The Justice Manual
The Justice Manual, formally known as the United States Attorneys’ Manual, is the road map that federal prosecutors follow in the investigation and prosecution of their cases. From charging decisions, Grand Jury investigations, prosecution/declination approval process, trials, sentencing and appeals, the Justice Manual contains a wealth of information and federal prosecutors are expected to adhere to its provisions in their practice. Former federal prosecutors Sloan Ellis and Brandi Hinton are well-acquainted with the provisions of the justice manual because of their experience prosecuting and defending federal cases. They can leverage its provisions to effectively defend federal investigations and prosecutions.
The Fifth Amendment of the United States Constitutions states that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .” Federal and State Grand Juries return indictments for crimes, but they also have an “investigative” function. This means they can issue subpoenas, request documents and hear witness testimony to determine whether or not a crime has been committed.
Federal v. State Grand Jury – Differences/Similarities
There are two investigative grand juries in South Carolina, the Federal Grand Jury and the State Grand Jury. The South Carolina Attorney General’s office manages the State Grand Jury and determines the focus of State Grand Jury investigations. The Department of Justice through the South Carolina United States Attorney’s Office manages the Federal Grand Jury and determines the focus of Federal Grand Jury investigations.
Both grand juries have jurisdiction over a wide-variety of criminal offenses. Grand jury investigations can involve securities fraud, computer crimes, environmental crimes, public corruption, drug conspiracies, mortgage fraud, insurance fraud, money laundering, medicare and medicaid fraud.
Federal and State Grand Juries have subpoena power. This means that even if you or your company is not a “target” of the investigation, you could be compelled to testify or provide documents to the grand jury. This is not something to be taken lightly. If you receive a grand jury subpoena, or even just a request for an informal interview you should immediately contact an experienced attorney who can help you navigate the complex grand jury process and ensure your rights are protected.
During the course of federal and state grand jury proceedings, prosecutors will often send “target” or “subject” letters. A target letter is the means by which a prosecutor notifies an individual or business that they are a target of an investigation. Prosecutors are not required to send target letters, but will sometimes do so in an effort to get the target of the investigation to testify in the grand jury, appear for an interview with investigators or even hire a lawyer to call the prosecutor. The target letter will also inform the target of which crimes they are suspected of committing.
Subject letters are similar to target letters. While a “target” is someone the prosecutor believes has committed a crime, a “subject” is someone whose conduct the prosecutor deems as in the scope of the matters that the grand jury is investigating.
In the grand jury context, a witness is someone the prosecutor believes has information about criminal activity. She may have seen or heard things that the prosecutor deems important to the investigation, or may have knowledge of other people who may have information about the suspected criminal activity.
The classification of someone as a target, subject or witness can – and often does – change based on how the investigation unfolds.
If you receive a target or subject letter, or if you are approached by law enforcement about being a witness to criminal activity, it is important to contact an experienced attorney as soon as possible. During their time as federal prosecutors, Sloan Ellis and Brandi Hinton conducted numerous federal grand jury investigations on behalf of the Department of Justice and they are keenly aware of the intricacies of grand jury investigations. As federal criminal defense attorneys, they have represented clients at all stages of the grand jury investigation process.
A grand jury subpoena is a document that commands an individual or business to produce documents, provide testimony, or even do things like provide a handwriting sample. Failure to comply with a grand jury subpoena can result in sanctions such as contempt of court or, in some cases, criminal prosecution. If you or your business receives a grand jury subpoena you will be given a limited time to respond, so you need to act quickly to engage an attorney to help you navigate the process of complying with the subpoena. There can be legal privileges you can assert to narrow the scope of what you are required to produce.
One type of grand jury subpoena requires individuals to appear and testify before the grand jury under oath. Appearing to testify before the grand jury can be an intimidating process. Because the proceedings are conducted in secret, the individual testifying in the grand jury cannot have a lawyer present during the testimony. This is why it is critically important to hire an experienced federal lawyer to advise you and help you prepare for your testimony. The lawyer can help you decide if you should invoke your Fifth Amendment right not to testify and, in some cases, convince the prosecutor to cancel the subpoena so you do not have to testify.
White Collar Crimes
When they were federal prosecutors, Sloan Ellis and Brandi Hinton prosecuted the fiftieth individual in the United States to be charged with fraud in connection with the Paycheck Protection Program (PPP) which was implemented in the CARES Act. When the COVID-19 pandemic hit, the federal government implemented various programs designed to help small businesses. One of these programs was called the Paycheck Protection Program.
While the program was designed to quickly get money into the hands of businesses that were affected by the pandemic, the implementation of the program was far from perfect. There are complex accounting and tax forms that needed to be provided to the lending institutions, and businesses were required to keep records of how the money was being spent. Mistakes in the application or the accounting process could draw scrutiny from federal investigators with the Small Business Administration or the FBI.
If your business received a PPP loan and you are contacted by federal investigators or even the lending bank with questions that you are having trouble answering, call Ellis Hinton.
As the American population ages more and more people are relying on Medicare as a supplement to, or as their primary insurance. Medicare fraud can occur when providers knowingly submit false claims to the Government for payment or make misrepresentations to obtain payment from the Government for health care when there was no entitlement to the claim. It can also occur when a provider solicits or pays kickbacks or bribes to induce or reward referrals for services reimbursed by Federal healthcare programs.
The Medicare and Medicaid billing and coding programs are complex and providers frequently make honest mistakes. However, even well-intentioned providers can run afoul of federal laws and regulations by not paying careful attention to how they make referrals for Medicare or Medicaid patients or upcoding in a way that does not accurately reflect the services rendered.
Federal investigators can use statistical analysis of billing to flag individual providers or practices whose billing patterns are outside the norm and use subpoenas or civil investigative demands to request supporting documentation from the providers.
If you are a provider, practice, or even a hospital system and you are contacted by government investigators asking questions about your Medicare or Medicaid billing, you should contact an experienced lawyer right away. Ellis Hinton stands ready to help you or your practice navigate the complexities of Medicare and Medicaid fraud investigations.
Any attempt to defraud, mislead or deceive an insurance company in order to receive payment for a claim can be considered insurance fraud. Insurance companies spend large amounts of money on lawyers to investigate claims they believe may be fraudulent. If the case is serious enough, federal or state criminal investigators may become involved to investigate the claim.
Lawyers for the insurance company can conduct an “examination under oath” or EUO to gather more information about the claim and to determine whether they believe fraud exists. If you are asked to participate in an examination under oath (which you are typically required to do under the terms of your insurance contract), you should hire an experienced attorney to guide you through the process.
At Ellis Hinton, we represent individuals charged with insurance fraud as well as individuals dealing with catastrophic personal injury claims, so we are experienced in dealing with lawyers for insurance companies to both avoid criminal charges in fraud cases and obtain the best results possible for our personal injury clients.
As former federal prosecutors, we know how fraud prosecutions are built, and can put you in the best position possible to prevail over the insurance company and the criminal investigators.
The IRS and South Carolina Department of Revenue investigate violations of state and federal tax law in South Carolina. Tax law and compliance is very complicated for individuals and more so for businesses. There are many pitfalls and numerous areas where government investigators can uncover fraud, or simple mistakes that need to be corrected and possibly explained.
In tax cases we can work with our clients’ existing accountant, or we can recommend an outside forensic accountant to find the potential pitfalls to help put our clients in the best position possible to avoid criminal prosecution, or to resolve a pending criminal tax fraud case.
Environmental crimes include violations of several federal criminal laws intended to protect the environment. Federal environmental crimes are investigated by the Environmental Protection Agency (EPA) working in conjunction with the Department of Justice’s Environmental Crimes Section.
Typical examples of environmental crimes include violations of the Clean Air Act and Clean Water Act, but can also include violations of lesser-known federal laws like the Toxic Substances Control Act (TSCA) which regulates the production, importation, use, distribution, and disposal of dangerous chemicals and substances, such as asbestos, lead, radon, and PCBs.
For businesses that handle toxic materials, the record-keeping requirements under these federal statutes can be arduous, and a simple mistake can lead to months of investigation by the EPA. If your company receives a target letter or “notice of violation” from the EPA or Department of Justice, you should call an experienced federal environmental crime attorney immediately to help protect you and your business.
Sloan Ellis literally helped write the book on healthcare fraud in South Carolina. Along with a team of highly acclaimed South Carolina lawyers, Sloan was a co-author of Healthcare Fraud and Collateral Consequences, Third Edition which is a book published by the South Carolina Bar Association.
Over the last decade, healthcare fraud prosecutions have been a top priority of the Department of Justice. As the population ages, more Americans are relying on Medicare for some or all of their health insurance coverage. Insurance companies, Medicare and Medicaid have more and more complex billing and reimbursement rules that healthcare practitioners must follow. This creates an environment ripe for mistakes and fraud.
Healthcare fraud is a general term which means that a person or organization intentionally made a material misrepresentation to a healthcare insurance program designed to result in financial gain for the person or organization. If the misrepresentation is submitted in connection with a request for payment for services that were not actually provided, not medically necessary, or over billed, the person or organization that submitted the bill for payment can be prosecuted for healthcare fraud.
Former federal prosecutors Sloan Ellis and Brandi Hinton are available to respond quickly and competently to civil or criminal healthcare investigations by the government. They can also work closely with inside or outside corporate counsel to help clients navigate the difficult waters of government investigations into potential healthcare fraud.
Immigration fraud is a broad term used to describe a wide range of illegal conduct related to the United States immigration system. Common forms of immigration fraud include: marriage fraud (getting married solely to obtain a more favorable immigration or citizenship status); lying on an immigration form; making a false statement about your immigration status to gain employment; using someone else’s identity to apply for a visa; altering or counterfeiting a passport, green card or other immigration document; or knowingly hiring an illegal alien.
If agents from Immigration and Customs Enforcement (ICE) contact you or your business you should call an experienced federal criminal defense attorney right away. Sloan Ellis and Brandi Hinton have prosecuted federal immigration cases and are experienced in representing people facing federal immigration criminal charges.
The federal government has a goal of awarding 5% of all federal contracting dollars to small disadvantaged businesses each year. This is frequently called the “8(a) Program”. The program helps these businesses compete for and earn government contracts. Because these government contracts can be very lucrative, fraud can occur in the application process.
Businesses can mislead the government on the application forms or form “pass through” entities which get the government contract then immediately subcontract most of the work out to ineligible businesses.
If you are receiving 8(a) government contracts and are contacted by investigators from the Small Business Administration or the agency for which you are completing the contract, you should contact a lawyer to help you answer any questions the government investigators may have. The lawyers at Ellis Hinton are experienced in representing individuals facing small business set-aside and 8(a) fraud investigations and stand ready to help you or your business navigate these investigations.
The Foreign Corrupt Practices Act of 1977 (“FCPA”) was passed to make it illegal for people and businesses to make payments to foreign government officials to assist in obtaining or retaining business. In some parts of the world it is very common for businesses to pay off local officials to obtain permits or authorization to conduct business.
For example, during the reconstruction of Afghanistan if a foreign company wanted to help build or rebuild an infrastructure project they may be approached by a local government official who would offer to give the business the contract in exchange for a bribe to the official. If the company was based in, or in some cases simply did business in the United States, they would be in danger of violating the FCPA if they paid the bribe.
Given the massive investment from multinational corporations in South Carolina and the southeastern United States and the globalization of commerce over the last decade, we expect Foreign Corrupt Practices Act violations and investigations to be the next hot-button prosecution priority of the Department of Justice. At Ellis Hinton, we stand ready to defend you or your company in any FCPA investigation or prosecution.
Federal and State bank and mortgage fraud prosecutions can include a variety of different conduct. However, most of these cases involve some type of misrepresentation or misstatement in order to acquire money. Sometimes this takes the form of material misrepresentations on loan paperwork or submitting documents with false statements to bank regulators.
Because banks are so highly regulated, it can be difficult to comply with all of the reporting requirements to the different regulatory agencies. As a result, bank employees or executives may find themselves in the crosshairs of a bank fraud investigation if their bank loses money from loans that go bad through no fault of their own. In this instance, it is important to remember that the lawyers for the bank are not responsible for the representation of the bank employees. Each individual employee is entitled to their own representation who will look out for his or her best interests.
As former federal prosecutors, Sloan Ellis and Brandi Hinton are experienced in navigating the complex waters of bank and mortgage fraud investigations and prosecutions.
The Securities and Exchange Commission and the South Carolina Attorney General’s Securities Division oversee and regulate the sale of securities. Both agencies have extensive investigative and enforcement tools at their disposal.
Insider trading is when someone receives and acts on information that is not publicly available. Securities fraud can take many forms, but it typically involves a misrepresentation or omission of information material to someone’s decision to buy or sell securities.
If you are accused of insider trading or securities fraud, there could be both criminal and civil penalties. Criminal and civil investigations occurring at the same time are often called parallel proceedings. The criminal investigation will be led by the United States Attorney’s Office and the civil investigation will be led by the SEC. There are certain rules about how and when information can be shared between the criminal and civil investigators.
Civil penalties for insider trading and securities fraud usually come in the form of fines, or the loss of your ability to be a securities broker or dealer. Violations of criminal law can result in jail time.
Most of the time, the first sign that you or your company is under investigation for securities fraud or insider trading is a call or visit from an attorney who works for the SEC or a criminal investigator with a federal agency like the FBI. If you receive such a visit or phone call, you should politely decline to answer any questions without a lawyer present. The agent or investigator will then reschedule the interview for a later date when your lawyer can be present during any interviews.
If you receive such a phone call or visit, you should call an experienced attorney to help you navigate the complex issues surrounding insider trading and securities fraud. Sloan Ellis was on the trial team for the last person to be tried in what has been called the most complex securities fraud case in the history of South Carolina. He and Brandi Hinton stand ready to defend you or your company in any government investigation.
Some of the most common federal white collar criminal charges are wire and mail fraud. This is because any scheme to defraud that in some way uses the United States mail or interstate wire transmissions (i.e. telephone or internet) to commit or further the scheme to defraud can be charged as mail or wire fraud. Although there are hundreds of federal statutes that encompass countless crimes, federal prosecutors often choose to charge mail and/or wire fraud because these crimes can be the easiest to prove.
Sloan Ellis and Brandi Hinton have prosecuted and defended numerous mail and wire fraud cases and are standing by to help you or your business successfully prevent these charges from being brought or achieve the best results if mail or wire fraud charges are brought against you or your business.
During their time as federal prosecutors Sloan Ellis and Brandi Hinton prosecuted dozens of federal money laundering cases. Money laundering can take several forms. The common thread of all money laundering prosecutions is the fact that the money at issue is “proceeds” of a specified unlawful activity. The unlawful activity can be anything from drug trafficking to mail and wire fraud. Next, money laundering requires that the “proceeds” or ill-gotten gains from the unlawful activity be used on one of three basic ways: (1) to promote the carrying on of the activity; (2) to conceal the nature of the proceeds; or (3) be deposited in a financial institution in a way to avoid currency reporting requirements.
Many times money laundering is charged in connection with the underlying crime, or specified unlawful activity. Having prosecuted numerous federal money laundering cases in both white collar and drug trafficking cases, Sloan Ellis and Brandi Hinton are uniquely qualified to help their clients defend federal money laundering charges.
Public corruption can take many forms, but in general it involves a government official (including elected officials and government employees who are hired or appointed) who asks for or accepts something of value in return for being influenced in the performance of their official duties.
The Public Integrity Section of the Department of Justice is a specialized unit within the DOJ that investigates and prosecutes public corruption cases nationwide. The United States Attorney’s Office and/or the Attorney General’s office can also investigate public corruption. Recently there have been a series of high-profile public corruption prosecutions in South Carolina. These cases are always a top priority of the DOJ and Attorney General’s office.
When these investigations start the targets of the investigation need immediate and aggressive defense attorneys to protect their interests.
The Department of Justice takes prosecuting computer crimes so seriously they have written a manual on this area of criminal prosecution which is over 200 pages. The document can be found here.
Federal computer crimes can include anything from hacking to identity theft to the production and decimation of child pornography. Much of the DOJ’s efforts to enforce laws related to computer crimes are focused on hacking by domestic and international actors and transactions on the “dark web”. The dark web is a part of the internet that is not accessible through the use of standard browsers. It allows users to conduct otherwise illegal transactions anonymously using crypto currency such as bitcoin to pay for illicit material.
At Ellis Hinton we are uniquely positioned to defend any federal or state computer crime prosecution or investigation.