When Answering “I Don’t Remember” Can Get You Indicted: The Case of Michael Flynn

On January 24, 2017, the scene was set for the commission of a federal crime. Agents from the Federal Bureau of Investigation (FBI) were conducting a criminal investigation into the Russian Government’s interference in the 2016 presidential election. The F.B.I. wanted to speak with former Lieutenant General and then National Security Advisor Michael Flynn due to his many Russian connections and pivotal role in the Trump transition team. Flynn agreed to having the F.B.I. interview him.

During the interview, the F.B.I. asked Flynn many questions but focused specifically on his contacts with the Russian Ambassador Sergey Kislyak. The agents asked Flynn if he remembered a “follow up” conversation with the Ambassador that involved Russia’s response to the U.S. Government’s imposition of sanctions. This was a crucial moment. Unbeknownst to Flynn at the time, the F.B.I. had intercepted a December 31, 2016 phone conversation between him and the Russian ambassador which was the “follow up” conversation. As such, the F.B.I. knew the only truthful answer Flynn could give to this question was “yes, he had such a conversation.” Unfortunately for Flynn, he answered the agent’s question by stating “I don’t remember” even though he in fact had the conversation and even spoke to senior members of the Trump transition team regarding the same. At that moment, Flynn, by answering “I don’t remember” to the F.B.I.’s question, had committed a federal felony by violating 18 U.S.C. § 1001.

Section 1001 makes it a crime to “knowingly and willingly” give false statements in any matter under federal jurisdiction. In order for a person to be found guilty of violating section 1001, the government must prove each of the following elements beyond a reasonable doubt:

  1. The defendant made a false statement or used a writing which contained a false statement in a matter within the jurisdiction of a specific government agency or department (i.e. the F.B.I.);
  2. The defendant acted willfully;
  3. The statement was material to the activities or decisions of the government agency or department.

As most of you know, Michael Flynn entered a guilty plea on December 1, 2017 to a violation of 18 U.S.C. § 1001, i.e. making a false statement to federal law enforcement officials. Flynn is not the only high profile person snagged by Section 1001. Former Illinois Governor Rob Blagojevich and T.V. personality Martha Stewart were both convicted of Section 1001 violations. Interestingly, Stewart was never charged with insider trading but lying to federal agents during the investigation of stock trades she made based upon insider information. These convictions give rise to the saying that often “the cover-up is worse than the crime itself.”

A few final points about 18 U.S.C. § 1001:

  1. The lie to federal agents does not have to occur when you are under oath. Perjury is a separate offense;
  2. Federal agents do not have to read you your rights, i.e. Miranda Warnings. If you are not in custody, Miranda does not apply;
  3. Federal agents do not have to inform you that they know the answers to the questions you are asked. Warning: they usually already know the answer to many of their questions;
  4. Section 1001 violations can also occur during immigration and IRS investigations; meaning, false statements to ICE or tax revenue agents could in some instances give rise to criminal charges.

 

Federal Agency interrogation or interview with the FBI, IRS, or DEAMy advice is simple: If you have been contacted by any agent that works for one of the “initials,” i.e. F.B.I., D.E.A., or I.R.S., and said agent wants to interview you regarding a criminal investigation, you need to consult with an attorney before talking. This is true even if you are not the target of the investigation.

 

 

If you need a criminal defense lawyer for a State of Ohio or Federal case, call Attorney W. Joseph Edwards (614-309-0243) who has over 25 years experience representing clients in these legal matters.

 

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