What Should I Do When FBI Agents Show Up at My House to Interview Me?
Experienced Attorneys for Clients Needing Federal Criminal Defense
You just got home from work. You drive up to your home and put the car in park. Before you know it, two agents approach you. They show you their badges. They are special agents from the Federal Bureau of Investigation. What should you do?
The FBI’s Role in Federal Law Enforcement
The Federal Bureau of Investigations (FBI) is arguably the best known among the many federal law enforcement agencies. While you see on-screen FBI agents 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.
Generally, 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. Put simply, statutes that are enacted by state legislatures are monitored and enforced by police departments and local district attorney’s offices; statutes that are 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
- 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, 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, such as 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, learns 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 has 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 healthcare fraud against “Pharmacy.” During the course of the investigation, agents will identify individuals that could contribute insight or information. These individuals may be current and former employees of that company, business affiliates, managers and owners. One day, these agents 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 the 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: A 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. Do 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. Is something 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 examples?
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 referrals 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 prescription you sent. Look, I am not here to hurt you. Just agree with me that you and Fred agreed that you would send referrals to “Pharmacy” and he would take care of you, right?
Interview Version 2: How to Respond Correctly (A Good Interview)
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, this is nothing to worry about. You are not in trouble or anything. We just have a few questions. It is not about you. Do 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: Okay. 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. For starters, talking to an FBI agent is similar to 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:
“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.”
This is Why You Are in Good Hands
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, or misrepresent when speaking with agents.
By contrast, the law does not prohibit agents from lying to you. Federal agents can deceive you, lie to you, trick you, and misrepresent the truth of the situation. 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 healthcare 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 your wall would likely come down and you would immediately be on the defensive. 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. Do not forget this and make no mistake about this.
Finally, once said, 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 of an observer who takes g 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.
Frequently-Asked Questions (FAQs): When FBI Agents Show Up at Your Door
Q: How do FBI investigations work and what are the risks of being targeted by the FBI?
The steps and risks involved in FBI investigations depend on the specific offense (or, more likely, offenses) that is being targeted. The FBI investigates a broad range of federal crimes ranging from healthcare fraud to cyberterrorism. Although some crimes carry more severe penalties than others, if you are being targeted by the FBI this almost certainly means that you are at risk for substantial fines and federal imprisonment.
Additionally, most FBI investigations target individuals and organizations that are suspected of a variety of federal offenses. If you are charged with multiple counts of multiple crimes, you could be subject to decades of incarceration. Furthermore, due to the breadth of the federal conspiracy statute, you could be imprisoned even if you were not directly involved in the commission of a federal offense.
Q: How do you know if the FBI is investigating you?
When you are the target of a federal investigation, it is to the FBI’s advantage to keep you in the dark. If you know that federal agents are looking into your professional practice or business dealings, you are far more likely to seek legal representation and exercise your right to remain silent to avoid self-incrimination. On the other hand, if FBI agents can convince you that you are not being targeted, they know that they have a much better chance of getting you to say something they can use against you.
The fact that you have been contacted by FBI agents does not necessarily mean that you are being targeted for prosecution; however, it does mean that you need to approach your situation very cautiously. The FBI agents handling the investigation have the upper hand, and they will use any leverage that they have available to the fullest of its potential.
Q: Is it possible that I am just a witness, or am I under federal investigation?
Yes, it is possible that you are merely a witness to an investigation targeting another individual or business. However, you should not assume that this is the case under any circumstances–– even if FBI agents tell you that you have “nothing to worry about.” They do not have to tell you that you are being targeted. Also, keep in mind that while you have an obligation to tell them the truth, this obligation does not extend in the other direction.
Also, even if you are currently a witness, this could change once the FBI gathers additional information. Your statements during the interview could lead to you becoming a target, or they could lead the FBI to other sources of information that eventually lead to you being implicated in a conspiracy or other federal crime.
Q: What does the FBI know about me?
It depends, although the answer is probably more than you think. By the time you find out that you are a target or a witness in a federal investigation, the FBI has already done its research to learn everything it can about you.
Q: If I don’t have anything to hide, why do I need to be cautious about speaking with FBI agents?
Even if you don’t have anything to hide, you should still refuse to answer any questions from any FBI agents who show up at your door. Why? Because you might be wrong. The federal criminal code establishes numerous crimes, and various other federal statutes impose civil and criminal penalties for an inordinate number of offenses as well.
In other words, until you speak with the best federal defense lawyer for you, the reality is that you have no way of knowing for certain whether or not you might be at risk in a federal investigation. If the FBI agents handling the investigation can find any way to implicate you in a federal offense, they will, and it will be you who ise forced to deal with the ramifications.
Q: What if I am unsure whether or not I have committed a federal crime?
If you are unsure whether you have committed a federal crime, this is even more reason not to speak with FBI agents when they show up at your door. You need to speak with an attorney promptly, and you need to hire an attorney to intervene in the investigation to determine whether or not you are being targeted. The best, most experienced federal defense attorneys should be able to discern the scope and nature of the investigation, and then help you execute a defense strategy that is appropriately tailored to the situation at hand.
Q: Won’t asking to speak with my lawyer make me look guilty?
No. This is a common misconception. FBI agents know that they have the upper hand during an investigation. They also know that most people are entirely unfamiliar with the federal law enforcement and criminal justice systems. Because of this, they also know that the smartest thing anyone can do when approached by federal agents is to seek legal advice right away. Regardless of your guilt or innocence, when you are dealing with the FBI, it is in your interest to hire an experienced federal defense attorney.
Q: What does it take to be implicated in a federal conspiracy?
The federal conspiracy statute makes it a crime to play a role in any plot, scheme, or plan to commit a substantive federal offense. You can be convicted even if you are not directly involved in the commission of the substantive offense underlying the conspiracy, and even if the plot, scheme, or plan is unsuccessful. Due to its scope, the federal conspiracy statute is one of the FBI’s most-potent tools when it seeks to implicate individuals in federal criminal activity.
Q: Is “attempt” a crime under federal law?
Yes. Similar to state law, attempt is a crime under federal law. Even if you acted alone (so there is no question of being involved in a conspiracy), and even if you did not actually commit a substantive federal offense (such as Medicare fraud or insurance fraud), you could still be at risk for prosecution as the result of an FBI investigation.
Q: What if the FBI agents attempt to twist my words or take my statements out of context?
If you answer questions during an FBI interview, the agents who conduct the interview can testify as to the contents of your statements in court, and since they are agents, they will be presumed to be credible witnesses. So, what if they attempt to twist your words or take your statements out of context?
Once again, the primary way to avoid this issue is to avoid answering the agents’ questions altogether. But, if it is too late to take this tactic, then you will need to speak with an attorney to make sure that your side of the story gets told. There are several strategies for defending against allegations of federal crimes, and determining how to approach your case will require an in-depth assessment of the particular legal and factual issues involved.
Q: What if I accidentally say something to an FBI agent that isn’t true?
If you said something that was untrue, you will need to work with your attorney to address the situation. Lying to federal agents is a crime, however, lack of intent is a valid defense. Your attorney may be able to correct the record on your behalf, but the last thing you want to do is to get yourself into another situation where you are directly speaking with an FBI agent.
Q: After an interview, should I contact the FBI to correct an inaccurate statement or provide information showing that I am innocent?
If you messed up and said things that you shouldn’t have to the FBI, what should you do? Once again, the answer depends on the specific situation at hand. You will need to discuss your situation with an attorney, and your attorney will need to help you determine an appropriate corrective course of action.
Q: Can I hire a lawyer to communicate with the FBI directly on my behalf?
Yes. When you hire a lawyer, your lawyer will communicate directly with the FBI on your behalf. Your lawyer will tell the agents handling your case that you have engaged legal counsel and will instruct the agents to contact them rather than contacting you directly.
Q: Does the FBI call you?
The FBI might call you, although it is more likely that federal agents will come to meet with you in person. The element of surprise works to their advantage, and most people assume that callers who claim to be “FBI agents” are scammers.
Q: How can a lawyer help during an FBI investigation if I am guilty?
While there are numerous federal statutes that the FBI can use to implicate individuals and businesses in criminal activity, you should never assume that you have committed a federal crime. Next to speaking with federal agents, assuming that you are guilty is one of the biggest mistakes you can make during a federal investigation. Even if you have taken the steps necessary to commit a federal offense, there are still numerous defenses that the best federal defense lawyer may be able to use to protect you.
Q: Don’t FBI agents need a warrant to come to my house and question me?
No. While federal agents typically need a warrant in order to conduct a search and seizure of evidence, there is nothing that prevents them from knocking on your door and asking you to voluntarily share information.
Q: Don’t FBI agents have to read my Miranda rights before they question me?
No. In Miranda v. Arizona, the U.S. Supreme Court ruled that federal agents must read a person their rights prior to conducting a “custodial interrogation.” Asking you questions in your own home does not constitute a custodial interrogation.
Q: How long does an FBI investigation take?
It depends. Depending on the scope of the investigation and the evidence that is available, an investigation could lead to an arrest and arraignment in a matter of days, or it could be weeks or months until federal prosecutors decide that they are ready to pursue (or drop) charges.
Get the Former Federal Prosecutors from Oberheiden, P.C. On Your Team
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With more than 100 years of federal litigation experience and prominent case results, Oberheiden, P.C. is one of the most trusted law firms when it comes to effectively defending businesses and individuals against FBI, OIG, or DEA investigations.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.