Typical scenario – early morning, FBI agents show up unannounced at your home or workplace wanting to speak with you. You are not under arrest, they are simply investigating something that you can help with. Maybe it’s about your employer, or friend, or something you were involved in with others. You are caught off-guard by the surprise visit, you may still be sleepy and you think that if you don’t cooperate with the agents they will think that you have something to hide. So you agree to speak with them for a “few minutes”, and those minutes turn into an hour or two. You recall one agent asking questions and the other taking notes. You don’t think that you gave a “formal statement”, nothing that could get you in trouble.

Unfortunately, you just gave a statement, most likely unrecorded, to a federal agent and if that statement contained material misrepresentations, you have potentially violated two federal criminal statutes – making false statements (lying) to federal agents and obstruction of justice.

In 2017, I wrote about former National Security Advisor Michael Flynn and former Trump foreign policy advisor George Papadopoulos guilty pleas to making false statements to government agents. Federal statute, 18 U.S.C. § 1001, prohibits a person “in any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal government from “knowingly and willfully”:

(1) falsifying, concealing or covering up “by any trick, scheme, or device a material fact;”

(2) making any materially “false, fictitious, or fraudulent statement or representation;” or

(3) making or using “any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry …”.

This statute applies when someone is interviewed by the FBI or other federal agencies, even without being advised of his rights or being placed under oath, as in a deposition or court proceeding. There is no pre-warning required or given. In fact, these situations usually occur under a “friendly- type” interview, or just a “few questions” to clear up an issuer or to help the agents understand a situation better.

Remember Martha Stewart? While investigating a potential insider trading scheme involving Stewart and her financial advisor, Stewart spoke with federal agents and it was later determined that she lied. While she escaped the stock fraud charges, she went to prison for making false statements during the investigation.

More recently, a Harvard University Chair of its Chemistry and Biology Departments, Charles Lieber, was convicted of two counts of making false statements to the FBI post-arrest and after being advised of his Miranda rights to remain silent and have an attorney present. The agents arrested him in connection to an alleged Chinese espionage plot concerning scientific intellectual property. In the course of his arrest, the false statements he made to the FBI were used at trial to both present evidence as to the false statements counts, but also to show his guilty knowledge of the underlying scheme.

In another case involving a professor, this time at Texas A & M University, charges were based on his alleged lies to NASA about his affiliation with a Chinese university. Professor Cheng’s case involves questions of law about a Congressional budget bill that restricts NASA’s two-way funding arrangements with the Chinese government and whether the professor was required to disclose his ties to the Chinese university. In denying a motion to dismiss, the court held that while it could not determine the whether there was a requirement to disclose until evidence was heard at trial, the criminal case would proceed based on the professor’s alleged lies to the federal government. In other words, whether NASA’s inquiries were legitimate or not, it was entitled to honest answers.

In both of these cases, very highly educated people went forward with interviews with federal agents without the advice and presence of experienced defense counsel and both ended up facing serious federal criminal charges. Before agreeing to speak to federal agents, these cases demonstrate that the individual should first consult with a highly experienced white-collar criminal defense attorney to make sure that their rights are protected.

Stahl Gasiorowski Criminal Defense Lawyers have represented 100s of individuals in federal investigations and requests for interviews by federal agents. We aggressively protect our clients’ rights, and ensure that they do not unwittingly or purposely make statements that could later prove to be false or misleading. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

In an internationally watched case, the Pennsylvania Supreme Court overturned Bill Cosby’s conviction finding that he had been improperly prosecuted after relying on what he believed was a promise of immunity from then District Attorney Bruce Castor which caused Cosby to testify in a civil case brought by one of his victims and make various statements against interest that were later admitted in his criminal trial.

In 2015 Cosby was charged with sexually assaulting a former Temple University basketball coach, Andrea Constand more than 10 years prior. Ms. Constand had also filed a civil lawsuit against Cosby over the assault. Then D.A. Castor, who later went on to some notoriety for briefly representing former President Donald Trump, issued a public statement that he would not file criminal charges because he had concluded that a criminal conviction was highly unlikely. The majority of the Pennsylvania Supreme Court found that Castor’s statement was designed to coerce Cosby to testify about the assault in the civil suit. Had Castor not made this statement, the Court reasoned that Cosby would have asserted his Fifth Amendment right not to testify in the civil deposition, rather than testifying and incriminating himself. Since Castor’s successor at the D.A.’s Office later charged Cosby, and the prosecutors used Cosby’s civil deposition testimony at trial, the Court found that Cosby’s rights had been violated.

Interestingly, the Court found that while the record supported a finding that no formal non-prosecution agreement existed and that Castor had been equivocal about any future prosecution, the Justices reasoned that the real issue was the extent to which Cosby relied on what he believed was a promise by the D.A. Holding that this was an issue of fundamental fairness and a violation of due process, the Court overturned the conviction and barred future prosecution on the Constand assault.

While concurring that Cosby’s due process rights were violated, Justice Dougherty said that the remedy should have been simply barring the deposition evidence from the criminal trial. Justice Dougherty stated “we should not use Castor’s ‘blunder’ to place Cosby in a better position that he otherwise would have been in by forever barring his prosecution.” Dissenting Justices disputed that Castor’s public statement created a binding promise that Cosby could have relied on in deciding to testify in the civil deposition.

While there is understandable outrage that Cosby’s conviction was overturned, particularly because so many victims came forward to bravely testify that he drugged and sexually assaulted them, and the fact that some of Cosby’s defenders now claim that he was a victim and has been fully exonerated, issues of due process and fundamental fairness are at the core of our system of justice. When those are violated, the remedy in a particular case may be harsh, but the Constitution and law are more important than one individual or one case. The Pennsylvania Supreme Court did not find that Cosby was not guilty, and those supporters who claim that he was simply refuse to listen to and credit the overwhelming evidence presented at trial against him.

Stahl Gasiorowski Criminal Defense is here for all of your criminal legal needs during this time. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

In recent days we have witnessed the President and various pundits scream (or tweet) that the attorney-client privilege is dead or under serious attack. What they are referring to, of course, is the judicially authorized search of Michael Cohen’s home, office and hotel room by the FBI. Cohen is said to be one of the President’s long-time attorneys.

By way of background, the attorney-client privilege has long been recognized and protected by the courts as it serves two legitimate and essential functions.

First, it promotes and encourages clients to be truthful with their lawyers. A lawyer cannot properly represent and counsel a client if the client withholds the material facts of her matter for fear that her conversations are not protected and confidential.

Second, since a client cannot be compelled to testify against herself under the protections of the Fifth Amendment, that protection would be circumvented if the client’s attorney could be compelled to reveal what the client had said.

In order to properly analyze the Cohen search, one needs a basic understanding of the attorney-client privilege – what it protects and what it does not.

The attorney-client privilege protects conversations and communications (documents, emails, texts, etc.) between an attorney and his client while engaged in providing legal advice on a specific matter. The communications must be related to the scope and purpose of the legal engagement. In addition, only communications between the lawyer, his staff and the client are protected. If the client speaks about the protected matters with third parties, the client has waived the privilege as to those communications.

For example, the client hires an attorney to represent her in a criminal investigation. Anything the client tells the attorney about what she has done in the past regarding the scope of the investigation is privileged and protected. However, if the client discusses the same topic with her friends, or her accountant, or her family, she has waived that privilege and the non-attorneys that she disclosed that information to can be compelled to reveal those communications.

Communications with her attorney are not protected if they are in furtherance of an on-going crime or future planned crimes. The so-called “crime-fraud exception” allows the government to access communications between an attorney and his client if the client is using the attorney’s services to commit a crime, whether the attorney realizes it or not. A common example is when a client uses her attorney to help draft and submit an affidavit to the court that contains false statements. The client has used the attorney to commit a crime. If the government can demonstrate to the court that there is a sufficient basis to believe that a crime has occurred, then the attorney can be compelled to testify as to his interactions with the client. Other examples may include when a client uses an attorney to set up a shell company and that company is used by the client to defraud others. The crime-fraud exception applies when a lawyer’s advice is used to further the crime, whether the lawyer is knowingly involved or, as is most often the case, unwittingly used.

In Cohen’s case, a neutral and detached magistrate-judge reviewed a detailed affidavit from the FBI asserting facts that the judge found to establish probable cause to believe that crimes were committed and that evidence of those crimes would be located at the various locations searched. In addition, sufficient facts would have been provided to demonstrate, at least at this stage, that the evidence cannot easily be obtained through other means and that the government will utilize sufficient efforts to protect the valid attorney-client privileged communications and documents it may recover in the search. That is accomplished in most cases by using a “taint team.” The taint team is comprised of Assistant U.S. Attorneys who are not involved in the investigation and prosecution to review all the evidence seized and pass along to the prosecutors only the information that is demonstrably not subject to a privilege claim.

With these basic principles in mind, the Cohen case presents some fascinating legal issues because the facts are just so unusual. First, it seems that Cohen was not engaged in the full-time practice of law. He seemingly had only a handful of clients, including President Trump, Republican fundraiser Elliot Brody and Fox TV Personality Sean Hannity. Of those three, he negotiated non-disclosure agreements to pay a former porn star and a former Playboy Playmate to not reveal their affairs with Trump and Brody. Other than that, Cohen claims that his practice was limited to providing “strategic advice and business consulting” to his limited client base. Thus, the government has argued that very little of what was seized may actually be protected by the attorney-client privilege. Reporting also indicates that Cohen spends considerably more time working on his various business ventures than representing clients on specific legal matters. It may turn out that Cohen’s possible criminal conduct in his own business dealings, rather than his conduct on behalf of clients, resulted in most of the probable cause contained in the affidavit for the search warrant.

Robert Stahl, and his firm,Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rstahl@stahlesq.com.

Although it is only a single paragraph long, this amendment includes a considerable array of protections for criminal defendants in New Jersey, which are outlined below.

Grand jury indictment requirement: The main role of the grand jury is to determine if probable cause exists to bring an indictment against a person. A grand jury is largely an investigative body, and is not the same thing as a criminal trial jury, the responsibility of which is to decide questions of evidentiary fact during the prosecution of a case.

Double jeopardy safeguards: The Fifth Amendment requires that the prosecution take its best shot one time only. If it fails to secure a conviction, it cannot retry the defendant for substantially the same offense.

Not having to testify against yourself: The Fifth Amendment prohibits prosecutors from calling a criminal defendant to the stand to testify, thereby converting the defendant into a witness against himself. The “right to remain silent” that police officers must inform a criminal suspect of at the time he is taken into custody is a reminder of this important Fifth Amendment protection, as are the other “Miranda rights” including the right to consult with an attorney before and during questioning and to have an attorney appointed to him by a court if he cannot afford to hire one, as well as the warning that any statement he makes can and will be used against him at trial.

Note that if the defendant testifies on his own behalf, the Fifth Amendment does not preclude the prosecution from cross-examining him. Also, if the government grants immunity from prosecution in a criminal case, then it can compel a person to testify as a witness even if the testimony would otherwise be self-incriminatory.

The right to due process: A criminal proceeding must be overseen by an impartial judge, and allow the defendant the opportunity to fully present his defense during all phases of his involvement with the criminal justice system – from initial custodial questioning all the way through post-trial appeals.