For the Defense - Vol. 5, Issue 2 - 25

Discuss this waiver with your client with the same
Using the strategy above, people both in and
seriousness
younot
would
discuss35 the
waiver
of any
element] are
required."
Rather,
in order
to affirm outside my office have had tremendous success with
30
constitutional
right.
an obstruction
of justice
enhancement, it must simply Rule 600 motions. Oftentimes, just making it plain
be clear from the record as a whole that "the district
to the Commonwealth that you intend to seriously
* Request
early and
That
way,
court'sdiscovery
determination"
thatin
a writing.
defendant
"perjured
litigate this issue can get you results. It is only one
if the
Commonwealth
fails to provide
requested
himself
at trial" "encompassed
all of the
elements of
Colin J.aCallahan
is a Partner
weapon in your arsenal, but because
win means
36
perjury"-i.e.,
"falsity,continuance
materiality, and
discovery,
any required
willwillfulness."
be on
at
Flannery
Georgalis
discharge, it is a potent weapon that should never
in Boggi, If
the
court
affirmed
application
the
theThus,
prosecution.
you
have
to follow-up
withof
the
LLC and a former federal
be overlooked.
sentencing enhancement
even though
the district
Commonwealth
about discovery
they have
failed to
prosecutor from the Western
court admittedly did not make any express findings as
hand over, be sure to memorialize such requests in
District of Pennsylvania.
to materiality or willfulness.
NOTES:
a writing such as an email.
He focuses his practice on
1
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2
Conclusion
U.S. ConSt. Amend. VI; PA. CONST.defending
art. 1, § 9. individuals and
* If a continuance is required due to the
3
Commonwealth v. DeBlase, 665 A.2d
427, 431 (Pa.in
1995).
organizations
complex
Commonwealth's
failure
ofpresents
diligence,
be sure to
4
In sum, U.S.S.G.
§ 3C1.1
a significant
Barker v. Wingo, 407 U.S. 514, 530
(1972)
(articulating
criminal, civil, and the
regulatory
putconcern
that onfor
the
record at faced
the time
constitutional test); Commonwealth v. Preston, 904 A.2d
defendants
withthe
thecontinuance
choice of
matters-with
an
emphasis
on
matters
involving
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
is requested.
the judge
in
whether to Even
offer if
testimony
in does
their not
ownrule
defense.
health
carefrom
andRule
government
contracting
separate
analysis
600 and therefore
needs tofraud.
be
The
government
may
rely
upon
a
defendant's
your favor, you have at least preserved the issue for
raised
separately).
During
his
time
as
a
federal
prosecutor,
Colin
statements
offered
at
any
stage
of
a
criminal
appeal.
5
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
proceeding in support of an obstruction of justice
investigated and prosecuted a wide variety of
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
And,to
where
* Allsentencing
motions toenhancement.
dismiss pursuant
Rulethe
600sentencing
must be
criminal
and
cases,
including
matters
involving
"prejudice"
need
becivil
shown
to obtain
Rule 600
dismissal).
31 been applied, appellate courts are
enhancement
File your client's motion after the
made
in writing.has
health
care
While
Rule 600
hasfraud,
a more kickbacks/bribery,
definitive time period,money
the sole
unlikely
to reverse
the lower
on fact-specific
focuslaundering,
of Rule 600 iscybercrime,
on the action and
of theviolations
Commonwealth.
365-day
period
has elapsed.
If court
the trial
judge rules or
of the False
constitutional grounds. If a defendant is inclined to
Thus, a constitutional argument should be forwarded
against you and subsequently the Commonwealth
Claims Act. Before joining the U.S. Attorney's Office,
testify in their own behalf, it is therefore crucial that
when a delay prejudices a defendant and that delay was
causes
anotheradvise
substantial
period
ofof
delay,
file
Colincaused
was an
attorney
trial counsel
his or her
client
the potential
primarily
by the
courts. at two prominent law firms
6
a new
Rule 600
motion based
on decision.
this additional
Pa.R.Crim.P.
Rule
600(D)(1).
sentencing
ramifications
of that
in Washington D.C. and clerked at both the trial
time and litigate it prior to any trial to preserve an
and appellate court levels for two federal judges.
NOTES:to the additional time period.
Click here to view and/or print the
objection

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RuleStates
600
hearing,
after507
the
defense
has
United
v. Dunnigan,
U.S.
87both
(1993).
me * At 1the
Using
the strategy
above,
people
in and
2
made
a
prima
facie
showing
that
the
defendant
Id.
at
91.
outside my office have had tremendous success with
U.S.
Napolitan,
762
312
(3d
Cir.
2014).
has3Rule
not v.
been
brought
toF.3d
trial297,
within
days,
600
motions.
Oftentimes,
just365
making
it plain
4
Payne
v.
Tennessee,
501
U.S.
808,
820
(1991).
theto
Commonwealth
bears
the
burden
of
proving
the Commonwealth that you intend to seriously
5
U.S.S.G. §3C1.1.
y,
that
they have nonetheless acted with diligence.
6litigate this issue can get you results. It is only one
U.S.S.G. § 3C1.1 cmt. n. 4(B).
d
This
meansStates
that
after
the defense
has made
such
7weapon
in your
arsenal,
butF.3d
because
a win
means
United
v. Zagari,
111
307,
329
(2d
a prima
facie
showing,
it
is
the
Commonwealth
Cir.1997).
discharge, it is a potent weapon that should never
he who
8
should
be507
required
Dunnigan,
U.S. at to
96.put on its evidence
be
overlooked.
9
d to and
Dunnigan,
944should
F.2d 178,
185
(4th Cir.
1991),
the defense
only
argue
after
the rev'd, 507
s in Commonwealth
U.S. 87, 113 S. Ct.
1111,
122
L.
Ed.
2d
445
has done so. Essentially, a(1993).
Rule 600
NOTES:
10
Dunnigan, 507 U.S. at 96.
hearing
should
proceed
in
form
almost
identically
1
Commonwealth
v. Mills, 162 A.3d 323 (Pa. 2017).
11
Id.
at 95.
2
to 12a See,
suppression
hearing.
judge
U.S. ConSt. Amend
VI; PA.IfCONST.
art. 1,asks
§ 9. you
e.g., United .States
v.the
Napolitan,
762 F.3d 297,
3
Commonwealth
v. Commonwealth's
DeBlase, 665 A.2d 427,
431 (Pa. 1995).
to
argue
prior
to
the
evidence,
313
(3d
Cir.
2014);
United
States
v.
McLaughlin,
126
o
4
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
make
it
clear
that
you
could
not
possibly
argue
F.3d
130,
140
(3d
Cir.1997);
United
States
v.
Fiorelli,
133
nce
constitutional test); Commonwealth v. Preston, 904 A.2d
218,
224
(3d
Cir.1998).
onF.3d
behalf
of
your
client
until
you
know
what
the
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
13
U.S.
v. Jones,
872
F.3d 483
Cir. therefore
2017).
separate
analysis
from
Rule
600
and
needs to be
Commonwealth's
evidence
of(7th
diligence
is.
e for
PANTONE

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14

#EAC137

U.S.
v. Lasseque,
806 F.3d 618 (1st Cir. 2015).
raised
separately).

15 5
U.S.
v. Young,
811600(2)(a);
F.2d
592see
(2d
Cir.
2016).
* If the
Commonwealth
appears
atalso
theCommonwealth
Rule 600
Pa.R.Crim.P.
Rule
16
v.
Kearse,
890
A.2d
388,
395
(Pa.
Super.
Ct. 2005)
U.S.
v.
Carr,
No.
17-1911,
2020
WL
489171
(3d (no
Cir.
and does not present any evidence
that
st be hearing
"prejudice"
need be shown to obtain Rule 600 dismissal).
Jan.
30,
2020).
with diligence-for instance, they did not
r the it acted
17
While Rule 600 has a more definitive time period, the sole
Id.
in theofofficer
to testify to the attempts made
focus
18
les bring
Id
at *3. Rule 600 is on the action of the Commonwealth.
Thus,
a
constitutional
argument
should be forwarded
to
find
and
apprehend
the
defendant-argue
that
19
lth
Dunnigan, 507 U.S. at
95.
when
a
delay
prejudices
a
defendant
and
that
delay
was
20 have not met their burden because the burden
they
Id.
primarily caused by the courts.
of proof
includesRule
the600(D)(1).
burden of production and
6
l
Pa.R.Crim.P.
an arguments of counsel are not evidence.

t

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Jonathan Fodi is Counsel
at Flannery Georgalis
LLC, where he focuses his
practice on complex criminal
Katherine Ernst is an
and regulatory defense
appellate
attorney
with
the
matters.
He also
conducts
Montgomery
County Public for
internal investigations
Defender's
Office.
She
institutions
and
corporations.
handles
appeals
from
allthan
Jonathan has more
units, juvenile
to homicide,
a decade of prosecutorial
experience,
both as an
and she also
formulates
Assistant District Attorney
in Allegheny
County and
strategy
pre-trial
a Special Assistantlegal
United
States for
Attorney
in the
District
of Pennsylvania.
upon his
andWestern
trial units.
Katherine
graduated Drawing
Magna Cum
governmental
Jonathan
takes pride
Laude
from Loyolaexperience,
Law School,
New Orleans
in
guiding
clients
through
high-stakes,
sensitive
in 2007 and was on law review. She practiced
matters. Coren & Ress in Philadelphia out
at Kaufman,
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.

About the Author

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