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Atty Gen wants to talk to you...now what?
| | Monday, September 15, 2003 @ 08:00 AM EDT
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Contributed by: John Merchant
John Merchant Properties
Read more archived articles about Law and Legal Issues
As a lawyer (now retarded..no,no, that's RETIRED! from active practice), I'm constantly amazed and dismayed at the posts I see about REI's who get a letter from some state's AG and immediately respond and start jumping through hoops for the AG.
As any lawyer who's ever represented anybody in a criminal situation would tell you, this is a dead-wrong thing to do, and a very dangerous reaction.
First of all, every reader on this board is making every effort to NOT do RE in the old way, with either all cash, or by assumption of big debt, etc.
This makes lots of government regulatory agencies very nervous (maybe justifiable, but certainly true) and all such "gummint reg'lators" make every effort to cram all us REIs into some mold of their own limited vision...and to look with deep suspicion on those deals which fall (NOT!) within those strait-jackets that they do understand and comprehend.
So it's increasingly common for one or the other of us to get "the letter" from some AG, inviting/demanding that we immediately call and make an appointment to go in and
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give a statement (confession is what they want!) as to just what we're up to, all the details of our every such RE deal, etc..
OK, so what should our reaction be with such a summons?
Well, think about the job description of the AG & its staff is. Aren't they just about the same as the DA's office? On another level?
Isn't their job to investigate & PROSECUTE criminals in their respective states?
Not much different from a city/county/state/federal detective is it?
What should any prudent person do if invited to step into the patrol car and start giving a statement? About that person't activities, knowledge, etc.?
Answer is clear to any lawyer who's ever dealt with police, detectives, gvmt. investigators, etc.: DON'T DO IT! You've maybe got a little something to be gained from such cooperation, but a LOT to possibly lose.
As the 5th Amendment to our wonderful Constitution clearly states, and it applies equally to you, me, any other US citizen:
We have the right to remain silent and we're not obligated to co-operate with such cops or agents, and it's our absolute right to refuse to do so.
But, you object, it's our duty to cooperate, and help those folks to understand what we're doing!
Trust me. I'll guarantee that probably 90% of us, who aren't actively trying to hide some criminal act or transgression, feel this same way, and a smart cop takes advantage of this natural "good citizen" attitude.
As any long time or much experienced detective will tell you, most of the crimes they solve are solved because the perpetrator could not STAND to remain silent and felt such an urge to clear his conscience or tell about his evil deeds, that sooner or later he voluntarily confesses. Frequently HORRIBLE crimes, even carrying death sentences! Confessed to!
Often these confessions come years later, after the police have given up all hope of ever solving whatever crime was committed. No other evidence existed, and often, the police did not even have a suspect identified!
Wait a minute! What does all this have to do with the AG's simple request that I go in and fully disclose what I've been doing?
Well, think now- why are they wanting YOU or ME to go in and chat with them?
They have a COMPLAINT about us! They've already got a file going, on a probable (in their minds) criminal violation that we've committed against some other citizen, who was, of course, totally innocent, gullible and naive.
In the AG's minds we're already guilty of something, likely FRAUD (!) and they just want us to voluntarily show up and start "'fessing up"!
Because without our cooperation, they've probably got nothing solid, just an unsworn accusation from the guy we made that "subject to" deal with, and who now wants to back out and deal with somebody else...but of course, this guy doesn't tell the AG this. But accuses US of fraud, concealment, taking advantage of the poor citizen, etc.
In other words, we've already been tried and convicted, but they just want US to sit down and give them a written statement (confession!) that they can then take into a GRAND JURY (sound scary? GOOD! It should!) and get us INDICTED! Then tried and CONVICTED of our crime.
You really, seriously think the playing field is LEVEL for us in such a scenario? Again, trust me...it's NOT!
"OK, OK, I believe you...but what should I do, how should I respond to such a summons/invitation?
Simple: Tell them you want this in writing from whoever it is, in the AG (or DA's) office, which you'll then immediately get to YOUR attorney so he/she can advise you as to what to do.
Tell them nicely, but very firmly that you're NOT going to be giving ANY statements of any kind without first talking it over with your lawyer.
"But I'd really like to help them understqnd this, and I'm sure once I explain it, they'll fully agree and probably pat me on the back!"
Anybody who believes this is probably also out in the field on Halloween awaiting the Great Pumpkin.
"But won't it go against me if I just refuse to talk to them like that?"
NO! Remember the 5th Amendment says not only can you NOT be forced to talk to them, against your will, but also that such a refusal can NOT be used against you in a court of law.
"Won't they be so upset & angry that they'll just go ahead and prosecute me if I don't help them?"
Amazing truth here! I'll bet 80% of all such are NEVER prosecuted or heard from again, unless the suspect is truly involved with a criminal activity or has been out there really cheating the poor and innocent in a big way. In which event they'll indeed persist until they do nail the perp. May take years, but with enough smoke, they'll just plug away until they can get a conviction.
But so often, without our active HELP they have nothing to go on, no real evidence, and have far too little in their file to do anything.
A true story: Once when I was in active law practice, an obviously very shaken and frightened citizen called me and told me the following...he was a City employee, whose job it was to pick up and then deliver US Mail to the various city agencies and offices. Which he'd been doing for some years.
But earllier that very day, he'd got a call from USPO Postal Inspector (Federal Post Office Detective), asking him to "drop by their office" in the USPO and just give them a statement...and they'd let him know they were investigating some mail thefts and just wanted to "clear the air" about this fellow.
As I said, he was very shaken & frightened, (and likely guilty and frightened with good reason!)...and wanted my advice about what he should do.
I told him to come down to my office and then I'd call the USPO Inspector and see what this was all about.
He did come in, I did make the call, and within minutes a couple of Postal Inspectors walked into the office. They immediately demanded he give them a statement.
I responded that he would NOT be favoring them with any such, and short of thier serving him with an arrest warrant should NOT be bothering him further.
As you might imagine, this did not set well with those two PI's and they grumbled and griped a good bit, and said we'd be hearing more from them.
Which we NEVER DID! Their only evidence against the guy was to come from the suspect himself!
Should he have been gullible and frightened enough to talk to them, I suspect he would have been arrested on the spot and then likely cowed into pleading guilty of mail theft.
"But that's different!"
OK, you've now been warned.
Your choice.
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