I didn’t know what a “302” was. Like a lot of the case, I figured it out as we went along. My basic understanding is that an FBI 302 is a report generated from interviewing a potential witness. There was an agreement for “open discovery” between the defense and prosecution. Putting my naivety to work, I thought that we would receive a 302 by anyone interviewed by the FBI regarding the case. It turns out it’s not that simple.
I learned that two agents always go to the interview together. The FBI agents choose who they do or don’t want to interview. For example, we had over 100 investors in the Fund. I wondered if the FBI ever interviewed the investor that lost the arbitration claim. I wondered if investors that I never talked to were interviewed and what they said. My Mom was one of the investors. Two of my long time friends were investors in the Fund. The FBI never interviewed my Mom. The FBI interviewed at least one of my long time friends, Brad.
Once the interview takes place, the agent(s) write the 302 using their notes and their memory. They don’t have to take any notes at all if they don’t want to. I understand that if the agents choose not to write a report that is fine. It appears, in theory, that the 302 should reflect the witnesses’ information. I think that would be hard to do in some instances because most people talk faster than we can write or remember. “Our” memory is not reliable to recall details that could be vital to the case. I have understood that many agents want to summarize as their approach to reporting. Details can be easily forgotten, dismissed or overlooked. Context is important too. If we don’t have all the circumstances, we might not be able to appreciate why choices were made or what actually happened.
Witnesses can misunderstand questions. Agents can write the wrong thing down. We all make mistakes, but it is the defendant that is going to have to suffer the consequences often times. The witness never gets to confirm that the 302 properly documented what was said. If there was a change, the witness can’t amend the report.
The 302 report becomes the authority. It reflects what was said even if it is not accurate.
As a former defendant and for future defendants, I have to say that I think a more reliable approach is video recording. I have heard that some agents feel it may interfere with the ease of a conversation or agents can testify as to what was said, but that doesn’t seem like the best approach when someone’s liberty is at stake. If we are going to have an investigation, let’s have reports that reflect exactly what was said by a witness, not the agent. Also, if a witness is worth talking to, a 302 should be produced. It shouldn’t be arbitrary.
My grit was forming. The more I felt like the government was defining me, the harder I tried to prove who I was. Proving who you are isn’t as easy as it sounds. First, I had to prove who I was to myself and at a level that I never could have imagined. When there is nothing tangible to offer, you have to be credible. As hard as this was to go through, there were defining moments in my life. Some of the best moments were sitting in silence.
I was in a constant hectic state. I was learning and doing so much every day to prove my innocence. I didn’t have the best marriage at this time for many reasons. My husband and I spent very little time together. I know at times and in his own way, Steve was trying to help, but it was hard to keep up with every day’s events. There were a lot of days of sheer exhaustion.
After the kids went to bed one night, it was late and I found Steve sitting in the kitchen. Out of the blue, he looked up at me with tears in his eyes and said, “I know you can’t plead guilty to something you didn’t do.” I was a bit overcome by this affirmation. Mostly, to this point I had seen his fear and struggle to try to understand a legal world that neither of us had ever known. I didn’t know what was going to happen to our marriage. Our vows were being tested.
Are you telling the truth if you don’t tell the whole truth?