District Court Holds that Custodial FBI Investigation on Arrest for Nontax Crime Producing Tax Crime Information Not in Charges Originally Made Did Not Violate Rights (10/31/21)

In United States v. Lieber, No. 1:20-CR-10111-RWZ, 2021 U.S. Dist. LEXIS 197575 (D. Mass. Oct. 13, 2021), CL opinion here and docket entries here, the Court denied the defendant’s motion to suppress statements made during a custodial interview by FBI agents after his arrest on the initial indictment charging nontax crimes.  I previously wrote on the superseding indictment Superseding Indictment for Former Harvard Chair on Tax and FBAR Crimes (7/29/20), here.

The opinion is very short and very well written.  I recommend readers of this blog read the whole thing.

In summary, the initial indictment charged Lieber with two counts of making false statements related to his federal funding for research at Harvard University.  Two FBI Agents arrested Lieber on July 28, 2020 pursuant to that initial indictment and took him to the Harvard University Police Department Headquarters where they questioned him for three hours.  The agents recorded the interview.  Before the questioning, they read Lieber the full Miranda rights for custodial interviews, which included the right to suspend the interview and consult with counsel.  In response to the Miranda warning about right to counsel, Lieber made equivocal statements about his need for counsel but did not expressly state that he wanted to consult with counsel before proceeding.  The Agents continued the interview and, in the course of the interview developed information that led to a superseding indictment which included two tax counts for tax perjury (§ 7206(1)) and two counts for failure to file an FBAR.

Lieber moved to suppress the fruits of the interview resulting in those additional counts in the superseding indictment.

As interpreted by the court, in the interview, Lieber did not make an unequivocal request for counsel.  Hence, the Court held that there was no Miranda problem with continuing the interview.  The Court also held that the circumstances of the interview were not coercive (enough) so as to prevent Lieber’s voluntariness in the interview.

These cases are fact-specific depending upon unique facts and nuances.  The Court gives an excellent discussion and probably as succinct as reasonable to capture the nuance.  I think therefore that I would disserve readers by attempting to offer more discussion than the summary I provide above.  I highly recommend reading the opinion.

 JAT Comments:

1. The interview was given in a nontax context.  FBI Agents made the arrest and conducted the interview.  If this had been a tax (or related FBAR) indictment ab initio, IRS Special Agents might have participated.  Most of the cases involving the issue where IRS Special Agents are involved are noncustodial interviews (meaning that there is no arrest or other custodial coercion that might put pressure on the voluntariness of the interview).  In such noncustodial interviews, the Agents will give a modified Miranda warning to account for the noncustodial nature of the interview.  See 9.4.5.11.3.1 (05-15-2008), Informing of Constitutional Rights in Non-Custodial Interviews, here; see also IRM 9.4.5.11.3.2 (02-01-2005), Informing of Constitutional Rights in Custodial Interrogations.  For other blog discussions, click the labels below for Miranda and Modified Miranda warnings.

2. As with many IRS interviews of targets of an investigation, the FBI Agents gave Lieber no advance notice before the interview other than the notice he received by being arrested when they showed up early (6:38 am at his Harvard office).  A typical strategy will be for the IRS Special Agents conducting a criminal administrative investigation to show up early, often at the home, without notice to the target taxpayer, so that he or she is caught off guard and more likely to say something damaging / incriminating because the lawyer (if he has one) will not be there.  The Agents (I infer) prefer an interview without the target’s lawyer present because that is likely to be the most productive for criminal investigation and prosecution.  Often, upon being read the modified Miranda warnings, the target will not invoke the right to counsel and will respond to questions, sometimes either telling the incriminating truth or telling a lie which is also a crime and thus incriminating.  Then, once the indictment comes, the target who is then defendant will move to suppress what he said.  If successful, the suppression may result in dismissal of the charges if the Government is unable to prove that it can convict on untainted evidence in a Kastigar hearing.  That was the gambit Lieber made, although it did not arise from an IRS investigation per se.

3.  As I noted above, after being read the full Miranda warnings, Lieber equivocated on a request for counsel.  The Court makes this interesting point in footnote 3 on page 6:

   n3 Defendant submits an affidavit along with his motion in which he attests to the following: "Once the government agent read me my rights, I wanted a lawyer. I requested a lawyer. I understood the agent's interruption of my request for a lawyer as a denial of my request." Docket #172 U13. However, as noted earlier, the question is whether defendant's actual statements can be considered an invocation of his right to counsel, not what he said he intended at the time as stated in his post hoc affidavit.

4. One of the oft-repeated anecdotes (usually delivered to draw a laugh) by tax crimes lawyers involves a client who calls his lawyer about 10am to advise the lawyer that Special Agents had earlier come to his home to talk with him.  The conversation goes:

Lawyer [“L”]:  Did you tell them anything?

 Client [“C”]:  No.

 L:  How long were they there?

 C: About 2 hours.

There may be more embellishments depending who is recounting the anecdote, but that captures the point.