The FBI Asked for an Interview: How to Respond.

1. Do Not Volunteer Information

If an FBI agent reaches out to you and asks to have a “voluntary” interview, you can tell the agent that you are not willing to participate unless you are served with legal process requiring your participation. This is a relatively straightforward decision that can be made immediately upon receipt of the interview request.

Unless you are required to participate by legal process, you can take the time you need to consult with a federal criminal defense lawyer before responding to the request. You do not need to answer any questions from the agents while you make this decision.

2. Trust Your Lawyer’s Advice, Not an FBI Agent’s Advice

As you consider your options, don’t forget that FBI agents are trained federal investigators. If they are contacting you, then they are acting in their capacity as agents. They are not neutral legal advisors and they are not on your side.

If an FBI agent tells you that you have nothing to worry about or that an interview will clear things up and that it will be in your best interests to talk, do not rely on this advice. FBI agents have not educated themselves on the law in order to provide legal advice to people they are investigating.

3. Think About the Risks

Don’t forget that in all federal matters, including federal criminal investigations, it is a crime under 18 U.S.C. § 1001 to knowingly and willfully make a materially false, fictitious, or fraudulent statement. This is a crime that carries a statutory prison sentence of up to five years. If you volunteer information, you will need to be absolutely sure that you aren’t making false statements. An FBI agent is not going to tell you what the relevant facts are before they ask you about them.

What is the difference between an FBI interview request and a subpoena?

How Does This Differ from a Search Warrant, Court Order, or Arrest Warrant?

If you are expecting the FBI to contact you and you are worried about the risks of an interview, then you may also have concerns about facing a search warrant, a grand jury subpoena, a court order, or an arrest warrant. An interview request is not like a search warrant, grand jury subpoena, court order, or arrest warrant. A search warrant authorizes the search of the location(s) and seizure of the property specified in the warrant. It does not authorize the agent or agents to conduct an interview or any other form of questioning. It does not authorize the agent or agents to compel you to speak. The agent or agents who are serving the warrant may try to speak with you, but unless you have been arrested, you can decline to speak with them.

Similarly, if you are served with a valid arrest warrant, you will need to go with the law enforcement officer who is serving the warrant to the place where you are to be charged. However, having an arrest warrant doesn’t necessarily mean that you will need to answer questions as well. If you are being arrested, then your questions (or your decision not to answer any questions) will go through your defense attorney.

What Should I Expect if I Decline to Be Interviewed?

If you decline to be interviewed, then this doesn’t eliminate the possibility that the FBI could seek a grand jury subpoena in the future. An FBI interview request is not, in and of itself, a subpoena. If you have been contacted by an FBI agent who would like to interview you, then he or she is essentially offering you the option to be interviewed on a voluntary basis. If you decline the agent’s request, then the agent or agents may, or may not, end up seeking a grand jury subpoena requiring you to testify, or seek a grand jury subpoena compelling you to produce certain documents. If you are subpoenaed to provide testimony or documents, then you will need to comply with the subpoena regardless of whether you previously declined to be interviewed. Importantly, however, a grand jury subpoena does not authorize FBI agents to search your premises, seizes any documents or other property from your premises, or take any other action.

Does an FBI Interview Mean I’m the Target of an Investigation?

It is also important to keep in mind that if an FBI agent is interested in interviewing you, then you could be a witness in the case, the subject of the case, or the target of the case. Or you could even be someone that the agents have not categorized yet. FBI agents typically do not tell people whom they contact about the interview whether that person is a witness, subject, or target. Additionally, when FBI agents reach out to someone for an interview, they are typically doing so before indictment, arrest, issuing of a target letter, or any other formal charges have been filed. This means that you should take care to not give any answers that would be adverse to your interests. You also will want to make sure you have time to consult with a federal criminal defense lawyer before talking to an FBI agent who thinks you have relevant information about an ongoing investigation.

What if the FBI Can’t Use a Subpoena to Compel My Attendance in Court?

If the FBI wants you to testify in the case, then the typical route for doing so is through a grand jury subpoena. However, 18 U.S.C. § 3144 allows for the temporary detention of a material witness if the court determines that appearance of that witness pursuant to a grand jury subpoena would be impracticable. However, if you are contacted for an interview and you find that you are being detained by the FBI, then you will need to call an experienced federal criminal defense lawyer immediately.

Can You Get Sent to Prison for Lying to the FBI?

Section 1001 requires a “knowingly and willfully” false statement. This means that, in order to prove this element of the crime, the prosecution must establish that you had the requisite intent at the time you made the statement in question. If you did not intentionally lie to the FBI, then you did not violate Section 1001.

A Section 1001 conviction can carry a federal prison sentence of up to five years. In the past, federal courts have generally not found a “materially false, fictitious, or fraudulent statement” to include an “exculpatory no.” However, in 1998, the United States Supreme Court rejected the exculpatory no doctrine in Brogan v. United States. Under the exculpatory no doctrine, the court determined that if someone makes a simple denial in order to avoid criminal liability, this does not constitute a § 1001 offense. However, in the Brogan case, the Supreme Court held that a simple denial, such as a “no”, that materially affects a federal matter can support a Section 1001 charge. In other words, in order to avoid a Section 1001 charge, it is not enough to rely on the “no,” even if it’s an “exculpatory no.”

Is an Honest Memory Lapse, Misunderstanding, or Mistake Sufficient to Establish Intent Under Section 1001?

While an honest memory lapse, misunderstanding, or mistake is insufficient to establish intent on its own, it doesn’t necessarily mean that the federal authorities cannot establish intent if they have other evidence to support such an inference.

What Constitutes Concealment Under Section 1001?

In Section 1001, “concealment” takes place where a “trick, scheme, or device” is used to hide or avoid the disclosure of a “material fact.” While this means that an omission may support a Section 1001 charge, if a person intentionally fails to state a fact, this omission does not, by itself, necessarily establish the intent to conceal that fact.

Can I Guess At the Date, Time, or Order of Events if I Don’t Remember Them Exactly?

No, because if you guess at the date, time, or order of events, then you may need to correct your statements in the future when you learn the truth. This could leave you vulnerable to Section 1001 prosecution because you might have contradicted information that is in the possession of the government or will be in the government’s possession at a later date.

Can I Have a Lawyer Present at an FBI Interview?

Can I Have a Lawyer Present at an FBI Interview?

You can have a lawyer present at an FBI interview, but since the FBI agents reached out to you, they won’t ask if you have a lawyer present. Your lawyer will need to contact the FBI or DOJ for you. At Spodek Law Group, our attorneys have contacted FBI agents and prosecutors on behalf of many of our clients in the past. Our lawyers have also contacted federal investigators to gather information regarding the scope of our clients’ investigations. We have also been present during interviews when necessary.

Will a Lawyer Be Appointed for Me if I Am Indigent?

In the United States, indigent defendants do not generally receive court appointed counsel for voluntary interviews with law enforcement agencies prior to being formally charged.

Am I Entitled to Have a Lawyer Present for a Precharge Interview Under the Sixth Amendment?

The Sixth Amendment does not entitle you to have a lawyer present for an interview. The Sixth Amendment right to counsel attaches when “adversarial proceedings” against you begin, such as at the formal stage of a grand jury indictment. This means that while you generally have a right to appointed counsel if you are indigent, your right only applies at a certain point in the process. However, you can make it clear to the FBI agents that you are willing to answer their questions as long as your lawyer is present. Once the FBI agents get in contact with your lawyer, your lawyer can then work with the agents to make arrangements for you to go to the interview.

If I Have a Lawyer, Can They Tell You What I Know Instead of Me Testifying?

Your lawyer’s unsworn statement about what you know does not replace your firsthand testimony if you have volunteered to testify.

What Are the Risks of Going to an FBI Interview Without a Lawyer?

If you go to an FBI interview without a lawyer, you will not be able to rely on the attorney-client privilege. So, anything you say to FBI agents could be used against you (and other individuals) as evidence. Therefore, it is generally in your best interest to ensure that you have a lawyer present during any interview.

Todd Spodek and the attorneys at Spodek Law Group handle federal cases of this kind from New York, Brooklyn, Queens and Los Angeles.

Can Prosecutors Use My Silence Against Me Later in Court?

The Fifth Amendment protects individuals from being compelled to be witnesses against themselves. This means that, when the government questions individuals, individuals are protected from having to provide incriminating testimony.

But when are you subject to the Fifth Amendment’s protections? In order to receive the protections afforded by the Fifth Amendment, you generally need to be in custody. When a person is in custody, the person will be read their “Miranda rights.” The Miranda rights include the right to remain silent. These rights apply to any questions you answer while you are in custody.

But if FBI agents approach you on your doorstep, you do not have to answer their questions, as you are not in custody. Instead, you rely on your constitutional right to decline to participate in an interview when you are not under arrest. The Fifth Amendment protects your silence, not false statements, but it also does not protect your silence if you are not in custody. If you choose to speak with the FBI, your words and actions will not have protection.

The U.S. Supreme Court has held that it’s not a violation of the Fifth Amendment for the prosecution to use a person’s prearrest silence to impeach that person’s testimony at trial.

But if you have already been informed of your right to remain silent under Miranda, then the prosecution can’t use your silence to impeach you. The Supreme Court has held that prosecutors cannot use silence after the Fifth Amendment’s protections were invoked to impeach a defendant’s testimony.

Can the Government Seek Charges Against Me for Not Answering Questions?

Staying silent is not a crime. However, in some instances, there may be laws and regulations that require an individual to identify themselves or to answer questions. For example, if you are a federal employee and you answer questions under threat of losing your job, then the prosecution cannot use those statements against you as criminal evidence. If you are not a public employee, you should not answer any questions from FBI agents until you have a chance to talk with a lawyer.

Are FBI Interviews Recorded or Written Up in a Report?

Are FBI Interviews Recorded or Written Up in a Report?

• FBI interviews are typically documented in an “FD-302,” which is the form for reporting the results of an interview with a witness or subject.
• An FD-302 is a narrative summary, i.e., not a verbatim transcript, of the interview. The FBI interviewer will use their discretion to determine which portions of the interview are significant enough to be included.
• After an interview, the FD-302 will generally not be reviewed or signed by the interviewee.

Is an FBI Interview Recorded?

• In 2014, the United States Department of Justice issued a Memorandum regarding recording custodial interrogations. It presumes that interviews in custody should be recorded.
• An ordinary voluntary FBI interview does not generally fall under this presumption. If you have been contacted by an FBI agent for an interview and you are not in custody, you should probably assume that your interview will not be recorded.

Is the FD-302 Admissible as Evidence in Court?

• The FD-302 is not automatically admissible as evidence. In fact, it is hearsay unless it qualifies under one of the hearsay exceptions to the Federal Rules of Evidence. Also, as with any other evidence, the FD-302 will be subject to the court’s rules of evidence.

Why Not Be Truthful but Not Recorded?

• There are several reasons why it is not in your best interest to do a voluntary interview with an FBI agent, even if you believe that everything you tell the agent will be truthful.
• First, federal agents typically conduct interviews in pairs. This means that, once an FD-302 is written up, you will have to dispute its accuracy against not just one, but two federal agents.
• Second, without a verbatim recording, you cannot rely on your own words to refute the FD-302 narrative. As a result, if you tell the FBI that you have a limited memory of the events in question, but then provide very specific statements in later legal proceedings, you may need to explain the discrepancies in your testimony to a judge or a jury.

How Do I Talk to the FBI if I don’t want to be Interviewed?

If you do not want to give a voluntary interview, talk to your FBI agents about giving a written statement. At the least, this allows you to know what you said and allows you to review the statement before giving it to federal authorities.

What Should I Do if I’ve Already Talked to the FBI?

Do I Still Have Exposure if I’ve Been Interviewed?

Yes. Even if you volunteered to interview with federal investigators, you can still face criminal prosecution if you gave a false or misleading statement. At a minimum, if you answered any questions about your involvement in matters that are under investigation, this information can be used against you later in court.

What Should I Do if I Know About the Investigation but Haven’t Spoken with Anyone Yet?

If you know that you are under investigation, but you’ve not spoken with federal investigators yet, then your first priority should be to protect your rights. Contact a federal criminal defense attorney right away. Also, do not delete, destroy, or discard any records that might relate to the investigation, and do not try to hide evidence by moving documents, electronics, or other records. All that can lead to obstruction of justice charges under various federal criminal laws.

What Should I Do if I’ve Scheduled an Interview But Haven’t Gone to the Interview Yet?

If you’ve already scheduled a voluntary interview, you can still call us. We can talk to the FBI agents for you, and then tell you why it is in your best interests to decline the interview request.

What Should I Do if I’ve Already Talked to the FBI?

If you’ve already spoken to an FBI agent or federal prosecutor, do not assume that this is not the end of the investigation. You should come to us and tell us everything that was discussed and everything you told the agent or prosecutor. If you think it would be helpful to put together a chronology, you can send it directly to your attorney with a clear request that it be kept confidential and used to help the lawyer provide you with legal advice. If you share that chronology with anyone else, or post it on social media, it may no longer be privileged, and the federal government can use it to your disadvantage.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.