Not long ago members of the business community were seldom interviewed by a federal criminal investigator, except when the business person or his company was the victim of a crime, or the person was a witness to some event under investigation unrelated to the business. In today’s business climate, conduct that once might have been a normal business transaction may possibly run afoul of federal regulations, which can result in a federal criminal investigation. It is not unusual for such investigations to be referred to a federal grand jury. FBI agents or IRS agents or postal inspectors are often employed to interview subjects (people whose actions are relevant to the investigation) and to serve grand jury subpoenas. This article offers advice on how to deal with a federal agent who approaches an executive or employee of a business entity seeking to conduct an interview or serve a subpoena.
The most common scenario arises when a federal agent arrives unannounced at the office of an operating business, and requests to speak with a specific individual. As explained below, there is a different response required if the agent requests a meeting with a member of management rather than a staff employee. In most cases, the agent will attempt the interview with a very brief description of the subject matter of his inquiry. The agent will not give the person the Miranda warning that the person has the right to remain silent, and that anything said may be held against the person. That warning is only given when a person is in custody.
The prospective interviewee should be aware that despite the lack of such a warning being given, any statement made to the agent can be used against him or her in a subsequent criminal case. The person should also be aware that despite assurances from the agent that the interviewee is not suspected of any illegal activity, any statement by the interviewee can be used against him.
The safest strategy is to get the agent’s card, and inform the agent that the person’s attorney will call the agent and make arrangements for a possible subsequent interview. The person should not attempt to persuade the agent of how little he or she knows about the subject. Such attempts often contain false statements that can return to haunt the person in subsequent proceedings. There should be no conversation.
I have encountered many individuals who reported they told the agent nothing, but simply had a 30 minute general conversation with the agent, only to discover the agent’s report contained numerous admissions or false statements. Ensure that the attorney consulted is one who regularly practices criminal law. I have seen numerous situations as described above turn out badly because of advice from an attorney who simply dabbles in minor criminal cases. There are very few remedies for a client who receives and acts upon bad advice in a criminal matter.
The person contacted should avoid the impulse to agree to an interview because to refuse to do so might appear that he or she has something to hide. The agent has a reason for seeking the interview, and consulting with a lawyer will not change this. Moreover, it is the prosecuting attorney who will eventually make the decision as to who is involved in criminal activity.
Some people unfamiliar with the criminal investigative process may believe that because the agent did not present them with a formal statement to sign, no oral statements made to the agent can be used against them. Nothing is further from the truth. Rarely in a federal criminal prosecution is there a signed statement of an interview offered in evidence. If the agent conducts a formal interview and takes notes, the person interviewed will not be shown the agent’s report, even if he requests to see the report.
Beware of the ploy often used by agents that if the person does not agree to the interview he or she will have to appear before the grand jury and testify. Only the prosecutor decides whom to call before the grand jury. Even if the person agrees to the interview, he or she may nonetheless be called to testify before the grand jury.
If the agent requests to interview an employee rather than management personnel, management has the right to inform the employee that the company attorney or one hired by the company will offer the employee advice. Management has the right to inform the agent that the company wants to ensure that the employee has the opportunity to speak with an attorney. Management personnel should avoid instructing the employee he or she is not to speak to the agent. This might be construed as obstructing the investigation. Inform the employee that he or she has a right to consult any attorney and the company will provide access to an attorney. The employee should be told it is his or her choice to speak with an attorney.
Another problem area that may arise is in the service of a grand jury subpoena for documents. The agent may use the act of serving the subpoena as an excuse to engage the person being served with numerous questions, which will often amount to an interview. The agent may use the occasion to discuss some circumstances relating to the documents or material that are the subject of the subpoena. Be advised that this is nonetheless an interview and any statements made during that conversation may be used against the witness in a subsequent prosecution.
Other problems may arise with service of the subpoena. The agent may request to see the documents under subpoena. Often people who are served with a subpoena attempt to accommodate the agent on the spot. Agents often say if the person hands over the documents immediately the person will not have to appear before the grand jury to produce them. If the file containing the documents is small, the agent may ask to review it to determine if the documents are relevant. The person in possession or control of the file should never permit the examination. It is important to remember that the documents are meant for the grand jury and not the agent. Not all of the documents in a file may be covered by the subpoena. The government attorney who issued the subpoena may not be aware of the existence of some of the documents. Once the agent sees them, the government attorney may well subpoena them. The subpoena will call for a production before the grand jury on a date in the future. The request by the agent to view them immediately is a forthwith subpoena, which is not permitted.
If the person with advice of counsel, agrees to an interview, the following are very practical tips. According to Dave Richter, a former FBI agent, and now a licensed private investigator, a good agent will generally know most of the answers to his or her questions before the questions are asked. The person being interviewed must tell the truth. Richter cautions that even minor intentional false statements will force the person interviewed to compensate with other misstatements and distortions that will tip off the agent that the interviewer’s narrative is less than truthful. Moreover, the person shouldn’t attempt to shade the facts in an attempt to have them appear other than what they represent.
The person being interviewed should answer the question that is asked, not what he or she thinks the question should be. If the question suggests a yes or no answer, but needs further explanation, say so, and the agent will be pleased to hear the explanation.
Richter further cautions that if the interviewee’s answer relates to a document or a conversation with another person, the interviewee should be aware that the agent will make a concerted effort to find that document or that person in an attempt to corroborate the interview.
Be accurate as to chronologies. The person being interviewed should work out the time chronology of events in his or her own mind or take a few minutes to put them in order on a scratch paper before getting too far into the interview. This will prevent unintended inaccuracies and prevent further interviews.
When relating a conversation with another person, avoid the phrase “it was decided.” The best way to describe a conversation is: “He said; I said.”
If after the interview, upon reflection, the person interviewed realizes that some information given to the agent is incorrect, the person should immediately call the agent and inform him or her of that fact. The agent will take steps for a second interview.
The appearance of an agent requesting an interview or to serve a subpoena is an indication that there is official interest in the company or the person interviewed. The visit might be something that is of minor importance, or may foretell a serious problem. The company official cannot figure this out without professional advice as to determining the purpose of the investigation, and what prophylactic steps should be taken. •
Peter F. Vaira is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of “Eastern District Federal Practice Rules, Annotated” (Gann Law Books). He can be contacted by e-mail at firstname.lastname@example.org. Vaira has a blog devoted entirely to Eastern District Practice at http://petervaira.wordpress.com .