For the Defense - Vol. 6, Issue 4 - 28

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
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* 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.
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Weldon v. United States, 840 F.3d 865, 866 (7th Cir. 2016).
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* 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.
violation of 21 U.S.C. § 860(a)).
4
5 Id. at *3
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
Semler at *2 (emphasis added).
6 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2, and; 21 U.S.C. §
File your client's motion after the
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.
860(a) and 18 U.S.C. § 2.
7
to more than the twenty-year mandatory minimum.
8
United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977).
10 Swiderski at 448.
11 Semler at *2.
12
21 U.S.C. § 801 et seq.
13 21 U.S.C. § 841(a)(1).
16 Id.
17 Id.
18
This begs the question of why the trial judge sentenced Semler
* 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.
14 21 U.S.C. § 802 (8) and (11).
15 Semler at *5.
It is worth noting that the dissent in Semler would not have
engaged in this exercise of precisely defining the statutory
language. According to the dissent, the meaning of the word
" transfer " is plain and there was therefore no need for Congress
to define it. Indeed, it accuses the majority of " supplement[ing]
Congress's definition with new language [possession and control]
and then assert[ing] that joint possessors cannot 'actually
transfer' a drug between themselves. " Semler at *32.
19
Id.
20 Id.
21
* 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.
Semler at *7.
23 Weldon at 866.
24 Semler at *11.
25 Weldon at 867.
28 For The Defense l Vol. 6, Issue 4
Id. (emphasis added); see United States v. Rowe, 919 F.3d 752,
760 (3d Cir.2019); United States v. Husmann, 765 F.3d 169, 173 (3d
Cir. 2014), United States v. Figueroa, 729 F.3d 267, 273-74 (3d Cir.
2013). In Figueroa, the Third Circuit adopted the definition of
" distribution " espoused in United States v. Cortes-Caban, 691 F.3d
1, 18 (1st Cir. 2012) as a " transfer of possession of a controlled
substance. "
22
While the standard appellate review for a challenge to
jury instructions is usually limited to the 'abuse-of-discretion'
standard, here, Semler's appellate counsel challenged the failure
to instruct on the grounds of " statutory construction involving
the interpretation and application of legal precepts, " which in
turn caused the Court to use the less deferential plenary standard
of review.
9
2021 U.S. App. LEXIS 16260 * (3d Cir. 2021). It is noteworthy
that this decision is non-precedential. Given the fact intensive
analysis undertaken by the Court, this leaves open the possibility
Both counts of the indictment carry a mandatory minimum
sentence of 20-years' imprisonment; Count 1 (distribution of
heroin resulting in death in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C)) is a lesser included offense of Count 2 (distribution
of heroin resulting in death withing 1000' of a playground in
But perhaps most importantly, like Semler's trial
counsel, defense counsel should be creative in
researching and drafting proposed jury instructions.
Trial counsel did just that in digging up the forty-plus
year old Swiderski case and crafting a jury instruction
based on its holding. But for her " outside-the-box "
thinking, Emma Semler would be serving a 252-month
prison sentence rather than awaiting retrial where
a properly instructed jury will hopefully come to the
correct verdict.
clearygottlieb.com
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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of a very different result with only a slightly different set of facts.
3
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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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).
5
About the Author
Click here to view and/or print the
full notes section for this article.
About the Author
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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where her practice focuses on federal criminal defense,
professional licensure revocation and university
disciplinary proceedings; she also regularly provides
litigation support to fellow attorneys.
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
Ms. Rossman graduated from Temple University's Beasley
School of Law in 2000 with her J.D. and again in 2005
with her legal Master's Degree (LL.M.) in trial advocacy
with honors. She is active within the criminal defense
bar, and has served as an adjunct professor of trial
advocacy at Temple University School of Law.
Mariana Rossman, Esq. for
over twenty years, Mariana
Rossman has represented
individuals facing all forms
of government investigation
and prosecution. Ms. Rossman
is a solo practitioner and
owner of The Rossman Firm
in Philadelphia, Pennsylvania
We proudly support the
Pennsylvania Association
of Criminal Defense
Lawyers
http://www.clearygottlieb.com

For the Defense - Vol. 6, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 4

Contents
For the Defense - Vol. 6, Issue 4 - 1
For the Defense - Vol. 6, Issue 4 - 2
For the Defense - Vol. 6, Issue 4 - Contents
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