Talking to Agents Alone: How It Goes Wrong.

Why Do Federal Agents Conduct Interviews?

Federal agents conduct interviews to gather evidence in federal investigations. An interview, whether voluntary or non-voluntary, may be the first step in building a federal criminal case. The evidence gathered during an interview will be carefully scrutinized and used for building cases if appropriate.

Can I Decline a Voluntary Interview with the FBI?

Yes, you can decline a voluntary FBI interview, regardless of where it is conducted. Whether FBI agents visit your home, your workplace, or ask you to meet at a federal agent’s office, if the agent is asking you to talk to them on a voluntary basis, you have a right to decline the interview. You can also insist on having an attorney present during voluntary federal interviews.

What Happens If I Give a Statement During a Voluntary Federal Interview?

If you give a statement during a voluntary federal interview, your statement can be used in court against you. In most cases, your statement can be used without the agents providing you with Miranda warnings. In fact, there is no legal requirement for federal agents to provide Miranda warnings in voluntary, non-custodial interviews.

Can a Voluntary Federal Interview Result in Criminal Charges?

Yes, a voluntary federal interview can result in criminal charges. If you make a materially false statement to federal agents during a voluntary interview, you can be charged with a crime under 18 U.S.C. § 1001. Making a false statement to federal agents, even if unintentional, can result in criminal prosecution with imprisonment and substantial fines.

Do Federal Agents Use Classifications When Conducting Interviews?

Federal agents typically use the following three classifications to identify the level of involvement in an investigation:

• Witness: A witness is someone who has information, knowledge, or insight that may be relevant to the federal government’s investigation. This generally does not imply that the witness is suspected or accused of any crime.
• Subject: A subject is someone whose conduct falls within the scope of the federal government’s investigation. The federal agents do not yet have enough evidence to formally charge the subject.
• Target: A target is someone whom federal agents have substantial evidence that has committed a crime and are actively seeking to bring charges against.

The classification of the interviewee is used to help federal agents focus on the correct suspects. The distinction between being a witness, subject, or target is often not disclosed to the interviewee. Agents are generally not required to tell you your status in a voluntary interview, and that status can change as the investigation develops.

Do I Have to Answer Federal Agents’ Questions?

Uninvoked Prearrest Silence

The fact that your silence prior to being arrested is not being explicitly linked to the U.S. Constitution in the same manner as post-arrest silence is a nuance that may seem minor. However, it is a nuance that means that you should not rely on the right to silence without clearly invoking it.

The Sixth Amendment’s Right to Counsel

Similar to the Miranda rights, the Sixth Amendment provides for a right to counsel that may not apply in every encounter. The Sixth Amendment only comes into play once a target of the investigation has been charged. In other words, the right to counsel under the Sixth Amendment only comes into play once adversarial judicial proceedings have begun against you, by indictment, information, formal charge, preliminary hearing, or arraignment.

Miranda Warnings and Custodial Interrogations

Likewise, Miranda warnings are only required during a custodial interrogation and not during every encounter between suspects and law enforcement.

The Definition of “Custody”

Custody is defined based on whether a reasonable person in the suspect’s position would feel restrained to the degree of not being free to leave. Here too, the suspect must be questioned for these Miranda rights to apply. You can ask the federal agent “Am I free to leave?” to find out whether you are considered to be in custody.

Voluntary Noncustodial Interviews

In voluntary, noncustodial interviews, federal law enforcement agents ordinarily need not stop questioning the suspect when the suspect makes a request for legal counsel. In these scenarios, law enforcement agents are not required to stop the interrogation just because the suspect has asked to speak to an attorney.

Ending a Voluntary Interview

If you are a free person, you can end a voluntary interview with federal agents and leave the premises.

The Rules for Mandatory Cessation

There are mandatory cessation rules that stop federal law enforcement from continuing questioning and interviewing after a suspect tells them, “I want my lawyer!” However, there must be three specific conditions for these rules to apply:

1. the suspect must be in custody,

2. the suspect must be being questioned during a custodial interrogation, and

3. the suspect must have clearly invoked his right to legal counsel.

If any of these three conditions are not present, the mandatory cessation rules will not apply, and agents will be able to continue with the interrogation.

Can an Innocent Mistake Become a Federal False Statement?

What Does it Take to Convict Someone of a Federal False Statement?

Under 18 U.S.C. Section 1001, the government must prove four things: that the statement was false, that it was material, that it was made knowingly and willfully, and that it concerned a matter within the jurisdiction of a federal department or agency. Proving that a statement was knowing and willful is not enough on its own to secure a conviction. Federal agents strive to prove a person made a knowingly and willful false statement, and they know that anyone answering their questions without a lawyer’s presence can be lured into doing so.

When Can Someone Be Charged with a Federal False Statement?

Yes, a federal false-statement charge can be brought against an individual before any arrest occurs, and it can be brought regardless of whether the individual has been charged with any other crime.

Can Federal Agents Deceive You During a Lawful Interview?

Yes, federal agents can use deceptive tactics during a lawful interview. But, as noted above, it is still a crime to lie back.

Is it Legal to Lie Back?

No, it is still a crime to lie back to federal agents, regardless of the deception used by the agent.

There is no exception for this. An agent's use of deception does not create a defense to a false statement charge, and it never makes it lawful to lie back. This is still far from saying that it’s okay to lie back to federal agents during lawful interviews.

What Happens if you Remember Something Wrong?

The most common mistake is misremembering or forgetting something about a specific date, time, location, or communication. For example, you might give the wrong date, remember a meeting that never happened, or not remember an email or text message you sent to a co-worker, associate, or client.

Can a Memory Mistake Serve as the Basis for a Federal False Statement Charge?

The difficulty here is that federal agents may have evidence of a digital record of the email, phone call, bank deposit, credit card statement, or flight log that proves you are wrong. If this digital record shows that you are in the wrong place or committed another offense, this evidence of an offense will be added to the evidence of a false statement. The outcome: prosecutors will attempt to prove that your misremembered timeline was actually a false statement that you made knowingly and willfully.

Does an Accidental Memory Slip Equate to a Section 1001 Felony?

Not every accidental memory slip makes a Section 1001 felony. The federal government must still prove that the false statement was both knowing and willful. This is why, when facing federal charges under Section 1001, it is absolutely crucial to work with experienced defense counsel.

Can an Omission Be the Basis for a Section 1001 Charge?

Section 1001 also allows for prosecution for omissions. The government must prove that the omission in question meets the threshold of qualifying concealment. Simply failing to mention something is not the same as qualifying concealment.

What Changes if Federal Agents Have a Warrant?

Does a Search Warrant Mean the Agents Can Search Anywhere?

No, a search warrant allows federal law enforcement agents to search for a specific item in a specific location. While some aspects of the warrant may be slightly vague, a judge signed off on the search warrant after ensuring that the federal agents had probable cause to conduct the search. It is illegal for agents to step outside the scope of the search warrant. If you think federal agents are stepping outside the scope of the search warrant, it is important to not try and fight with the agent on the spot, but to instead allow your lawyer to resolve this for you in court.

Does a Search Warrant Allow the Federal Agent to Ask You Questions?

A search warrant allows the federal agent to enter a location, search for a specific item, and arrest if the warrant allows. The search warrant does not allow them to ask you questions; you have the right to remain silent.

What if I Don’t Consent to a Search under a Warrant?

If the agent has a valid search warrant, refusing to let the agent in could result in you facing charges of obstructing justice, or resisting arrest if the warrant also allows the agent to make an arrest. If you have been lawfully detained or arrested, this means you have a duty to obey physical commands and refrain from physically obstructing the agents.

Do I Have to Answer All Questions If I Am Lawfully Detained or Arrested?

No, you do not have to answer any questions. Even when in custody, you have the right to remain silent.

Do I Have to Consent to a Search if There Is a Search Warrant?

No, you do not need to consent to a search if the agents have a search warrant.

Do I Have to Help Agents Search When There is a Warrant?

Normally, no. However, there may be circumstances when you would need to help agents with a search. For example, if the agents need to open a safe or a locked drawer.

When Do Federal Agents Need Consent to Search?

If federal agents are without a warrant, they generally need the consent of a private individual to search the individual’s home, workplace, or other private premises. This means that if the agent doesn’t have a warrant, he or she must ask you to come in, search the premises, and potentially ask you questions. Again, you have the right to refuse the invitation.

Todd Spodek is the managing partner of Spodek Law Group, a second generation criminal defense firm that has been practicing since 1976.

What Does a Lawyer Change During a Federal Interview?

What Does a Lawyer Do During a Voluntary Interview with Federal Law Enforcement Agents?

A lawyer has several duties during a voluntary federal interview, not all of which involve taking notes:

1. to take independent notes of the interview, to ensure there is no misunderstanding of the agent’s questioning and to provide a separate record of the interview,

2. to object when questions become too intrusive or legally dangerous, to the extent possible, and

3. to instruct you to keep silent when necessary.

Does Hiring Counsel Mean That You Refuse to Cooperate with the Federal Government’s Investigation?

No, hiring counsel does not necessarily mean that you refuse to cooperate with the federal government’s investigation. By hiring counsel, you are ensuring that you have legal representation during the process, which can actually facilitate cooperation. Your counsel can communicate with agents on your behalf to establish the parameters of the interview, find out whether you are a witness, subject, or target, and determine whether the interview will help or hurt your chances of avoiding federal charges.

Can Counsel Directly Contact Federal Agents?

Yes, your counsel can directly contact federal agents to discuss the details of the investigation, clarify your status as a witness, subject, or target, and potentially negotiate the terms of your interview with the federal agents.

Does a Lawyer’s Attendance Make Your Statements to Agents Attorney-Client Privileged?

The privilege between an attorney and their client is a powerful tool in the U.S. legal system. However, this privilege only applies when you share sensitive information with your attorney. If you share this information in front of federal agents, the attorney-client privilege cannot protect you from facing federal charges. The presence of an attorney during a voluntary federal interview does not prevent the government from using the evidence gathered in the interview. If you tell the federal agents, “I know I committed the crime,” it will still be admissible evidence.

Does Presence of Counsel Prevent Your Answers to Agents from Being Used in Court?

No, as stated above, if you answer questions during an interview with federal agents, your answers can still be used in court. While the presence of counsel may discourage the agents from pursuing the federal case, it does not mean that federal prosecution is completely off the table. However, having your lawyer present during the interview ensures that your rights are protected, and your lawyer can provide guidance on when it may be prudent to invoke your right to remain silent.

Is a Federal Proffer Session Really Off the Record?

What is a Proffer Agreement?

If federal agents are asking you to provide information, our lawyers can reach out to federal agents to negotiate a proffer agreement or, if warranted, immunity discussions. A proffer agreement is a formal written agreement that structures the terms under which you, as a potential witness or subject in a federal case, will voluntarily provide information to prosecutors.

Does a Proffer Agreement Grant Immunity?

A proffer agreement is not the same as immunity. For a proffer agreement to grant immunity, this provision must be specifically outlined in the terms of the agreement. If not, the proffer agreement will provide only a limited scope of protection.

What Protections Does a Proffer Agreement Provide?

The protections provided by a proffer agreement depend entirely on its specific written terms.

For example, “off the record” proffer agreements are virtually unheard of in federal practice. In federal practice, a proffer agreement usually is based on a specific set of terms negotiated and approved by prosecutors. A common provision in proffer agreements is that federal prosecutors can use inconsistent statements made by a source to impeach the source.

What Is a Limited-Use Proffer?

A limited-use proffer is a type of proffer agreement that allows federal prosecutors to use information revealed by a source for derivative investigative pursuits. When facing federal charges under Section 1001, it is imperative to consult with a lawyer to understand the scope of protections provided by a proffer agreement, if any, and if you will need to negotiate for the same or greater protection.

Is There a Difference Between Compelled Testimony and Voluntary Questioning?

Yes, there are notable differences between compelled testimony given in response to subpoenas and voluntary questioning by federal agents, even when the latter is structured via a proffer agreement.

Can Defense Counsel Attend Grand Jury Proceedings?

No, Federal Rule of Criminal Procedure 6(d) prohibits defense counsel from attending grand jury proceedings. The purpose of this rule is to discourage witnesses from withholding information based on advice from legal counsel. This is yet another reason why working with defense counsel before attending a grand jury proceeding is critical. Without guidance and understanding of the legal risks involved, your answers in a grand jury proceeding may potentially be used against you.

What Should I Do After I’ve Already Answered Questions?

Can I Just Take Back What I Said if I Made a Mistake?

Unfortunately, 18 U.S.C. Section 1001 contains no general recantation safe harbor. As a result, correcting your answers in a second interview with federal agents may be just as dangerous as providing inaccurate answers during the first interview. There are countless scenarios that can lead to more issues, and we can help you avoid these mistakes.

Should I Try to Reach Out to Federal Agents After Speaking to Them?

After speaking with federal agents, any further contact should be handled exclusively through your attorney. Do not try to reach out to agents on your own, as they may use your efforts to gain further information or find more grounds to prosecute.

What else Should I Do After Talking to Federal Agents?

Besides allowing your attorney to handle any further communication, there are several important steps that you should take if federal agents visit your home, office, or contact you by phone or email.

1. Preservation of Evidence

If you have already had any contact with federal agents, you must prioritize preserving all relevant records. This includes not only documents you previously gave federal agents (or that agents seized from your home, office, or devices), but it also includes not deleting any text messages, emails, or browser history that may be relevant to the investigation. Additionally, you should make efforts to preserve all device data from your phones, computers, laptops, tablets, and other hardware.

2. Avoid Contact with Potential Witnesses

Another crucial mistake to avoid is attempting to “coordinate” your story with any other potential witnesses who may be contacted by federal agents. Even if you have no intention of lying or creating any fraudulent record, any such contact could be seen as an effort to obstruct justice or tamper with witnesses. If federal agents find out that you are talking to potential witnesses, they could potentially view it as evidence of guilt.

3. Documenting Your Meeting with Federal Agents

If you are still thinking clearly, try to document any pertinent details you recall about your interaction with federal law enforcement. Include:

• The name(s) and agency of the agent(s) you met with
• Any identifying information about federal agents (e.g. a photograph, description of federal agent’s vehicle, badges)
• What the agents asked you and what information you provided in response
• Any statements federal agents made to you
• What took place and what did not take place.

4. Verifying Agent Identities

If federal agents reach out to you by phone, email, or even show up at your home or office without prior notice, it is imperative that you verify the identity of the individual or group. While law enforcement agents do not necessarily have to identify themselves in a way that confirms their true identity, it is worth doing whatever you can to ensure you are dealing with a real federal agent and not an imposter.

5. Preparing Yourself to Talk with Counsel

When you first meet with your defense attorney, you should have copies of any prior statements, subpoenas, search warrants, and relevant documents and other records available. If you can recall any details about your encounter(s) with federal agents, have this information available as well. The more information your attorney has, the better they can help you avoid unnecessary consequences in the federal investigation.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.