Responding to an "Ambush" Interview by Federal Agents - Strategies to Consider Prior to or During an Unscheduled Interview
At about 2:00 p.m. on Wednesday, October 15, you, the CEO and President of the XYZ Corporation return from a lengthy business lunch with other members of a trade association to which your company belongs. Waiting in the reception area of your office are two FBI agents. The agents represent that they need some information and would appreciate your help in resolving certain issues about which they have been asked to inquire. You had no prior notice that the agents were coming to your office to conduct an interview. The agents are helpful, polite but not demanding and you do not want to appear uncooperative. You reason that if you can handle the difficult aspects of your multimillion dollar corporation, you certainly can handle, deflect and/or respond to inquiries by two federal employees who certainly do not have, in your opinion, the same financial and business background that you have.
The meeting is cordial and you offer the agents coffee or soda pop. They ask a number of questions about how your industry is structured and organized, how the trade association operates, and how often you meet with competitors. You answer generally that you attend some trade associations meetings, have the telephone numbers and addresses of CEO's of competing companies, and sometimes talk to them at trade shows or at other meetings throughout the year. While one agent asks some general questions, the other takes copious notes, but says nothing.
During the course of the meeting, the questions become more pointed and are directed to particular meetings that you attended, recent conversations with other CEO's and correspondence with competitors. Some of the questions are easily deflected and when you think that the agents are inquiring about sensitive areas, you give them a little bit of double talk, mixed in with a few innocuous false statements, and generally try to get them off the trail and onto other items which you can handle more easily. You are deliberately vague as to contract dates, bid specifications and other materials that you regularly discuss with competitors and generally say "I don't remember" or "I don't know" in an attempt to short circuit further inquiries.
The agents play a tape recording of you and another CEO discussing pricing. They ask you to identify your voice on the tape recording. They warn you that providing false information could result in your being charged with serious criminal offenses. You continue to deny any wrongdoing and try to explain the tape recording as containing nothing more than general business discussions.
You Call the Company Lawyer
You decide to excuse yourself from the meeting because you claim that you have to make a phone call. In fact, you leave to go to another executive's office and call your lawyer. You inform your counsel as to what has occurred and inquire as to whether he has any advice to give you. Your attorney informs you that he thinks that you should terminate the interview immediately and not make any further statements. As a businessman, you find this advice difficult to accept. After all, as in any business, any delay in responding to a problem does not resolve the issue but merely postpones it to a later date. How can responding to the agents' questions not be in your best interest when a termination of the interview at this point might be considered by them as an admission of guilt?
You, as the CEO, wonder why you have not had any prior conferences with your attorneys as to what you should or should not do in the event that you are contacted for this kind of "ambush" interview. Moreover, the lawyer you call specializes in acquisitions and mergers and has no practical experience handling criminal cases. In fact, no one at his firm has any prior experience in representing business executives in criminal investigations. Now you are talking to an attorney who has nothing more than a general understanding of what to do in these matters but you have two agents 10 feet away in your office waiting to complete an interview which may result in you making damaging admissions which could be used against you and your company in either a civil or criminal proceeding. You wonder about what to do now and second-guess yourself as to how you conducted yourself during the interview.
What are your rights and obligations when agents of a federal agency show up unexpectedly at your office or at your home and request an interview? First, remember that the decision to submit to an interview is yours alone. There is no legal obligation to answer any questions put to you by any investigative agent. Before you can be compelled to give answers to questions, you must receive a grand jury subpoena. Even if the agents serve you with a grand jury subpoena at the interview, that does not entitle the agents to demand answers to their inquiries. A subpoena merely commands that you appear before the grand jury on some future date to answer questions. Whether you answer those questions at that time will depend upon your attorney's advice as to the application of the Fifth Amendment, the attorney-client privilege or any other kind of privilege which could excuse your testimony. Federal agents are prohibited from using the grand jury subpoena to compel informal interviews and to imply that by giving them answers at the time of service, your later scheduled appearance before the grand jury will be excused.
If you agree to be interviewed, you have the right to terminate that interview at any time you choose. There is no obligation to sign a statement, affidavit or review an agent's notes of the interview to determine whether those notes accurately reflect your oral statements. If you decide to provide information to the agents, any information must be accurate, truthful and complete. Finally, no matter what the agents say or imply, the statements made by you during the interview can be used against you – nothing is off the record.
Accordingly, there are very good reasons that you may wish to consider in determining whether to decline to be interviewed or to provide documents or information without first contacting your attorney. If the encounter with the agents is at least postponed, you will have an opportunity to consult with your attorney, allow him or her to review relevant documents and other information and to determine whether the interview should, in fact, be conducted. If a decision is made later to proceed, then the interview will not be a surprise or conducted in a hostile atmosphere. Often your attorney can be present during the interview and his or her presence alone can temper the agents' aggressive questioning; the interview may even be conducted in your attorney's offices. In addition, your attorney can prepare contemporaneous notes of what is being said which can later avoid or at least temper a controversy about what was said or done at the meeting. Prior to that meeting, your attorney can review all of the relevant documents with you and prepare you for that interview. If the agents require a signed statement, your attorney can review the statement before you sign it.
Significantly, your attorney can meet with the Assistant United States Attorney charged with investigating or prosecuting this particular matter. There can be some negotiations providing you, the corporate executive, with protection from the subsequent use of any documents or information that you furnish to the government. The United States Attorney's Office sometimes offers "proffer" letters which preclude the government's use of the testimony given by you but allow investigative leads to be pursued based upon the information furnished. In addition, your attorney can contact the government prosecutor and determine your status in the investigation, that is, are you viewed as a witness, the subject of the grand jury inquiry or a target of the federal investigation? Your attorney may be able to secure a letter from the government stating that at that time and based upon all available evidence, you are viewed merely as a witness. None of the foregoing can be obtained, explored or discussed if you go forward with an interview prior to consulting with legal counsel.
You should understand that interviews with federal agents are best handled if you are prepared for their questions. Just as you prepare for an important meeting with your board of directors, outside consultants and others, you should also consider preparing for an interview concerning the business activities that the government has focused on in its investigation. You can review documents, consult your calendar and study recent e-mails to determine what you were doing at a particular meeting, why you went to that meeting and to whom you spoke. This kind of preparation allows you to recall with specificity who was there, what was said or done, and to provide, if necessary, an explanation for conduct which otherwise would appear to be improper or illegal.
Here are a few things to paste in your hat when agents approach you unexpectedly and request an interview. First, interviews may be conducted at any reasonable time or place. So do not think that once you leave your office, you cannot be interviewed at your home. If agents appear at your home for a late night or early morning interview, you have the same rights there as you do at the office. You have the right to refuse to be interviewed and you have the right to consult with your lawyer before you are interviewed. You do not lose these rights simply because agents appear at your doorstep and request to enter your home.
Second, if you decide to cooperate with the agents, any information given must be truthful and complete.
Third, any grand jury subpoena directing you to appear before a grand jury at some later date cannot be used by the agents to compel you to consent to an interview outside the grand jury room.
Fourth, government agents can use any information or documents you provide them against you or your company in a subsequent civil or criminal proceeding. No matter what the agents say, your comments are not off the record and any promise or implied promise that cooperation now will lead to immunity from prosecution or leniency in the event a criminal sentence is imposed is unenforceable. Decisions relating to immunity or leniency are dealt with solely by the United States Attorney's Office.
Arthur Holtzman is a partner of the Litigation and Dispute Resolution Practice Group at Pedersen & Houpt. He can be reached at 312 261 2111.
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