Article Image Ernest Hancock

Letters to the Editor • Israel

Don’t Think For A Moment—You Can Talk To The FBI Off The Record

• News
If you are questioned by the FBI and truthfully answer “No” to a question, you might be charged for making a false statement under 18 U.S.C. § 1001.
For example, if someone (unbeknownst to you) had proposed committing an act of violence or other crime at an activist meeting you attended—then later the FBI questions you about having knowledge of that proposal, by answering “No” the FBI might charge you for providing a misleading answer or lying to a federal agent under18 U.S.C. § 1001.
This law is a trap for the innocent, because how can you prove you didn’t know something? Even answering “yes” under this law can be hazardous. Consider the U.S. Supreme Case BROGAN v. UNITED STATES No. 96—1579. Argued December 2, 1997 Decided January 26, 1998: James Brogan was indicted on federal bribery charges and for making a “false statement” within the jurisdiction of a (federal agency) in violation of 18 U.S.C. § 1001.
Note under the law, that any person questioned by the FBI or other Federal Agency can be imprisoned up to 5-years and fined $10,000 for every “misleading or false answer”; that includes a false or misleading statements made to the FBI when questioned about a crime the Government can’t prove you committed.
Under BROGAN v. UNITED STATES, Supreme Court Justice Ginsburg noted that when the FBI questions someone about an "old crime" after the Statute of Limitations past for criminal prosecution, and the questioned person denies having committed the crime, their fresh denial may involuntarily waive their right to assert in their defense—the statute of limitations has past for criminal prosecution e.g., a 20-year old crime.
Consequently if you are ever questioned by the FBI or other federal agency about a passed crime or about having knowledge of anything illegal happening in the future, the smart thing to do might be to remain silent and if necessary state to the FBI “Before I answer any of your questions I first need the benefit of an attorney.” Keep in mind that there is no such thing as talking to an FBI Agent or any federal agency off the record. Re: James Brogan, the FBI came by Brogan’s office and gave the appearance their visit was informal, then after asking a few questions indicted Brogan for lying to the FBI. Below is a brief summary of the U.S. Supreme Court decision BROGAN v. UNITED STATES No. 96—1579 and Website access to learn more about the Brogan Case and 18 U.S.C. § 1001. SUPREME COURT OF THE UNITED STATES BROGAN v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 96—1579.
Argued December 2, 1997–Decided January 26, 1998 Petitioner falsely answered “no” when federal agents asked him whether he had received any cash or gifts from a company whose employees were represented by the union in which he was an officer. He was indicted on federal bribery charges and for making a false statement within the jurisdiction of a federal agency in violation of 18 U.S.C. § 1001.
A jury in the District Court found him guilty. The Second Circuit affirmed, categorically rejecting his request to adopt the so-called “exculpatory no” doctrine, which excludes from §1001’s scope false statements that consist of the mere denial of wrongdoing. Held: There is no exception to §1001 criminal liability for a false statement consisting merely of an “exculpatory no.”
Although many Court of Appeals decisions have embraced the “exculpatory no” doctrine, it is not supported by §1001’s plain language. By its terms, §1001 covers “any” false statement–that is, a false statement “of whatever kind,” United States v. Gonzales, 520 U.S. ___, ___–including the use of the word “no” in response to a question. Petitioner’s argument that §1001 does not criminalize simple denials of guilt proceeds from two mistaken premises: that the statute criminalizes only those statements that “pervert governmental functions,” and that simple denials of guilt do not do so.
United States v. Gilliland, 312 U.S. 86, 93, distinguished. His argument that a literal reading of §1001 violates the “spirit” of the Fifth Amendment is rejected because the Fifth Amendment does not confer a privilege to lie. E.g., United States v. Apfelbaum, 445 U.S. 115, 117.
His final argument that the “exculpatory no” doctrine is necessary to eliminate the grave risk that §1001 will be abused by overzealous prosecutors seeking to “pile on” offenses is not supported by the evidence and should, in any event, be addressed to Congress. Pp. 2—8. 96 F.3d 35, affirmed. Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, and Thomas, JJ., joined, and in which Souter, J., joined in part. Souter, J., filed a statement concurring in part and concurring in the judgment. Ginsburg, J., filed an opinion concurring in the judgment, in which Souter, J., joined. Stevens, J., filed a dissenting opinion, in which Breyer, J., joined.

1 Comments in Response to

Comment by Powell Gammill
Entered on:

Never, ever talk to the authorities.   The only thing to come out your mouth past, "What is this about?", is, "Gosh, I would love to cooperate but my attorney told me he would charge me double if I spoke to agents without him being present."  And then shut up.

Oh, invoking your Fifth Amendment Right to keep quiet may get you charged with "obstruction of justice" or "impeding a investigation," but the majority of those convicted in federal court today are convicted of lying to an agent of the government. 

And that lie may be nothing more than unthinkingly blurting out "No" to the initial question of "Do you know anything about...?" when initially confronted by agents of government.  Gotcha!  Don't get got...keep your trap shut.