilt.

If you have been accused of a crime or are under investigation by the Federal Bureau of Investigation, it is very important to have an experienced federal defense lawyer. Your lawyer can advise you on whether or to accept to talk to the FBI, and what rights you need to invoke during the interview.

Additionally, DOJ Policy 2014 presumes that post-arrest custodial interviews of subjects in places of detention must be recorded. The presumption applies regardless of whether the individual has legal counsel present, subject to the limited exceptions set out in the policy. When you have an experienced lawyer present, your lawyer can ensure that this is also the case.

Is lying to an FBI agent a federal crime?

1. Does an FBI Agent have to Read me My Rights (Miranda) Before They Question Me?

If you are being questioned voluntarily, FBI agents are not generally required to read you your Miranda rights. However, if you are being interrogated while in custody, the FBI agents will be required to read you your rights. The Fifth Amendment privilege against self-incrimination prohibits the prosecution from using your silence against you during your criminal case. While a suspect is required to waive their privilege against self-incrimination to be able to use their silence during a trial, there are exceptions in some cases. One is when the silence was a result of an implicit or explicit promise of immunity.

The U.S. Supreme Court has issued a ruling in Salinas v. Texas in which they held that pre-arrest silence could be used as evidence. This case didn’t establish a single rationale that would be applicable to all criminal cases, and there are different views in various lower courts. Many lawyers have raised the issue of admitting pre-arrest silence as well as their impacts on the case. They argue that this can hinder a defendant’s privilege to remain silent. The Supreme Court’s decision in Salinas v. Texas shows that silence could be admissible during a trial, especially when it doesn’t make it apparent that the defendant wanted to exercise their Fifth Amendment privilege.

Although silence can be admissible in some cases, Doyle v. Ohio, 426 U.S. 610 (1976), is a case in which the Supreme Court stated that the prosecutor cannot impute guilt to defendants for their silence. Thus, prosecutors may not use a suspect’s silence that follows Miranda warnings to impeach the suspect in court.

2. Can I Refuse to Talk to FBI Agents if They Come to My Workplace or Home?

Yes, if you are not detained or under custodial interrogation, you can always refuse to answer questions to federal agents. This includes FBI Agents. Although, if a person is not detained, he/she can refuse all questions from the law enforcement. This is true, even if the person believes that they could be accused of some criminal offense. A person can politely refuse to answer any questions, and he/she does not need to provide the Agents with any explanation as to why he/she is refusing to answer.

If you decide to speak with federal agents, it is critical to have an experienced criminal defense lawyer on your side. They will be able to help you with avoiding questions that can potentially be interpreted in a way that is contrary to your case, while helping you to respond to any that are important in your case. Furthermore, the FBI Agent will need to know that they must not pressure you into providing false statements or documents that will not be to the advantage of the investigation and the case.

Your lawyer can also ensure that all procedures are correctly followed by the law enforcement personnel. The DOJ’s 2014 policy creates a presumption that custodial interviews of persons in FBI, DEA, ATF, or USMS custody, conducted after arrest but before initial appearance in a place of detention with suitable recording equipment, will be electronically recorded, subject to certain exceptions. If you are being questioned, having your lawyer present will help you make the right decisions and you will feel more comfortable.

3. Is Lying to the FBI a Federal Crime?

Yes. Giving materially false information to federal law enforcement officers is a federal crime. As mentioned above, 18 U.S.C. Section 1001 prohibits the falsification of information to the federal government, and FBI Agents have the authority to use this statute. Even if a statement you make is not signed or not written under oath, it still constitutes a violation of the law. In fact, giving a materially false statement through any form of written or oral communication can constitute a violation of the law. The issue here is about intentionality. If a person knowingly tells a lie, then he/she is liable under Section 1001. If the information the person is giving is wrong, then the person cannot be found guilty of falsifying documents. However, if the person is knowingly misrepresenting information that is within federal jurisdiction or with the intention of providing information which he/she knows to be false, then, in this case, the person will be held liable under Section 1001.

This means you can be found guilty of this crime even if you provided a truthful answer to the federal agents, but it was a “materially false or fraudulent representation.” An answer can be “materially false” as long as it has the capacity to influence the course of an official FBI investigation. It does not matter if the agent is unaware of the material falsity of a statement. All you need is for the person to have the intent to provide a materially false statement.

While the maximum penalty for a Section 1001 conviction is usually up to five years of imprisonment, this is not the only penalty that is possible for this crime. The penalties include various other punishment depending on the situation. Some examples of Section 1001 convictions are:

• Brogan v. United States, 522 U.S. 393 (1998).
• United States v. Gaudin, 515 U.S. 528 (1995).

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

1. What Happens After I Refuse to Talk to FBI Agents?

What happens after you decline to speak with FBI Agents depends on what they are trying to achieve. The interview with the FBI could be a response to a “target letter” from the U.S. Department of Justice, and it is probable that the Agents will call or email you again in the future. In fact, the Agents may call or email you with the same request to speak with you, or they may provide you with an updated request to speak with you.

The FBI Agent may be trying to convince you to talk by calling you a “witness.” However, if you make that mistake, you are at risk. With a lawyer, you can make the right decisions about whether to talk with the FBI Agent and what kind of information is useful for the FBI Agent during the case. FBI Agents can also contact your employer, neighbors, relatives, or landlord. You should be very careful not to divulge information that is harmful to you.

FBI Agents can also look into issuing search warrants. This is because they want to find all the available evidence and information about you or the case. If the FBI Agent sees any suspicious details or behavior that might imply that the person is concealing something or is willing to speak, they will continue looking for a way to approach. However, in any case, FBI Agents’ attempts to enter the premises are limited by the legal requirements. Your criminal defense lawyer will evaluate the request and make sure that it was based on lawful grounds.

Prosecutors can issue a target letter or subpoena. If this happened, this means that you can no longer simply say no to their questions. In the case of a target letter, they would need to provide you with all the documentation they have. For a grand jury subpoena, your lawyer will provide the response. He/She can help you gather documents, information, and evidence while protecting you from any risks that you have to face.

According to 18 U.S.C. Section 3282(a), for non-capital federal offenses, indictments should be filed within five years. This gives your lawyer enough time to talk to investigators and find the best approach.

The decision to not speak with federal agents can sometimes change after some time. If you decide to speak with federal agents, it will be based on your lawyer’s assessment of the risks involved.

A federal grand jury subpoena is a compulsory request. This means that you have to comply with the request. This is not like requesting an interview.

1. Do I Have to Let FBI Agents into My Home or Search My Phone?

The FBI Agent cannot enter your home or search your belongings without your consent unless a legal warrant is presented. If you decline their request to enter your home or search your belongings without a warrant, it is not unusual for the FBI Agent to say that you are suspicious or to try to make you feel comfortable, so you let them in without questioning them. However, this is a common tactic that federal agents use to get around the requirements. If you have the same idea and think it may be a good idea to have an experienced criminal defense lawyer involved in the case, it is recommended that you consult with your attorney before providing your information.

A search warrant or arrest warrant doesn’t limit your rights to remain silent, even if you agree to talk to the Agents. If a warrant is being presented, you need to make sure that you have a lawyer involved in the case. As soon as FBI agents present the warrant, they are required to search for everything stated in the search warrant. If you allow them access to your home without a search warrant, this means you can refuse the search or arrest if you can’t find the evidence. So, you don’t have to allow them access if you think you have nothing to provide to them.

If you need an attorney’s help, you can simply ask the FBI Agent to wait for your attorney to show up. Once your attorney has arrived, he/she will ensure that FBI agents correctly process your warrants.

2. Do I Have to Open Up My Phone or Give My Passcode or Fingerprint or Face ID?

The answer to this question depends on whether you are able to open your phone or if the FBI Agent has a search warrant. There are different points of view on this issue, and the results depend on the case. A recent decision by a lower court of appeal has implied that unlocking a phone with a biometric device, like a finger scan or Face ID, is not considered testimonial in nature and as a result, it can be compelled by law enforcement. However, this issue has not been definitively resolved yet.

If you need to provide a passcode that you have memorized, then this is considered testimonial. The Fifth Amendment prevents prosecutors and police from compelling a defendant to answer incriminating questions or to reveal information that they know by heart. As a result, an FBI Agent’s warrant to search your device cannot always compel you to unlock your device.

It is important to understand the limits of the warrant. If the FBI Agent’s warrant states that he/she needs to enter your home and look for illegal drugs or weapons, then they cannot look for items related to some other crimes. If FBI Agents exceed their authority and conduct an unlawful search, they can be reported to their superiors, and the evidence gathered from the search may be inadmissible.

1. Can I Delete Texts and Other Documents After FBI Agents Leave?

If you just found out that your FBI investigation involves you, it’s natural that you may think about destroying or deleting potentially incriminating evidence. However, doing so can lead to additional criminal charges for obstruction of justice. If you need a legal strategy for the case, delete all unnecessary documents through a lawyer; otherwise, FBI Agents can ask you to open the electronic evidence and see what you had on the phone or you can have the problem of having deleted material after the Agents had left your house. FBI Agents’ interviews and subsequent reporting will not stop if you had a criminal record. The most probable reason is that your records might be useful.

2. What are the Consequences of Obstructing Justice in Federal Criminal Cases?

There are various forms of obstruction of justice in federal criminal cases. The most common are those under 18 U.S.C. Sections 1519, 1512(c)(1), 1512(b), and 1503. A federal law enforcement agent is not required to inform you about these statutes. Thus, the legal advice you receive from an attorney will be critical. In fact, the first step for protecting your legal interests should be for your attorney to check the possibility of a subpoena from the FBI.

The information you learn in these statutes will help you understand why you should speak to an experienced lawyer after your talk with the FBI.

3. How Do These Statutes Work?

There are a few different forms of obstruction of justice under these statutes. U.S.C. Section 1519 applies when the individual knowingly alters, destroys, conceals, or falsifies records, documents, or other tangibles with the intent to impede, obstruct, or influence a federal investigation or proceeding. 18 U.S.C. Section 1512(c)(1) applies when an individual destroys documents to commit the obstruction. For example, when a person destroys evidence of an ongoing or planned federal proceeding. Also, U.S.C. Section 1512(b) applies to criminal attempts to influence a witness. Lastly, U.S.C. Section 1503 applies to corrupt activities such as influencing a juror, a federal official, or a judicial proceeding.

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.