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Reminder: Oh, Won't You Please Shut Up?

Dec 1, 2011
By .
Law

There's really no excuse for the fact that we don't have a "SHUT UP!" tag; I shall have to remedy that. After all, "SHUT UP!" is one of our most venerable and consistent themes.

There's a reason for this. The reason lies at the heart of law enforcement methodology in general and federal law enforcement abuse of Title 18, United States Code, Section 1001 in particular.

Imagine this scenario, based on an actual situation:

A business associate calls you and says, "my dear business associate, the shit has hit the fan; Federal Agency X is investigating Project Y we did together. Two Agency X agents are interviewing people."

"Oh coitus," says you, or words to that effect, and terminate the conversation.

Later that day, two well-dressed and polite agents of Agency X visit you. Because you despise me and want me to weep and gnash my teeth, you consent to be interviewed. At some point, they ask you "have you talked about this investigation with anyone?"

"No," you say.

They smile.

At the end of the interview, it occurs to you to ask, "Hey, am I in trouble? Do I need a lawyer?"

The agents smirk. "No," they say. "I mean, unless you lied about talking to anyone about this investigation."

See, you've fallen into a false statement trap, which I've talked about before. The feds know that you've talked to somebody about their investigation. They were probably standing next to your friend when he made that call this morning. And now you've talked your way into a felony.

Here's how it works. The feds identify some fact that they can prove. It need not be inherently incriminating; it might be whether you were at a particular meeting, or whether you talked to someone about the existence of the investigation. They determine that they have irrefutable proof of this fact. Then, when they interview you, they ask you a question about the fact, hoping that you will lie. Often they employ professional questioning tactics to make it more likely you will lie — for instance, by phrasing the question or employing a tone of voice to make the fact sound sinister. You — having already been foolhardy enough to talk to them without a lawyer — obligingly lie about this fact. Then, even though there was never any question about the fact, even though your lie did not deter the federal government for a microsecond, they have you nailed for a false statement to a government agent in violation of 18 USC 1001. To be a crime under Section 1001, a statement must be material — but the federal courts have generally supported the government's position that the question is not whether a false statement actually did influence the government, but whether it was the sort of false statement that could have influenced the government.

Hence, the government's chickenshit false statement trap works — even though the government agents set it up from the start. Now, however weak or strong their evidence is of the issue they are investigating, they've got you on a Section 1001 charge — a federal felony. In effect, they are manufacturing felonies in the course of investigations.

You think this is an improbable scenario? You think I'm talking about rare and extreme cases to color the entirety of federal law enforcement? To the contrary, as a federal defense attorney, I'm encountering this more and more often. Not to sound like an old fart, but we never indulged in such bullshit when I was a federal prosecutor (cue the scoffing from many defense attorneys). But in the last 12 years, I've seen it in a dozen cases, and heard about it from colleagues across the country. It's now routine for federal agents to close out an investigation with a false-statement-trap interview of a target in an effort to add a Section 1001 cherry to the top of the cake.

The lesson — other than that criminal justice often has little to do with actual justice — is this: for God's sake shut up. Law enforcement agents seeking to interview you are not your friends. You cannot count on "just clearing this one thing up." Demand to talk to a lawyer before talking to the cops. Every time.

SHUT UP.

Last 5 posts by Ken White

37 Comments
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35 Comments

  1. TJIC  •  Dec 1, 2011 @2:29 pm

    What brings all of this to mind? Some recent happenings with you, or perhaps your circle of aquaintances ?

  2. TJIC  •  Dec 1, 2011 @2:30 pm

    > aquaintances

    You know – among the Water People?

    s/aqu/acqu

  3. Coyote  •  Dec 1, 2011 @2:52 pm

    Great advice. Martha Stewart went to the slammer for lying to investigators, not for insider trading.

    I have my kids well trained now. Whenever we are watching a cop show and they are interviewing some suspect, they all start screaming "Lawyer" at the TV, since there seldom is one there and if there is, he or she is portrayed as an obstruction of righteous justice.

  4. shg  •  Dec 1, 2011 @3:30 pm

    Ya know, I had this argument at Amy's blog, where I explained how to properly invoke rights. A guy responded to me in exasperated tones that the thing to do when questioned was to shut up. He told me that this information came from a "real lawyer," so I was clueless moron.

    I replied that if he's incapable of remembering more than two words, than indeed "shut up" was excellent advice. If, however, he could memorize a few additional words, then it would behoove him to learn how to properly invoke his right to remain silent and his right to counsel. After all, shutting up is good, but only good for as long as they continue to shut up. When they get tired of shutting up and say something, because they just can't not say something, it's all for naught.

  5. Ken  •  Dec 1, 2011 @3:56 pm

    Well, sure. In a custodial situation you'd better use magic words, as the courts have increasingly allowed police to say perfectly clear statements are insufficiently explicit.

    But in a non-custodial situation, just shutting up should suffice.

  6. C. S. P. Schofield  •  Dec 1, 2011 @5:15 pm

    Coyote,

    It's worse than than. As I understand it, Martha Stewart was convicted of 'lying' by asserting that she was not guilty of a charge that the government, in the end, would not even try to prove in court. The prosecutors of that case should be subjected to something artistic, but lingering, involving boiling oil or molten lead.

  7. Scott Jacobs  •  Dec 1, 2011 @6:26 pm

    A well-off friend of mine, who has a lawyer on retainer just in case he ever needs to talk to the police outside of calling to bitch about noise from the party next door, once was confronted by cops who were looking into a non-mutual friend of his.

    My friend calmly said he would be willing to talk to the police, but only after he had consulted with his attorney and with the attorney present during the conversation, and that until such time he would no continue speaking to the police.

    They then tried the "well, you don't need a lawyer if you have nothing to hide" bullshit, at which point he started signing show tunes.

    Around "Then I can write a washing bill in Babylonic cuneiform, And tell you ev'ry detail of Caractacus's uniform" the detectives turned around and departed.

  8. A Critic  •  Dec 1, 2011 @7:05 pm

    Is it still okay to laugh in their faces?

  9. Will  •  Dec 1, 2011 @9:18 pm

    @A Critic well that's probably an assault on the cops ego which is illegal under their 'authorita' which puts you at risk of tasing or arrest

  10. John Regan  •  Dec 2, 2011 @7:58 am

    Let me play devil's advocate for a minute: isn't it possible that people avoid charges by talking to the police? Defense lawyers never confront this, though – because by definition the person involved avoided charges.

  11. grumpy old man  •  Dec 2, 2011 @8:25 am

    I recently had the thought that if a Federal officer insisted on speaking to me, I would ask my attorney to arrange the following terms as a precondition:

    1. They agree that they will not lie as an interrogation technique, and agree that doing so would constitute a tort against me.
    2. That they agree that they will not use the defense of Qualified Immunity in any action against them resulting from their interview.

  12. Patrick  •  Dec 2, 2011 @8:28 am

    If they have the evidence to charge you before hearing your convincing explanation John, they're going to charge you anyway. If they don't have it, they're probably not going to charge you anyway. Indictments are handed down on the weakest of evidence, but "the suspect seemed suspicious, because he would not speak to us without his attorney present" absolutely will not support an indictment.

    If you have a convincing explanation, why not let your lawyer decide whether to explain it? Your lawyer can't be called to the stand to impeach you because something he told the police turned out to be mistaken.

  13. John Regan  •  Dec 2, 2011 @9:35 am

    Patrick: I'm not so sure your predicate is correct. When they're investigating they're looking for evidence. At least in theory. It may be that they can't get an indictment by saying you acted suspicious, but if you act suspicious – and in their minds refusing to speak to them without a lawyer qualifies – then they start "looking" at you, and reality being what it is, seek and ye shall find comes into play.

    I'm not saying there isn't merit to "shut up". It's just that it's a lot clearer in hindsight. Of course after someone has been charged it would have been better if they had said nothing. But some people convince investigators to leave them alone to begin with, which let's face it is made a lot more difficult when you say you want a lawyer.

    When you're questioned during a criminal investigation you can wind up being irrelevant, a witness or an accused. Neither of the latter two has much to recommend it. In both cases you had better have a lawyer and it's better to shut up. But I'm not sure that getting a lawyer always, in every case, makes it more likely you will wind up in the first category, which is a much better place to be.

  14. CTrees  •  Dec 2, 2011 @10:44 am

    "But some people convince investigators to leave them alone to begin with."

    Some people win the lottery, but that doesn't mean you should use it as a retirement plan.

  15. Ken  •  Dec 2, 2011 @1:07 pm

    John, it's a question clients often ask. Let me answer from a defense attorney's perspective.

    Is it possible that there is a case in which a client will avoid trouble by cooperating and answering questions? Yes.

    Here's the problem: it's absolutely impossible for the client to tell reliably, without full consultation with a lawyer, whether this occasion is such a case.

    Clients often don't know the significance of what they have or haven't done. [Example: you get paid in $20,000 cash for a project. You deposit $8,000 today, $4,000 next week, and the rest the week after that. Did you know you just committed a felony?] They don't know the significance of (as demonstrated in this post) seemingly innocuous lies. They don't know what's illegal or not illegal. They don't know what's incriminating or not incriminating. They are very susceptible, without guidance, into being led into accepting the propositions and accusations of professional questioners.

    So: the client who says "I will answer questions immediately, without consulting with a lawyer, because that might immediately remove me from suspicion in the mind of the cops" is playing a very dangerous game of dice, with his life at risk.

    Also: every single time one of my clients has been approached by federal authorities, and they've been smart enough to tell me first, I've arranged for a delay while I debrief them and assess the situation. I've never, in 12 years, had that result in someone move from "witness" to "subject" or "target" in the mind of the feds. Sometimes I've told them to plead the fifth; sometimes I've brought them in for a statement.

    Same with the state: I've never seen anyone charged who refused to answer questions when it wasn't perfectly clear, in looking at the investigation, that a charge was inevitable.

    Could it happen? Yes, it's possible. But it's a very foolish weighing of risks to weigh the danger of "what if they get mad because i say I want to talk to a lawyer" more heavily than the danger of "what if I say something that screws me." It's kind of like saying "I drive a fast car, but I don't want to wear a seat belt in case I drive into a lake and it keeps me from escaping."

  16. CTrees  •  Dec 2, 2011 @1:59 pm

    "[Example: you get paid in $20,000 cash for a project. You deposit $8,000 today, $4,000 next week, and the rest the week after that. Did you know you just committed a felony?]"

    Okay, this has moved beyond my ken. Please explain?

  17. Ken  •  Dec 2, 2011 @2:02 pm

    Structuring, a.k.a. "smurfing." It's a federal felony to structure cash deposits to avoid the requirement that banks report cash deposits of $10,000 or more. Felony, baby — at least if your intent was to avoid the reporting requirements. But the government is certain to think that was your intent.

  18. Ken  •  Dec 2, 2011 @2:03 pm

    So, CTRees, if you had made deposits like that, and were asked about it before you read my post, you probably wouldn't hesitate to admit it — and you would have admitted most of the elements of a federal felony.

  19. John Regan  •  Dec 2, 2011 @3:32 pm

    @Ken: Yes, hard to argue with you on the risk analysis, and you even rightly point out that there are risks both ways, which is important because the client is not in a risk free situation no matter what he does. Before concluding that someone was stupid to talk, it's worth taking into account the inherent difficulty of the situation.

    I think it's possible that a really intelligent and really honest client might close that risk gap somewhat, but even then he'd probably be better off trying to get a lawyer involved in as innocuous a way as possible. And as soon as possible.

  20. Jason  •  Dec 2, 2011 @4:24 pm

    There is an excellent youtube clip about this point. It's a little long (almost 30 minutes), but I think it brilliantly explains why you should never talk to the police. Even as a 3L, I was really taken aback by this argument — and I can assure you that I won't be talking to the cops without counsel.

    I'm not 100% sure that this blog allows links, but it's called "Don't Talk to Cops."

  21. Jason  •  Dec 2, 2011 @4:37 pm

    It looks like you guys are okay with links, so here it is. Feel free to remove this comment if I'm wrong. I'm also going to try some basic tagging, which I haven't done in years, so hopefully this all works.

    http://www.youtube.com/watch?v=i8z7NC5sgik

  22. Scott Jacobs  •  Dec 2, 2011 @5:25 pm

    I've seen both parts of that, Jason, and I agree that it is a must watch.

  23. John VI  •  Dec 2, 2011 @5:40 pm

    @John Regan

    Theres one other reason you shouldnt talk to investigators to "clear your name"

    Police cant testify about what you tell them in an interview if its positive to your case. Thats Heresay Evidence. But they CAN testify about the results of thier investigation that is NEGATIVE to your case, because thats "evidence uncovered during the course of investigation"

    So simply, an investigator can only provide negative evidence about you to the court because its his job, but any positive evidence for your case he can only hand over to… your lawyer.

    tl:dr
    Cops cannot help you in court or during an investigation, only your lawyer can. Skip the middle man and get the lawyer first.

  24. Ken  •  Dec 2, 2011 @5:42 pm

    You're just totally trolling me now about hearsay, aren't you, John VI?

  25. Rich Rostrom  •  Dec 2, 2011 @5:51 pm

    I can think of one situation where it might be highly advisable to talk to the LEOs: when what you know may be dangerous to a third party. If that third party thinks you know something that he doesn't want the LEOs to know, which you have not yet told the LEOs, that third party may decide that his safety requires making sure you can't tell the LEOs what you know.

    IYKWIMAITYD.

    Disclaimer: I've been reading a lot of old mysteries. A lot of them feature a character who gets killed for knowing something dangerous to the murderer, which has not been told to the LEOs. That's a plot device, but it's been known to happen in real life.

  26. miltonf  •  Dec 2, 2011 @7:03 pm

    Beyond the details of talking or not talking I find it disturbing that the number of Federal laws you can break without even knowing it has mushroomed. A recent WSJ article provides many examples.
    http://online.wsj.com/article/SB10001424053111904060604576570801651620000.html

  27. Blaze Miskulin  •  Dec 3, 2011 @8:51 pm

    Apropos of the thread: My lawyer advises…

    (warning: This one is SFW, but other comics on the site are NSFW)

  28. IGotBupkis, Sailing the Economic Seas Betwixt Scylla And Charybdis  •  Dec 4, 2011 @1:14 am

    >>> Structuring, a.k.a. “smurfing.” It’s a federal felony to structure cash deposits to avoid the requirement that banks report cash deposits of $10,000 or more. Felony, baby — at least if your intent was to avoid the reporting requirements.

    I believe it is now time for us to wipe clean the entire book of statutes, allow a certain number of pages the first year, and then place a limit on how many new pages — all in in 'x' font and typescale, can be placed back on the books in a given year.

    Make the initial year some reasonable amount to re-cover real crimes quickly, but the add-in small enough to discourage piss-ant legal "enhancements" like this kind of crap.

    "No matter where you are, no matter what you are doing, there is some ordinance under which you can be booked"
    – Kenneth Sprecht, Rand Corporation –

    That's about 25 years old, and nothing has decreased its aptness.

    When the federal government can't tell you how many laws there are… when the IRS claims no responsibility for clearly and indisputably giving you incorrect information about the tax codes, it's damned well WAY past time to clear the slate.

  29. IGotBupkis, Sailing the Economic Seas Betwixt Scylla And Charybdis  •  Dec 4, 2011 @1:17 am

    >>> that third party may decide that his safety requires making sure you can’t tell the LEOs what you know.

    Rich, I'd recommend doing some kind of "dead drop" of the info in this case. Make it such that, if you die, it'll go to the cops, and that person or group knows that it exists. Do it in such a way that it can't be recalled/"caputured" by anyone else, either, so there's no benefit in prying the details out of you by torture.

  30. IGotBupkis, Sailing the Economic Seas Betwixt Scylla And Charybdis  •  Dec 4, 2011 @1:20 am

    >>> So simply, an investigator can only provide negative evidence about you to the court because its his job, but any positive evidence for your case he can only hand over to… your lawyer.

    This seems like an abortion of the entire purpose of the courts that makes them more about order than about justice. I'm curious if there's any argument for how this might be abused in favor of the prosecution. It seems as though any evidence that exonerates the defendant — with appropriate warnings about its reliability (i.e., dealing with "hearsay") should be allowed.

  31. Panzersage  •  Dec 4, 2011 @10:13 am

    A comic strip that I read had more or less the same thing to say on the subject.

    Warning, this picture is SFW(it's a one page stand alone), but other comic pages on Oglaf are definitely NSFW.

    http://oglaf.com/badger/1/

  32. Amy Alkon  •  Dec 4, 2011 @10:13 pm

    SHG, both of these from you — "I replied that if he’s incapable of remembering more than two words, than indeed “shut up” was excellent advice. If, however, he could memorize a few additional words, then it would behoove him to learn how to properly invoke his right to remain silent and his right to counsel." — are excellent advice, and I've remembered them at least!

    Oh, and Ken, just tweeted you, but that "Oh, coitus!" epithet is THE BOMB.

  33. Rich Rostrom  •  Dec 5, 2011 @10:07 pm

    GotBupkis, Sailing the Economic Seas Betwixt Scylla And Charybdis • Dec 4, 2011 @1:17 am

    > that third party may decide that his safety requires
    > making sure you can’t tell the LEOs what you know.

    >Rich, I’d recommend doing some kind of “dead drop”
    >of the info in this case. Make it such that, if you die,
    >it’ll go to the cops, and that person or group knows
    >that it exists.

    1) Setting up such a "dead drop" is not something the average person is prepared for on short notice or even at all.

    2) One may not know the significance of what one knows. Which makes it difficult to recognize that one is in such situation, of course.

    3) One may not know to whom the information is dangerous. "I saw a white Econoline van parked by the house at 2 AM" may be dangerous to the owner of the van, but one may have no idea who that is.

    4) One may not realize how dangerous it is (or what the third party will do to suppress it).

  34. Bill St. Clair  •  Dec 7, 2011 @4:04 am

    Here's what I want to say. Hopefully I'll be more tactful should it happen.

    "I don't talk to pigs. Every one of you is a filthy, lying sack if shit. It would be a waste of urine to piss on your grave, so it's certainly a waste of breath to talk to you."

  35. IGotBupkis, Sailing the Economic Seas Betwixt Scylla And Charybdis  •  Dec 10, 2011 @1:44 pm

    >>>> Oh, and Ken, just tweeted you, but that “Oh, coitus!” epithet is THE BOMB.

    Yeah, it's right up there with "a sack of bovine excreta" or the more direct "you sack of excreta!" comments I've encountered.

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