shsshThe 1966 landmark Supreme Court case of Miranda v. Arizona gave us that famous TV cop phrase, “You have the right to remain silent…” This warning, called the Miranda Warning after the name of the criminal defendant in the case, is so common that many citizens can almost repeat it by heart. The holding of that famous case is that when a person is placed in custody by law enforcement officers, they must inform the person of the Constitutional right against self-incrimination and the right to counsel.  And this warning must be understood by the person in custody. So far, so good.

In 2010, the Supreme Court ruled in Berghuis v. Thompkins that a person cannot just remain silent, but that, paradoxically, in order to invoke the right to remain silent, the person in custody has to unambiguously state that he or she wishes to remain silent.

But what if you are not in custody, but you are being spoken to by an employee of a government agency? What are your rights, and what should you do?

A troubling trend in recent years has been for the Federal Government to prosecute under the provisions of 18 U.S.C. § 1001, which prohibits lying to or concealing information from a federal official.  That law provides, in part:

 (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years…

Nobody is required to read you your rights when you’re not in custody.  That’s because this crime — lying to the government — has not yet been committed. When that official starts asking you questions, you may not be in trouble – yet.

In recent years, this provision has been used to prosecute an increasing number of cases, some having only a distant relation to federal crimes. In one case, an Idaho farmer, Cory King, was convicted of lying to a state livestock inspector about where a valve on the property sent some water. Mr. King allegedly said the valve routed the water to a sprinkler system when in fact it sent water to a well. Idaho didn’t pursue criminal charges, but the federal government did, under Section 1001.  Mr. King’s statement was made to a state official, but the Justice Department argued that lying to the state inspector interfered with enforcement of federal drinking-water laws. The false statement “need not be made directly” to the federal government, said one Justice Department court filing.

In the same way that Gangster Al Capone was eventually jailed on charges of tax evasion (“Selected Documents: Jury Verdict Form (October 17, 1931)”), rather than, say, machine-gunning his rivals, the government convicted Martha Stewart of, among other offenses, lying to securities investigators, rather than of insider trading in her sale of 4,000 shares of ImClone stock to avoid a loss of about $46,000 (“Stewart Convicted on All Charges,” CNN, March 5, 2004).

So what is the law-abiding citizen to do? How are we to know when a simple misstatement of fact will be the basis for a full-blown federal prosecution, potentially costing years and hundreds of thousands of dollars in legal fees? The simple answer is that for a small but still significant number of citizens who have spoken to federal, state and local officials about everything from photographing migrating whales to valves on pipes, there was no way to tell.  When a government official shows up at your door and starts asking questions, you will have no way to tell. While we would not go so far as to recommend that our clients never speak to government officials, we counsel caution when doing so. After all, pausing to talk to your attorney may give a bit of time to consider what is being asked of you, and the answer you want to give. If there is any doubt, attorneys may always ask officials for limited immunity, and obtaining that may prevent a simple mistake of fact from becoming a felony conviction later on.

In Brogan v. US, Justice Ruth Bader Ginsburg worried about “the extraordinary authority Congress, perhaps unwittingly, has conferred on prosecutors to manufacture crimes” out of false statements. Mr. King, that Idaho farmer, knows that she was right to be worried.


–Lawrence Husick, Esq.