“AMBUSH” INTERVIEWS
Dealing with the Surprise Government Interview
David M. Rosenfield
Counsel
Herrick, Feinstein LLP
2 Park Avenue
New York, New York 10016
(212) 592-1513
Joseph P. Dooley
Managing Director
KPMG LLP
345 Park Avenue
New York, NY 10154
(212) 872-7708
February 5, 2008
Presentation to the Greater New York Chapter of the Association of Corporate Counsel
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The Purpose of the Surprise
Interview
• Valuable tool designed to obtain critical
evidence
– May catch employee in a lie – employee
is unprepared and facts may either be
inculpatory or embarrassing
• Simultaneous surprise interviews prevent
employees from “getting their stories straight”
• Minimizes the likelihood that the company
can intervene and stop the interview
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What to Expect in a Surprise
Interview
• Carried out by either criminal investigators (FBI
agents) or regulators
• Usually at employee’s home early morning or after
dinner
– Embarrassment factor may tempt employee to
just get it over with
• If by phone, may seem less confrontational
• May also be attempted at the office during the
execution of a search warrant or during a surprise
regulatory examination
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What to Expect in a Surprise
Interview (cont.)
• No Miranda warning required because not a
custodial interrogation
• Normally two agents; notes are taken
– No witness to support employee’s recollection
of interview if it differs from agents’
recollection
– Report is likely to be prepared
– Agents may seek to tape interview
• Agents may attempt to convince employee to sign
a statement or affidavit
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What to Expect in a Surprise
Interview (cont.)
• If no search warrant, agents may seek voluntary
consent to search premises and/or computer
• Pocket subpoena may be served whether or not
the employee submits to the interview
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Critical Legal Rights and Legal
Concerns
•
Employees are not legally required to participate in the interview
– Unlike a subpoena where testimony is compelled
– But some regulators can impose sanctions for failure to
cooperate
•
Employee is entitled to retain personal counsel or speak to a
supervisor or company attorney
•
Any statements made are not “off the record,” and can later be
used against the company and/or the employee
•
Lying to a federal agent is a crime
– Employee probably not a target but can become one
– There are at least 1001 reasons not to lie, and perhaps as
many as 1505 or 1512
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Applicable Criminal Statutes
18 USC § 1001 - Materially False Statements
•
Prohibits lying to or concealing material information from a
federal official. Its purpose is to “punish those who render
false positive statements designed to pervert or undermine
functions of governmental departments or agencies.”
18 USC § 1505 - Obstruction of Justice
•
Prohibits obstructing “the due and proper administration of
the law under which any pending proceeding is being had
before any department or agency of the United States.”
18 USC § 1512 (c)(2) - Tampering
•
•
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Prohibits obstructing “any official proceeding”
20 year prison term
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5 Key Rules to Follow
• Be respectful, but do not be intimidated
• Consider postponing the interview
• Don’t talk, listen – listen carefully
• Obtain business cards of agents
• Immediately advise supervisor, corporate
counsel or personal attorney
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Advantages to Postponing
the Interview
•
Affords the employee time to review the facts and
prepare with an attorney
•
Gives employee time to decide whether to talk to
government at all
•
Later interview will be held at a government office,
not at home
•
Presence of an attorney should protect against a
potentially unfair or deceptive interrogation
•
Probably not sacrificing leniency
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Leniency Issues
•
It is likely that any leniency considerations (i.e.,
immunity, reduced charges) available at the time of
the ambush interview will still be available if
interview occurs a short time later in presence of an
attorney
•
Agents and investigators do not have the authority
to grant leniency
•
Submitting to a surprise interview rarely terminates
an investigation, and may very well enhance it
•
Incorrect, incomplete or false answers severely
compromise leniency prospects
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Corporate Internal Investigations &
Surprise Interviews
• What the government can do, so can you
• Surprise interviews are sometimes used by a
company’s corporate security department or by
external investigators retained by the company
– Corporate Codes of Ethics and Employee
Handbooks usually require employees to
cooperate during an internal investigation or
face dismissal
• If done outside the US must address foreign
privacy/legal issues
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Case Examples
• Barry Bonds perjury case – statements made by
Bonds’ trainer Greg Anderson to agents during a
2003 raid of his home
• FBI investigation of alleged fraudulent commodity
trading practices in Chicago
• FBI price-fixing investigation of concrete companies
in Indiana
• FBI loan fraud investigation of Somerset, New
Jersey Savings and Loan institution
• 38 simultaneous interviews conducted worldwide by
investigative firm for a major food manufacturer
investigating Foreign Corrupt Practices Act issues
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Conclusion
The decision by a company employee
as to whether or not to submit to an
“ambush” interview during a criminal
or regulatory investigation is a critical
one for both the employee and the
company. Declining to do so, so that
the employee has a chance to
carefully review the facts and speak
to an attorney, is usually the best
choice.
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“AMBUSH” INTERVIEWS
Dealing with the Surprise Government Interview
H,F # 3883728 v1
David M. Rosenfield
Joseph P. Dooley
Counsel
Herrick, Feinstein LLP
2 Park Avenue
New York, New York 10016
(212) 592-1513
drosenfield@herrick.com
Managing Director
KPMG LLP
345 Park Avenue
New York, NY 10154
(212) 872-7708
jpdooley@kpmg.com
www.herrick.com
www.us.kpmg.com
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