It’s all fun and games until the FBI calls…
A story shared by an anonymous U.S. & Texas LawShield member:
The day began like any other day. I went through my morning routine and began the long, arduous drive to work. But things changed when the phone rang with a very odd listed return number – all zeros.
“Mr. Jones? This is agent “Smith” with the FBI.”
Of course, the first reaction I had was to ask the obvious question, “Who is this, really?”
After being assured several times that the other person on the phone was in fact, really an FBI agent and that she had some questions to ask, I asked, “What can I help you with?”
The agent went on to describe how I should not be worried, that they receive thousands of these types of calls/referrals, and, unfortunately, they have to follow up on all of them. She also stated that she wanted to make a phone call because sometimes people can get “a little freaked out” when someone from the FBI shows up on their doorstep. As you can imagine, this was of grave concern, and I asked the agent what the issue was, and she went on to describe a social media post that I had put up. I recalled the post as a “tongue in cheek” response to a hypothetical question by one of my contacts.
“Does any of this sound familiar?” she asked.
Fortunately, I could recall exactly what the comment was, stated that it was clearly meant to not be taken seriously, and that if she had looked into my background she would see that I have not had anything more serious than a traffic ticket, and hadn’t even had one of those in years. It turns out that she had done that and some more. After a brief chat, and a discussion of how they had to follow up and didn’t think there was any type of threat, she recommended that I “please consider what I put in public forums on social media,” and then we mutually ended the call.
That last statement really hit home for me. I’m a bit of a political and social media junkie and have no fear of sharing my opinions. That may change now.
The FBI is Always Watching
When you visit the FBI’s website you will see the FBI’s mission is to protect and defend the United States. One of the new ways they are accomplishing this is identifying potential threats from SOCIAL MEDIA. Because of this renewed interest there has been an increase in Social Media “SWAT-ing.”
The term “SWAT-ing” has been around for several years and comes from the use of police SWAT teams to harass a person that the caller disagrees with. The most common occurrence is by someone who is “anti-gun” seeing another individual open or concealed carrying in a store or restaurant and calling the police because that person “has a gun.” U.S. LawShield shares many similar stories of its members being wrongfully accused by other people. It is something every gun owner should think about, and it should certainly make you think about what you do, who you associate with, and, perhaps most importantly, what you say or repeat on social media and what steps you take to be prepared for the day you get your call from the FBI or other law enforcement.
When the FBI Calls, What Should I Do?
You are under no obligation to speak with the FBI when they call or show up at your door. You do not know what they are investigating, nor do they have to be truthful in describing the purpose of the call or the visit.
It is very important from a law enforcement perspective for federal agents to be able to informally question suspects and witnesses during the initial stages of an investigation. During these informal “chats,” it is essential that you understand that law enforcement is under no obligation to be truthful with you. In fact, investigators often lie to try to trip up the unwary.
They can lie to you about what other people said about you, or what they’ve seen in your emails or social media posts. They can lie to you about what they know and what they can prove. The courts have recognized this as a valuable investigative tool to elicit a confession or evidence of a crime, and it is not considered “entrapment.”
However, you are not afforded the same leeway with regards to your statements and responses to questions or statements put forth by investigators.
I’m Not Under Oath, So Is it a Crime to Lie to the Investigators?
The short answer is, yes, it is a crime.
The very purpose of an investigation is to uncover the truth, so any falsehood relating to the subject of the investigation interferes with that function. American law generally is aggressive in criminalizing lying because those being investigated have an alternative to lying if they fear the consequences of telling the truth to a government official, and that is to remain silent. The Fifth Amendment’s protection against compulsory self-incrimination gives the person the right to remain silent rather than making false statements.
The late Justice Antonin Scalia once explained, “Neither the text nor the spirit of the Fifth Amendment confers a privilege to lie. ‘[P]roper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely.’” Brogan v. United States, 522 U.S. 398, 404 (1998) citing United States v. Apfelbaum, 445 U.S. 115, 117 (1980).
Title 18, United States Code, § 1001 makes it a crime to:
- Knowingly and willfully;
- Make any materially false, fictitious or fraudulent statement or representation;
- In any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.
While you might have the right to remain silent, you certainly don’t have a right to lie to the police. State laws can vary when it comes to false statements, but lying during a federal investigation is a felony carrying a potential five-year prison sentence. However, if the offense involves international or domestic terrorism (as defined in section 2331), you can be imprisoned for up to 8 years, and fined.
Though the falsehood must be “material,” this requirement is met if the statement has the “natural tendency to influence or [is] capable of influencing, the decision of the decision-making body to which it is addressed.” United States v. Gaudin, 515 U.S. 506, 510 (1995). It is not necessary, therefore, for the prosecutor to show that your particular lie ever really influenced anyone.
In 2014, the government changed its position regarding proof required to convict someone for lying to investigators. The Department of Justice issued guidelines to its prosecutors that they must prove that the person knew the statement was false and knew that making a false statement was unlawful. Prior to the change, it only had to be shown that the statement was willfully made without even knowing such conduct was unlawful.
Prior to 1998, federal courts held that falsely answering “no” to an inquiry from a federal agent was, standing alone, not a crime under Section 1001. However, that all changed when the United States Supreme Court, in the Brogan case, rejected this as being inconsistent with the legislative intent of Section 1001.
In Brogan, U.S. Supreme Court Justice Ruth Bader Ginsburg went so far as to state that Section1001 gives prosecutors “extraordinary authority” to “manufacture crimes.”
But it’s worse than that.
Innocent But Still Guilty
As we have shown, Section 1001 is a very powerful tool in the prosecutor’s arsenal. It can even lead to the conviction of someone who is not guilty of any crime other than making a false statement to federal agents.
Take the case of Martha Stewart, the TV personality who went to prison in 2004 following an investigation into alleged insider trading in the stock market. While she was never actually charged with criminal insider trading, she was convicted on two charges under Section 1001 for making false statements to federal investigators. There are many cases where an individual has not been charged with a crime or been acquitted of a criminal charge but are nonetheless convicted of making false statements to investigators.
Special Prosecutor Robert Mueller is using that approach to charge those being questioned in his Russia/Trump investigation. Former national security advisor Michael Flynn pleaded guilty on December 1, 2017, to the charge of lying to the FBI about his contacts with the Russians.
Prosecutors have brought Section 1001 cases on the basis of statements people made in their living rooms without any opportunity to talk to a lawyer, compose themselves, or prepare their comments.
I Have Nothing to Fear Because I Have Done Nothing Wrong
What if you are entirely innocent of wrongdoing? Since you have nothing to hide, is it safe to talk? There can still be a real danger in speaking to a government agent in these circumstances.
In the first place, you are not qualified to know whether you are innocent of wrongdoing under any of the thousands of federal criminal laws. One offhand remark to the federal agent could turn into a damaging admission.
Even assuming your absolute innocence of the wrongdoing being investigated, the agent has had the luxury of minutely studying all of the relevant paperwork surrounding that investigation for months. When an FBI agent is interviewing you, assume that that agent is exquisitely prepared. They probably already have proof about the answer to half the questions they’re going to ask you.
You, on the other hand, may not have thought about the subject matter, much less the underlying details, of his inquiry for months or years. You will probably not be shown any of the pertinent documents before the interview begins and could easily make factual mistakes during your interview.
What happens then? If the agent is unsure of your culpability or if you are not confirming his version of events, your mistakes can easily be interpreted as intentional falsehoods under Section 1001. Moreover, it is a very stressful situation you find yourself in, and humans lie more under pressure, something law enforcement investigators are experienced in exerting.
How Do I Handle the Questioning?
The simplest answer is to avoid engaging in the inquiry.
Do not talk to them “just to see what they want.” Do not try to “set the facts straight.” Do not try to outwit them. Do not explain that you have “nothing to hide.”
If an FBI agent asks for an interview, politely decline. Tell the agent that you have an attorney (if you have one) and that “my attorney will be in contact with you.” If the agent persists, say that you will not discuss anything without first consulting counsel. Ask for the agent’s card to give to your attorney. If you have not yet hired a lawyer, tell the agent that “I want to consult a lawyer first” or that “an attorney will be in touch with you.”
The absolutely essential thing to keep in mind is to say nothing of substance about the matter under investigation.
If the agent asks, “why do you need an attorney?” or “what do you have to hide?” do not take his bait and directly respond to such questions. (Do not even say that you have nothing to hide.) Simply state that you will not discuss the matter at all without first consulting counsel and that counsel will be in touch with him.
Law enforcement may bully you into making up a phoney reason for refusing to talk. Do not fall for this trap. No one is obligating you to explain your decision. The FBI agent may even threaten to have you subpoenaed to the grand jury if you don’t talk. Do not give in to this coercion and stand by your decision.
It is crucial to note that affirmatively declining to discuss the investigation in the absence of counsel is not the same thing as remaining completely silent. If you are not in custody, your total silence, especially in the face of an accusation, can very possibly be used against you as an adoptive admission under the Federal Rules of Evidence.
Invocation of counsel cannot be used against you at trial. United States v. McDonald, 620 F.2d 559, 561-64 (5th Cir. 1980). Your refusal to talk substance in the absence of counsel will force the prosecutor to decide whether your information is important enough to justify a grand jury subpoena for your testimony, at which time your counsel will advise you on the course of action to take.
We are not suggesting that you should obstruct the FBI. You should, however, try to understand the risks associated with being interviewed by law enforcement without the benefit of knowing the exact nature of the inquiry.
A conviction of lying to the government is a felony that will most likely follow you for the rest of your life and prevent you from enjoying certain privileges and rights, especially with regards to purchasing and possessing firearms.
Remember, there are other people besides your friends and family who might be reading what you post online. They don’t call it the “world wide web” for nothing.
Lesson learned? Lesson learned.
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