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Author Topic: Reply:A foreigner's contemptuous post:Protections from US criminal investigators  (Read 3921 times)

Offline Tom Scully

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One of the disturbing things CTs unrestrained by the actual state of the facts are very accomplished at is exactly what Trump & Co. are exhaustively
engaged in at present, undermining generally the legitimacy of and the rule of law and the integrity of investigators and their investigations.

Was that FBI report read and signed by Frazier?

How to Avoid Going to Jail under 18 U.S.C. Section 1001 for Lying to ... ? Corporate Counsel ? Litigation and Disputes
(It also bears noting that the FBI will usually not tape record the interview and that the only official interview report will be an FBI 302, which is the agent's own dictated version of the conversation. Agents usually work in pairs as well, so in any later dispute over what was said in the interview, guess whose version is likely to ...

Your Word Against Ours: How The FBI's 'No Electronic Recording ...
May 20, 2013 - 27 posts - ‎18 authors
FBI agents always interview in pairs. One agent asks the questions, while the other writes up what is called a ?form 302 report? based on his notes. The 302 report, which the interviewee does not normally see, becomes the official record of the exchange; any interviewee who contests its accuracy risks ...

No Canadian Miranda right, top court rules
     October 18, 2010
Oct 08 2010 OTTAWA - The American Miranda rule that gives a suspect the right to have a lawyer present during questioning has no place here, the Supreme Court of Canada ruled Friday.
Oct 08 2010

OTTAWA - The American Miranda rule that gives a suspect the right to have a lawyer present during questioning has no place here, the Supreme Court of Canada ruled Friday.

In three related decisions, a sharply divided court fine-tuned the rules on suspects' right to counsel.

In the main case, the justices ruled 5-4 that the Charter of Rights does not confer a right to have a lawyer present during interrogation.

That means Miranda, a staple of TV cop shows where lawyers whisper to their clients while detectives ask questions, does not apply.

The court also held that suspects have no right to interrupt an interrogation to consult again with a lawyer except in some limited circumstances.

They said that while suspects generally have the right to a lawyer of their choice, they must accept another if they cannot contact their own within a reasonable time....

Vs. in Texas, years before Buell Frazier was questioned many hours by local police yet still did not consult a criminal defense attorney, the next day,
or even 9 days later!:

FindLaw Corporate Counsel Litigation and Disputes How to Avoid Going to Jail under 18 U.S.C. Section 1001 for Lying to Government Agents
How to Avoid Going to Jail under 18 U.S.C. Section 1001 for Lying to Government Agents
 149  16.3K

Solomon L. Wisenberg is a partner and co-chair of the white collar criminal defense practice group of Nelson Mullins Riley & Scarborough, LLP......
 Since you have nothing to hide, is it safe to talk? There can still be real danger in speaking to a government agent in these circumstances. To begin with, you are not qualified to know whether you are innocent of wrongdoing under federal criminal law . I have already noted the minimal nature of the act needed to connect you to another's crime if you have knowledge of that crime. But the danger goes beyond this. Not all federal crimes (particularly regulatory crimes) even require criminal intent. Moreover, you and your employer may have engaged in some widespread industry practice, acceptable at the time, which is now under stricter scrutiny. One offhand remark to the federal agent could turn into a damaging admission.

Even assuming your absolute innocence of the wrongdoing being investigated, however, the agent has had the luxury of minutely studying all of the relevant paperwork surrounding that investigation. You, on the other hand, may not have thought about the subject matter, much less the underlying details, of his inquiry for years. You will probably not be shown any of the pertinent documents before the interview begins. You could easily make factual mistakes during your interview. What happens then? Maybe nothing, if you are dealing with an experienced agent who surmises that you are trying to tell the truth. But if the agent is inexperienced and 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.

Is there an intelligent alternative to lying or telling the truth that we have not yet examined? Yes. In our hypothetical interview, you can politely decline to be interviewed by the FBI agent. Tell the agent that you have an attorney 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. It is preferable to do this by politely declining to be interviewed in the absence of counsel. 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. If the agent asks for a commitment from you to speak with him after you have consulted or retained counsel, do not oblige him. Just respond that you will consult with your attorney (or "an" attorney) and that the attorney will be in touch. And by all means do not get bullied or panicked into making up a phony reason for refusing to talk. You are not obliged to explain your decision to anyone.

What if the FBI agent threatens to have you subpoenaed to the grand jury if you don't talk? Simply repeat your mantra that you will not discuss the matter with him in the absence of counsel. (If you are already represented tell the agent that you authorize your attorney to accept service of the subpoena. That way you will not have to be embarrassed at work by the FBI's service of a grand jury subpoena in broad daylight.) What if the agent already has a subpoena and serves you with it? Thank him and tell him that your attorney will be in touch.

 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.

Your invocation of counsel, however, 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.

If the prosecutor responds to your declination by serving you with a grand jury subpoena, this will present you with an interesting range of options such as: 1) testifying; 2) refusing to testify, by invoking the Fifth Amendment privilege against self-incrimination, which broadly applies to anyone , innocent or guilty, facing criminal exposure; 3) testifying (or talking to the government) only after receiving a grant of immunity; or 4) proffering to the government that is, giving them a sneak preview of what you will tell them if they agree to grant you immunity. The important thing to remember is that declining to speak to the agent in the first place buys you time in which to weigh these alternative strategies with your white-collar criminal defense attorney.

I am not suggesting that you should obstruct the FBI or invariably decline to answer an agent's questions. If you are certain that you have committed no crime, and if the agent promises you that nothing will happen to you if you tell the truth, and if it is crystal clear that you are nothing but a peripheral witness, it may be appropriate to voluntarily interview with federal law enforcement officials. But don't speak to them unless: you have discussed the matter thoroughly with your attorney; your attorney has called the prosecutor to determine your status as a witness, subject or target; and, your attorney is present during the interview.

Neither am I suggesting that it is generally acceptable to be interviewed by federal agents as long as your attorney is present. In fact, it is usually unacceptable and is often quite risky. (Just ask Martha Stewart, who had counsel by her side when interviewed by the FBI and SEC.) Indeed, barring special circumstances, I never let a client with the slightest degree of criminal exposure submit to an interview by government agents.

There are some instances in which you may effectively be forced to interview with law enforcement agents. If you are an employee of the government and you are assured that an inquiry is administrative only and that your interview will not result in any criminal action against you, you will usually be required, in order to keep your job, to submit to the interview. Furthermore, a private employer can require you to cooperate with a law enforcement or regulatory investigation as a condition of continued employment. If you are an officer or director of a company that operates in a regulated industry or does business with the federal government, your failure to submit to questioning by regulatory officials may result in significant economic sanctions against you or your company by the United States. But even in the above situations, you should avoid substantive conversations when law enforcement agents make surprise visits. If you have to submit to an interview, it is far better to do so after careful consultation with your attorney.

If all of this sounds complicated, it is. Whether you speak, what you say and how and when you say it can have a profound effect on your future when you find yourself involved in a white-collar criminal investigation. The time to realize this, hire an experienced white-collar criminal defense attorney and develop a strategic plan is before the feds come knocking at your door.
« Last Edit: January 25, 2018, 08:30:57 AM by Tom Scully »

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