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Constitutional education, history, commentary, reform, compliance, and interpretation.

2005/02/05

Talk to Government Investigator, Go to Jail

The following clauses have been prosecuted against individuals, such as Martha Stewart, by U.S. government agents. It is allegedly authorized by the Commerce Clause, extended not only to all economic activity, even intrastate, but to all activity whatsoever, even noneconomic:

TITLE 18 > PART I > CHAPTER 47 > § 1001

§ 1001. Statements or entries generally

(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 or imprisoned not more than 5 years, or both.

...

TITLE 18 > PART I > CHAPTER 73 > § 1510

§ 1510. Obstruction of criminal investigations

Release date: 2004-08-06

(a) Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined under this title, or imprisoned not more than five years, or both.

...

(c) As used in this section, the term "criminal investigator" means any individual duly authorized by a department, agency, or armed force of the United States to conduct or engage in investigations of or prosecutions for violations of the criminal laws of the United States.

______

TITLE 18 > PART I > CHAPTER 73 > § 1512

§ 1512. Tampering with a witness, victim, or an informant

Release date: 2004-08-06

...

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to -

...

(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation [1] supervised release,,[1] parole, or release pending judicial proceedings;
shall be fined under this title or imprisoned not more than ten years, or both.

...

(h) There is extraterritorial Federal jurisdiction over an offense under this section.

...

______


TITLE 18 > PART I > CHAPTER 73 > § 1515

§ 1515. Definitions for certain provisions; general provision

Release date: 2004-08-06

(a) As used in sections 1512 and 1513 of this title and in this section -
(1) the term "official proceeding" means -

...

(C) a proceeding before a Federal Government agency which is authorized by law; or

...

(3) the term "misleading conduct" means -
(A) knowingly making a false statement;
(B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement;
(C) with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity;
(D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or
(E) knowingly using a trick, scheme, or device with intent to mislead;

...

(4) the term "law enforcement officer" means an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant -
(A) authorized under law to engage in or supervise the prevention, detection, investigation, or prosecution of an offense; or

...

(b) As used in section 1505, the term "corruptly" means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.

...
______

There is reason to suspect several such prosecutions have been done using false evidence or testimony. In the Martha Stewart case, there were no audio or video recordings made or disclosed. It was the word of the investigators against hers.

Their procedure following an encounter is to fill out a Form 302 report of what the subject said, signed by two agents. But they do not make a recording, so the evidence against the subject is whatever the two agents say it is, and they can lie. Whatever they write will generally be accepted without question. Even refusing to say anything at all will not protect one against lying agents.

It is the usual practice of investigators not to make an audio or video record such interviews, but to have two or more agents do it, and then file a report, Form 302 for FBI agents, then join in testifying in support of that report, even if it is itself not truthful. Without a recording, you can't subpoena it as evidence.

It should be noted that the technology now exists to speak into a microphone with one voice and have a computer transform the voice into that of another, in real time, with such fidelity that the falsification is not readily detectable even by expert analysis. Such transforming of video records is more difficult, and not yet possible in real time, but given enough time, a video can be produced that can have anyone saying or doing anything.

We cannot trust government agents not to use such methods to produce false evidence.

We must therefore issue this warning:

NEVER talk to federal agents on any matter whatsoever. Don't even give them the time of day, or your name or other information, unless they waive in writing, certified by a court of competent jurisdiction, all rights to prosecute for making false statements or obstructing an investigation, you are accompanied by legal counsel, have at least two independent witnesses you can trust, and the entire session is video recorded and multiple copies of the records widely distributed to the custody of trusted persons.

But to avoid being prosecuted for obstruction of justice for refusing to talk to them, you need to say something like, "I will only talk to you with advice of, and in the presence of, legal counsel. Give me your card and my attorney will contact you."

For more on why this code is unconstitutional see Original Understanding of the Commerce Clause

______

Since this article was originally posted with the title "Talk to Federal Investigator, Go to Jail", I learned of cases in which people are being prosecuted for "lying" to state or local "investigators", on the alleged theory that such nonfederal agents or contractors share their information with federal agencies, and thus are acting as agents for the federal government. The same reasoning could extend to foreign government agents or contractors. The standards for evidence of what people might say to such nonfederal investigators are generally even weaker than for federal, often no more than the word of one agent against one civilian with no witnesses and no recording. Therefore, I have changed the title to replace the word "Federal" with "Government". Since there is no definition of what an "investigator" is, or even if such person has to be a government employee, the advice to people needs to be, "Don't talk to anyone about anything." At least not without video recording the encounter and with at least one neutral witness who can't be compromised.

You might memorize the following statement:
"I note that you appear to be a government investigator. I hereby invoke my rights under the Fifth Amendment to the United States Constitution. Furthermore, while 18 USC 1001 remains in effect, and on advice of counsel, I will not speak to any government investigators without a lawyer and two independent witnesses, and a video recording of the encounter under my control and to which I or my attorneys shall have exclusive possession."
Also, never allow them into your residence or vehicle without a warrant, because if let in, they can claim they saw something that would support a warrant, and plant incriminating evidence.


The government needs to make up its mind. It can either get the cooperation of citizens, or it can prosecute them for what they (may or may not) say.

We are entering the era in which only militia can get the cooperation from civilians needed to enforce the law. That suggests government agents need to abandon law enforcement and leave it to militia.

2 comments:

FretBoardFrenzy said...

Don't lie and you have nothing to worry about. How about those apples......

The reason why it is so difficult to become a federal investigator is the testing, background searching and educational requirements. More than 800 people typically apply for 1 position.

Don't trust federal agents? No, it is the people who are afraid to answer truthfully we need to be afraid of in this society.

Jon said...

I have overheard a table full of such federal agents joking among themselves about how they lied about what those questioned said, as a way to charge them with a crime. If they are so trustworthy, let them record the sessions, let the others present do the same, and allow people to correct the records if they realize they were mistaken. The present practice of two agents not recording but only submitting a written report in which they agree what was said, is indicative of a corrupt process. There is a reason for the safeguards on depositions and witness testimony in court. We need to fear both those who lie to investigators and investigators who lie to courts.

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