For the Defense - Vol. 7, Issue 3 - 34

Post-Ruan
10 Xiulu Ruan v. United States, Nos. 20-1410, 2022 U.S. LEXIS 3089,
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
the instructions given
* 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.
ame
ny
way,
ed
n
h the
led to
sts in
to
* 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.
PANTONE
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
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uance
n
ue for
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.
NOTES:
1
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2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
#153A5B
#EAC137
ust be
er the
rules
ealth
e
al
ve an
s
nt
ing
ce.
uch
h
e
Supreme Court just provided them with desperately
needed breathing room to treat their patients in earnest
good faith. Remarkably, Dr. Xiulu Ruan may be found
to have caused immense harm through an apparent pill
mill in Mobile, Alabama, but his legacy could well be an
important, positive shift in the opioid epidemic. Only time
will tell.
5
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NOTES:
1
Xiulu Ruan v. United States, Nos. 20-1410, 2022 U.S. LEXIS
3089 (11th
21 U.S.C. § 841.
About the Author
Click here to view and/or print the
HEXIDECIMAL
full notes section for this article.
#153A5B
#EAC137
United States, No. 21-5261 (10th
2
Cir. June 27, 2022), consolidated with Shakeel Kahn, v.
Cir.).
e 600
cally
u
ce,
e
the
* 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.
3 United States v. Ruan, 966 F.3d 1101, 1167 (11th
United States v. Moore, 423 U.S. 122 (1975).
4
21 C.F.R. § 1306.04.
5 United States v. Ruan, 966 F.3d 1101, 1166 (11th
2013); emphasis added; alteration in original).
6
at *13 (June 27, 2022).
8
Id. at 14.
9 Id.
Cir. 2020)
(quoting United States v. Joseph, 709 F. 3d 1082, 1097 (CA11
United States v. Khan, 989 F.3d 806, 823 (10th
Cir. 2021).
34 For The Defense l Vol. 7, Issue 3
Cir. 2020) citing
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At the time of this writing, Dr. Ruan resides at FCI
Oakdale where he could serve out the remainder of his
23-year sentence. The U.S. Supreme Court vacated his
conviction but directed the Court of Appeals to determine
whether
complied with the
subjective mens rea standard or, even if not, whether any
instructional error was harmless. So, while the decision
bearing Dr. Ruan's name may have raised the bar for
criminal prosecution of medical practitioners, there is still
a bar. And the government can clear with circumstantial
evidence.28
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.
at *4 (June 27, 2022).
11
12 Id. at 738.
13
Elonis v. United States, 575 U.S. 723, 734 (2015).
Proposed 2022 CDC Clinical Practice Guideline for Prescribing
Opioids - United States, 87 Fed. Reg 7838 (Feb. 10, 2022), Federal
Register :: Proposed 2022 CDC Clinical Practice Guideline for
Prescribing Opioids.
14
Understanding the Opioid Overdose Epidemic, Centers For DiseAse
Control AnD preVention, Understanding the Opioid Overdose
PANTONE
Epidemic | CDC's Response to the Opioid Overdose Epidemic | CDC.
15
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J. Hoffman, C.D.C. Proposes New Guidelines for Treating Pain,
On remand, the Eleventh Circuit could very well find the
trial court's " objective good faith " instruction was harmless.
Among other evidence, the government had shown
that Dr. Ruan prescribed to over 8,000 pain patients, was the
number one prescriber in the country of Abstral (fentanyl),
held over $1.6 million in stock in Abstral's parent company,
directed all prescriptions through his privately owned
pharmacy, was receiving guaranteed kickbacks of $80,000
per month from dispensary management companies, and
used twenty-three different bank accounts to launder his
money.
File your client's motion after the
At sentencing, Dr. Ruan agreed to forfeit two
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
vacation properties, eighteen luxury vehicles, various
bank accounts, and pay a money judgment of $5,000,000.
In other words, it may not have mattered whether the
court sent an objective or subjective yardstick back to the
deliberation room.
* 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.
But for countless other medical practitioners, the U.S.
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.
5
NOTES:
1
Including Opioid Use, ny times: https://tinyurl.com/4v524s5v .
16
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
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#EAC137
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
About the Authors
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).
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
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).
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).
About the Author
Click here to view and/or print the
full notes section for this article.
M. Knowles, P. Thompson, J. Arnoff, and A. Rodriguez, Revised
CDC Guidance for Prescribing Opioids Emphasizes Physician
Judgment, Reflects Concerns about Misapplication of Earlier
Guidance, the nAt'l lAw reV., CDC Guidelines for Opioid Drug
Prescription, Doctor Judgment (natlawreview.com).
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Jonathan Fodi is Counsel at
Leech Tishman Fuscaldo &
Lampl, LLC in Pittsburgh, where
he focuses his practice on
white-collar criminal defense,
professional licensure defense,
internal investigations, and
other sensitive matters.
Before entering private
practice, Jonathan had more
than a decade of experience as a state prosecutor and
Special Assistant United States Attorney specializing
in prosecutions of high-profile or complex matters.
In addition to his work as criminal defense counsel,
he provides guidance and support to Leech Tishman's
attorneys whose clients are confronted with potential
or ongoing investigations and actions by government
entities.
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
7 Xiulu Ruan v. United States, Nos. 20-1410, 2022 U.S. LEXIS 3089,
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
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.
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
tKfC&RiPhildlhit
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Vol. 4, Issue 4 l For The Defense 9
Margaret McIlroy is a Pittsburgh
native and student at Duquesne
University School of Law.
Following her 1L year, Margaret
joined Leech Tishman Fuscaldo
& Lampl as a summer law
clerk within the Litigation and
Alternative Dispute Resolution
practice group. Both in law
school and at Leech Tishman,
Margaret has focused her attention on trial advocacy and
the study of criminal law. She intends to pursue a career
in criminal defense upon graduation from Duquesne.
Margaret holds a Bachelor of Science in Psychology from
Miami University.
https://www.federalregister.gov/documents/2022/02/10/2022-02802/proposed-2022-cdc-clinical-practice-guideline-for-prescribing-opioids https://www.federalregister.gov/documents/2022/02/10/2022-02802/proposed-2022-cdc-clinical-practice-guideline-for-prescribing-opioids https://www.federalregister.gov/documents/2022/02/10/2022-02802/proposed-2022-cdc-clinical-practice-guideline-for-prescribing-opioids https://www.cdc.gov/opioids/basics/epidemic.html https://www.cdc.gov/opioids/basics/epidemic.html https://tinyurl.com/4v524s5v https://www.natlawreview.com/article/revised-cdc-guidance-prescribing-opioids-emphasizes-physician-judgment-reflects https://www.natlawreview.com/article/revised-cdc-guidance-prescribing-opioids-emphasizes-physician-judgment-reflects https://www.leechtishman.com/ https://www.leechtishman.com/ https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue3_2022/src/Notes_Jonathan_Fodi_and_Margaret_McIlroy.FINAL.pdf
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