Ron Chapman is a Federal Defense Attorney and Author of Unraveling Federal Criminal Investigations. He’s spent a career beating the DOJ’s most difficult cases for his clients

Federal investigations, with their immense resources and far-reaching authority, often deploy strategies that raise questions about fairness and ethics. These tactics, while legally permissible, can manipulate the playing field, creating a lopsided battle for defendants. Let’s unpack ten of the dirtiest tricks federal investigators use, exploring their reasoning, notable examples, and strategies to counter them.

1. Victim Farming: Manufacturing Momentum

Federal investigators often rely on the power of numbers to strengthen their cases. “Victim farming” involves launching allegations publicly to coax others into coming forward with similar claims. This tactic, seen prominently in the Puff Daddy case, turns a single accuser into an avalanche of allegations, making it harder for defendants to fight back.

Investigators argue this tactic uncovers hidden truths, but it can also amplify false claims or exaggerations. Defense teams must approach this head-on, meticulously dissecting each new allegation and holding investigators accountable for unvetted stories.

2. Listening to Jailhouse Calls: Surveillance in Plain Sight

Jailhouse calls are monitored with the precision of a hawk, and defendants often forget that their every word can be used against them. While attorney-client communications are protected, the inclusion of a third party in such calls—like a family member—can waive that privilege.

In one case, a defendant unknowingly revealed trial strategies during a three-way call with his lawyer and spouse, handing investigators a significant advantage. To counter this, defense attorneys must educate clients early, ensuring they understand that anything said on jail calls could become a weapon for the prosecution.

3. Combining Civil and Criminal Investigations: The Trojan Horse

Civil investigations often serve as a Trojan horse, granting investigators access to discovery tools far beyond what is permissible in criminal cases. Using broad powers under Federal Rule of Civil Procedure 26, agencies like the SEC and DOJ can subpoena documents and depose witnesses under the guise of civil proceedings, only to later deploy this information in criminal prosecutions.

This tactic blurs the line between the civil and criminal realms, as in cases of financial fraud where civil inquiries morph into criminal charges. Attorneys should challenge discovery abuses and scrutinize how evidence gathered under civil rules is used in criminal court.

4. Refusing to Record Witness Interviews: The Art of Interpretation

When federal agents interview witnesses, they rarely record the conversations, opting instead to rely on written summaries called FBI 302 forms. These forms, reflecting the agents’ interpretations, can be leveraged to trap witnesses in alleged perjury if their testimony later diverges from the notes.

This tactic allows investigators to mold the narrative to fit their needs. Defense attorneys should aggressively question the accuracy of these notes, highlighting discrepancies and demanding transparency in interviews.

5. Administrative Asset Seizures: A Financial Death Sentence

Federal agencies wield the power of 18 U.S.C. § 983 to seize assets with little more than a mailed notice. If a defendant fails to contest the seizure within the statutory timeframe, the government can claim the property permanently.

In cases where defendants lack resources to mount a legal challenge, these seizures become financial death sentences, stripping them of the ability to fund their defense. Immediate legal action is crucial—attorneys must act swiftly to challenge these seizures in court and demand accountability.

Have you ever wondered what happens when corporate greed takes over? The chilling answer lies in Boeing’s troubled past—and present.

6. Pre-Trial Freezing of Assets: Starving the Defense

Federal prosecutors frequently freeze defendants’ assets, ostensibly to preserve funds for restitution. However, this often deprives defendants of the resources needed to hire top-tier legal counsel, as seen in Kaley v. United States, 571 U.S. 320 (2014).

The government justifies this as safeguarding public interests, but it effectively tilts the scales of justice. Defense teams must demand evidentiary hearings to challenge asset freezes and advocate for their clients’ right to a robust defense.

7. Improper Pre-Trial Publicity: Convicting in the Court of Public Opinion

Pre-trial press releases and media briefings allow prosecutors to shape public narratives before a trial even begins. Despite the Justice Manual Section 1-7.000 discouraging prejudicial publicity, the practice persists, particularly in high-profile cases.

By planting seeds of guilt in the media, prosecutors stack the deck against defendants. Defense attorneys can push back with motions for gag orders or seek to quash prejudicial statements that undermine the fairness of judicial proceedings.

8. Exploiting Privilege Loopholes: Cracking the Shield

Attorney-client privilege is sacrosanct—except when loopholes are exploited. Conversations involving third parties, or those conducted without clear invocation of privilege, are often targeted by investigators, as in United States v. Bauer.

Defendants must be vigilant, and attorneys should enforce strict protocols to ensure privileged communications remain protected, both in writing and in person.

9. Data Mining: Algorithms of Entrapment

Federal agencies increasingly turn to data mining, using algorithms to sift through vast amounts of digital activity, financial transactions, and communications. While Carpenter v. United States curtailed warrantless data collection, the boundaries remain hazy, leaving room for overreach.

Forensic experts can challenge the reliability and legality of data-mined evidence, exposing vulnerabilities in how it was collected and analyzed.

10. Cooperation Deals: The Devil’s Bargain

Cooperation agreements incentivize witnesses to testify against defendants in exchange for leniency. While legal, these deals encourage exaggeration, fabrications, and unreliable testimony. In United States v. Singleton, the court upheld such agreements, despite their ethical pitfalls.

Defense attorneys must dissect these testimonies, revealing biases and inconsistencies that call into question the credibility of cooperating witnesses.

Conclusion: Holding the Line Against Government Overreach

Federal investigators wield immense power, but their strategies are not infallible. By understanding these tactics and rigorously challenging overreach, defendants and their attorneys can level the playing field. Justice is not guaranteed—it is earned through preparation, diligence, and an unwavering commitment to the truth.