Its a dark and gloomy six in the morning. Youve just gotten out of bed. You are fuzzy-headed, bleary-eyed, badly in need of coffee. You havent showered or dressed. Youre in your underwear, or pajamas.
Suddenly theres a thunderous pounding on the door, and loud men are shouting something at you. Your heart lurches and the adrenaline jolts you. You open the door, and there is a team of FBI agents, guns prominently displayed in holsters, raid jackets open. They are large and aggressive and unfriendly. They tell you they have a search warrant for your home and push past you. Two of them grab you, bodily turn you around, and handcuff you. Theyll say later they had to do that to secure the scene and assure agent safety, and that you totally werent in custody or anything.
Two agents take you outside to your driveway in your pajamas or underwear. At this point your neighbors are beginning to peek curiously out of their windows. The agents push you into the back seat of a G-ride a late-model American made sedan that smells of air freshener and despair. The two agents sit on either side of you in the back seat; a third agent climbs into the front seat. You shift uncomfortably, trying to avoid sitting on your handcuffed hands. But theres no way to get comfortable sitting in your underwear in the back of a G-ride with your hands cuffed behind you.
The agents begin to question you about your business dealings. They dont read you your rights first theyll say later they didnt have to, because you totally werent in custody, despite being handcuffed in the back of a G-ride in your underwear surrounded by FBI agents in raid jackets. The agents tag-team you, switch topics rapidly, play good-cop-bad-cop, and use every law enforcement rhetorical trick to intimidate you. We have some really serious questions here, they say. But if you just cooperate, maybe we can clear all of this up.
They start to ask questions about a meeting that took place two years ago. Were you at that meeting with Mr. Smith and Mr. Jones? You say no, no I wasnt. Maybe you say it without thinking, agitated and confused and muddle-headed from the circumstances. Maybe you dont have a clear memory of what happened two years ago. Maybe you panic and lie. The agents move on in their questioning.
After a few uncomfortable hours, the agents uncuff you, pull you out of the car, and hand you an incomplete, inaccurate, and illegible receipt purporting to state what theyve taken. They haul off boxes of documents, disks, disk drives, and whatever else catches their fancy. Theyll see you soon, they say.
And, relatively speaking, they do. Six months later you are indicted. Youre indicted not only for whatever matter the FBI was investigating. As a kicker, youre also indicted under 18 U.S.C. section 1001 for lying to the FBI. Thats a felony. Your lawyer reviews the discovery, and tells you that when the FBI agents asked you whether you were at that meeting two years ago with Mr. Smith and Mr. Jones, they already knew the answer to the question. Mr. Jones recorded the meeting and is cooperating with the FBI, and they had two other witnesses who placed you there. There was no chance whatsoever that your denial whether it was a panic-induced brain fart, or a failure of memory, or a lie could have misled or deterred the FBI in its investigation for even a moment. But that doesnt matter. Though materiality is an element of Section 1001, its a weak, diluted type of materiality. Statements to the government are deemed material if they are the sort of statements that have the capacity to influence it. Courts have come very close to creating a presumption of materiality by reasoning that if the information were not material the government would not have asked for it and you wouldnt have offered it. There was a time when most prosecutors thought it was chickenshit to charge someone with a felony for an exculpatory denial of wrongdoing that never fooled anyone; that time is in the past.
So. By failing to shut the fuck up, you have just handed the feds a gimme felony charge that will make your case much more difficult to defend.
When the authorities ask you questions, they are not out to clear this thing up so we can let you go. They are not your friends. They do not want to help. They are very likely not trying to learn anything or discover anything. They are trying to make, or improve, a case against you. They are hoping that you will fall into their trap. They may be trying to make a weak case strong or turn a lesser charge into a greater one.
Is there ever a situation where, by being friendly and cooperative and answering questions, you can deflect government suspicion or satisfy their concerns without charges? Yes. Very rarely, there is. And when the government comes knocking, they count on you grasping at the hope that this is one of those times. Dont be a fool. If theres a chance that cooperation will satisfy the authorities today, there will still be a chance in a day or a week or a month after youve consulted a lawyer who understands the situation. When you answer law enforcements questions especially when you do it in a stressful situation like a search you take grave risks of substantially worsening your situation. You may say, oh, but I wont lie. Sure. But can you be sure, sitting cuffed in your underwear at six in the morning in that G-ride, that you will remember events from years ago accurately? Are you sure you wont be confused and muddled under the circumstances? Are you sure that the government wont fueled by claims by cooperators believe that youve lied? Do you really think that if you misremember or mix up events in your head or if your memory is different than the story of a cooperator, that the government is going to give you the benefit of the doubt?
Dont be a fool. Invoke. For Gods sake, just shut up.
Poster Comment: Always keep in mind that the Police, and particularly the corrupt FBI, ARE NOT your friends. It is sad to have to say that but at this late stage in the corruption of the Republic they are not. They are agents of a corrupt government whose primary function is political repression. Get it? Unless you're a serial killer trying to stay calm and cool they are there because someone does not like your politics and they are looking for a way to shut you up. So, the first thing to remember is SHUT UP. Not about your politics but to the Gestapo. The safest thing to say is that "I invoke my rights under the Fifth Amendment" AND NOTHING ELSE. Oh, you can repeatedly ask "Am I under arrest?" That helps clarify the situation and puts them on notice. Otherwise SHUT UP. THEY ARE NOT your friends.