For the Defense - Vol. 9, Issue 2 - 23

* 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.
NOTES:
1
an insurable claim eligible for coverage.
2
Cir. 2019).
4
Id at 164.
5 Id. at 172. (Citations omitted)
6 Id.
7 See id. at 173. (Citations omitted.)
8 See In re Fattah, 802 F.3d 516, 530 & n.54 (3d Cir. 2015).
9 United States v. Ravenell, 66 F.4th 472 (4th Cir. 2023).
10 United States v. Scarfo, 41 F.4th 136 (2022).
11 United States v. Perkins, 2023 WL 7336489, *10, No. 4:22-CR-00246 (M.D.
Pa. Nov. 7, 2023); United States v. Vepuri, 585 F. Supp.3d 760 (E.D. Pa. Oct.
19, 2021).
12
* 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.
Tahler, Quinn Emanuel Urquhart & Sullivan, LLP.
13
See, e.g., ABA Model Rules 1.6, 1.9, 1.18.
NACDL panel members and credits also go to Billy R. Martin, Partner,
Barnes & Thornburg LLP, Nicole DeBorde, Hochglaub & DeBorde, and Kristin
About the Author
full notes section for this article.
About the Author
This discussion of the facts is laid out in Brown Goldstein Levy LLP v. Fed.
Ins. Co., 68 F.4th 169 (4th Cir. 2023), holding that these events did not create
The podcast, " Trial Tested, " Season 5, Episodes 6 and 7, " Defense for the
Defense " Parts 1 and 2 discusses these cases in detail.
3
In re Search Warrant issued June 13, 2019 v. Under Seal, 942 F.3d 159 (4th
Andrea Moseley is a founding partner
in the Washington, D.C. law firm
of Kropf Moseley. She has been in
private practice in the DC Metro
area since 2004 after working for
the previous four years as a public
defender. Andrea has considerable
experience representing accused
individuals, witnesses, companies,
government contractors, quasigovernmental
organizations, and
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
nonprofit organizations. Andrea's white collar defense and
internal investigations practice is built upon her years of
federal and state criminal defense trial experience along with
her substantial insight into investigations of federal and state
crimes. She resolved attorney disciplinary matters as a member
of the Fourth District Disciplinary Committee for the Virginia
State Bar. With that background, Andrea dedicates a sizeable
amount of her practice to advising and representing attorneys
and other licensed professionals on a range of ethics issues.
She regularly contributes to The Grand Jury Target and has
presented CLE courses on topics ranging from pool counsel
ethics, campaign finance fraud to COVID-19 related fraud.
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
Vol. 9, Issue 2 l For The Defense 23
https://kmlawfirm.com/ http://www.mbklaw.com
For the Defense - Vol. 9, Issue 2

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