When Government Agents Come Knocking
A common scenario in federal criminal investigations is for federal agents to appear at the home of an individual at 6:30 in the morning, late in the evening or on the weekend. No prior warning is given and the agents’ appearance is a complete surprise. The purpose of this tactic is to catch the witness or target by surprise in order to obtain a statement. The tactic is used by agents of the Federal Bureau of Investigation, agents of the Criminal Investigation Division of the Internal Revenue Service as well as other federal law enforcement agencies. The surprised individual will most likely give some sort of statement to the agents. There are always two agents present. One agent will ask questions and the other will take notes of the conversation. If the individual is the target of the investigation, the agents hope to obtain an incriminating statement or a false exculpatory statement. Regrettably, only after the interview, will the individual frantically seek an attorney and ask for representation. Most individuals have no experience with this type of circumstance. If they call an attorney, it will be the attorney who handles their business matters, drafted their will or handled the closing of their home. If the attorney is competent, he or she will not try to handle this matter but will refer the matter to an attorney whose area of concentration is the representation of individuals in federal criminal matters.
Frequently, I have been the attorney to whom these types of matters are referred and I often deal with the scenario described in the preceding paragraph. If I am retained, depending upon various factors, I take various actions immediately. In this short article, there is not sufficient time or space to examine and discuss the myriad of hypothetical factors, circumstances and actions to be taken immediately. However, one issue which always arises immediately is the following: the individual who spoke with the agents either alone or accompanied by the referring attorney will come to my office. After some brief initial conversation, the topic of the initial contact with the federal agents will be the focus of the conversation. I will ask what was said by all parties. This information immediately tells me the general nature and scope of the investigation. Also, it gives me some idea of the government’s initial view of the individual who was interviewed by the government agents. Here is where the surprise will occur. After the individual recounts that he or she had just gotten out of bed to answer the door and found two government criminal investigators knocking on the door; that they had just finished that last sip of coffee before heading to the office before answering the door to find two very professional agents wanting to ask “a few questions” or, in the evening, that they had just finished dinner, and “two very nice agents” came to the door, the individual will relate the conversation. After relating the conversation, the individual or the referring lawyer will say something resembling the following: “the government can’t use against me what I said because the agents did not tell me my constitutional rights. They did not say anything about the right to remain silent; they didn’t say that any statement I make can be used against me; they didn’t say that a person has the right to have an attorney present and that if the person cannot afford an attorney, an attorney will be appointed for them.” The referring attorney may chime in and say that he or she remembers from his or her criminal procedure course many years ago in law school that the law enforcement agents must give the so-called Miranda warnings, obtain an acknowledgment of the rights and a waiver of the rights before questioning an individual. The referring attorney may gleefully state that the agents’ failure to follow the above procedure renders the client’s statements inadmissible. Countless times, I have had to teach a short course on the criminal procedure to individuals and attorneys. In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme Court stated, in summary, that the often stated rights must be given before “custodial” interrogation begins. This means that if the person is not in custody, no rights need to be given by the agents and all statements may be introduced at trial against the person or used by the government in any manner the government deems appropriate. The statements may lead the government investigators to other incriminating information which will be admissible at trial. There are many reported cases that have discussed what factual situations constitute “custodial” situations, but generally, a voluntary conversation with federal agents at an individual’s home, office or on the street is not one of them. When I have explained this area of criminal procedure, I have watched the panic and terror which comes across the face of the individual interviewed and the referring attorney. Federal agents are generally well trained and aware of what may constitute “custodial” circumstances. They generally will not try to trick anyone because they do not have to do so. Prior to entering private practice, as an Assistant United States Attorney, I was always amazed at how often sophisticated and educated individuals would speak with federal agents in noncustodial situations. The point of this short article is not to give legal advice, but to emphasize the responsibility of an individual to know his or her rights and to consult with competent counsel. An intelligent person once said, “silence is golden.”
Next week, I will discuss some of the various methods by which the government obtains knowledge of alleged violations of federal statutes relating to tax evasion, filing of a false tax return and knowingly and willfully failing to file a tax return.