Weighing Cooperation With the FBI.

Many people believe that if they are innocent they can and should just tell the truth, and, while that may be true in many cases, the government can charge you for false statements even if you were telling the truth as best as you could, and, importantly, that charge can arise from your interview itself, regardless of what you were actually telling the truth about.

Furthermore, agree to do one voluntary interview and commit to long-term cooperation are two legally and practically distinct decisions; the first is often worthwhile even if the latter is not, and, as we discuss in more detail below, it is possible in many cases that you should do the first and not the second.

This raises the question of when to make those decisions, and, again, the answer to that question depends on your status; the advice we would provide for a potential federal witness is very different from the advice we would provide for a potential subject or target in an investigation, and, in most cases, the advice we would provide for a potential subject is different from the advice we would provide for a potential target.

When our federal criminal defense lawyers represent potential witness or subject, we can approach the investigating prosecutors and ask them about your current investigative classification, and we can also inquire about the government’s investigative findings.

The FBI is the primary investigative body in terrorism cases, public corruption cases, civil rights violence cases, and organized crime cases, but it also has jurisdiction over many federal white-collar offenses as well.

The Drug Enforcement Administration (DEA) is the primary investigative body in federal drug investigations; the Internal Revenue Service (IRS) is the primary investigative body in many federal tax and financial investigations.

What should I do when FBI agents show up at my door?

If you are an occupant of the home and you are not currently under federal arrest, then in almost all consensual doorstep encounters, you can refuse to identify yourself to FBI agents, and, absent a warrant (or, in rare circumstances, a compelling reason to maintain access) to the residence, you can end the consensual encounter and close your door.

Simply declining to speak with FBI agents does not constitute obstruction; and, while it is true that you should be extremely careful about making voluntary statements, you can decline to voluntarily interview with the FBI without being uncooperative, and, as we explain in more detail below, you should be extremely careful not to waive your Fifth Amendment rights by speaking with agents without counsel present.

Q: Am I required to have a lawyer present during an interview?

During ordinary voluntary interviews, you are not required to have a lawyer present, but you are certainly entitled to have a lawyer present, and you should almost always choose to have your attorney present.

This is true whether or you have been read your Miranda rights or not, because Miranda warnings are not required for voluntary (i.e., non-custodial) interviews.

Under Salinas v. Texas, 570 U.S. 178, 133 S. Ct. 2174 (2013), choosing to remain silent during a voluntary interview does not, itself, invoke your Fifth Amendment privilege against self-incrimination, and your silence may be used against you unless you expressly invoke the privilege, and, even in the face of your attorney’s presence, it is possible to mistakenly waive your Fifth Amendment right.

The key is that voluntary interviewees can terminate their interviews at any time, or simply decline to speak with agents without their attorney present, and it is up to you to protect your Fifth Amendment right.

It is, however, your burden to protect your privilege against self-incrimination: in a non-custodial interview you must expressly invoke the Fifth Amendment rather than simply staying quiet, and having a federal criminal defense lawyer does not relieve you of that obligation.

Regardless, whether or not you have a federal criminal defense lawyer, you should never voluntarily speak with federal agents without a lawyer present.

Q: Can I decline an interview, or ask to defer the interview until a lawyer is available?

Yes, and again, you should decline to voluntarily speak with federal agents, or you should ask to defer the interview until your attorney can review the government’s investigative findings, determine your investigative classification, and decide if your cooperation (or silence) is in your best interests.

Q: Can FBI agents contact my family members, employees, or other individuals related to my business?

Yes, this is true regardless of whether FBI agents have a search warrant, and it is also true regardless of whether you have engaged counsel.

Federal agents can approach anyone who is lawfully available, and it is not until you have engaged counsel (and, if appropriate, that counsel makes the necessary inquiries with the government) that you have any ability to protect your relations, employees, or other contacts from unsolicited contact from the FBI.

Can I be charged just for talking to the FBI?

Yes, this is a real possibility even if you are completely innocent.

While you can speak truthfully without fear of a false-statement charge, proving that you were truthful can be difficult in many cases, even if you never knowingly lied; and, as we explain in detail below, even a voluntary interview with the FBI or DOJ can lead to federal charges under 18 U.S.C. § 1001, the statute that criminalizes any attempt to “conceal or cover up by any trick, scheme, or device a material fact or to make or use any false, fictitious, or fraudulent statement or representation” in connection with the matter or jurisdiction of the agency that is conducting an investigation.

What are the elements of a federal false-statement charge?

While Section 1001 is unique in its broad scope, the statute essentially contains four elements: (i) the accused person must make a materially false, fictitious, or fraudulent statement or representation, or use any trick, scheme, or device to conceal or cover up a material fact; (ii) the statement or representation (or the trick, scheme, or device) must be made in connection with the matter or jurisdiction of a federal agency; and, (iii) the statement or representation (or the trick, scheme, or device) must be knowingly, or intentionally, made.

Does this mean that anyone who makes a false, fictitious, or fraudulent statement, or uses any trick, scheme, or device to conceal or cover up a material fact to a federal agent can be charged?

Essentially, yes.

18 U.S.C. § 1001 can apply anywhere, in any situation involving a federal agent or a matter or jurisdiction of a federal agency.

A person’s false or fraudulent communication can take the form of an electronically transmitted or written communication, and it does not even have to occur within the context of a formal interview.

A conversation on your front porch can support a federal false-statement charge just as much as a written communication sent to the government.

As a result, any of the following can potentially expose you to investigation or charges for federal false statements under Section 1001 or under related obstruction statutes:

• Answering a deceptive question from a federal agent in a voluntary interview,
• Using an evasive response to avoid answering an agent’s question,
• Forging, altering, or fabricating an entity’s financial or transaction record, or another record, in response to the government’s inquiry,
• Failing to correct a misleading statement made to a federal agent,
• Concealing information about, or referring to, a bank account or other financial entity or record,
• Conveying misleading or false information to a federal agent, and
• Interfering with or corruptly influencing a grand jury proceeding, or a federal investigation, in an attempt to cover up a criminal offense.

Any of these actions or responses can lead to a federal false-statement charge under Section 1001, which imposes up to five years in federal prison for adults (and up to eight years in domestic and international terrorism cases).

If I am not guilty of the underlying crime, am I at risk of a false-statement charge?

Yes, and this is where many people make mistakes. If you have never committed a crime, or you are innocent of the one the FBI or DOJ is investigating, you do not have to worry about being the perpetrator of that crime, but you are still at risk for a false-statement charge under Section 1001.

In fact, this is what happened in many high-profile cases in recent years. For example, Martha Stewart received a federal prison sentence not for alleged insider trading, but for making false statements to federal agents during the insider trading investigation.

The agents may have already had records or other information in hand to use to cross-examine Stewart (and you, potentially), and they chose to present them in a way that appeared deceptive or misleading in order to elicit a truthful statement that the interviewee could then lie about.

Am I a witness, a subject, or a target of the investigation?

While we generally prefer not to label people as “witnesses,” “subjects,” or “targets,” that is how the DOJ generally sorts people in federal investigations.

The three general designations of a potential witness are:

• Witnesses. A witness is someone who is believed to have information that is relevant (at least in the DOJ’s view) to the inquiry at hand.
• Subjects. A subject is someone whose conduct is under examination as a part of the investigation.
• Targets. A target is someone whom the government believes it has substantial evidence to convict of a federal crime.

The key distinction between a subject and a target is that the DOJ generally only issues “target letters” to suspects for whom it has substantial evidence of guilt.

What should I do if I have received a target letter?

If you have received a target letter, it is critically important that you immediately get advice from a federal criminal defense lawyer. It is normal to receive a target letter to let you know that you are the target of a federal investigation, and it is normal that a target letter asks you to talk to the federal prosecutor in charge.

The key is that if you are a target of an investigation (whether the target letter states this or you find out through other means), you can’t speak with the federal agents or prosecutor about the investigation without a lawyer present. Doing so only makes it more likely that the government will indict you.

At the same time, even if you are a target of an investigation, this does not mean that it is too late to avoid an indictment. In fact, there are several ways to avoid criminal charges if the government has not yet filed charges against you, and, while this is certainly a difficult prospect, it may be more important than ever to seek competent and experienced legal advice from the firm that handles the federal government’s internal investigations and prosecutorial inquiries and that also handles federal criminal defenses for those who are facing the possibility of indictment.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

Can deleting texts after FBI contact lead to obstruction charges?

Q: Can destroying evidence or otherwise impeding a government investigation lead to additional exposure?

If someone destroy evidence or otherwise impede an investigation, they can face separate criminal exposure for obstruction of justice, regardless of whether they are ultimately convicted of a crime related to the government’s inquiry.

As a result of having destroyed a relevant electronically transmitted or physical document, or otherwise having impeded or corruptly persuaded a potential witness to conceal evidence from the government, people have faced federal criminal charges under 18 U.S.C. § 1512 (witness intimidation/tampering), 18 U.S.C. § 1519 (destruction of records in federal investigations), and other statutes.

Q: Are there any additional considerations to keep in mind?

If you are facing investigation for a white-collar federal offense, it may be critical that you maintain all evidence relevant to the case in anticipation of coming litigation. While it is not always required that you preserve evidence (especially for those who are potential witnesses or subjects), once you have a reasonable anticipation of litigation or an investigation, you have a duty to preserve all relevant documents and electronically transmitted communications, and failure to do so can result in a conviction for investigative obstruction under federal law.

If you are concerned that you need to preserve electronically transmitted or physical evidence, you should promptly engage the advice of an experienced federal defense attorney so that your attorney can advise you of your obligations, including if, when, and how to preserve (or delete) records and communications.

At the same time, while this may go without saying, you should be extremely careful about speaking with others in response to the FBI contact you have already experienced. Discussing the investigation with those not entitled to information about the case can potentially lead to further risks under federal law.

Q: Can an attempt to help the government lead to obstruction of justice charges?

Yes, if you delete evidence or discuss an investigation with nonlawyers in an attempt to help the government in an ongoing case, this could potentially be considered as destroying relevant evidence, and this could also be treated as investigative obstruction.

Destruction of relevant evidence or otherwise impeding a federal investigation is a criminal offense, and in many cases it is far more important to protect against additional exposure that you may unwittingly create in the midst of an investigation.

What does a proffer agreement actually protect me from?

Q: What are proffer agreements?

A proffer agreement is a written cooperation agreement with prosecutors in which the interviewee or cooperation candidate agrees to cooperate, and the prosecutor agrees not to use any information obtained during the interview or proffer session to indict the interviewee.

Proffer agreements (and the proffer sessions that result from them) are often called “queen-for-a-day” agreements (and interviews) because the government agrees to treat the interviewee like royalty for a day; and, while it is true that a proffer agreement grants participants a degree of immunity (albeit limited immunity), it is important that you protect yourself with a comprehensive proffer agreement.

Q: What do proffer agreements generally provide for?

Generally, a proffer agreement will require that the information presented be truthful and complete, or that the proffer session will be void.

A proffer agreement also generally provides that the prosecutor will not seek an indictment against the interviewee based on anything he, she, or they say during the proffer session itself.

Crucially, however, standard proffer agreements only provide protection against direct use, not derivative use, of the information obtained during a proffer session; and, as a result, they don’t automatically protect against the government’s continuing investigative use of the information obtained.

This means that while the government can’t use your proffer statements as substantive evidence in a trial against you, standard proffer agreements still permit the government to use the information against you for derivative purposes.

Q: What constitutes a waiver of the restrictions on direct use of proffer information?

A waiver of the restrictions on direct use of proffer information often is found in a “standard” proffer agreement as a rebuttal use provision. Rebuttal use provisions essentially state that the statements made during a proffer session can be used to rebut the defendant’s claim that the facts obtained in the session are not true (and, in the case of a defendant who testifies, to impeach a different statement you make to the jury).

Such rebuttal use does not require you to testify at trial, and it allows the government to use the information in your proffer statements to support a contrary factual position.

Q: What is derivative use?

Derivative use involves the government using a participant’s proffer statements to further an investigation and to gather new evidence.

For example, if the participant identifies a potential witness to the government, then a derivative use of the participant’s information is when the government finds that witness or other evidence in that witness’s possession.

Standard proffer agreements allow for derivative use; and, so, unless it is a very unusually broad agreement, it only protects you from direct use of the statements you made during the session.

Will cooperating with federal prosecutors actually reduce my sentence?

Q: Under what circumstances will cooperating with the government reduce my sentence?

When it is appropriate, the federal sentencing guidelines provide for a “substantial-assistance” sentencing departure under U.S.S.G. § 5K1.1. As with all departures from the guidelines, a substantial-assistance departure requires the government to make a motion, and, while it is not unusual for the government to make such a motion for someone who assists in the government’s case, a substantial-assistance departure is not guaranteed.

Under Fed. R. Crim. P. 35(b), a substantial-assistance motion may be filed for an early cooperator (generally before sentencing) or, more specifically, in some cases, as a substantial-assistance motion under Rule 35(b) for a post-sentencing cooperator.

Any cooperation agreement you sign must clearly outline the scope and terms of the agreement; and, in particular, if you are a defendant in an open criminal case, your attorney should make sure your agreement clearly states that your cooperation entitles you to a government motion for a substantial-assistance departure.

Unfortunately, some federal prosecutors will offer only general consideration, and some prosecutors will offer nothing other than protection from future criminal charges.

For certain drug defendants in particular, it may be possible to seek a departure without the government’s assistance under 18 U.S.C. § 3553(f) (the so-called “safety valve” provision), which allows judges to depart from federal mandatory minimum sentences in many drug offense cases.

Q: Why is cooperating with the government important if you have been convicted?

Being a late cooperator (i.e., after the government has successfully brought a case against you) can reduce your sentence, and, while the reduction may be smaller than in some cases, it may still be critical if your offense carries a mandatory minimum sentence.

Cooperation credit can still be an important factor in your sentence even if you are already facing a mandatory minimum.

Q: Is it important to be the first cooperator?

While it is certainly important to be the first cooperator, being the first cooperator does not necessarily guarantee a government motion for a substantial-assistance departure.

A federal judge’s ability to depart from the sentencing guidelines depends on the specific offense. For example, the sentencing guidelines generally allow for mandatory minimum sentences in many criminal cases, including cases involving the drug offenses and violent crimes that carry mandatory minimum penalties.

While a federal judge does not have the authority to depart from these mandatory minimums on their own, he or she can still exercise sentencing discretion when the prosecution files a substantial-assistance motion.

What does cooperating with the FBI actually require of me?

Q: What does cooperating with the FBI typically require from a cooperating witness?

Cooperation is a multi-step and often lengthy process that can range from allowing the FBI to place a recorder in your home to testifying at trial.

During the course of an investigation, cooperating witnesses will need to make recorded phone calls and conduct meetings under FBI surveillance; and they will also need to undergo repeated debriefing sessions with FBI agents.

Of course, a cooperating witness will need to testify at trial, and, while cooperation candidates have not yet testifying at trial, they will generally be subject to rigorous cross-examination about their own criminal behavior, any promises the prosecutor has made, and any consideration they may receive if convicted.

Q: How and when does a proffer session involving a cooperating witness become public?

A plea agreement which stipulates that a defendant is cooperating with the government will disclose that he or she is cooperating.

Additionally, the government’s sentencing motion and, in some cases, the defendant’s presentence investigative report may also disclose a defendant’s cooperation.

At trial, it is very difficult for the defense to hide a defendant’s cooperation, and prosecution witnesses and former federal agents will almost certainly mention the defendant’s cooperation during their testimony.

Q: What is an “attorney proffer”?

An attorney proffer is an informal interview where your attorney presents the account of the events under investigation to the federal prosecutors, and, when appropriate, this is combined with a “reverse proffer,” during which the federal prosecutors present a preview of the government’s evidentiary case to your attorney.

A target letter from the federal prosecutor often requests an interview with your attorney, and it is usually far better to conduct the proffer indirectly through your attorney than to conduct the proffer yourself.

You should never discuss an investigation or a potential criminal prosecution directly with prosecutors, so it is extremely important that your attorney discusses the case with the prosecutors on your behalf.

Q: What is an Upjohn Warning?

The “Upjohn warning” is an employer’s company lawyer’s communication to an employee stating that he or she represents the company and is not the employee’s individual lawyer.

While an Upjohn warning will usually tell you the basic terms of your communication with a lawyer, if you need legal advice, you should never just rely on the company lawyer to represent your interests; instead, you should consult your individual defense counsel.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.