Without getting into the scope of the 1001 statute (I think they're probably mostly right about it), I just want to chime in with a nit about the example they chose:
If you take a job at a health provider that you later learn is corrupt, and later knowingly transport false vouchers as part of your job while otherwise avoiding direct participation with the more overtly criminal parts of the enterprise, you are a criminal. What you're doing is wrong. Put into that situation unexpectedly, you must either quit, or immediately report your employer (and, presumably, then quit). You can't knowingly accept a paycheck from a criminal enterprise if doing so requires you to help carry out criminal actions. The law says that's criminal, but even if you don't care about that, so does the social contract.
Are you less culpable than the owners? Sure, of course you are. But this article chose I think a really terrible example, one that creates a false sense of what it means for someone to be incidentally and unjustly swept up in a crime they themselves tried to avoid.
We in this industry all need to be taking more responsibility for our individual actions and the net impact they have on society.
Regarding the scope of the 1001 statute: U.S. v. Yermian (which held that you don't have to know you're talking to the government, i.e. that the government does not have to prove mens rea as to one element of the crime) is a terrible opinion. Justice Rehnquist's dissent is far more convincing: https://supreme.justia.com/cases/federal/us/468/63.
> 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.
It is very disturbing that we live in a society with laws so obscure to the common person. Unless you know this "one weird trick to avoid indictment under Title 18, United States Code, Section 1001", your life is held potentially at the whim of some random prosecutor. Such detachment of one's legal fate from one's actions has no place in modern lawful society.
Information asymmetry is one of the primary sources of power disparity. Dividing those subject to whimsical prosecution into the "in-the-knows" and "know-nots" – whether through this law, civil forfeiture, the obscure tax code, or pay-to-play building codes – is a progenitor of the police state. Free society requires transparent law.
I don't see it prudent to submit to an interview even when the agents assure you that the interview is only administrative or that they are not investigating you. The agent can lie without penalty. Unless this is something official, in writing, from the AUSA's office that was verified by one's lawyer, it's likely to be a trick. It's a standard tool in any law enforcement officer's arsenal. I always see scenes on TV where in an emergency people talk to the FBI telling them where the perp went or some other details and I think: if this were real life, I would expect the FBI to be turned away every time, even when lives are at risk and people will die because the FBI cannot get the information they need. It's too bad that this is the kind of society we chose to create, one where trying to help law enforcement is simply too risky to oneself.
The only time the author mentions administrative interviews, or promises of non-investigation, is in the context of:
1.) You're a government employee, and thus not answering will result in your losing your employment
2.) You're working for a private employer who states that continued employment in contingent upon being interviewed
3.) You are the officer or director of a company that is regulated, or does business with the federal government, and not being interviewed could result in sanctions from the federal government.
I don't see it prudent to submit to an interview even when the agents assure you that the interview is only administrative or that they are not investigating you.
Other people, with advice of counsel and hopefully with counsel present, may find it appropriate in those instances to be interviewed rather than lose employment or face federal sanctions.
Ken White, a criminal defense attorney and former US prosecutor at Popehat.com, writes about these subjects, and has an entire series devoted to this sort of thing under the what-it-says-on-the-tin tag of Shut Up:
His writing makes for accessible, knowledgeable and amusing posts on a very serious topic and are extremely well worth a read. But the summary version is pretty straight forward: there is no such thing as an out-of-the-blue innocent visit from Law Enforcement, ever. This is kind of common sense when you stop think about it: agents are not free and budget is not infinite. If they are actually devoting an actual warm body to talk to you, particularly a warm body to visit you, it is always, always potentially serious. It is not on a lark, they did not roll some dice and have your number come up for a community chat. They're talking to you for a reason and given their fundamental purpose that reason may be quite bad for you, whether you did anything wrong or not. The true super power of government is patience and grinding, relentless inertia. By the time they talk to you odds are high that they have already done their research, extensively. They have a legal theory and narrative already in mind. If the Feds are knocking it's time to get a lawyer, period, particularly if you're fully innocent.
When two FBI came looking for me, they went to my mother's old employer that she had left 6 years prior. Someone at the school called her and she called me.
I called the agents and they asked if I could meet them at their office. I agreed.
I had invested in a project with an out of state person. He was referred to me by a close friend. When I stopped sending money, the person disappeared. This person had a reputable background, a family and lived in an expensive house. But he'd call me crying begging for money, claiming other investors were closing soon.
I being young and foolish, contacted his partners and my friend. I could had handled it better but I knew I hadn't broken any laws. I did tell him I'd tell everyone he knew that he was a con-artist.
The FBI agents were comically dense. One was dressed in tactical gear. They claimed they had an email I sent where I threatened the investor's young children. I strongly denied this and then asked to see it.
They refused to show me and responded, "We are the Federal Bureau of Investigation not the Federal Bureau of Information". Then they asked me if I was a member of a foreign intelligence service but mispronounced the name.
They told me not to contact the person and I should consider a lawsuit.
Before I met with them, I did ask a US based intel person what he thought. He said FBI agents are sometimes employed by private interests and that I should ask for identification and verify it with the local branch. I'm not sure if this is actually true but it certainly wasn't in my case.
A couple of cops showed up asking for my roommate once. I had no reason to think that he'd done anything questionable, but my first instinct was still to hedge and find out what they wanted before admitting he was in. Turned out they were returning his lost wallet. I was so relieved that I hollered for him immediately, and all was well.
In retrospect, I probably still should have hedged, said "let me see if he's in" and got his okay first. Even if they do mean well, it costs nothing to be cautious.
You strangely discount the quite reasonable possibility that something serious happened and you have important information about it but are not a suspect. Now, law enforcement can certainly abuse their power, but there is nothing axiomatically entailed that makes a critical witness into a suspect.
3. you either feel some sense of moral responsibility in helping to catch the criminal, or you just feel unsafe in your home and want to feel safe again;
then I don't see what's wrong with taking part in a conversation with a police officer that goes specifically along the lines of "we know you were at [place] at [time]" or "[crime] happened in your building", followed by "did you see or hear anyone or anything suspicious?"
Sure, if the conversation goes anywhere else, lawyer up. But is there any risk in providing the same statement when the police come to you, that you'd have willingly provided by actively going down to the police station to give a witness statement?
(Which is, after all, the majority of the interviews the police do. For every one person the police speak to under suspicion, they speak to 5+ other people—witnesses—to figure out who to suspect. This is exactly the "research" you mention above.)
This is really excellent advice. I work in legislative affairs with lobbyists and lawyers. After 12 years working in DC with and for congress, I can say unequivocally there is absolutely nothing good that can come from voluntarily cooperating with the police. You should avoid them at all cost. Do not volunteer. Speak through your lawyer if you speak at all, and never allow yourself to get trapped. It's nice to think prosecutors won't go after small fish, but to them you are worth nothing, and they will hang you out to dry if it gets them even the most remote, minor, or inconsequential conviction.
Probably a daft question but I'm curious as to what others have to say. If this happens, what kind of attorney or lawyer should you contact? Is simply googling "attorney's near me" and reaching out to the first result good enough? The lawyers I work with are all corporate contract lawyers, not the kind that deal with criminal law.
While it may not be bad advice, it's also interesting to note how a lawyer basically explains that you should always pay a lawyer.
In my very expensive experience with lawyers I have to say that they only care about my needs about 20% of the time, and usually these 20% happen before I sign their contract.
As much as it's probably correct to not fully trust an FBI agent it's also probably correct to not fully trust a lawyer. One needs to be able to defend oneself to a certain degree.
You should also remember that FBI agents, police officers, et al do NOT have the authority to grant immunity. They can claim things will "go easier" for you, promise you won't be charged, etc but all that counts for nothing.
I'm always surprised when watching one of those reality TV detective shows... inevitably there is someone who knows the police have nothing, yet never insists on a signed agreement from the prosecutor before spilling the beans.
> 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.
I thought we had the right to remain silent. Can someone explain this?
Not sure if there's case law specifically on this point, thus the hedging from the author with "can very possibly". The Supreme Court has ruled that when in custody, it's not enough to simply remain silent – you must invoke the right. And, it's not an invocation that's valid indefinitely. They can try to interview you again after a reasonable amount of time has passed, so you may need to invoke your right to remain silent every 24 hours.
desdiv's document is a great read. If you're referring to Miranda specifically though, I think a key part there might be "If you are not in custody[...]". The Miranda v. Arizona 1966 SCOTUS ruling had to do with violation of 5th/6th Amendment rights against compelled testimony and right to counsel. If you are arrested and interrogated, obviously you are under the government's direct power by definition, and if law enforcement fails to make clear to those arrested that testimony is not something they can actually coerce then anything they gain might get tossed on constitutional grounds. It's as much for the protection of prosecution as anything actually.
But nothing in the Constitution prevents you from volunteering whatever the heck you want to anyone, including someone from the government, even if it would a completely stupid decision to do so. If an agent/officer just asks you a question that doesn't mean you're in custody. They can legally draw inferences from any of your resulting answers/non-answers, just as they could from 3rd party witnesses, though how well any of those hold up in court is a different question of course. Affirmative assertion of rights is the neutral course there, it doesn't mean anything except that you recognize the situation is serious and want counsel to help you navigate it. It's not an admission of anything, it puts things on hold.
I recall a supreme court case where a suspect during an interview where in general he was talking, remained silent uppon being asked a (rather pertinent) question. This silence was brought as evidence.
The case before the court was that his silence was protected under the 5th, and thus could not be brought as evidence. It was ruled that, since he was already talking to police, and did not positively assert his 5th amendment right the 5th did not apply.
You probably have the right to be silent. But at the same time you also have to comply with commands from officers, and if your silence makes problems to them it may also be a crime in itself.
Not sure if this applies (not a lawyer, not even in the US) but usually in that kind of situation you have protection in one direction but then they can just apply pressure from another.
Stepping back a bit, do people have a lawyer on call? I haven't had to use a lawyer for anything, but I don't have a lawyer when it comes to telling someone that they have to talk to my attorney first.
You don't need a layer "on call" to tell someone that you will have an attorney get in touch with then. You then go online and find yourself council. This was one of the points of the article.
It's a tactic to get them to back off. Telling them you want a lawyer present gives you time to find one before they start interrogating you. Even if you are arrested and you need someone else to find one for you, it stops them from being able to pull unethical/illegal tactics to get you to confess to things you shouldn't.
It doesn't even sound like either you or that person needs to be in the US. Pretty funny if you combine it with how some countries are willing to bend over to help Uncle Sam's goons jail anyone they label a criminal.
I wonder how deep this goes. What if you a mistyped phone number on a bank form that get submitted to government authorities as part of routine compliance? Is that a crime? Is there even a difference between a mistake and intentionally transposing two numbers?
I've travelled to many countries and the US is the only country I've been to where citizens have a legitimate and real fear of their government using force against them for something that most people would define as 'not doing anything wrong.'
Perhaps, in America, we should stop putting people in jail for not doing anything wrong.[1][2][3][4]
I wonder what bug resulted in the string "government226128147that" being inserted. Clearly something to do with signed integer arithmetic, but where would that be happening?
> For example, if you lie to your employer on your time and attendance records and, unbeknownst to you, he submits your records, along with those of other employees, to the federal government pursuant to some regulatory duty, you could be criminally liable.
This blows my mind. I have a pretty dim view of lying in general - I've railed on HN against "padding" one's resume in any way, but I for one had no idea you could lie to your employer (decidedly not a criminal act), then through no action of your own your employer could turn around and make you subject to Federal prosecution.
If you're afraid of that, use a VPN service to browse these pages, or TOR. But really, thinking that reading this article will put you on a list is kind of paranoid, unless you have other reasons to be paranoid.
Is it normal for people to just have a lawyer they can call? I don't. I wouldn't know how to find a lawyer for this sort of situation, or even what kind to look for. Am I looking for a criminal defense lawyer?
First thing I looked at when moving to the UK in case I get pulled over and know how to comply to law enforcement powers whilst understanding the limitations and my rights...
Are these published in the US, on a state level at least?
[+] [-] tptacek|9 years ago|reply
If you take a job at a health provider that you later learn is corrupt, and later knowingly transport false vouchers as part of your job while otherwise avoiding direct participation with the more overtly criminal parts of the enterprise, you are a criminal. What you're doing is wrong. Put into that situation unexpectedly, you must either quit, or immediately report your employer (and, presumably, then quit). You can't knowingly accept a paycheck from a criminal enterprise if doing so requires you to help carry out criminal actions. The law says that's criminal, but even if you don't care about that, so does the social contract.
Are you less culpable than the owners? Sure, of course you are. But this article chose I think a really terrible example, one that creates a false sense of what it means for someone to be incidentally and unjustly swept up in a crime they themselves tried to avoid.
We in this industry all need to be taking more responsibility for our individual actions and the net impact they have on society.
[+] [-] rayiner|9 years ago|reply
[+] [-] colanderman|9 years ago|reply
It is very disturbing that we live in a society with laws so obscure to the common person. Unless you know this "one weird trick to avoid indictment under Title 18, United States Code, Section 1001", your life is held potentially at the whim of some random prosecutor. Such detachment of one's legal fate from one's actions has no place in modern lawful society.
Information asymmetry is one of the primary sources of power disparity. Dividing those subject to whimsical prosecution into the "in-the-knows" and "know-nots" – whether through this law, civil forfeiture, the obscure tax code, or pay-to-play building codes – is a progenitor of the police state. Free society requires transparent law.
[+] [-] mnm1|9 years ago|reply
[+] [-] rconti|9 years ago|reply
https://www.youtube.com/watch?v=d-7o9xYp7eE
[+] [-] dsp1234|9 years ago|reply
1.) You're a government employee, and thus not answering will result in your losing your employment
2.) You're working for a private employer who states that continued employment in contingent upon being interviewed
3.) You are the officer or director of a company that is regulated, or does business with the federal government, and not being interviewed could result in sanctions from the federal government.
I don't see it prudent to submit to an interview even when the agents assure you that the interview is only administrative or that they are not investigating you.
Other people, with advice of counsel and hopefully with counsel present, may find it appropriate in those instances to be interviewed rather than lose employment or face federal sanctions.
[+] [-] xoa|9 years ago|reply
https://www.popehat.com/tag/shut-up/
His writing makes for accessible, knowledgeable and amusing posts on a very serious topic and are extremely well worth a read. But the summary version is pretty straight forward: there is no such thing as an out-of-the-blue innocent visit from Law Enforcement, ever. This is kind of common sense when you stop think about it: agents are not free and budget is not infinite. If they are actually devoting an actual warm body to talk to you, particularly a warm body to visit you, it is always, always potentially serious. It is not on a lark, they did not roll some dice and have your number come up for a community chat. They're talking to you for a reason and given their fundamental purpose that reason may be quite bad for you, whether you did anything wrong or not. The true super power of government is patience and grinding, relentless inertia. By the time they talk to you odds are high that they have already done their research, extensively. They have a legal theory and narrative already in mind. If the Feds are knocking it's time to get a lawyer, period, particularly if you're fully innocent.
[+] [-] ctznmastermind|9 years ago|reply
I called the agents and they asked if I could meet them at their office. I agreed.
I had invested in a project with an out of state person. He was referred to me by a close friend. When I stopped sending money, the person disappeared. This person had a reputable background, a family and lived in an expensive house. But he'd call me crying begging for money, claiming other investors were closing soon.
I being young and foolish, contacted his partners and my friend. I could had handled it better but I knew I hadn't broken any laws. I did tell him I'd tell everyone he knew that he was a con-artist.
The FBI agents were comically dense. One was dressed in tactical gear. They claimed they had an email I sent where I threatened the investor's young children. I strongly denied this and then asked to see it.
They refused to show me and responded, "We are the Federal Bureau of Investigation not the Federal Bureau of Information". Then they asked me if I was a member of a foreign intelligence service but mispronounced the name.
They told me not to contact the person and I should consider a lawsuit.
Before I met with them, I did ask a US based intel person what he thought. He said FBI agents are sometimes employed by private interests and that I should ask for identification and verify it with the local branch. I'm not sure if this is actually true but it certainly wasn't in my case.
[+] [-] PhasmaFelis|9 years ago|reply
In retrospect, I probably still should have hedged, said "let me see if he's in" and got his okay first. Even if they do mean well, it costs nothing to be cautious.
[+] [-] fjdlwlv|9 years ago|reply
[+] [-] derefr|9 years ago|reply
1. you know a crime happened around you recently;
2. you saw/heard something;
3. you either feel some sense of moral responsibility in helping to catch the criminal, or you just feel unsafe in your home and want to feel safe again;
then I don't see what's wrong with taking part in a conversation with a police officer that goes specifically along the lines of "we know you were at [place] at [time]" or "[crime] happened in your building", followed by "did you see or hear anyone or anything suspicious?"
Sure, if the conversation goes anywhere else, lawyer up. But is there any risk in providing the same statement when the police come to you, that you'd have willingly provided by actively going down to the police station to give a witness statement?
(Which is, after all, the majority of the interviews the police do. For every one person the police speak to under suspicion, they speak to 5+ other people—witnesses—to figure out who to suspect. This is exactly the "research" you mention above.)
[+] [-] mpweiher|9 years ago|reply
That's the definition of a police state.
"Police state is a term denoting a government that exercises power arbitrarily through the power of the police force." -- https://en.wikipedia.org/wiki/Police_state
[+] [-] unknown|9 years ago|reply
[deleted]
[+] [-] dllthomas|9 years ago|reply
[+] [-] Overtonwindow|9 years ago|reply
[+] [-] bradleyjg|9 years ago|reply
"Tell the agent that you have an attorney and that 'my attorney will be in contact with you.'"
"Simply state that you will not discuss the matter at all without first consulting counsel and that counsel will be in touch with him."
"Just respond that you will consult with your attorney (or 'an' attorney) and that the attorney will be in touch."
"Simply repeat your mantra that you will not discuss the matter with him in the absence of counsel."
[+] [-] tlogan|9 years ago|reply
"You are not qualified to determine whether you have committed some crime or not"
I think this is the most important part. It could be that you did something but you thought it is not illegal at all.
[+] [-] TerminalJunkie|9 years ago|reply
[+] [-] lobotryas|9 years ago|reply
The sentence regarding "my attorney will be in touch with you" should be the only thing you say.
[+] [-] erikb|9 years ago|reply
In my very expensive experience with lawyers I have to say that they only care about my needs about 20% of the time, and usually these 20% happen before I sign their contract.
As much as it's probably correct to not fully trust an FBI agent it's also probably correct to not fully trust a lawyer. One needs to be able to defend oneself to a certain degree.
[+] [-] Animats|9 years ago|reply
[+] [-] xenadu02|9 years ago|reply
I'm always surprised when watching one of those reality TV detective shows... inevitably there is someone who knows the police have nothing, yet never insists on a signed agreement from the prosecutor before spilling the beans.
[+] [-] tylercubell|9 years ago|reply
> 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.
I thought we had the right to remain silent. Can someone explain this?
[+] [-] GavinMcG|9 years ago|reply
[+] [-] xoa|9 years ago|reply
But nothing in the Constitution prevents you from volunteering whatever the heck you want to anyone, including someone from the government, even if it would a completely stupid decision to do so. If an agent/officer just asks you a question that doesn't mean you're in custody. They can legally draw inferences from any of your resulting answers/non-answers, just as they could from 3rd party witnesses, though how well any of those hold up in court is a different question of course. Affirmative assertion of rights is the neutral course there, it doesn't mean anything except that you recognize the situation is serious and want counsel to help you navigate it. It's not an admission of anything, it puts things on hold.
[+] [-] rocqua|9 years ago|reply
The case before the court was that his silence was protected under the 5th, and thus could not be brought as evidence. It was ruled that, since he was already talking to police, and did not positively assert his 5th amendment right the 5th did not apply.
All of this is based solely on my recollection.
[+] [-] desdiv|9 years ago|reply
http://www.cardozolawreview.com/content/36-1/RUBER.36.1.pdf
[+] [-] erikb|9 years ago|reply
Not sure if this applies (not a lawyer, not even in the US) but usually in that kind of situation you have protection in one direction but then they can just apply pressure from another.
[+] [-] rexf|9 years ago|reply
[+] [-] lobotryas|9 years ago|reply
[+] [-] kemiller2002|9 years ago|reply
[+] [-] hollander|9 years ago|reply
[+] [-] praptak|9 years ago|reply
[+] [-] mywittyname|9 years ago|reply
[+] [-] ghufran_syed|9 years ago|reply
[+] [-] mtempleton|9 years ago|reply
Perhaps, in America, we should stop putting people in jail for not doing anything wrong.[1][2][3][4]
[1]-https://www.washingtonpost.com/world/national-security/us-ch... [2]-https://www.nytimes.com/2016/04/03/opinion/sunday/locked-up-... [3]-https://melmagazine.com/i-won-104-million-for-blowing-the-wh... [4]-http://www.newyorker.com/magazine/2013/04/01/the-spy-who-sai... [5]-http://thefederalist.com/2017/02/16/arizona-governor-drop-ch...
[+] [-] alexbecker|9 years ago|reply
[+] [-] pc86|9 years ago|reply
This blows my mind. I have a pretty dim view of lying in general - I've railed on HN against "padding" one's resume in any way, but I for one had no idea you could lie to your employer (decidedly not a criminal act), then through no action of your own your employer could turn around and make you subject to Federal prosecution.
[+] [-] DanBC|9 years ago|reply
Lying to your employer on your time and attendance records is potentially fraud, which is a criminal offence.
I agree that it's weird for it to suddenly elevate to a federal crime just because your employer submits those records to somewhere else.
[+] [-] forrestthewoods|9 years ago|reply
Everyone should watch this video. It may save your life.
[+] [-] rebuilder|9 years ago|reply
[+] [-] tptacek|9 years ago|reply
[+] [-] hollander|9 years ago|reply
[+] [-] e12e|9 years ago|reply
[+] [-] hollander|9 years ago|reply
[+] [-] andrewflnr|9 years ago|reply
[+] [-] dmacedo|9 years ago|reply
First thing I looked at when moving to the UK in case I get pulled over and know how to comply to law enforcement powers whilst understanding the limitations and my rights...
Are these published in the US, on a state level at least?
[+] [-] ryanmarsh|9 years ago|reply
[+] [-] MaxfordAndSons|9 years ago|reply
[+] [-] trhway|9 years ago|reply