Tuesday, May 14, 2013

The Dangers of the Unrecorded Interview by Criminal Agents -- FBI or IRS (5/14/13)

A crime often trotted out in criminal tax cases is 18 USC 1001(a)(2), here, the crime of false statements.  Often, for example, the first time the taxpayer knows that he is under investigation is when two IRS CI Special agents show up at his home or office, unannounced.  The taxpayer is caught off-guard and often will respond to the questions without preparation and often without concern for precision in the words -- either in listening carefully to the questions asked or in formulating the answers given.  That interview can be a disaster.  It is true that the agents will -- at least should -- give the modified Miranda warnings that the taxpayer is not required to answer questions and may consult an attorney.  But too many taxpayers just try to muddle through.  The taxpayers answer's -- at least as perceived by the agents -- then sometimes become the subject of a false statements charge.  Often the taxpayers perception of his answers is very different than the agents.  After the interview, one of the agents will prepare a memorandum of the interview with the Agents' version of what the taxpayer said, and have the other agent sign off on it -- so there is a contemporaneous record verified by two witnesses (not wholly disinterested witnesses, I might add).  The taxpayers' version of what he was asked and what he said may be very different, but he does not have a witness and often either does not remember crisply or does not contemporaneously commit to writing what he believes he said.  The Agents' memorandum and their memories reinforced by the memorandum can then be powerful evidence against the taxpayer.  So, it has been asked, when the stakes are so high, why don't  the CI Agents voice record the interview so that anyone in the future will then know the question asked and the answer given and something of the ambiance as permitted by the voice recording?

David Drumm, a guest blogger on the Jonathan Turley Blog, addresses this question in the context of interviews by FBI agents.  Why the FBI Doesn't Record Interrogations (Jonathan Turley Blog 5/11/13), here.  He starts off:
At a time when recording a conversation is as easy as whipping out a cellphone or iPod, the FBI policy on electronic recording of witness interviews is: “agents may not electronically record confessions or interviews, openly or surreptitiously, unless authorized by the SAC or his or her designee.” Instead FBI agents take notes and later type up a summary report called a form 302. The interview takes place with two FBI agents and the single interviewee. The FBI has eschewed the objective for the subjective.
Mr. Drumm then discusses the policy, its rationale and problems that have arisen in the Form 302 context and offers a very good video discussion by a lawyer named Harvey Silvergate.  I strongly recommend that you read Mr. Drumm's blog and watch the video (and for those with the time, the comments to Mr. Drumm's guest blog are pretty good also).

The bottom line is that uncounseled interviews are risky business, which is, of course, why CI agents like surprise uncounseled interviews.  And even counseled interviews are risky.  Although there is no iron-clad rule, the better part of wisdom in an interview is to insist upon a voice recording or, if refused and the taxpayer still wants to participate in the interview (properly counseled, of course), to have two witnesses other than the taxpayer present in the interview to take notes that can be incorporated in a memorandum and attested by both of the witnesses.


  1. Asher RubinsteinMay 14, 2013 at 12:18 PM

    Jack, thanks for this post. Could you comment on the same issue (i.e., IRS Criminal Investigations (CI) Special Agents interviewing taxpayers), but within the context of the taxpayer's participation in the OVDI/DVDP, and the CI investigation concerns a foreign bank or banker. I have represented OVDI/OVDP clients in such interviews by CI agents. Of course I am present at the interview, whether in person or on the phone (I have done both). I make sure to get the special agents' assurance that the client himself is not the subject of the investigation, but is a witness in the investigation of a third party. I also get the agent to confirm that the client's voluntary disclosure is in good standing. I will also note that the interviews have not been recorded by the special agents.

  2. Jack - I would like to stress the importance of what is said to an agent, whether one is facing criminal charges or not. While most minnows opting out of OVDI will not likely face criminal charges, I would like to share a part of my experience so if they are handling their own cases, they treat every phone call with their agent as if it was an official interview.

    When I opted out, I submitted written reasonable cause arguments. Prior to that, I had a number of phone calls with my agent to clarify what was needed for the exam and check on documents that I had sent. After I had submitted my reasonable cause arguments, it was determined that I was eligible for the Streamlined Program and I was processed under that program. When I got the Streamlined acceptance letter, I called the agent to ask about next steps. I also asked if my reasonable cause arguments had been read since they were not necessary for the Streamlined Program. My agent said yes, but based on conversations we had already had, the agent had been of the opinion that I had reasonable cause. When the written arguments were read, they just provided written confirmation for the agent's view based on the conversations we had already had.

    My agent had never asked me anything about my reasons for being in OVDI or why I did what I did. However, when we went over what was needed for the IDR, I do recall that the agent would ask a question about something that needed clarification and would let me talk. I assume this was the agent's way of gathering information through my oral statements. When I opted out following the regular process, I was told that no interviews would be required as the agent had already spoken with me enough.

    My point is that everything you say to the agent matters, official interview or not, and one should keep that in mind.

  3. Asher RubinsteinMay 15, 2013 at 4:04 PM


    Thank you for the details regarding the opt-out interviews. As you wrote, these do not involve CI special agents.

    I was referring to a specific interview scenario, not an opt-out interview. The scenario is the following: taxpayer was pre-cleared, received preliminary acceptance and is past CI. Now, months later, after passing CI, a CI agent calls to request an interview of the taxpayer as a witness in an investigation of a foreign bank or banker. This is not an opt-out interview on the civil side. Rather, this is CI essentially coming back and requesting taxpayer's details for use in a CI investigation (and perhaps, ultimately a prosecution) of a foreign bank or banker.

    In my experience, there are usually two CI special agents present, and the interview is not recorded.

  4. Yes, I have always had 2 in these subsequent interviews by a CI Agent where someone else is the target. I just arranged another one today, and there will be two CI Agents. So, I will have two present (myself and one other, both very good notetakers) as well. Still, as is usually the case in one of the surprise interviews, the truth can hurt the taxpayer. In this type of OVDP interview, the truth cannot hurt the client. He has a pass on criminal prosecution regardless of how ugly the truth is and he spills it out in gory detail. He can only be hurt by not telling the truth.

    Jack Townsend


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