The expression “Don’t make a federal case out of it” — which essentially means don’t make something simple into something complicated, or don’t turn something trivial into something of great consequence — came into being for good reason. There are few things in life as complicated and as of great consequence as your business being in the crosshairs of the federal government. Being caught unprepared and with the wrong mindset when you’re contacted by a federal agent can quickly land you in difficult circumstances. Coming back from this type of compromised position is extremely challenging, even with the best criminal defense. It’s better to avoid the pitfalls of the situation altogether than to be devastated by them.
Knowing the biggest mistakes business people make — and how to avoid making them yourself — will protect you in the event you are contacted by federal officials. Here are four mistakes to avoid.
1. Not calling your lawyer first
By far, the biggest mistake people make when contacted by law enforcement is waiting until after they’ve already spoken with a federal agent to call a lawyer. It’s understandable why so many make this mistake: They believe asking to speak to their lawyer first will make them appear devious and uncooperative — in a word, guilty. They feel they have nothing to hide, and since they want to appear accommodating, they are only too willing to answer questions or volunteer information. What people don’t realize is that anything they say, no matter how benign or well-intended, can come back to haunt them.
We once represented two CEOs charged with fraud and collusion in a government contracts case. FBI agents showed up at both CEOs’ houses at the same time, and the CEOs gave conflicting statements. It made our job very hard, because at least one of them obviously was lying.
Unfortunately, numerous cases become less about the alleged offense than about what was said to a federal agent, particularly if it is perceived as an untruth. Lying to an FBI agent is a felony. The truth is, the conversation between you and an FBI agent is not recorded, so it will be your word against the agent’s. Even if your lawyer proves you didn’t commit any substantive offense, you could still lose on an obstruction charge of lying to an FBI agent. You can’t be charged with lying if you say nothing in the first place.
The bottom line is you should never say anything to a federal agent without consulting a lawyer first.
2. Speaking to law enforcement based on whether or not the agent has a warrant
A factor that commonly affects a person’s willingness to talk when visited by a federal agent is whether or not the agent possesses a warrant for his or her arrest. But the warrant is immaterial to the matter of talking or not talking.
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Let’s suppose the agent does have an arrest warrant. Whatever you say to them will not prevent your arrest. If anything, the things you say will only serve to bolster the agent’s case or otherwise aid in the investigation. An answer to what appears to be a harmless question, such as whether or not you mailed or faxed a document or made a certain phone call on a certain date, for example, could be handing over information that could hurt you. An answer regarding that document might be necessary to an agent regarding jurisdictional issues of wire or mail fraud. Your answer about a phone call may make a previously inadmissible phone record into evidence that can be admitted into court. If an agent has a warrant for your arrest, nothing you say can help you, so it is better not to say anything.
Conversely, let’s suppose the agent does not have an arrest warrant. There is even less reason to speak to an agent who is trying to build a case against you than one who already has one. Any information you divulge might fill in the blanks the agent needs to get that arrest warrant. Should you be tempted to speak with an FBI agent who doesn’t have an arrest warrant, remember this: You cannot talk your way out of a federal case, but you can definitely make it worse.
Just as you can’t unring a bell, you cannot take back a statement once you have given it. Better to speak instead to an experienced federal attorney who can call the agent for you and safely and reliably vet that call.
3. Thinking you haven’t already been investigated
The fact that you are unaware of being investigated doesn’t mean federal agents haven’t been working the case. Federal investigations rarely begin with a conversation with the target. Instead, FBI agents can spend quite a lot of time investigating — sometimes even years — before talking to the target of an investigation. Federal agents want to be extremely well-informed and have the advantage of the element of surprise. They want to be the smartest people in the room. Keep in mind that when these agents come around, it is not unusual for them to simultaneously interview numerous witnesses. Doing so prevents subjects from coordinating their stories in advance.
One example is a doctor who had been videotaped accepting a kickback. Then the FBI came to his office and interviewed him. The doctor didn’t know the FBI had him on video. He was asked questions to which they already knew the answers, and this made him vulnerable to a false-statement charge.
It is faulty thinking to assume a federal agent who has come to speak with you is starting from scratch. Regardless of what an FBI agent knows, remember that anything you tell the agent without the advice of a lawyer is likely to help the agent and to harm you.
4. Waiting to secure a criminal defense attorney
As the preceding examples make clear, it is important to have the advice of a seasoned criminal lawyer from the very start of a federal defense case. While it is true that mounting a defense in a federal case can be extremely costly, having an experienced federal criminal defense attorney’s intercession in the beginning will save you money in the long term.
Ken Rosenfeld and Allen Sawyer are criminal defense attorneys. Rosenfeld, based in Sacramento, and Sawyer, based in Stockton, also are legal experts for local television stations.
Bill Murray (not that one) was at the top of his game, so to speak, until an epic fall from grace. In December 2009, the 54-year-old tax accountant was charged with defrauding more than 50 clients of his Sacramento firm, Murray & Young Accountancy, out of more than $13.3 million. He subsequently pleaded guilty and was sentenced to 19.5 years in federal prison. The saga played out like a reality TV crime drama, from beginning to end.
From texts to photos to emails, every modern law case involves some sort of e-discovery — so why are lawyers still failing to do it?