The Dangers of Talking to the FBI

FBI Agents The FBI is at your door. Now what? While you may have an urgent emotional need to “appear to cooperate” that first instinct must be suppressed in favor of a more intelligent, thoughtful and reasoned approach.

This article attempts to address the complex decision of whether to speak to the FBI when they wish to interview you.

Honesty is not the Best Policy

It almost requires an emotional “paradigm shift”for many people to refuse to speak to law enforcement such as the FBI when asked to do answer questions. Many of us “feel”that since we “have nothing to hide,”why not cooperate out of the gate?

Those of us who hold this belief are among our best citizens as a country. This article argues that following your first instincts could land you in a federal prison ask Martha Stewart.

In the world of lawyers and courts you are perceived to be “uncooperative,”if you first obtain legal advice before answering questions. You are perceived to be aware of your rights and cautious You are perceived to be “smart.”

In fact, when a police officer is under investigation for anything, the first thing the officer will do is contact counsel? Why? …because they know what can happen if they don’t. Likewise, when an FBI agent is under federal investigation that agent (who is almost always a lawyer) will seek the advice and representation of another lawyer a criminal defense lawyer.

Remember this when you request to first talk to your lawyer while the FBI at be “disappointed” they will immediately know you are sophisticated enough to understand the danger of proceeding without counsel. They know that by asking for a lawyer, you are NOT refusing to cooperate.

First some simple truths:

You are NOT REQUIRED to answer any questions of ANY law enforcement agency including the FBI. You ALWAYS have the right to consult with an attorney and you ALWAYS have the right to remain silent.

And you can stop answering questions AT ANY TIME and ask for a lawyer even if you have already started answered some questions.

Understanding WHY You Should Delay Making the Decision to Answer Questions the Danger Posed by 18 U.S.C. 1001

In a nutshell, every time you utter a sentence to a federal agent you provide an opportunity for the FBI to use something you said in a criminal prosecution under 18 U.S.C. 1001 (see below) even if you uttered the words unintentionally, recklessly or negligently you are providing one more opportunity to indict you for lying to a federal officer.

Here is the law:

The Federal False Statements Act Title 18, United States Code, Section 1001 makes it a crime to:

  1. knowingly and willfully;
  2. ake any materially false, fictitious or fraudulent statement or representation;
  3. in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.

This law, enacted during the McCarthy Era to use against suspected “communist sympathizers” has been interpreted expansively. It is a dangerous trap for the unwary.

While a falsehood must be “material” the definition of “material” is so broad it can encompass almost anything relevant to an investigation. “Material”means the statement has the “natural tendency to influence or [is] capable of influencing, the decision of the decision-making body to which it is addressed.”

It is not necessary for the United States Prosecutor to show that your particular lie ever really influenced anyone.

There is at least one important defense you must know that your statement is false at the time you make it in order to be guilty of this crime. However, having said that, you do NOT have to know that lying to the government is a crime or even that the matter you are lying about is “within the jurisdiction”of a government agency.

Parsing the Law a Close Look at 18 U.S.C. 1001

Here are the actual words of the law:

  1. Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully
    1. falsifies, conceals, or covers up by any trick, scheme, or device[, ] a material fact;
    2. makes any materially false, fictitious, or fraudulent statement or representation; or
    3. makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry
    4. ….shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331),[9] imprisoned not more than 8 years, or both.
Fighting That First Instinct to Talk to the FBI Without Consulting a Lawyer

There are many ways to respond to questions posed by the FBI. One way is to feign a lack of knowledge concerning the details of the crime under investigation.

Another is to narrate one or more lies to try to cover up past actions and this is true for many in this situation even when your role in the overall scheme under investigation is very minor.

By taking either of these approaches you place yourself entirely at the mercy of the FBI and Assistant United States Attorney (“AUSA”).

A possible “1001” indictment gives these individuals the kind of sway and leverage over you that will disable even your best efforts at negotiation at arms length if you are later targeted with a criminal investigation.

The ‘tactic” for the FBI to use this law is well known and it is one of the primary weapons in their arsenal to gain information in an investigation and often because your value as a witness for the United States turns on your credibility at trial, the AUSA will charge you with a “1001” to prove to the jury that everyone is punished for lying to federal agents.

Mommy Taught me to Always Tell the Truth to the Police was she Wrong?

Yes, she was wrong, in this context.

There is nothing wrong with telling the truth but to assume that the criminal justice system is not rife with tricks and traps for the unwary is.. just… naive. Even the most honest and decent among us have exposure to a “1001” indictment. My advice is this, even when you are totally convinced that you didn’t do anything wrong and that you are completely innocent of wrongdoing and therefore have nothing to hide, … it is STILL UNSAFE TO TALK TO FDERAL AGENTS.

Remember this, if nothing else from this article: while lying to a federal officer is a crime. Remaining silent is not a crime

Understanding the Dangers Inherent in Deciding to “Cooperate” Without the Advice of Counsel

Here is the truth no matter what you believe you know about case under investigation by the FBI you cannot know what the agents know and you do not have the factual background of the questions you are being asked to enable you to see the “big picture”of the case under investigation.

Even a very little mistake during an interview with a Federal Agent can be used to indict you under 18 U.S.C. 1001.

In many cases, before the FBI tries to interview you they will have already comprehensively investigated the matter and will have the tools to trip you up and corner you on, perhaps, some small fact or some obscure item not within your memory. If you guess, you are done.

FBI agents are under no obligation to show you their hand or to treat you fairly during the investigation process. Even if you confirm what the agents suspect is true the most insignificant errors and inconsistences can be interpreted as intentional lies under Section 1001.

You will never have enough information to outsmart the agents or establish your innocence until you can see the big picture.

An “inconsistent statement”may be the result of nervousness or it can be the result of words spoken in an environment of fear. It does not matter to the FBI you are on the hook the minute you make an error.

Your Word Against Theirs

Although there has been an increasing use of body cams by law enforcement at the street level, the FBI will not typically tape record their interview. They will take notes and then file the infamous “302” form. If the FBI’s version of your interview is different than your version you may be indicted under “1001.”

It is important to note this at trial, juries tend to put more credibility in the agent’s version because FBI agents always interview in pairs and, and again, at trial, they will corroborate one another.

FBI agents, with their suits and disarming charm or, in the alternative their inherent ability to intimidate, are among the most highly trained and experienced police investigators. Their training is legendary the thing of television shows (Quantico). That expensive and thorough training includes specific methods and procedures clearly designed to break down your will and intended to compel you to answer their questions without the assistance of counsel.

Understanding Your Right to Remain Silent and Your Right to Request the Advice of Counsel

Knowing the law can protect you. What follows is a basic understanding of your Constitutional rights.

First And Foremost, You Do NOT Have To Talk To ANYONE In Law Enforcement Including The FBI

There is no law enforcement organization in Colorado or anywhere in the country state or federal, including the FBI, that has the authority to compel you to answer their questions.

“The Fifth”

The Fifth Amendment to the Constitution provides that every person has the right to remain silent in the face of questions posed by any police officer or any governmental agent.

Here is the text of the Fifth Amendment:

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The FBI is Knocking at Your Front Door Can They Come in Without a Warrant?

If an FBI agent or police officer comes to the door:

  • Never invite the agent into your home.
  • Never answer any questions including your identification unless you are outside of your home.
  • Always tell the FBI agent that you do not wish to talk with him or her.
  • Always invoke your right to a lawyer and tell the FBI that your lawyer will contact them if they leave their card on the outside of your home.
  • If you must talk to them face to face, step outside and pull your front door behind you so that the agents cannot see into your home.
  • Always immediately return inside your home and shut the door again.

Unless the FBI or any law enforcement officer has a search or arrest warrant ANY contact with them is strictly voluntary.

Even if the FBI or the police DO have an arrest or search warrant, this has NO IMPACT ON YOUR RIGHT TO REMAIN SILENT and to ask for a lawyer... simply “lawyer up” after politely demanding to see the warrant.

If the FBI Agent does not have a warrant, you do not have to let the FBI Agent in. On the other hand, if the FBI or any other law enforcement body tries to force their way in do not interfere. You will get your chance to defend yourself in court later.

Learning How to Assert Your Constitutional Rights the “Mechanics” of Protecting Yourself

While I have written on this subject many times because these methods are worth repeating. I include this brief section on how to assert your rights. It is more difficult than it might seem in light of the persistence of the FBI and other law enforcement agencies to protect yourself properly.

Recall, for example that while law enforcement agents are allowed to lie to you you are not allowed to lie to them.

Remaining silent after demanding a lawyer is not lying. It is your constitutional right to do so.

How to answer the FBI:

“I am have nothing to say to you I am going to remain silent” (The Fifth Amendment)

“I want to speak to my lawyer,” (The Fifth and Sixth Amendment

“I will not consent to any kind of search.” (The Fourth Amendment)

Act to protect yourself and always assume the worst if they are questioning you either you or someone you may know is their target and they are seeking to incriminate you or that other person. You will not know which it is and therefore it makes sense to seek the advice of a lawyer.

Act with confidence stand firm in the assertion of your rights defend yourself with intelligence and clarity and courage

Finally ask for their business card with the case number on it and tell them you will have your lawyer contact them. Then “shut up.”

What to do After the FBI Leaves

When the FBI or other law enforcement agencies leave as they must unless they arrest you immediately write down what just happened in memo form to include the the date, time, location, people present, names mentioned by the investigators, the reason they gave for their investigation and any other information you can add that you can recall. Be thorough.

OK I Know the Risks. What If I Decide to Speak to the FBI After Ignoring Your Advice?

You need to understand this, if you decide to ignore the warnings and other information in this article, if you begin to answer the questions of the FBI you can:

  1. Set any and all conditions of the interview,
  2. By choosing when and where the interview is to take place.
  3. Insisting on having a third party present, such as a family member or friend;
  4. Choose which questions to answer and which to refuse to answer;
  5. Refuse to sign any documents;
  6. Stop cancel the interview at any time;
  7. Record the interview audio video or both;
How the FBI United States Attorney May React to Your Decision to Remain Silent and to “Lawyer Up”

When you refuse to speak to the FBI they have a decision to make. Will the FBI’s courtroom arm the United States Attorney see your contribution to the case as requiring a grand jury subpoena for your testimony.

If you are properly served with a Federal grand jury subpoena, your options discussed further below are:

  1. Deciding to testify after, hopefully, at least consulting one attorney or
  2. Refusing to testify, by invoking the Fifth Amendment privilege against self-incrimination. (The “Fifth” applies to anyone, innocent or guilty, facing possible criminal exposure); or
  3. Seeking a grant of immunity in exchange for your testimony before you agree to testify (so that anything you say cannot be used against you).
  4. Offering to perform a “proffer” in private with the FBI in which, again, anything you tell them cannot be used against you.

These alternative options should follow ONLY after you have asserted your rights initially by refusing to speak to the agents and simultaneously requesting to consult with a lawyer.

What you need is time asserting your rights gives you the time to fully understand and carefully weigh your alternatives after learning more about the big picture behind the investigation.

When the FBI Uses the Threat of the Grand Jury Subpoena

As discussed above, a tactic used by the FBI when you push back and assert you rights is to threaten to have you subpoenaed and try to force you to testify before the Federal grand jury.

You never change your mind and “back off” your decision to invoke your constitutional rights just because you are threatened with a subpoena. STAND YOUR GROUND.

If the FBI threatens to serve you with a Federal Grand Jury subpoena, politely tell them that you will arrange with your lawyer for the lawyer to accept service of the Federal grand jury subpoena on your behalf.

If the agents serve you with the subpoena before you have the chance to arrange for your lawyer (or a lawyer) to accept service, calmly and politely accept service of the subpoena and then refuse to answer any substantive questions about the case without consulting with your lawyer.

The Grand Jury Process

While a close look at the grand jury process is not within the purview of this article, some rules bear mention here.

First, there may be legal grounds for stopping (known as “quashing” not squashing) a grand jury subpoenas. You should consult with a Colorado criminal defense lawyer immediately after receiving your subpoena. These cases move very fast as a rule.

You may, under certain circumstances, still successfully invoke the Fifth Amendment’s Privilege Against Self-Incrimination. If answering a question before the grand jury would even tend to incriminate you, you can invoke the privilege and refuse to answer. An answer that may“tend to incriminate you”is one that furnishes “a link in the chain”that might lead to your conviction.

In a Federal grand jury, unlike a public trial, you are not allowed to have a lawyer present. Your lawyer must wait in the hallway. However, you are allowed to consult with him or her even if you decide to do so after each question is asked.

Perjury is a felony, and if your participation in the Federal grand jury is not carefully controlled, for example you decide to in artfully omit any pertinent information or provide significant and actionable “inconsistencies”in your testimony, you may be charged with the very serious crime of perjury.

Your lawyer may be able to negotiate something called “use immunity,”for you that would prohibit the Government from using your testimony or any leads lifted from that testimony it later bring charges against you. On the other hand, even immunized testimony may not protect you from a later criminal prosecution.

If the AUSA can establish that a later Federal indictment was the result of obtaining evidence from an independent source not from the immunized testimony, you may still be prosecuted.

Please see any or all of the articles I have written about the Grand Jury process.

The Dangers Of Talking To The FBI Lying to Government Agents 18 U.S.C.1001

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