It’s 6 a.m. or 8 p.m., your doorbell rings and two people are standing outside holding up their badges and credentials. They say they are Special Agents with the FBI or IRS and would like to talk with you for just a few minutes about something important. They ask if they could come in to speak with you privately. Caught off-guard, and not wanting them to think that you have anything to hide, you invite them in (and, of course, you don’t want your neighbors to see them talking to you on your front steps). The agents are “friendly” and just have a few questions to get your input, your side of things, or to serve you with a grand jury subpoena. You decide to talk to them, only for a few minutes, in the comfort of your own home or office. At the end, they thank you for your time and hand you either a grand jury subpoena or a “target letter.”

After they leave, you start to wonder – what did I say? How much did I tell them? Am I in trouble, did I implicate myself or others? You start to look for an attorney. You can’t ask your family or friends who they hired last time the FBI or IRS visited them because you don’t know anyone who ever faced such a situation. So, you scour the internet to find an experienced criminal defense attorney, one with a lot of federal experience because it’s a federal investigation.

The next day you’re in the attorney’s office. After talking to the attorney you realize that what you thought was an innocuous 15 -30 minute chat with the FBI was actually an hour and a half where you told them some things, but not others. You discover that it is a federal crime to lie to the agents. You learn that it doesn’t matter that they didn’t read you your rights, like in the movies, because you weren’t “in custody.” When you tell the lawyer that you only spoke to them because you didn’t want the agents to think you were involved or guilty, the lawyer tells you that the agents already think that you’re involved, that’s why they were at your house to interview you in the first place. You then learn that there were two agents so that the interview was witnessed by two of them for credibility later on if you dispute what you said. You learn that a “target letter” is issued by an Assistant U.S. Attorney because she believes that you are involved in criminal activity and wants you to come in with your attorney to negotiate a plea of guilty. You realize that it was a mistake to say anything to the agents without first talking with an experienced white-collar criminal defense attorney.

So, what should you do in such a situation? The safest course would be to politely tell the agents that while you would like to talk with them, you need to contact your attorney and that he will get back to them. Ask them for their business cards so that you can give the information to your attorney. If they don’t have cards, write down their names, agency and contact information. Do not under any circumstances talk with them about the subject matter of their investigation. After they leave, contact an experienced criminal defense attorney to discuss your rights, potential exposure and your options.

If you did talk with the agents, experienced criminal defense counsel can help you get through the situation and protect your rights going forward. The task will be to mitigate any statements made and develop an overall strategy to succeed.

Stahl Gasiorowski Criminal Defense Lawyers have successfully represented hundreds of individuals under federal and state investigations. 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.

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.