If you are contacted by federal law enforcement agents for an interview or to provide a voluntary statement, it is not unusual to react with anxiety. What could they possibly want to speak with you about? Are you in legal trouble? Are you required to cooperate with them? Should you have an attorney present?
These are all common questions when you receive a phone call or a knock on the door from an FBI agent or another federal law enforcement officer. In this article, we will briefly discuss what it means to be a target versus non-target of an investigation, your legal rights when dealing with federal law enforcement, and why seeking the advice of legal counsel is always a prudent action in these situations.
When contacted by the FBI for questioning, you may be told that you are not the focus of their investigation. This means that their investigation is not about a crime they believe you committed; it’s about someone else. It is important to know that if you are the target of an investigation, federal agents are not required to volunteer that information; however, you are entitled to ask.
If you are a target of an investigation, you may, but will not necessarily, be informed of this. You might even receive what is known as a “target letter.” A target letter informs an individual that he or she is a potential defendant in a criminal investigation and what crime(s) he or she is being investigated for. The letter will also inform the individual of his or her 5th Amendment rights and provide information about how to retain court-appointed legal counsel. However, it is fairly uncommon to receive a target letter, as notifying an individual about a criminal investigation rarely presents any advantages to law enforcement and they are not legally required to notify you.
Federal agents may, however, volunteer that you are not the target of an investigation. You are also free to ask or, preferably, have your attorney ask the law enforcement officials who wish to interview you whether you are a target of an investigation. You may, for example, be considered either a subject or a witness of the investigation. A subject is commonly someone whose actions fall within the ambit of the investigation, while a witness is commonly someone who has seen or heard relevant information.
Even if you are not a target, you must understand that your status can change. Law enforcement may approach you for questions about an investigation concerning another individual, but your answers to those questions or other information you share with them may cause them to suspect you of illegal activity, which may prompt further investigation of you.
You’ve probably heard someone being read their Miranda rights before (at least in a movie) and know that “anything you say can be used against you in a court of law.” However, even if you are not under arrest or being detained, anything you say to a law enforcement officer can still be used against you.
Particularly if you are engaged in a voluntary interview in which you are not a target, the agents are not required to read you your Miranda rights, but you may still unknowingly make self-incriminating statements that could come back to haunt you in the future and move you from a non-target to a target.
If you decide to voluntarily cooperate with federal law enforcement and answer questions, you should know that the FBI’s method of questioning is generally far different from what you may have seen in Hollywood interrogation scenes. FBI agents are trained to conduct an interview to solicit as much information as possible and they know that when you are comfortable, you are much more willing to talk.
You may find that a good portion of the interview feels like a friendly conversation during which you were waiting for the big questions to begin, when really the agents were collecting information from you all along. They may also jump from topic to topic or intentionally interject what seems like small talk about a completely random topic. These tactics cause you to become comfortable with the interviewers, less guarded, and provide more information. It is because of these discreet interviewing methods that it is wise to have counsel with you during any conversation or interview with the FBI or other federal law enforcement officials.
You have a legal right to have an attorney present when you are interviewed by law enforcement. Not only is it wise to consult with an attorney before agreeing to voluntarily answer questions from federal law enforcement and have an attorney present with you at the interview, but it is also important to choose an attorney with a depth of federal practice experience.
Federal law enforcement differs from state and local law enforcement in the sense that they commonly investigate conduct that may cross state lines and involve a multitude of individuals and companies. Their investigations involve issues of federal law, which may include a wide range of potential crimes like drug trafficking, fraud, money laundering, securities fraud, and more.
A defense attorney who is experienced in handling these claims will be able to pick up on the direction of a line of questioning, identify your exposure to criminal liability, and wisely advise you when to decline to answer a particular question or decline to be interviewed at all. Remember that even if you are not a target of an investigation and it does not seem like you need a defense attorney, it is always wise to have one present so that your status as a non-target continues. You should be careful to only provide accurate and truthful answers, which is easier to do after consulting with an attorney.
At Delahunty & Edelman, our team of former federal prosecutors is equipped to advise you in regard to an FBI interview request or inquiry from any other federal law enforcement agency. For more information, contact us for a confidential consultation.
Patrick Delahunty is a former federal prosecutor with deep experience in resolving disputes. He advises individuals and companies in complex criminal, regulatory, and commercial litigation.