For the Defense - Vol. 6, Issue 2 - 20

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
The Take-Away
* 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.
PANTONE
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CMYK
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RGB
* 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
HEXIDECIMAL
U.S. v. Nasir, 982 F.3d 144 (3d Cir. 2020).
#153A5B
#EAC137
2 Rehaif v. United States, 139 S. Ct. 2191 (2019).
3
consisting of Judges Jordan, Scirica, and Rendell.
4
U.s. seNteNciNg gUideLiNes § 4B1.1(a).
6 U.s. seNteNciNg gUideLiNes § 4B1.2 cmt. n.1.
7 508 U.S. 36 (1993).
8 25 F.3d 182 (3d Cir. 1994).
9 904 F.3d 319 (3d Cir. 2018).
10
22/58/92
234/194/56
of more than one year in prison, were admitted into
evidence. The McMillan court concluded that from this
evidence, the government marshaled documentary and
testimonial evidence sufficient to establish that the
defendant knew of his status. The court was " confident
that with this evidence in the record, the jury would
have voted to convict had it been instructed on the
knowledge-of-status element. " 31
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
* 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.
The career offender portion of the Nasir opinion was
unanimous and serves as a reminder that much of what
seems at first glance to be well-settled and unassailable
may rest upon a weak foundation. Reliance upon
Guideline commentary and application notes to support
upward adjustments should be carefully scrutinized.
Likewise, just as the crime of violence landscape
has shifted-and continues to shift-dramatically in
recent years, the same may well be true of the legal
understanding and application of the definition of
a " controlled substance offense. " 32
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
File your client's motion after the
* 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.
perhaps is the Rehaif portion of the decision. A closely
divided court's application of the recent Supreme
Court decision will likely face fierce resistance to cases
pending review. As the decision in McMillan suggests,
the record will be scrutinized to find any indicia of the
required knowledge of status as a felon, and thus limit
the reach of Nasir to a handful of cases where the trial
record surrounding the prior conviction is as sparse as
the record in Nasir was itself.
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.
5
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
Stinson, 508 U.S. at 38.
12 139 S. Ct. 2400 (2019).
13
NOTES:
1
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90/78/39/30
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9/22/91/0
Id. at 2414 ( " Auer deference is not the answer to every
question of interpreting an agency's rules. Far from it. [T]he
possibility of deference can arise only if a regulation is genuinely
ambiguous. And when we use that term, we mean it-genuinely
ambiguous, even after a court has resorted to all the standard
22/58/92
234/194/56
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
PANTONE
#153A5B
#EAC137
NOTES:
1
15
tools of interpretation. " ).
14
Id. at 2415.
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
2955C
CMYK
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
#153A5B
#EAC137
5
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
File your client's motion after the
More muddled,
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).
As pointed out in the opinion: The opinions of Judges McKee,
Ambro, Jordan, Greenaway, Jr., Krause, Restrepo, Matey, Scirica,
and Rendell are reflected in this Majority Opinion in Sections
I, II.D., and II.E., as well as in the Conclusion in Section III of
the Opinion, to the extent the Conclusion addresses subjects
considered in Sections II.D. and II.E. Judge Bibas has written
a concurring opinion as to Section II.D., and Judge Matey has
written a concurring opinion as to Section II.E. The opinions of
Chief Judge Smith and Judges Chagares, Hardiman, Shwartz,
Bibas, Porter, and Phipps are reflected in the Partial Dissent
authored by Judge Porter and in Sections I and II.D. of the
Majority Opinion, and in the Conclusion in Section III, to the
extent the Conclusion addresses the subject considered in Section
II.D. The remaining portions of the Majority Opinion represent
the precedential decision of the original panel in this case,
* 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.
20 For The Defense l Vol. 6, Issue 2
On appeal, Nasir also challenged his conviction under the
crackhouse statute, the court's denial of a motion to suppress,
and the court's ruling on a juror bias issue, all of which the Third
Circuit affirmed. 982 F.3d at 151-56.
5
* 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.
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
About the Author
full notes section for this article.
" The guideline does not even mention inchoate offenses. That
alone indicates it does not include them. The plain-text reading
of section 4B1.2(b) is strengthened when contrasted with the
definition of 'crime of violence' in the previous subsection. That
definition in section 4B1.2(a) does explicitly include inchoate
crimes, . . . which further suggests that the omission of inchoate
crimes from the very next subsection was intentional. That
suggestion is separately bolstered by the fact that section
4B1.2(b) affirmatively lists many other offenses that do qualify as
controlled substance offenses. As a familiar canon of construction
states, expressio unius est exclusio alterius: the expression of one
thing is the exclusion of the other. " Nasir, 982 F.3d at 159.
22/58/92
234/194/56
About the Author
Click here to view and/or print the
full notes section for this article.
* 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.
In Hightower, the court held that the commentary was binding
and that a controlled substance offense included an inchoate
offense like conspiracy for purposes of a career offender
the American College of Trial Lawyers and an Adjunct
Professor at Temple University's Beasley School of
Law and Villanova University, where she teaches trial
advocacy and ethics courses.
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.
Share this article
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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.
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
Professor Amy Montemarano
serves as Of Counsel at The Law
Office of Caroline Goldner
Cinquanto. Additionally,
Professor Montemarano teaches
legal research and writing at
Drexel University Thomas R.
Kline School of Law.
Vol. 4, Issue 4 l For The Defense 9
Caroline Goldner Cinquanto,
the founding member of The
Law Office of Caroline Goldner
Cinquanto, has been successfully
defending individuals
investigated and charged with
crimes in federal, state, and
military courts since 1992.
Ms. Cinquanto is a Fellow 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
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).
90/78/39/30
RGB
9/22/91/0
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).
7406C
enhancement. 25 F.3d at 187, overruled by United States v. Nasir,
982 F.3d 144 (3d Cir. 2020). In Glass, the court used that same
reasoning to conclude that a state conviction for offering to sell
drugs was an inchoate crime that was included in the definition
of controlled substance offense for purposes of career offender
enhancement. 904 F.3d at 324, overruled by United States v. Nasir,
982 F.3d 144 (3d Cir. 2020).
11
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.
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For the Defense - Vol. 6, Issue 2

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