What is section 1001 and why should I be worried about it?
You may not be directly familiar with section 1001, but it's the section of the United States Code (federal law) under which Martha Stewart was convicted of intentionally misleading FBI and SEC officials.
You should worry about section 1001 because it gives the federal government immense power - power that could potentially be abused.
Is it a crime to tell a lie to the federal government, even if I'm not under oath?
It is a crime to knowingly and willfully make any materially false, fictitious, or fraudulent statement or representation in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States. So, yes, it is a crime to lie to the federal government, even when you're not under oath.
Does a lie have to be made directly to a government employee to be a violation of section 1001?
To be a violation of section 1001, a lie does not have to be made directly to a government employee as long as the lie was "within the jurisdiction" of the federal government. To violate section 1001, you don't have to be aware that lying to the government is a crime, nor do you have to know that your lie falls within the jurisdiction of some federal agency.
But I'm an honest, law-abiding citizen. Why should I be concerned about section 1001?
Every law-abiding citizen should be concerned with section 1001 because the statute's extremely broad power can be easily abused.
There is particular danger for the innocent citizen who finds himself or herself even in a passing relationship with a white-collar crime investigation. Many federal prosecutors send agents out to interview witnesses with the knowledge that a witness will either tell the truth (and thereby help build the case at hand) or that the witness will somehow misspeak and turn him- or herself into a target for a section 1001 charge.
But what if I haven't done anything wrong? Isn't it safe to talk to a federal agent?
Even though you think you have nothing to hide, you must ask yourself if you know enough in the area of federal law to be sure that you haven't violated some federal statute.
And even though neither you nor anyone with whom you're associated has intended to commit a white-collar crime, bear in mind that many regulatory crimes do not require an element of criminal intent. In such an instance, even an innocent remark could result in criminal consequences.
But what if I just decide to remain silent — won't that solve my dilemma and relieve me of any possible liability under section 1001?
Remaining totally silent while in custody, especially after having been accused of something, can be used against you under the Federal Rules of Evidence. Your silence can be construed as something called an adoptive admission. This is also known as an admission by silence or a tacit admission.
If talking can get me into trouble and not talking can get me into trouble, is there any reasonable alternative when faced with a section 1001 dilemma?
Yes, invoke your right to counsel. Politely decline to be interviewed then and there by saying, "My attorney will be in touch with you." Ask for the agent's card and give it to your attorney when you speak to him or her.
But what if I haven't already hired a lawyer — what do I say?
Say something like, "I want to consult a lawyer first," or "an attorney will contact you." In any event, the very last thing you want to do is to be interviewed in the absence of counsel.
But what if the agents come at me with something like "What do you have to hide?" or "Why do you need a lawyer?"
And invariably they will. Don't fall for it. Don't even touch on the "nothing to hide" part. Simply say that you're not going to talk about the matter until you've talked to your lawyer, and that your lawyer will be in touch with them.
If they try to get you to commit to an interview after having retained a lawyer, don't. Just keep saying that you will talk to an attorney and that he or she will get in contact with them. They will try their best to bully and fluster you. Don't get drawn into coming up with some lame excuse for not talking then and there. Your attorney will be in touch.
But what if they threaten to subpoena me for not talking to them right then and there?
And they just might. Repeat what you said before: "I wish to consult with my lawyer first." If they continue with their threats to subpoena you and you already have a white-collar attorney, tell them that your lawyer can accept service of the subpoena.
If they serve you then and there with a subpoena, thank them and tell them that your attorney will contact them shortly.
But can't they use even my insistence on counsel against me?
Invoking your right counsel cannot be used against you at trial. By invoking counsel, you put the ball back in the prosecutor's court. He or she has to decide if what you have to say is important enough to seek a grand jury subpoena.
For a consultation with Lorandos Joshi, call 734-249-6170 or send the firm an e-mail.