EFTA01070585.pdf

Grant Smith066474AcMailConicnt,hbn From: Ken Jenne Seat: Oct 12, 2009 17:44:42 To: Grant J. Smith Cc: Bee: Subject; RE: Sam Fields on 302 Interview FDLE is even worst. Ken Jenne Rothstein Rosenfeldt Adler 401 E Las Olas Blvd. Suite 1650 Fort Lauderdale, a 33301 Email: Work: Fax; FEom: Grant J. Smith Sent: Monday, October 12 2009 3:48 PM To: Ken Jenne Cc: Grant J. Smith Subject: Sam Fields on 302 Interview Broward Probe: 302 Reasons Not To Talk To The FBI BY SAM FIELDS Guest Columnist Actually, there are not 302 reasons. There isbut one and it is called in federal court "'The 302"". It could screw the innocent and the unwary. . facaliDocumcnte/.20tuicr,420,Setangilinal/Desktop/E. uctioneeDocskMail/GrantSmith066474^6MailContenthim (1 of 6) (1141201010:1&47 PM) 14490 EFTA01070585  Smah066074^cMulContenchtm 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 hem is your um. 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. IlleffiCyDocurooms%20and%20Stitings/Tnal/Daktop/E...uctionfeDocsioMailiGram_Smith066474NMaileonton1 tOm (2 of 6)(11/U201010:16:07 PM] 14491 EFTA01070586  Orant_Smith066474^eMsileontenthim In a high profile case, my client was asked to submit to an FBI interview at their offices inNorth 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 tolcithe ""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. file:///C1/Docurneob%Wand%20Setungsarial/DesktopS...uction/oDookMail/Grant_Smith066474^eMailContent.hun (3 of 6) [I 1/6/2010 10:16:47 PM] 14492 EFTA01070587  GrantSmith066474"6420Conecnthern 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. Me 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. Iie 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 'E' 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. file.///q/Documalls%20and%20Setungsfrriol/Desktop/E...uction/cDoa/eMail/Grant_Stnith066474^cMailContenthtm (4 of 6)11 1/6/2010 10:16:47 PM} 14493 EFTA01070588  Onnt_Smith065474^e(44231ConeartIlm Months later he has totally forgotten about the innocuous E-mail. Based on the merits, he happens to rank Its bid number one. You can bet as sure as J. Edgar Hoover wore pink poodle skins, 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. _Memorize them. 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 law Grant J. Smith, Esq. Rothstein Rosenfeldt Adler Las Olas City Centre, Bank America Building 401 East Las Olas Boulevard Suite 1650 Fort Lauderdale, FL 33301 Direct- Cell- Main - Fax - fale:///e/Documerus%20and%20Settingstfrial/Desktop/E..uctionieDocsteMailtGrant_Smith066474AchtailContenthim (5 of6)f31/6/2010 fit 16:47 PM) 14494 EFTA01070589  66474AeNtailConient him file.///Cj/Documcem°420onc13420Sectings/(rial/Desktop/E..uctionleDoeskMaillerant_SmiR066474^thlailContuttlilm (6 of 6)(11/6/2010 IR16:47 pnq 14495 EFTA01070590 EFTA01070591  Gram Smith070964^eMarlComent tam From: Grant J. Smith Sent: Oct 12, 200915:48:27 To: Ken Jenne Cc: Grant J. Smith Bcc: Subject: Sam Fields on 302 Interview Broward Probe: 302 Reasons Not To Talk To The FBI BY SAM FIELDS Guest Columnist 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 guaranteetlyou 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. lile:///C'yDocumcnts%20and%20SmtmgsfirialiDesktop/E ..uctiontel>oakMall/Grant_Smilb070964meMailComentltm (1 615)DM/2010 10:16:49 MO 14510 EFTA01070592  -.Siaith070964AcklailComent.htm 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 thc 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. fileJ/Cifthxuments%20and%2013etungsarial/Desktop/E • ucoontenocifeMail/Grant_Smith070964^eMaileontentltm (2 of 5) (I I/6/2010 t6:49 PMJ 14511 EFTA01070593  GrantSmith07096•AeMalleontentitm 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. nottha Like anyone, including lawyers, the FBI wants to control the record of the interview. Taping hurts that effort. Pm 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 FIK comes es lline 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 arc being interviewed as part of the types of crimes that arc 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. , filelfiCriaeitrnents%20andVa0Settingstrrial/Desktop/F,...uaiodeDocs/eMtullGrant Smith070964^cMailcontenthm (3 of 5)(11/612010 10:16.49 PMJ 14512 EFTA01070594  GrantSmith070964^eMadComent. Mtn 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 'E' in E-mail stands for evidence."" So imagine the fidowing 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. Memorize them. 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 law Grant J. Smith, Esq. Rothstein Rosenfeldt Adler litc///CYDocuments%20and%20Settings/nial/Desktop/E...uctionteDocskMail/0ranl_Srnith070964^eithilCoatent tam (4 ors) (11/6801010:16:49 PM) 14513 EFTA01070595  Gtm1Smith07096NeMaiICancnt htm Las Olas City Centre, Bank America Building 401 East Las Olas Boulevard Suite 1650 Fort Lauderdale, FL 33301 Direct - Cell -I ------ —i= Matr Fax gsmith®rra-law.com PM] fjeffievpreitmenteyonand1420Setungs/frialinesktop/E..uctionteDocskMail/OruntSmith070964^cMaileontent.litm (5 of 5) [I1/6/2010 I 0c16:49 14514 EFTA01070596 ;. EFTA01070597  Grant_Smith08016reMailContexithim From: Grant J. Smith Sent: Oct 12, 2009 15:48:27 To: Ken Jenne Cc: Grant J. Smith Bee: Subject: Sam Fields on 302 Interview Broward Probe: 302 Reasons Not To Talk To The FBI BY SAM FIELDS Guest Columnist 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 fmd numerous discrepancies. Some of them will be insignificant; some of than 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. file JIICl/Documents%20ancrhaftitittingstfrial/Desktop/E...uctionteDoczileMail/thant_Smi0)080168^O4LIContenthtm (1 of 5) [I 1/6/2010 10:16:53 PA 14540 EFTA01070598  (..;:ardSmilli080168^eMailContenthim 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"" arid 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. flloffiCVDocursonts,420end%20Settingsfirial/DtektopiE...uction/tDow/chlasl/Grant_Smith0/30168VvizolConionihem (2 of 5) (11/6/2010 10:16:53 PM] 14541 EFTA01070599  Gram_Smilb080168^eNbilContan him 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 FBL 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. file.///q/Documents%20and•/020Settingsfinal/DesktopfE...uctionknocs/cMail/Cmult_Smith06016roMailContent Ivan (3 of 5) (I 1/612010 10:16:53 MI 14542 EFTA01070600  OraniSmilh080168^eMsulContenthm 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 S' 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. Memorize them. 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 law Grant J. Smith, Esq. Rothstein Rosenfeldt Adler IlleRICfrDocuments%20and%20Settingefrial/Desktopea..uctionieDocaMMaiVOrant_Smith080168^eMalleontcrit.hun (4 of 5)111/6/2010 10;16:53 PM) 14543 EFTA01070601  G.:0_3161116.180168^eMailContenthtm Las OS City Centre, Bank America Building 401 East Las OS Boulevard Suite 1650 Fort Lauderdale, FL 33301 Direct - Cell - Main - Fax - file:///Cl/Douments%20and%20SatingsarialAksktop/E..uction/cDocakMail/GnunSmith0/30168AcMailContent.him (5 of 5)111/6/2010 10.16:53 PM) 14544 EFTA01070602  Of Smith080178^eMadOxitenthmt From: Grant J. Smith Sent: Oct 13, 2009 08:07:09 To: Robert C. Buschel Cc: Bcc: Subject: Sam Fields on 302 Interview Broward Probe: 302 Reasons Not To Talk To The FBI BY SAM FIELDS Guest Columnist 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 Count, 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 driven 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. filc:///CfrDocumen01620aad%2C6Mlinesanal/DaktopfE udion/oDocs/eMml/Grunt_Smati080178^c54silComan Mm (1 of 5) (11/6/2010 10:16:54 PM] 14545 EFTA01070603  GrantSmith080178^eMailComent.hun 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. 1 warned him the ""302"" would be a work of fiction. It was. I was sitting in the back of the courtroom. file.ffiCyDocument0420and%20Seitutgilinal/Deskiop/ii uctionknociVeMail/Orant_Smith0801788cMailenntent Mtn (2 61'5) [I 1/620.010:1634 PM) 14546 EFTA01070604  CseedSmith080178AcMa6Content ,him 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, sucb_arth_e BC), 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. Pm 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 anyof 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 Mar.SCVDocunents14204ra20$41thmaffrial/Desktop/E...mtion/c1Docs/cMal/Grant_Smilh080176^cMealComent lvm (3 of 5)(11/W2010 10:16:34 PM) 14547 EFTA01070605  Gram_Smith0801713^chlmICoMentlim 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 usingsoftware toso through millions of E-mail messages.to.look for_ ey words: As Buddy. has quoted me: ""The 'E 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 Ts 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. Memorize them. 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 law Grant J. Smith, Esq. fikr///CYDocisoents%20andY•20Seltingsarial/Desklop/E ..uction/cDom/cMail/GrantSmilh080178^0MailComont Atm (4 of 5) 11/6/2010 10.16.54 l'Ic11 14548 EFTA01070606  Grant_Smith0130178^elthilCaitent htm Rothstein Rosenfeldt Adler Las Olas City Centre, Bank America Building 401 East Las Olas Boulevard Suite 1650 Fort Lauderdale, FL 33301 Direct - fIle:///q/Documeets%20and%20Satingarial/Desktopa. uction/eDocskMaiVOrant Smith080178"StailConienthlm (5 of $)[11/4/2010 I& 16:54 PM) 14549 EFTA01070607