For the Defense - Vol. 6, Issue 4 - 51

Joseph Marks, The Cybersecurity 202: It's Cybersecurity Day
at the White House, Wash. Post (Aug. 25, 2021), https://www.
washingtonpost.com/politics/2021/08/25/cybersecurity-202-itPress
Release, Dep't of Just., supra note 4.
Id.
12
About the Authors
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
cybersecurity-day-white-house/
13
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
S. Ct. 1989, 2001 (2016).
15
16 Id.
17 United States ex rel. Adams v. Dell Computer Corp., 496 F.
Supp. 3d 91, 98 (D.D.C. 2020) (quoting 31 U.S.C. § 3729(b)(4)).
18
marks and citations omitted).
19
United Health Servs., 136 S. Ct. at 2003-04 (internal quotation
See, e.g., United States ex rel. McGrath v. Microsemi Corp., 140
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
States v. Lungwitz, 616 F.3d 993, 997 (9th Cir. 2015))).
20
Holdings, Inc., 381 F. Supp. 3d 1240, 1249 (E.D. Cal. 2019).
21
See, e.g., United States ex rel. Markus v. Aerojet Rocketdyne
A qui tam action is a civil action where " a private person
(the relator) may bring a qui tam civil action 'for the person
and for the United States Government' against the alleged
false claimant, 'in the name of the Government.' " See, Vermont
Agency of Natural Resources v. US ex rel Stevens, 529 US 765, 769
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
(2000) citing 31 U.S.C. §§ 3729-3733.
22
23 Id. at 99-100.
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
See Adams, 496 F. Supp. 3d at 94-95.
24 See 31 U.S.C. § 3729(b)(1).
25 Press Release, Dep't of Just., supra note 4.
26
File your client's motion after the
Brian M. Boynton, Acting Assistant Att'y Gen., Dep't of Just.,
Remarks at the Fedearl Bar Association Qui Tam Conference (Feb.
17, 2021), https://www.justice.gov/opa/speech/acting-assistantattorney-general-brian-m-boynton-delivers-remarks-federal-bar.
27
*
At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
CLEARY,
JOSEM &
TRIGIANI LLP
Representing:
* Department of Labor
investigations
JOEL P. TRIGIANI, Esq.
* DOJ grand jury subpoenas
* IRS inquiries to benefit
funds
* General compliance issues
for labor unions, officials
and trustees.
Constitution Place
325 Chestnut Street, Suite 200
Philadelphia, PA 19106
215.735.9099
www.cjtlaw.org
Michael D. Granston, Deputy Assistant Att'y Gen., Dep't of
Just., Remarks at the ABA Civil False Claims Act and Qui Tam
Enforcement Institute (Dec. 2, 2020), https://www.justice.gov/opa/
speech/remarks-deputy-assistant-attorney-general-michael-dgranston-aba-civil-false-claims-act.
F.
Supp. 3d 885, 907 (D. Ariz. 2015) (dismissing complaint where
whistleblower failed to adequately plead that government was
" explicitly conditioned " on compliance with certain federal
regulations related to cybersecurity (quoting Ebeid ex rel. United
14 Universal Health Servs., Inc. v. United States ex rel. Escobar, 136
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
PANTONE
2955C
7406C
CMYK
90/78/39/30
NOTES:
1
9/22/91/0
RGB
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
#153A5B
#EAC137
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
Criminal Lawyers. He is also a past president of PACDL
and currently co-chairs PACDL's white collar practice
committee.
22/58/92
234/194/56
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
5
About the Author
Click here to view and/or print the
full notes section for this article.
Ashley E. Shapiro is a criminal
defense attorney with more
than a decade of experience
defending clients in state and
federal courts. She focuses
her practice on white collar
criminal defense, internal
investigations and corporate
compliance matters in
Pennsylvania, New Jersey, and
New York. Ashley also has experience representing
individuals in administrative proceedings, such as Title
IX investigations and the collegiate student conduct
process. Ashley is a partner in the Philadelphia, New
Jersey and New York offices of Armstrong Teasdale and
a member of the firm's White-Collar Criminal Defense
& Government Investigations practice group.
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
Ryan Aloysius Smith is
a member of Armstrong
Teasdale's Litigation practice
group, where he counsels
clients on a variety of criminal
and civil matters. A skilled legal
writer, Ryan has served as the
primary author on a variety of
motions, briefs, and petitions,
including successful suppression
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
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.
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Vol. 4, Issue 4 l For The Defense 9
Vol. 6, Issue 4 l For The Defense 51
motions, motions to dismiss, habeas corpus petitions,
bail motions, evidentiary motions, and motions for
return of property. In his civil practice, Ryan regularly
represents clients in a range of commercial disputes,
from breach of contract to theft of trade secrets and
high-stakes litigation in heavily regulated industries.
Michael J. Engle is a partner in
the Philadelphia and New York
offices of Armstrong Teasdale
and a member of the firm's
White-Collar Criminal Defense
& Government Investigations
practice group. Michael is
a fellow of the American
College of Trial Lawyers as
well as the American Board of

https://www.washingtonpost.com/politics/2021/08/25/cybersecurity-202-it-cybersecurity-day-white-house/ https://www.washingtonpost.com/politics/2021/08/25/cybersecurity-202-it-cybersecurity-day-white-house/ https://www.justice.gov/opa/speech/acting-assistant-attorney-general-brian-m-boynton-delivers-remarks-federal-bar https://www.justice.gov/opa/speech/acting-assistant-attorney-general-brian-m-boynton-delivers-remarks-federal-bar https://www.justice.gov/opa/speech/remarks-deputy-assistant-attorney-general-michael-d-granston-aba-civil-false-claims-act https://www.justice.gov/opa/speech/remarks-deputy-assistant-attorney-general-michael-d-granston-aba-civil-false-claims-act https://www.justice.gov/opa/speech/remarks-deputy-assistant-attorney-general-michael-d-granston-aba-civil-false-claims-act http://www.cjtlaw.org

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