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Today In "Shut Up, Moron": Terrorism Suspects Learn FBI May Not Be Trying To Just Help Them Out After All

Sep 22, 2009
By .
Politics & Current Events

Folks who have read this blog for a while know that my favorite default advice to clients is to just shut up. See, for instance, here and here and here for non-criminal examples, and here and here and here and here and most especially here for criminal examples.

Wow. When I link them all, I come off looking kind of crazy. But I'm like Cassandra, except I'm not a Greek chick, and I'm doomed to walk the earth telling people to shut up without them listening to me instead of telling the truth and having them not listen to me.

Today's case in point: Najibullah Zazi and his dad, Mohammed Wali Zazi. The Zazis (Zazii?) are at the center of a frightened shitstorm over threatened terrorist attacks on U.S. soil. You've probably seen someone on the news trying to make you wet yourself about it.

But Zazi Jr. and Zazi Sr. are not, as of now, charged with any terrorist acts or conspiracies to commit terrorism. Rather, they are charged with lying to the government in violation of 18 USC 1001.

How did that happen?

Zazi Jr. and Zazi Sr. voluntarily went to the FBI, voluntarily answered questions at length, and voluntarily supplied the answers based upon which they are now charged. Zazi Jr. is detained as a result; Zazi Sr. has been ordered released on home detention (a rather good indication of the danger level he is actually viewed as posing).

See, here's the thing: when the FBI, or Homeland Security, or anyone else wearing a badge tells you that they would like you to come 'round to their place and clear up some confusion, they are not looking after your best interests. The best case scenario is that they are indifferent to your bests interests. In a far more likely scenario, they are hoping that you will come in and either (a) confess to a crime, or (b) say something denying the crime that they think they can disprove. If you confess to the crime, you get arrested. if you say something denying the crime, and they think they can disprove it, you also get arrested. Either you get arrested on the underlying crime, and the cops use the (they claim) false exculpatory statement to prove your consciousness of guilt, or they do what they did here — they charge you with a crime for coming in and telling them that you didn't commit a crime.

You can violate 18 USC 1001 (and parallel state statutes) through a very wide array of false statements. The statement must be material to the issue the government is considering. But that is a very low standard — it simply means that the government must be able to show that the statement is of the sort that might possibly have an impact on the decision the government was making. Traditionally the feds used 1001 to prosecute lies that actually had an impact — false statements that led investigations astray, false statements that let a citizen collect money he wasn't entitled to or avoid debts she was required to pay, false applications that got a citizen a passport or license or document he wasn't entitled to, etc. But increasingly the feds use 1001 as a tax on stupid people with shitty lawyers. The government decides what the truth is. The truth is usually that you are guilty of a crime. Then they ask you to come in and answer questions. If you admit you are guilty of a crime, they are happy and charge you with a crime. If you deny that you are guilty of the crime, they charge you with lying to the government — even though they contemplated the possibility that you would do so, and even though your lie had no perceptible impact on the investigation of the matter.

That's exactly what happened to Zazi Sr. and Zazi Jr. Read the complaints against them, which I have uploaded here and here. The affidavits in support of the complaints show that the government knew what it thought the real story was before either Zazi came in for a voluntary interview. When each Zazi denied some fact about the investigation that the FBI believed it could prove, they charged them for it — even though it is perfectly clear that the alleged lie had no impact whatsoever on the investigation.

Some of us regard that as chickenshit.

It's bad enough when the government does it with voluntary statements. But at least those cases can be dismissed as a tax on stupid people with bad lawyers. The government can also set an inescapable perjury trap — it can subpoena you before the grand jury and ask you incriminating questions, and prosecute you for perjury if you don't give the answers they want. Think you can avoid that by taking the Fifth? Think again — the government can ask a judge to immunize your testimony, and have you held in contempt and jailed if you refuse to answer. Your choice, then, is to admit to doing something (say, participating in terrorism) whether or not it is true, and cherish the belief that the immunity order will be worth more than a fart in the wind in the long term, or else go to jail. Think that sounds far-fetched? Federal prosecutors are doing it to harass defendants acquitted of involvement with terrorism.

The FBI — and some defense lawyers — will try to get you to go in to talk by suggesting that if you don't, you might be charged as part of a terrible misunderstanding that you could have cleared up if you had just cooperated. That's bullshit. Any misunderstanding is very likely locked in by the time they are talking to you. And cops can be assholes, but despite the bluster, generally they aren't the kind of assholes who charge you only because you clam up. Rather, if they arrest you after you clam up, it's almost certain that they would have done so anyway. Recklessly talking in order to avoid the vanishingly small change that there is a genuine misunderstand is a wrongheaded weighing of relative risks. There are occasions when it makes sense to go in and talk — but those occasions involve careful analysis by a competent and experienced defense attorney who is familiar with the arena and the gladiators, who will demand that you get a "Queen for a Day" letter at a minimum (a promise of limited use immunity, so your statement can't be used directly against you), and who will have the experience to know when even an immunized statement is too risky to undertake.

So, in summary, listen to poor old Ken/Cassandra while you still have the option. Shut up. Shut up. Shut up. Don't pay the moron's tax by believing that the cops just want to "straighten a few things out" for your benefit. They don't. They want your neck in the noose.

Last 5 posts by Ken

11 Comments
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11 Comments

  1. Brad Warbiany  •  Sep 22, 2009 @2:38 pm

    FYI, your link is to title 47, 1001, not title 18, 1001. Proper link here.

    Now, maybe it's just me, but I get confused by this. How can they make it a law to lie to an investigator if you're not under oath? And when you set down to talk to the investigators, do they inform you up front that anything non-factual statement that you make can put you in jail? Somehow I doubt that (or more people would actually "clam up").

    I do think your advice — "Just shut up" — is good, but I just wonder how we've gotten into a world where it's become as necessary as it is. We've gone from "don't admit to a crime" to "don't deny a crime because they'll assume that's a lie, since they already assume you're guilty."

  2. Andrew T  •  Sep 22, 2009 @2:45 pm

    Everything you say here makes sense. But how should someone handle situations where the police/FBI/whoever wants to talk to them as a witness to a crime, or as a victim of one?

    Maybe your answer will be "never talk to the police/feds without a lawyer's help, regardless of the context". But assuming that there are some situations where you should talk to them solo, how can a non-lawyer tell the difference? I'm sure we can come up with scenarios where a person thinks they are a witness to a crime whereas the police think they might be the perp.

  3. Mike  •  Sep 22, 2009 @4:07 pm

    Andrew T: Witness today; suspect tomorrow. After all, if you were present to "witness," the offense, who's to say you didn't do it?

  4. Professor Coldheart  •  Sep 22, 2009 @4:30 pm

    @Andrew T: It's not yet illegal to say to a cop, "Sorry; I'd rather not talk about it."

  5. Matt Raft  •  Sep 22, 2009 @5:03 pm

    I was waiting for an intelligent, reasonable post about the Zazi situation. Ken, you did not disappoint.

    I am involved with several Muslim lawyer groups. We put on "Know Your Rights" workshops that basically impart the following advice: 1) "Don't talk to law enforcement without a lawyer"; and 2) "Yes, we know it's considered rude in Middle Eastern culture not to invite someone in your house who just wants to talk to you, but when it's the FBI, it's okay to close the door (assuming there's no warrant)."

    For the next Know Your Rights workshop, I'm going to give the advocacy groups a link to this post. I do employment/discrimination law in California, but from what I hear at these workshops, I'm fascinated by law enforcement's seemingly endless desire to go after Muslims who voluntarily offer information.

    The best part? The FBI is now complaining that Muslim advocacy groups are preventing them from gathering information. In other words, the FBI has the gall to wonder why Muslims won't cooperate with them after they lock up and charge the ones who do cooperate.

  6. JJW  •  Sep 22, 2009 @7:51 pm

    So, if a police officer says to me "Sir, do you know what time it is", I should say "Sorry, officer, I can't answer that question". If I am taken to the police station, every question should be answered with "My name is JJW. I live at 123 Main Street." Sort of the equivalent of name, rank and serial number – the only thing that a (true) POW is required to give.
    How are police supposed to jobs if EVERYONE refuses to talk to them?

  7. Ken  •  Sep 22, 2009 @8:56 pm

    FYI, your link is to title 47, 1001, not title 18, 1001. Proper link here.

    Fixed. Thanks!

    Now, maybe it’s just me, but I get confused by this. How can they make it a law to lie to an investigator if you’re not under oath? And when you set down to talk to the investigators, do they inform you up front that anything non-factual statement that you make can put you in jail? Somehow I doubt that (or more people would actually “clam up”).

    Many, many documents you sign for the feds have a Section 1001 warning. No, most of the time the cops won't warn you. The theory is that a lie to the government causes harm that should be punishable. Note that the Supreme Court has ruled that the feds can prosecute you even if your answer was a mere exculpatory no — in other words, if they merely asked "did you do it" and you said "no." That's U.S. v. Brogan. I actually had a client prosecuted for that. They gathered all the evidence they needed to show that he had hacked somebody's voice mail, visited him, asked him if he did it, and noted that he said "no", then charged him with hacking and 1001. That's chickenshit.

  8. Ken  •  Sep 22, 2009 @9:01 pm

    I'll address two related questions:

    Everything you say here makes sense. But how should someone handle situations where the police/FBI/whoever wants to talk to them as a witness to a crime, or as a victim of one?

    Maybe your answer will be “never talk to the police/feds without a lawyer’s help, regardless of the context”. But assuming that there are some situations where you should talk to them solo, how can a non-lawyer tell the difference? I’m sure we can come up with scenarios where a person thinks they are a witness to a crime whereas the police think they might be the perp.

    So, if a police officer says to me “Sir, do you know what time it is”, I should say “Sorry, officer, I can’t answer that question”. If I am taken to the police station, every question should be answered with “My name is JJW. I live at 123 Main Street.” Sort of the equivalent of name, rank and serial number – the only thing that a (true) POW is required to give.
    How are police supposed to jobs if EVERYONE refuses to talk to them?

    No, not every interaction with police is ominous. Sometimes common sense can tell anyone that the questions are benign. But here are some rules of thumb:

    1. If they want you to come to the police station to answer questions, it's foolish to assume it's benign.
    2. If they can't define in a few words exactly what they want to know ("we're trying to find out if anyone saw the accident" or "we're trying to find Jimmy Jo-Bob"), but instead say things like "we need to clear up a few things," it's foolish to assume it's benign.
    3. If you know you did anything wrong, or have the least reason to believe anyone thinks you did anything wrong, or if you are closely associated with someone who did something wrong, it's foolish to believe it is benign.

    Lawyers can ease this a bit. Under some circumstances, a lawyer can get government assurance that a client is merely a witness. The value of that assurance depends on a wide variety of factors.

    But let's be real — coming in to answer questions about whether you are associated with terrorist organizations is not close to the line.

  9. Scott Jacobs  •  Sep 23, 2009 @3:13 am

    And if a judge's immunization of your testimony before a Grand Jury isn't worth a damn, why would I think for a moment that any assurance made that I'm "just a witness" or a promise of limited use immunity is worth a damn either?

  10. Ken  •  Sep 23, 2009 @8:44 am

    Scott, immunization may be worth a damn in some circumstances. When you've been acquitted of terrorism charges and an AUSA has a major hard-on for you, I think it's probably not worth a damn in the long run; they'll find a way to use it against you. And remember the other component of the situation — the defendant/witness is claiming that the facts the government wants him to admit to are not true.

    As to "just a witness" assurances – please note that I said "under some circumstances." Those circumstances would be (1) in some sorts of cases where the rules do not go out the window, (2) extended from a prosecutor I know and trust, who cares about his/her reputation, (3) in a situation where the evidence I see is consistent with the person being only a witness. And even then I advise the client of the limitations of that assurance, and the risk.

  11. Windypundit  •  Sep 23, 2009 @12:49 pm

    One of the more disgusting examples of this was a case where the feds had flipped a crooked building inspector and had him go around and take bribes from a bunch of building owners. Then the feds interviewed the building owners—who were the victims of extortion, remember—and asked them if they'd ever bribed a building inspector. When they said "no", the feds nabbed them for the false statement. I guess we should be thankful the feds didn't flip a rapist…