Part 1 of 5 Blogs from David Rosenfield, White Collar Defense Attorney at Herrick Feinstein, LLP
Part 1: The Surprise Government Interview
As a white-collar defense attorney in New York and New Jersey, I have seen many white-collar cases defendants can learn from. For purposes of this first blog in my series of 5, let’s talk about The Surprise Government Interview.
A couple of FBI agents or U.S. Postal Inspectors drop by your office as part of a criminal investigation to ask you some questions related to a client complaint about alleged misrepresentations. Or maybe its investigators from the Securities and Exchange Commission conducting an SEC investigation. You take the agents into a conference room, or downstairs for a cup of coffee, where they interview you. You are given no Miranda warning and are not placed under oath.
- Do you have to tell the agents the truth?
- Do you have to correct the agents if you learn that they have some of their facts wrong?
- What are the risks to you in this interview?
When dealing with the federal government, or state or local officials, be careful what you say and what you sign. Why? Because it is a crime to lie to the government, and you could go to jail if you do.
Just ask Martha Stewart, Dennis Hastert (former Republican Speaker of the House), Scooter Libby (Dick Cheney’s Chief of Staff) orMarion Jones (track & field champion). Or how about Illinois governor Rod Blagojevich? Or Die Hard director John McTiernan. Or two former New York State Senators. Or even Barry Bonds. And then there are the people you’ve never heard of — executives at Computer Associates and at Indiana concrete companies, foreign currency traders at the Chicago Mercantile Exchange, and a natural gas trader at El Paso Corp.
- It doesn’t matter that your lie wasn’t under oath.
- It doesn’t matter that you weren’t involved in stealing government funds.
- It doesn’t even matter that your lie didn’t deceive the government.
So if you’re going to talk to the feds, you better TELL THE TRUTH.
Whether the case involves securities fraud such as insider trading, manipulation or accounting fraud, bank fraud, bribery or kick-backs, money laundering, or any other serious crime, TELL THE TRUTH. If you aren’t truthful, what recently happened to former New York State Senator Thomas Libous, as reported in the New York Times article, could happen to you.
What Are Your Rights?
It is important to remember that you are not legally required to participate in the interview, and can decline to do so and tell the agents to contact your attorney.
- This is unlike a subpoena where testimony is compelled (even if you decide to take the 5th).
- Invocation of your right to counsel can’t later be used against you at a criminal trial.
You are entitled to retain personal counsel or speak to a supervisor or company attorney.
- If the agent asks why you need an attorney or suggests that you have something to hide, don’t take the bait.
Any statements made, even though not under oath, are not “off the record,” and can later be used against you and even your employer.
- Individuals are often less careful or precise when not under oath.
Remember that, whether or not you submit to the interview, a grand jury subpoena may be served on you.
Key Rules to Follow
- Be respectful, but try not to be intimidated
- Consider postponing the interview
- It is probably better to listen than to talk – listen carefully
- Obtain business cards of agents
- After the encounter, prepare notes of anything said by agents
- Strongly consider retaining an experienced white collar defense attorney
- You may need to advise your supervisor or company counsel
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 first of several that I’ll be posting on this issue. 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.
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