February 8, 2016

The Surprise or “Ambush” Interview

If you missed the first two parts of my series on government interviews, you should go read those now.

Part 1: The Surprise Government Interview

Part 2: When You Lie To The Government What Crime (Or Crimes) Are You Committing?

In this third part of my series on government interviews, I’ll discuss how the surprise or “ambush” interview is used by government agents as an investigative technique.

Purpose of the Surprise Interview

The surprise interview is a valuable tool designed to obtain critical evidence.  So why is it such a valuable technique?

  • First, it is necessary for agents to be able to informally question witnesses during the initial stages of an investigation, as a result of which they often obtain key evidence.
  • Second, the government may catch the interviewee in a lie − the person is unprepared, facts may either be inculpatory or embarrassing, and panic may set in.
  • Third, even though well informed, agents may “play dumb” so the interviewee gains a false sense of security.

A surprise interview also minimizes the likelihood that someone can intervene and stop the interview.  Finally, simultaneous surprise interviews prevent individuals from “getting their stories straight.”

What to Expect in a Surprise Interview

Surprise interviews are carried out by either criminal investigators (FBI agents, Postal Inspectors) or investigators from regulatory agencies.  They often are done at an individual’s home either early in the morning or late at night.

  • The embarrassment factor (family is in the house) may tempt the person to just get it over with.
  • Former SAC hedge fund trader Matthew Martoma, when confronted by the FBI at this home and told he was being investigated for insider trading, was so shaken that he fainted.  The government tried to introduce Martoma’s fainting spell at this January 2014 criminal trial, arguing it was “consciousness of guilt”, but the court refused, stating that such a confrontation by FBI agents “is likely to be a shocking and highly disturbing event, whether the person is innocent or guilty.”

Surprise interviews also be attempted at the office during the execution of a search warrant or during a surprise regulatory examination.

It could happen to anyone, and almost anywhere.  For example, pro golfer Phil Mickelson was confronted by FBI agents conducting an insider trading investigation, first at Teterboro Airport in New Jersey in 2013 (presumably as he was boarding a private plane), and then on May 29, 2014, after the first round of the Memorial Tournament at the Muirfield Village Golf Club near Columbus, Ohio.  At the airport, Mickelson spoke to the agents for about an hour, pledging to cooperate but denying any culpability.  Then he retained an attorney.  Not surprisingly, at the golf tournament Mickelson told the FBI agents to “speak to my lawyers.”

If by phone, the interview may seem less confrontational, but it’s just as fraught with danger.  Lying to an agent over the phone is no different than lying to an agent in person.

You’ve all heard about Miranda warnings on TV: “You have the right to an attorney” and “anything you say can and will be used against you.”  But no Miranda warning is required before a surprise interview because it’s not a custodial interrogation.  However, as noted in Part 2 of my blog on government interviews, given the government’s concession on Section 1001’s “willfulness” requirement, agents may now find it necessary to at least advise individuals that lying to the government is a crime.

Normally two agents are present during the surprise interview, and notes are taken.  Therefore,

  • No witness is around to support the interviewee’s recollection of the interview if it differs from that of the agents.
  • Moreover, a report will be prepared by the agents summarizing the interview.

The agents may also attempt to convince the person to a sign a statement or affidavit.  If there is no search warrant, the agents may seek a person’s voluntary consent to search his or her premises and/or computer.  You generally shouldn’t take the bait, however, because you never know what the agents may find.

Key Rules to Follow

In Part 1 of my blog, I discussed the key rules to follow when confronted with a surprise interview, and they bear repeating because they are so important.

  • Be respectful, but try not to be intimidated.
  • Consider postponing the interview.
  • It is probably better to listen than to talk − and listen carefully.
  • Obtain the agents’ business cards.
  • After the meeting, prepare notes of anything said by the agents.
  • Consider retaining an experienced white collar defense attorney.
  • You may need to advise your supervisor or company counsel.

Takeaway

Now you know what to expect in a surprise interview, why they are such an important investigative technique, and what to do if you are confronted with one.

Contact Me Now If You Have Questions – Even if you are outside New York and New Jersey, I work with experienced white collar defense attorneys across the country.  After we speak, I can make an introduction.

This blog is the third of five that I’ll be posting on the issue of government interviews.  If you’d like to learn more, please feel free to reach out to me at (212) 592-1513.  I practice white collar criminal defense and securities and bank regulatory defense in New York, New Jersey and elsewhere, and my contact information is included in the link below.

LINK TO DAVID ROSENFIELD’S CONTACT INFORMATION

David Rosenfield

The Surprise or “Ambush” Interview
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