“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse”
As a healthcare lawyer, almost everything my clients do is potentially illegal. I have a lot of sleepless nights worrying about how to protect them. Frankly, most days I feel more like I am fighting a battle to put out dumpster fires at an abandoned Circuit City parking lot, than practicing law.
If you have similar nightmares, I found a remedy. Go have lunch with a criminal defense lawyer of the stature of Dallas’ Bob Hinton, whom I have discovered is a legitimate Texas treasure. I met him last month while he was presenting at a Dallas Bar Association Trials Skills CLE, then asked him to lunch.
Holy cow! Bob has some stories to tell, with his baritone mixture of Tennessee and Texas accents, he honestly makes you feel like “everything is going to be alright,” even though he is talking about capital murder-for-hire cases, dating back to the 70’s and “Racehorse” Haynes.
Bob’s stories are his to tell, not mine. I can only tell you, one hour talking with Bob, and my healthcare “dumpster fires” seem to burn a little less incandescently.
“The Problem with Eric,” is a story that is in the public domain, so I can talk about it, by Katy Vine and Ana Worrel published in the July 2024 issue of Texas Monthly. Which I should mention, is a magazine with stories so good that this isn’t even the lead story of the month. Here are the highlights which illustrate how the FBI catches bad guys:
(1) A guy named Eric Maund, heir to an Austin auto dealership fortune (worth $40 million)
(2) Cheated on his wife in 2020
(3) With a “world’s oldest professional” (the profession is “old,” not the woman)
(4) Whose boyfriend didn’t know the woman was a “professional,”
(5) Until he found out the horrifying truth, after digging through the woman’s phone logs
(6) Which boyfriend then decided to “protect her honor,”
(7) By attempting to blackmail Eric the millionaire ($25,000, or he would tell Eric’s wife.)
(8) Eric, in response, did what seemed like a good idea to him, and hired Charlie Sheen’s former bodyguard to “eliminate” the couple.
(9) A bodyguard who was fired by the actor, for being “too crazy,” even for Charlie Sheen. (What could possibly go wrong?)
How the FBI caught the “bad guys.” The lawyer in me is less interested in the lurid details of the crime and more interested in how the FBI figured it out. The double murder-for-hire took place in the vehicle of one of the victims, in Nashville. The FBI found the deceased boyfriend’s phone, and then ran a search through the victim’s Pinger text messages, and found some items which quickly identified Erik as a “person of interest.”
The FBI then were able to secretly run a warrant on Erik’s iCloud phone and bank accounts, to discover that Erik had wired $150,000 to the bodyguard, on the day of the murders. What stuck out to me, in the article, however, is the quote from the FBI Agent:
“[B]y 2021, we had done everything we knew to do covertly. . . there were no more bank records to search. There were no more phone records to obtain. There was no more iCloud data to gather.”
So, they then began approaching witnesses, some of whom wore a wire and that is how they got confirmation they had the bad guys.
How the government investigates clients. Many of my clients want to know if the FBI is tapping their phones, after receiving a simple document subpoena. Are they following the client around? Is a lapel flower actually a microphone? How do they go through bank accounts? How do they investigate?
Well, the good news, is you don’t have to guess. The government doesn’t do anything without publishing precisely how they will go about their jobs on FBI websites and DOJ Criminal Resource Manuals. The FBI will usually work quietly at first, then get louder as the case nears indictment.
It also matters whether the crime involves serious risk of bodily harm, or purely white-collar, non-violent offenses. The former being more likely to justify more intrusive techniques.
Civil Investigative Demands and Civil Discovery. Sometimes, the government will conduct parallel civil and criminal cases. This is typically where I get involved. It is not unusual to receive a False Claims Act request for production, while a secret grand jury is also investigating the same issue. Once I learn there is a criminal case, I will typically bring in one of my criminal bar colleagues to help out and see if we can figure out what is going on.
Bank records. “Following the money,” has been a meme since Watergate. How they go about this depends on the facts. There is a “Right to Financial Privacy Act,” on which the DOJ has published some 90 sections in the Criminal Resource Manual, starting at Sec. 401 and continuing through Sec. 488. The Act prohibits Government authorities from gaining access to, obtaining copies of, or the information contained in the financial records of any customer from a financial institution unless access is permitted by one of the exceptions to the Act, such as a grand jury subpoena, or is accomplished by one of the methods provided by the Act: (1) customer authorization; (2) administrative summons or subpoena; (3) search warrant; (4) judicial subpoena; or (5) a formal written request.
“Knock and Talks.” The FBI classifies people as “Targets, subjects and witnesses.” Sometimes, the FBI will just go “knock and talk” to people, often employees of a target, who have some relation to the target, but are not the intended target. If they can get this person to give them information voluntarily, or produce records, these may form the basis for other subpoenas and warrants.
Cooperating Defendants. Sometimes, the FBI will contact a lower-level target, to see if he will cooperate in exchange for credit toward a lesser sentence.
As described in the Texas Monthly “The Trouble with Eric” article, the FBI got as far as it could, investigating Eric Maund with “covert” investigations into bank accounts and iCloud accounts, then recruited informants who wore a wire.
“Wiretaps.” Typically, not used in healthcare and most white collar cases. The FBI has a “Frequently Asked Questions” page, which states that agents can’t simply tap phones at will. Wiretapping is used rarely, only in more serious cases:
“Wiretapping is one of the FBI’s most sensitive techniques and is strictly controlled by federal statutes. It is used infrequently and only to combat terrorism and the most serious crimes. Title 18, U.S. Code, Section 2516, contains the protocol requiring all law enforcement officers to establish probable cause that the wiretaps may provide evidence of a felony violation of federal law. After determining if a sufficient showing of probable cause has been made, impartial federal judges approve or disapprove wiretaps. The approving judge then must continue to monitor how the wiretap is being conducted. Wiretapping without meeting these stringent requirements and obtaining the necessary court orders is a serious felony under the law.
Grand jury subpoenas. These typically issue after the investigation has been going on for a while, and are either directed toward businesses for documents, or witnesses who must appear and testify.
Key takeaway: “Never lie to the FBI.” While clients have a right to remain silent, once they start talking, it is a very bad idea to lie to the FBI. In fact, “obstruction” is a separate crime which can snare people who aren’t the original bad actors. The older the investigation, the better the chance investigators already know the answers to most of the questions, anyway.