BY SAM FIELDS
Actually, there are not 302 reasons. There is but one and it is called in federal court “The 302. It could screw the innocent and the unwary.
The newspapers and Browardbeat.com make clear that the Federal investigations that led to the arrests of County Commissioner Josephus Eggleston, former Miramar Commissioner Fitzroy Salesman and School Board member Bev Gallagher are just beginning.
The FBI will be interviewing everyone from County Administrator Bertha Henry to bus drivers about anything and everything.
They are looking for scalps.
I suspect that if the average person thought about it, he would assume that when the FBI comes calling, like Joe Friday from DRAGNET, they “want the facts and nothing but the facts. Equally important they want an accurate record of that interview so they bring a court reporter or at the very least a tape recorder.
The average person would be wrong.
Agents bring a pencil and pad to take notes. They then prepare a summary of the interview called a “302 Report.
If you are called as a witness at trial, prior to testifying, you will be given a copy of “Your 302 to review. It is a record of what the FBI insists you said at your previous meeting.
If your interview lasted more than thirty seconds, it is guaranteed you will find numerous discrepancies. Some of them will be insignificant; some of them could be material.
Ask two people to listen to you in a discussion about a traffic accident and then write a summary. It is a guaranteed they will have differences with each other as well as with you, the witness.
You said, “I am reasonably sure that the traffic light was green.
One report takes out the equivocation and quotes you as saying: “The light was green.
This brings us to Federal law 18 USC 1001. That statute makes it a felony to lie to the government. And guess who decides whether or not you were lying? The government.
So here is your conundrum. Do you testify about your doubts about the light, which is the truth, or do you adopt the “302 version to avoid the wrath of the FBI?
Whether or not the “302 discrepancies are a result of stupidity or cupidity makes no difference. Testify in opposition to the “302 and you are in the crosshairs of the Feds.
If they believe your testimony cost them the case, the next thing you likely to hear from the FBI will be: “Please place your hands behind your back.
A number of years ago, fed up with the 302 Two Step, I turned the tables on them.
In a high profile case, my client was asked to submit to an FBI interview at their offices in North Miami Beach.
Feigning naivety, I asked where the court reporter was. I was told there was no court reporter.
I then asked where the tape recorder was.
I will always be impressed that the agent was able to give us the response he did without laughing. He said the FBI could not tape the interview because they did not have “enough money in their budget.
It was time to play the Trump Card.
At that point, I removed a cassette recorder from my pocket and explained that my client had been able to scrape together the 59 cents for a cassette tape. Further we would pay for the tape to be transcribed and supply them with a free copy of everything.
You could’ve heard a fart in a vacuum.
They now made it clear that no way, no how would any FBI interview be recorded. So we went forward with the interview as the agent took notes.
Months later the client was called to testify at trial.
I warned him the “302 would be a work of fiction. It was. I was sitting in the back of the courtroom.
Called to the stand, he told the “real truth and not the “302 version of the truth. The Assistant U.S. Attorney was frustrated and kept on confronting him with the “302 version.
Fed up with the prosecutor and in the presence of the jury, the witness preceded to recount my debate over recording from the first interview. Pointing to me in the back of the courtroom, the witness announced that I had warned him that they would pull this crap with the “302 report.
It didn’t take the jury very long to acquit.
With the advent of DNA and groups like the Innocence Project, we have now seen that so-called unrecorded confessions have put many innocent people in jail and even on Death Row. As a result, agencies such as the BSO, now require all interviews to be taped.
But not the FBI.
Like anyone, including lawyers, the FBI wants to control the record of the interview. Taping hurts that effort.
I’m not saying that it is FBI policy to step over the line. But they have chalk on their shoes more often than you can imagine.
So, what’s should you do if the FBI comes calling?
First of all, the advice I am about to give is not for the a guy who was an inadvertent witness to a bank robbery.
I am talking about people who are being interviewed as part of the types of crimes that are best described as corruption, RICO, white collar, etc.
Those are the kinds of cases that involve tons of evidence. Giving an innocent, but incorrect answer to a vague question could leave any of us in deep CaCa.
A case in point is the lead story in the September 26, 2009 Herald. Chris Walton, director of the Broward County Transportation Department, was interviewed by two FBI agents.
He stated that they wanted to know if “commissioners attempted to influence contracts.
“I told them no.
It may sound like a simple straight forward Q-and-A but it ain’t necessarily so. He may think his interview and public statement ends the matter.
In actuality, he has thrown down the gauntlet in front of the FBI.
Start out with the understanding that the FBI is not investigating to see if there is crime and corruption in Broward County government. They already believe there is. They are only trying to uncover evidence to confirm their beliefs.
Walton’s blanket defense of the Commission has made the Feds conclude he is a fool or co-conspirator.
The FBI just needs the evidence and not much of it. To quote the late Supreme Court Justice William Brennan: “any prosecutor worth his salt could indict a ham sandwich.”
This means all evidence, regardless of its ambiguous nature, will be interpreted to support their assumption of wrongdoing.
They will be using software to go through millions of E-mail messages to look for key words. As Buddy has quoted me: “The Ã¢â‚¬ËœE’ in E-mail stands for evidence.
So imagine the following scenario.
Six months from now they uncover an E-mail from the County Manager to Walton stating that Commissioner X wants to know if the bid of company Y for new busses was correctly filled out. He replies that it was.
Months later he has totally forgotten about the innocuous E-mail. Based on the merits, he happens to rank Y’s bid number one.
You can bet as sure as J. Edgar Hoover wore pink poodle skirts, the FBI will conclude this was code from Commissioner X to Walton to vote for Y.
Armed with the E-mail you can be damn sure that the G-Men will be back threatening him with everything including a stint in Gitmo.
All of this might have been avoided if he had followed my three basic rules.
1. Do not talk to the FBI without a lawyer.
2. Do not talk to the FBI without a lawyer.
3. Do not talk to the FBI without a lawyer.