Unless you receive a target letter, it’s hard to know if you’re the subject of a federal investigation. There are some subtle signs. Certainly if you’ve done something wrong you should seriously consider you may be under investigation if you start seeing any of them.
Any time you begin to suspect you are under investigation you should take care to avoid certain actions.
1. Failing to Retain a Private Lawyer with Federal Experience
You may think this point is self-serving, but it’s true. Public defenders can rarely intervene early enough to do anything other than plea bargain, and don’t have the ability to take a deep dive into your case.
By contrast, a private lawyer can get involved at any time. Now is the time to find the right one and to retain him or her. If you’ve been arrested you want support from a lawyer you’ve already detained. Since federal investigators do not have to give you a phone call it may even be good to have someone in your family whose job it is to call your attorney so he or she can show up soon after you’ve been detained.
But this is about more than the moment handcuffs close around your wrist. There are times when cooperating with the investigation is a good, strategic move. Or there may be informal discussions wherein you’re treated as a witness or told you are a witness.
You don’t want to put yourself alone with law enforcement without a lawyer present, regardless of what they say about your status. Having your lawyer present to guide you through the process, and to keep you from incriminating yourself, is paramount.
2. Talking to Coworkers, Friends, or Family Members
It doesn’t matter why you do it. Venting. Trying to reassure family members you didn’t really do anything wrong. Trying to find out what your coworker remembers, just because you’re trying to understand what’s happening.
Any of these actions could lead to an “obstruction of justice” charge. The assumption is you may be tampering with witnesses, or trying to adjust your story to fit what they’ve got to say.
This action can be a problem even if you aren’t charged with obstruction of justice. Anyone you speak to can be subpoena’d or interviewed by law enforcement. They could end up having to repeat what you told them in court. Everything you said can be turned against you.
“I’m not prepared to have a discussion about that,” is your best defense against well-meaning loved ones who want to get the full story.
3. Destroying Evidence
Under 18 U.S. Code § 1519, “whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”
So don’t shred documents. Don’t delete emails. Don’t make modifications. Don’t assume federal investigators can’t get into your computer and find the evidence you thought you got rid of.
You may not go to jail for the crime they were hoping to catch you on, but the federal government is more than happy to prosecute you on the basis of this charge alone.
Lying to federal investigators is covered by 18 U.S. Code § 1001. The penalty is a fine and imprisonment for up to 5 years. If you’re under investigation for domestic terrorism you can go to prison for up to 8 years.
By the same token, you don’t want to make an attempt to reconstruct acts you don’t remember very well. Your honest attempts to remember something could be wrong, and could be construed as lying.
5. Speaking to the Investigators Without Your Lawyer
You still have the right to remain silent in a federal investigation. It’s a good idea to exercise it.
Your knee-jerk, psychological reaction is going to be to talk. To tell your side of the story. To prove your innocence.
In reality, you’re probably making the interrogator’s case. Remember, federal investigators can lie to you all they want. Their goal is to keep you talking. Even if you innocent and can lay out exactly why you are innocent they’re not going to let you go.
Your lawyer can advise you when it is advantageous to speak and when it isn’t. Heed your lawyer’s advice. It could be the key to avoiding charges, or to weakening the prosecution’s case.