For the Defense - Vol. 7, Issue 4 - 42

Importantly, the act of producing documents can, in some
circumstances, be considered a testimonial act.6
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
client is essentially testifying that the bank and trading accounts,
email addresses, and phone numbers are theirs and that they have
control over them.7
One of the simplest ways to determine whether
* 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.
* 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.
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.
the act of production privilege applies is to ask whether searching
for and producing the requested document requires thought, or
the operation of your client's mind, which most acts of production
do so qualify.8
If it does, then producing those documents could very
* 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.
By doing so, your
well be a testimonial act, and the Fifth Amendment would then
apply.9
So, in order to protect your client's interests, asserting the
Fifth Amendment privilege as to both testimony and producing
documents is an important consideration.
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.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
There are several advantages to asserting the Fifth Amendment
privilege. First and most obviously, by choosing not to testify or
produce documents, your client does not give the SEC information
that it may not already have. The SEC is left only with the evidence
that it gains on its own, and your client is not providing evidence
to help bolster the SEC's case. Second, if your client was interviewed
in the context of their employment or in an SEC phone interview
prior to your retention, invoking the Fifth avoids the situation
where the client says something inconsistent with what they may
have said previously.10
Third, by not providing the SEC with any
File your client's motion after the
information, your client in effect keeps their powder dry-that is,
they do not stake out a position before having access to all of the
relevant evidence.
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
#153A5B
#EAC137
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).
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
File your client's motion after the
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
* 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.
As with any defense strategy, however, deciding whether to
assert the Fifth Amendment privilege during the investigative
phase does have some disadvantages, and in assessing whether your
client should assert the Fifth Amendment in an SEC investigation,
it is important to advise your client about the possible downsides.
Although invoking the Fifth Amendment cannot be used in a
criminal case, the SEC can seek to use it in a civil or administrative
action.11
* 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.
5
NOTES:
1
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
3
2 Ullmann v. United States, 250 U.S. 422, 427 n.2 (1956).
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
#153A5B
#EAC137
Hubbell, 530 U.S. at 43.
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
United States v. Hubbell, 530 U.S. 27, 43 (2000).
NOTES:
1
HEXIDECIMAL
About the Author
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CMYK
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full notes section for this article.
90/78/39/30
RGB
9/22/91/0
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).
Ohio v. Reiner, 532 U.S. 17, 20 (2001) (quoting Hoffman v.
United States, 341 U.S. 479, 486 (1951)).
4
The SEC can ask the court to draw an adverse inference
against a person asserting the Fifth Amendment privilege in civil
litigation (i.e., at the summary judgment phase) or ask the court
to instruct a jury that it should apply an adverse inference as to
every question where the client invoked the privilege.12
If the court
determines the adverse inference is appropriate it can significantly
bolster the SEC's case against your client.13
The SEC does not automatically get an adverse inference; rather,
the decision is fully within the court's discretion.14
Importantly,
* 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.
42 For The Defense l Vol. 7, Issue 4
your client's choice to assert the Fifth during the early stages of
the investigation does not preclude later testimony. If the SEC
later decides to bring a civil enforcement action, your client can
testify during discovery-both by producing documents and sitting
for deposition-and can testify at trial. The court may thereafter
determine that an adverse inference is inappropriate.15
Deciding whether to advise your client to assert the Fifth
Amendment privilege in a SEC insider trading investigation
always requires careful consideration of the risks involved and the
potential advantages of the same. An invocation to a subpoena
to testify protects your client from potential perjury charges and
* 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.
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 Authors
About the Author
Click here to view and/or print the
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full notes section for this article.
the Blockchain Technology and Cryptocurrency team.
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.
Vol. 4, Issue 4 l For The Defense 9
and Exchange Commission (SEC) Supervisory Trial Counsel
in Philadelphia and a former Assistant U.S. Attorney in the
Eastern District of Pennsylvania.
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.
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Hannah L. Welsh is an associate
in Ballard Spahr's Litigation
Department. Hannah focuses her
practice on securities enforcement
and litigation and other complex
commercial litigation.
David L. Axelrod, partner at
Ballard Spahr, is a first-chair
trial lawyer who specializes in
defending corporations and
individuals in government-facing
litigation involving the United
States Securities and Exchange
Commission and the Department
of Justice, and in defending
parties sued for defamation.
David is a former Securities
Marjorie J. Peerce is a litigator
with a practice focused on white
collar criminal defense, virtual
currency, regulatory matters, and
complex civil litigation. In her
more than 30 years of practice,
Margie has handled matters
across the criminal and regulatory
spectrum. She is Managing Partner
of the Ballard Spahr's New York
office, a member of its Elected
Board, and is a founding leader of
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
avoids providing the government with evidence from your client's
own mouth. Although asserting the Fifth Amendment privilege
comes with the risk of a civil/administrative adverse inference, an
invocation does not guaranty such a result. Your client can always
testify later in the case, providing you with an argument against
the application of the adverse inference. Above all else, the key
consideration concerning the invocation of the Fifth Amendment
Right against Self-Incrimination should always focus upon
minimizing the possibility of a criminal prosecution or conviction.
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
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