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The Department of Justice

The Department of Justice Continues to Expand Its Reliance on Process Crimes, Which Means You Should Not Talk to Federal Authorities Without Experienced Counsel

Regardless of where you fall on the political spectrum, the Department of Justice continues to rely on process crimes more and more. Process crimes, like making false statements to federal investigators, obstructions of justice, and others, are often brought when prosecutors want to punish a person but cannot bring more serious charges because the serious charges are too difficult, if not impossible, to prove. Scholars have noted that federal authorities, more so than their state counterparts, rely on process crimes. Routinely federal prosecutors and agents take the position, “if you have nothing to hide, you should not have any fear answering our questions.” Often those who do so without counsel experienced in these matters find themselves federal felons, convicted of one or more process crimes.

Federal authorities do not start mindlessly asking questions. Often an informant or administrative investigation has already exposed the possibility that one or more serious crimes took place. Based on the source that started the investigation, federal authorities have preconceived notions about what happened, who did it, and who should pay the price. Sadly, federal authorities often look at those even tangentially related and think a person made too much money to be innocent. While the Constitution does not require you to prove you are innocent, federal authorities usually approach people thinking “what else could it be?” improperly placing a burden on you to persuade federal authorities of your innocence.

Recently, federal authorities served our client with grand jury subpoenas commanding the records custodians of various companies to produce physical and electronic evidence. For one company, the client never had any kind of role – never an owner, employee, or contractor. For another company, the company voluntarily dissolved pursuant to state law before the subpoena was issued and our client was not authorized by law to act in any capacity for that company. We advised the government that the subpoenas were served upon the wrong person and no response would be forthcoming. Notwithstanding the improper service, the government wanted to ask questions of our client under the terms of a proffer letter. Proffer letters specifically leave open the potential of charging a person with process crimes. We have previously discussed the various types of immunity available to people in these situations.

When advising a client about whether he or she should speak to federal authorities pursuant to a proffer letter, it is important to conduct a thorough investigation. The investigation will identify areas where the client may be viewed as a guilty party by the government. Experienced counsel attempts to get a reverse proffer from the government. A reverse proffer is when the government shares some information in the hopes of convincing defense counsel that it is in the client’s best interest to provide information pursuant to a proffer letter. Too often we have seen inexperienced counsel walk clients in to answer questions only to have the client charged with process crimes after the interview. Even when advising a client to speak to federal authorities under the terms of a proffer letter, experienced counsel takes steps to limit the client’s exposure to these process crimes.

It is imperative to retain counsel experienced in criminal and civil fraud investigations to navigate the perils you face when government agencies want to speak with you. Even if you believe you are innocent and have nothing to hide, you should not speak to government agents without first retaining experienced counsel. If you are under federal or state investigation, or if you are an attorney with a client who is part of a federal or state investigation, contactthe Law Offices of Horwitz & Citro, P.A. immediately. Call (407) 901-5852 to request a free initial consultation with an experienced criminal defense lawyer.