. . .anything to a man with power.” ~ Graham Greene, Our Man in Havana.
We deal with a lot of smart people. Corporate executives, lawyers, doctors, business owners of all stripes. Highly competent people, all perfectly capable of rationally speaking on a wide variety of subjects, to wide audiences.
Our clients are the kind of people who can explain things, they do it for their businesses every day. And yet, if we are involved early enough in the process – when they are first informed of an investigation into something they are accused of doing, or knowing about – we can’t stress enough the importance of not talking to anyone, especially someone in a position of authority, on your own.
“But, I didn’t do anything and I can help them sort this mess out,” and a few dozen riffs on that theme are the usual response. Perfectly understandable, and we recognize that you’re smart, competent, and in the real world perfectly capable of doing so.
But, simply, you can’t. Being investigated, questioned, suspected, is not the real world. It has little bearing on reality for the simple reason it’s its own singular, insulated world.
Ever read about people on death row or imprisoned for years who are released when new evidence, usually DNA, comes to light and the prosecutors and arresting officers still swear they got the right person?
It happens all the time and it happens for a simple, very human reason: people (including witnesses) create narratives, invest time and effort in reinforcing them, and are, unsurprisingly, loathe to let go.
Not sure this is true? Take a quick look around social media. People post the same old meme’s and urban myths every day despite a hundred comments showing that they are simply not true. It takes a lot to change one’s views.
In the first (unfortunately not the only) season of True Detective, Woody Harrelson’s character, Martin Hart, warns Mathew McConaughey’s Rust Cohle, “When you attach an assumption to a piece of evidence you start to bend the narrative to support it.”
And that’s the rub – you can do a lot of talking, you can answer questions, you can volunteer information that you think may help – what you can’t do is change a narrative.
Since we’re in an election cycle and politicians and their staff and their handlers are everywhere, there’s potentially a vast number of examples to point to right out of this morning’s headlines. But, in this particular cycle that would be counterproductive, so let’s take an example from another election cycle. 1864.
George B. McClellan ran against Lincoln that year. McClellan was the former commander of the Army of the Potomac. Twice fired by Lincoln, he was renowned as an excellent organizer and leader who was painfully slow to react, never mind engage, the Confederate Army. He had ‘the slows’ as Lincoln pointed out more than once.
McClellan had a ready answer for that charge, one that he used over and over – he was always outnumbered. Always. If he had 75,000 men, Robert E. Lee had 100,000. When he had 120,00, Lee had 200,000 men. No matter the actual truth.
Nothing anyone could tell him would change his mind. Intelligence that refuted his numbers was discarded in favor of the sketchiest reports of Lee’s vast hordes.
By the time McClellan was the Democratic presidential nominee two years after his last firing, some of the truth of what McClellan had been up against came out – he always, always, outnumbered Lee. Sometimes 2-1. Always significantly.
McClellan refused to acknowledge it. He held steady during the presidential campaign, which he lost in a landslide (interestingly, 70 % of the Army of the Potomac, the army he formed and named, voted for Lincoln).
He maintained this unshakeable belief after the war as Confederate officers began to publish their memoirs. He became chief engineer of the New York City Department of Docks in 1870, then president of the Atlantic and Great Western Railroad. Generals on both sides were publishing memoirs at a prodigious rate, he maintained the ‘outnumbered’ myth without falter despite tomes to the opposite.
Even the publication of the U.S. Government’s 127 volume: The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies during McClellan’s term as Governor of New Jersey could not persuade McClellan otherwise. He was outnumbered, despite what Confederate rosters, commissary, orders, telegraphs, quartermaster reports said.
He went to his grave believing it, his apologists – and there were many- still believed it, his post-mortem memoirs maintained it beyond the grave.
McClellan was not a stupid man. He was used to being in a position of authority – he had been in one or another from the day he graduated West Point in 1846. He created his own narratives and he saw them out – regardless. It doesn’t make him a good or bad person, it makes him human.
It also makes him the perfect object lesson for not being interviewed – even casually – without having a lawyer present.
You may have been hooked by Showtime’s Billions over the last few months. With Damian Lewis and Paul Giamatti it was pretty hard to turn away from. It’s a fictional story of the U.S. Attorney for the Southern District of New York (a very real office), Giamatti, and a billionaire hedge fund manager operating out of Westport, Connecticut played by Lewis.
Giamatti is convinced that Lewis cheats the markets, uses inside information, bribes officers and directors of publically traded companies and a host of other white collar crimes. Lewis is all Giamatti despises in the post-recession world and he makes him the target of his office’s very deep resources.
Lewis, for his part, knows Giamatti is coming and pretty much goads him on. He, obviously, has vast resources himself and would rather employ them – legal and quasi-legal – than settle with the ‘government’ and go on with his life.
There’s a lot more to it, of course, and a lot of it is high drama, some of it’s fairly funny, most of it is implausible, but it does suck you in.
In the course of the first season that just ended last Sunday, there have occurred – maybe once or twice a show – a few fundamental truths of how the federal system works in regard to white collar investigations.
These moments may be missed under the glitz and great acting, but to someone who defends white collar cases they were jolting in their realism.
Take, for instance, the propensity for federal agents to raid houses – sometimes just to bring people in for ‘a chat’ – in the early morning hours. Fast, quick, brutal, they don’t knock, they burst in, drag people out. Yes, it’s dramatized, stylized for television, but it happens. All the time. It’s the reason my slogan is “I’m the guy you call when the feds knock on your door at 6 in the morning.”
About halfway through the season, Giamatti’s team has discovered that one of Lewis’ traders used inside information on a series of trades. They bring him in to offer him a deal – his boss for immunity. This is very realistic, if not a constant motif in TV and the movies. The different thing about Billions though, is this: the guy turns them down, tells them to prove the allegations.
In investigating further, they discover that the trader shared his ‘good fortune’ with his parents, who promptly enriched their retirement account, although it’s clear they had no idea of the origins of their son’s tip.
Giamatti, his assistants, and several FBI agents show up at a park in Greenwich, CT where the trader is coaching a Little League game, his parents are in the stands. Giamatti tells the trader he’s come to arrest his parents – unless, of course, he now wishes to cooperate. It’s a chilling moment. It’s also real. It happens.
The season’s finale finds Giamatti on the trail of a corrupt judge. He has him dead to rights. Giamatti meets with him – a fairly creepy Anthony Edwards – and convinces him to resign from the bench while promising that the Southern District has no interest of dragging him and the court system through the mud of a trial.
Edwards resigns … and is promptly arrested by the Eastern District U.S. Attorney’s office. A perplexed Edwards turns to Giamatti, he explains, “Hey, I said you had nothing to worry about from the Southern District, I can’t speak for other jurisdictions.”
The one thing to take from all this? Don’t talk, don’t believe anything you’re told, don’t react, listen and take notes . . . then leave it to an experienced – as in seen everything the fed has to dish out and more – attorney to deal with.
If you find yourself in need of an attorney, contact Tim Anderson Law for an initial, confidential consultation at 732-212-2812.
One common charge I have fought in past is of phishing. This act is directly tied to identity theft and is considered a type of white collar crime. According to the FBI, phishing costs American taxpayers more than $1 billion annually, which is why prosecuting it has become a top priority. If you’ve been accused of phishing, my experience as a New Jersey computer crimes attorney can help.
What Is Phishing?
Phishing is a type of fraud that occurs whenever a person sends some form of electronic communication, usually an email, to try to gain access to sensitive personal or financial information. Phishing emails often look as though they are coming from an official, reputable site, such as from a bank, credit card company or retail store, when in reality they are just a fake email.
Common Phishing Scenarios
All phishing attacks have one thing in common, and that is they all ask for some type of sensitive information from the person receiving the email. This can be anything from Social Security numbers to account passwords. Phishing emails often claim to be from official representatives, and may contain what seem to be actual company logos. These emails might even threaten coercive action such as the closing of an account if the receiver does not respond within a certain amount of time.
What are the Criminal Elements of Phishing?
To be charged with phishing, you must “knowingly and intentionally” attempt to gain another party’s sensitive information in a fraudulent manner. This happens whenever someone pretends to be someone else in order to gain information that they otherwise would not have access to. This means that if a person sends a mass email pretending to be a bank representative, and asks recipients to provide them with account information, that could be considered phishing.
Acquiring Information Not Required
It’s important to note that you can be charged with phishing, even if you do not successfully obtain any sensitive information. The mere act of sending out fraudulent communications, to include creating a copycat website, is enough to establish probable cause for phishing. Therefore, it is not necessary for another person to respond to your email in order to be charged. Simply intending to garner private data is enough to warrant charges and the need for a New Jersey computer crimes attorney.
Acts That Are Not Phishing
Merely asking others for sensitive information does not necessarily constitute phishing. For example, if you are a retailer who offers lines of credit to your customers, you would not be guilty of phishing if you asked for financial information on a credit application. In this instance, you are not pretending to be someone you are not, and there is also a legitimate need for the information. As such, there wouldn’t be cause to charge you with a crime.
While most phishing scams are perpetrated via email, they can also take place via the Internet. This happens whenever a website is created that closely mimics that of another reputable organization, and is designed to “trick” people into providing sensitive information such as an account number or password. If a person creates, operates, or gathers information from such a website, they could be charged with phishing. As with emails, there is no requirement to actually obtain information. Rather, the act of putting up such a website may be enough to lead to criminal charges and require that you hire an experienced computer crimes attorney.
Federal Phishing Charges
A person can be charged in federal court with phishing, but there is no specific federal statute concerning phishing. Rather, a federal allegation of phishing likely would be charged as identity theft, or else as wire fraud, which occurs whenever fraudulent communications are sent through electronic means, such as by email.
New Jersey State Laws
Like many other states, New Jersey does not have any specific laws pertaining to phishing. Instead, phishing is generally classified under the broader category of identity theft.
Accused of Phishing? Contact a New Jersey Computer Crimes Attorney
This type of grand jury investigates a case to determine whether or not an indictment is warranted. First, an investigating grand jury typically requests and obtains documents through issuing subpoenas. From there, the prosecutor typically follows this process with the investigating grand jury:
Calls non-essential witnesses or presents their testimony via agents
Calls immunized cooperators and witnesses
Goes back to see if previously uncooperative witnesses are now willing to testify
Finishes presenting their case with an agent who summarizes the investigation and provides information about missing details
This process can take months or even years to unfold, and the investigation doesn’t end just because the grand jury’s term does. The prosecutor may elect to extend the grand jury’s term, or they may have a government agent summarize everything for a new grand jury. When the time comes to make a charging decision, the prosecutor summarizes all documents and testimony to the grand jury. Before the grand jury votes, the prosecutor explains the legal aspects of the charges and how their evidence may satisfy the elements of those charges. The prosecutor asks the jury if there are any questions and then provides them with the completed proposed indictment. Investigating grand juries don’t draft indictments. Rather, they vote up or down on them. A majority vote is enough to return an indictment, and the defense never learns the specific numbers of the vote, just that they indicted or not.
Hire a Skilled New Jersey Federal Criminal Defense Lawyer
If you are facing federal criminal charges, including are being investigated by a federal grand jury, it is crucial to obtain experienced legal representation as soon as possible. You can call me, Tim Anderson at (732) 212-2812 to schedule an appointment to confidentially discuss your matter.
All legal cases can include complex factors that should only be handled by qualified legal professionals. While it’s not a legal requirement to hire a lawyer to represent your case in court, the following information can lend advice on why it’s probably your best bet to ensure that your case is tried quickly and effectively.