Common Mistakes in Federal Criminal Cases

David Benowitz, a federal criminal lawyer in DC, talks about common mistakes people make in federal cases.

What are some common mistakes people make before and after they have been charged with a crime?

David Benowitz: The main thing, the absolute main thing that people do that they should not do is they talk. For example, in federal cases … I get so many calls [from clients who say], “The FBI and the IRS showed up at my house at 6:30 in the morning with a search warrant. They put my wife in the kitchen, and they put me in the living room, and we each talked to the FBI. We gave interviews for six hours.” The reason the government executes a search warrant at 6:30 in the morning is they know it’s disorienting and they have a script of questions prepared by a prosecutor who’s not there. They do it to try and keep the person who’s being investigated off balance. (Therefore) the main thing is just to be quiet. The less you talk, the better. People seem to think that: If I haven’t done anything wrong, then it’s okay for me to talk to the government. And that’s just dead wrong.

Why do people talk when they know they shouldn’t?

David Benowitz: People seem to think that everything is taped, so that their words can’t be misinterpreted. The FBI’s policy is not to tape anything. When they show up, they have two agents there and they interview you.

They take notes and they write [those notes] into a report called a “302.” It’s their recollection … because there’s no tape. They do that because that way they keep control of what the answers are, what the questions are. So they can put anything they want in there. So you may say something at 6:30 in the morning that could be interpreted one of two ways, but I guarantee you it’s going to get interpreted the way that makes you look guilty. So it’s much better if you just don’t say a word.

The other thing is that there are plenty of people who, once they’re caught in this trap, they end up getting convicted of a [less] substantive offense. [For example], they’re being investigated for fraud [but] they don’t get convicted of fraud or even charged with fraud. They get charged with lying to a federal agent. If it is determined that you lied to a federal agent, it’s determined by the FBI that you lied to them, you can be charged. That’s a crime. So you end up getting prosecuted for something that you [weren’t] being investigated for.

So… at the end of the day, just be quiet. A lot of times, clients talk themselves into trouble that they then need me to litigate them out of.