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What Should I Do When FBI Agents Show Up at My House to Interview Me?

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Trusted Attorneys for Clients Needing Federal Criminal Defense

It is Friday afternoon. You come back from work. You drive into the parkway of your house. Before you know it, two agents approach your car. They show you their badges. They are special agents with the Federal Bureau of Investigation. What do you do now?

The FBI’s Role in Federal Law Enforcement

Among the many federal law enforcement agencies, the FBI is arguably the best-known. While you see FBI agents in movies all the time, few people ever meet an FBI agent in person, let alone encounter agents that want to discuss a pending criminal investigation with them.

In general, the purpose of the FBI is to ensure compliance with federal statutes and to investigate federal crimes. By way of context, the United States’ criminal justice system is split into state court and federal court adjudication. Slightly oversimplified, statutes that are enacted by state legislatures are monitored and enforced by police departments and local district attorney’s offices; statutes that were enacted by Congress exist as federal laws and are subject to federal law enforcement under the auspices of the Department of Justice. The following are some examples of offenses that are federal in nature, even though state laws may exist concurrently that prohibit the misconduct in question.

  • Medicare Fraud
  • Tax Fraud
  • Bank Fraud
  • Embezzlement
  • Mortgage Fraud
  • Computer Offenses
  • Insurance Fraud
  • Violations of the Controlled Substances Act

In a federal criminal investigation, law enforcement agents from the FBI (or the DEA, the IRS, etc.) are tasked with gathering and collecting information about possible violations of federal laws. Sometimes, an investigation originates because agents received a tip (e.g. a fired employee of a doctor’s office reports Medicare fraud). Other times, investigations result from other cases, where a name or a matter came up that was not part of the original investigation (e.g. the government looks at a company regarding investment fraud and then, as part of the investigation, learn about other individuals not originally subject to the case). Regardless of how the investigation starts, agents are information brokers. They depend on information. They need evidence, or at least probable cause, to believe that someone committed a federal offense or helped someone else to commit a federal crime by way of a criminal conspiracy. To get that information, agents visit with individuals that they think may have some implication and/or information regarding the matter under investigation. That’s how they may find you!

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A Real Life Example: How Dr. Smith Gets Himself in Trouble

Let’s say the FBI investigates health care fraud against “Pharmacy.” During the course of the investigation, agents will identify individuals that could contribute insight or information, like current and former employees of that company, business affiliates, managers and owners. One day they may unexpectedly show up at Dr. Smith’s house. Dr. Smith does not work for Pharmacy, but he entered a business relationship with the company that involves referrals.

This is the status of the investigation:

  • The FBI knows about Dr. Smith’s referrals to “Pharmacy”
  • The FBI has subpoenaed company’s and Dr. Smith’s bank records and knows exactly how much Dr. Smith was paid by “Pharmacy”
  • The FBI has already concluded that Dr. Smith’s business relationship with “Pharmacy” was illegal, but they are lacking a key element: they need to establish that Dr. Smith had intent to enter the unlawful referral contract with the company, as required under federal criminal law.

Interview Version 1: Bad Interview

FBI Agent: Hi, I am special agent Joe Sample with the Federal Bureau of Investigation and this is my colleague special agent Johanna Example. Are you Mr. Smith?

You: Yes, that’s me. What’s going on?

FBI Agent: Oh, nothing, nothing to worry about. You are not in trouble or anything. We just have a few questions. It is not about you. You mind we come in for a minute?

You: Hmm, sure.

FBI Agent: Thanks. Nice house.

You: Thanks, what is this all about?

FBI Agent: Do you know someone by the name of Fred Miller?

You: Yes, that’s my business partner. He owns “Pharmacy.”

FBI Agent: I see. How long have you been working together?

You: About 4 years or so. Anything wrong?

FBI Agent: No, nothing. How do you know him?

You: We met a while back and he told me I could make some extra money.

FBI Agent: Oh, cool. How much did he help you make?

You: I don’t know. Maybe a hundred thousand or so.

FBI Agent: What did you have to do? Like, what services did you provide for Fred’s company?

You: Hmm, you know, like medical consulting and stuff.

FBI Agent: Can you give me any example?

You: Well, like consulting and being the medical director, making sure everything is right there, you know.

FBI Agent: Oh, ok. That’s great. How often did you visit “Pharmacy?”

You: Maybe once or twice.

FBI Agent: Once or twice in 4 years?

You: Yeah, I guess. Maybe three times.

FBI Agent: Where do you send your pharmacy referrals?

You: I send all my cases to Fred’s Pharmacy.

FBI Agent: When you began your services for Pharmacy, did you consult with an attorney?

You:  No, I didn’t.

FBI Agent: Is this here your contract with “Pharmacy”?

You: Yes, how do you know? Where did you get this from?

FBI Agent: It says here that you are providing this list of ten services. Do you have any documentation, or are you telling me that you actually provided accounting and HR services? Let’s cut through this, Dr. Smith. You liked Fred and the Pharmacy wanted your business because you are a well-respected doctor, right?

You: Yes, that’s right.

FBI Agent: And you would not have received compensation from “Pharmacy” if you referred your business to Fred’s competitor, right?

You: Yes, probably true.

FBI Agent: In fact, if you add up the money you received and the referrals you sent, and then calculate, you made exactly $ 100.00 for each script you sent. Look, I am not here to hurt you. Just agree with me that you and Fred agreed that you would send cases to “Pharmacy” and he would take care of you, right?

You: Yes.

Interview Version 2: How to Respond Correctly

FBI Agent: Hi, I am special agent Joe Sample with the Federal Bureau of Investigation and this is my colleague special agent Johanna Sample. Are you Mr. Smith?

You: Yes, that’s me. What’s going on?

FBI Agent: Oh, nothing, nothing to worry about. You are not in trouble or anything. We just have a few questions. It is not about you. You mind we come in for a minute?

You: Actually, I’d prefer to have my lawyer present.

FBI Agent: Oh yeah? Who is your lawyer?

You: I don’t have one yet.

FBI Agent: I see, so let’s just continue. It won’t take long.

You: No, please respect that I want my lawyer present. Please give me your contact information and my lawyer will contact you promptly. Thank you for your understanding.

FBI Agent: Why would you need a lawyer unless you have something to hide?

You: Please respect that I want my lawyer present.

FBI Agent: Ok. Here’s my card.

You: Thank you. Have a nice day.

Why You Should Never Talk to an FBI Agent Without Your Lawyer

From the perspective of a federal defense lawyer, the difference between Interview 1 and Interview 2 could not be any greater. To start with, talking to an FBI agent is like testifying in court.

Unknown to most people, conversations between federal agents and you are subject to 18 U.S.C. 1001, a federal statute that says in its relevant parts:

“Whoever…knowingly and willfully…makes any materially false, fictitious, or fraudulent statement or representation [to an FBI agent]… shall be fined…imprisoned not more than 5 years.”

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In other words, any misrepresentation, lie, withholding of information material to the conversation may constitute a federal felony charge. You must not lie, trick, cover up, falsify, conceal, misrepresent when talking to agents.

By contrast, the law does not prohibit agents lying to you. Federal agents can deceive you, lie to you, trick you, and misrepresent the truth. In fact, they will. It’s part of their training and part of how they draw interviewees into a conversation. “It’s not about you” (well, yes, it is about you and your crime and your freedom), “We just have a few questions” (well, the agents want to hear everything you know and they want to sit down with you for as long as it takes)—these and other “pacifiers” will make you chatty. Imagine if the interview request started off like this:

FBI Agent: Are you Mr. Smith?

You: Yes, that’s me.

FBI Agent: We are investigating you for health care fraud. We think you committed a crime. You are in trouble and you may go to jail. Can we talk to you?

Naturally, what would happen in a situation like this is that a wall would likely come down. Your natural instincts would tell you: I do need a lawyer. I should not do this by myself. I am in trouble, they said. Your whole body would switch into defense. Instead of causing this reaction, the trained agents approach you smoothly (“it’s not about you”).

What you must not forget is that no matter how friendly the agents are and how innocently they talk to you, they are not on your team. They are trained and paid to put people behind bars. You are just their tool, not their ally and not their partner. Make no mistake about this.

Finally, your statement cannot be undone. FBI agents typically do not record their conversations with targets or witnesses because early in the 1950s it was established that FBI agents go through a rigid selection and security clearance process.  In return, they are presumed to be credible when it comes to “their” story versus “your” recollection of the conversation. Further, agents typically show up in a team of two, with one agent playing “good” cop and one agent being more quiet and taking notes. So, you are also outnumbered. In addition, investigating agents are required to contemporaneously write a memorandum about each interview they conduct to capture all details of a conversation.

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