White-Collar Crime

The Waiting Is the Hardest Part: What Sucks About Being Under Federal Investigation

Welcome to the Kafka-esque limbo of federal investigation!

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Imagine the FBI comes to your door. They tell you that they are working on an investigation and ask you a number of questions. They want to know, say, whether you talked to a certain person on a certain date, or if you remember depositing or withdrawing money from some account that you have.

You answer them — perhaps accurately, perhaps using your best guess that may or may not be wrong later. You try to be helpful.

Leave aside that you’ve elided over whether you really want to talk to the FBI when they come to your house, you find yourself not terribly settled about what just happened.

So you hire a lawyer.

Suppose you hire a white-collar defense lawyer the right way and get someone who knows what she’s doing.

She calls the government and learns that you’re a subject of an investigation. She tells you that means that the prosecutor isn’t necessarily gunning for you, but still thinks that you might have done something that they could prosecute. She also tells you that the government, as it learns more, could change its mind, and then your status could change. They could start looking to prosecute you in earnest.

This is serious.

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You start to freak out. You spend hours worrying about it. You spend thousands of dollars on a lawyer trying to figure out what to do. Your lawyer meets with the government. There’s conversation back and forth between your lawyer and the prosecutor. You’re terrified; you’re raptly following each exchange.

And then one of two things happens. Each of them sucks.

If you’re lucky, your lawyer will have a conversation with the prosecutor where the prosecutor will say something like “I’m not allowed by my office to tell you whether we’ve made a decision about going forward with a prosecution, but I can tell you that I don’t think we need to have another conversation about this case and if that changes I will call you if I can.”

The prosecutor is signaling something there which means, at best, “hey, defense lawyer, this is worth exactly nothing, and should be little comfort to your client, but we’ve decided not to keep doing anything here.”

My experience is that you’re most likely to get this response when (a) you know the prosecutor really well or, more likely, (b) when some other part of the government wants or needs something from you or your client, but your client is asserting his or her Fifth Amendment rights not to be helpful to that other government component.

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A vague assurance that nothing bad will happen unless an AUSA learns more information is not, of course, enough to extinguish your client’s Fifth Amendment rights, but if your client is, say, worried about an adverse inference instruction later, it can clarify the balance of harms.

If you’re not lucky, what you’ll hear is… crickets. There’s a five-year statute of limitations on most federal crimes. Five years is a long time. Especially if what you’re fearing after five years is being yanked from your house first-thing in the morning in front of your kids.

And during that time, there’s really not much you can do. Every now and again you’ll check with your lawyer and debate whether to call the prosecutor. Sometimes that may make sense, but too often you or your lawyer worried about poking the bear. If the case has drifted off of some AUSA’s radar, do you really want to bring his attention to it?

Right now, I have perhaps a dozen clients in that situation. I hate to call them because of the panic I cause when my number pops up on caller ID.

And it happens to clients fancy and not – Bob Bennett, one of the most famous white-collar defense lawyers in a city full of them – is having the exact same problem in former-D.C. mayor Vince Gray’s case.

What sucks about all of this is how much suffering the government’s policy of never telling you anything inflicts on people for no good reason.

Sure, if the government had a strong strategic reason for not giving you information — they’re thinking actively about bringing charges related to the investigation they’ve got you on, for example — refusing to let a person know where he stands could be defensible.

But in the vast majority of cases the only reason the government doesn’t give people the basic human decency of letting them know that they can move on with their lives is because federal prosecutors don’t think they have any obligations to anyone outside of the law enforcement community.

Kudos to the few AUSAs who will give defense counsel a signal on the downlow that there’s not a pressing danger (though, of course, that has obvious and troubling limits). But why does that have to be on the down low?

Why should people delay careers, or businesses, or marriages, or getting on with their lives because they don’t know whether the government is done with them, when the government itself does know?

The answer? Because the government has the power to do it. And Americans cannot fathom the point of having the power to do something without exercising it.

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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