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WE LAW — Badges, guns, subpoenas & search warrants: What to do?

WE Law is a continuing legal series written exclusively for the Mississippi Business Journal by lawyers of Watkins & Eager PLLC.
SCOTT GILBERT

SCOTT GILBERT

One day the People with Badges, Guns & Search Warrants may make an unannounced visit to your business. No business should assume it is immune.

The state and federal government have a long reach into your business.   The fact you don’t directly take state or federal money doesn’t exempt you.  Your interactions with third parties who receive government funding may open the door, and the uses of commercial carriers, the U.S. Mail, the telephone, and the Internet create jurisdiction for federal law enforcement agencies.  Just watch the news for scenes of acronym-embossed, raincoat-clad law enforcement officers hauling banker-boxes from an office building to the official black Suburbans and white rental vans.

The typical enforcement, investigative and prosecuting agencies a Mississippi business is likely to encounter include the DHS, FBI, IRS, DEA, ICE, U.S. Attorney, DOJ, the various District Attorneys, and state Attorney General.

Below are six pointed topics related to a search. This information is designed to help you and your business survive in the event you are visited by the People with Badges, Guns & Search Warrants:

• Warning Signs.

The two most common indicators of an investigation are (1) receipt of a criminal subpoena (which is different than a search warrant), and (2) communications from criminal investigators inquiring about the company or its transactions. If either of these things happens, you should:

1.  Contact an experienced criminal defense lawyer before answering questions or responding to any subpoena.

2. Refrain from taking any actions that might be construed as an attempt to hide information.  None of your records should be deleted, destroyed, or otherwise hidden.  The appearance of a cover-up will result in a separate investigation and could lead to charges of obstruction of justice.

• Search Warrants

If law enforcement officers arrive to execute a search warrant on your premises, you should (a) immediately – as in that very moment – call your lawyer, and (b) consider closing for the day and sending all your employees home.  You cannot stop a warrant from being executed, and you should never interfere.  A business person might reasonably think, and the criminal investigators might suggest, that the perceived urgency of the moment necessitates conversation with the investigators.  Badges have that effect.  There is no urgency.  These investigations and resulting prosecutions take months, and even years.  Slow down and stay quiet.  You should know it is perfectly legal for law enforcement officers to mislead you about their investigation, but a crime for you to mislead investigators.  Silence really is golden.

• After the Search

The first few days after your business has been searched can be difficult.  Computers and records that are critical to the daily operation of your business may have been seized. Your employees may be nervous.  Investigators may attempt to interview employees, customers and vendors.

If computers and other equipment have been taken, your lawyer can work with the responsible agency to ensure prompt return.  You and your lawyer can reassure employees, customers and vendors to aid in the continued operation of the business.  Your lawyer should tell you how to address your employees and what you can and should not say to them.

• Forfeitures

A topic related to criminal investigation is the seizure and civil forfeiture of assets, regardless of whether anyone has been charged or convicted of a crime.  Civil forfeitures have become a governmental cottage industry, even resulting in interagency rivalry as to the split of the spoils.

• The Extraneous Crime

Surprisingly often, a person under investigation is indicted not for the crime investigated, but for another crime discovered or committed during the investigation.  For this reason, communications and disclosures are critical parts of criminal defense best handled by your lawyer – even if you believe no crime has been committed.  Lying to an investigator or grand jury (even as to an unrelated matter), tax evasion, money laundering, and obstruction of justice are the fall-back charges often imposed on persons who otherwise escape the original charge.  High profile prosecutions of this nature include the former Speaker of the U.S. House of Representatives, who was charged with providing a false statement to the FBI, and a former federal judge in Mississippi charged with lying to a grand jury.

• The Long Term Consequences

Unfortunately, the search of your business will send negative signals to third parties, including your customers.  But it does not mean that you or your company committed a crime or will be charged with a crime.  The information seized from your business may be obtained to pursue a target other than you or your company.  Investigations can draw out for months or years, especially in situations involving copious volumes of data.  The investigating or prosecuting agency must review and analyze the data.  This task can take quite some time, even while the priorities of the law enforcement agencies change.   Without naming names, we can all recall sensational raids with breaking news coverage which, months and even years later, have not produced any charges.

Your lawyer should be able to maintain an open dialogue with investigators and prosecutors involved in the investigation of your business.  While law enforcement officers are allowed to mislead you, they are less likely to be dishonest with your lawyer, since they may be cross-examined one day. And, the prosecutors are expressly prohibited from misleading or being dishonest with your lawyer.

CONCLUSION.  The early involvement of an experienced criminal defense attorney can save a business time, money, and anguish.  A fist-pumping “Not Guilty” jury verdict might be a Kodak moment, but the long road to trial is nerve-racking, perilous, and expensive.  The far better course is to avoid prosecution.   So, when the People with Badges, Guns & Search Warrants show up at your door, contact a criminal defense attorney.  Immediately.

» Scott Gilbert is a criminal defense attorney at Watkins & Eager PLLC. Scott can be contacted at sgilbert@watkinseager.com .

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