For the Defense - Vol. 7, Issue 4 - 11

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
fraud statute. In both Skilling v. United States,6
v. United States,7
and McDonnell
the Supreme Court has scaled back what it,
* 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.
in McNally v. United States,12
understandably, sees as an overbroad statute. Skilling limited
honest services fraud charges under 18 U.S.C. § 1346 to only its
" core " of bribery and kickback schemes, and McDonnell rejected
the government's expansive view of what qualifies as an " official
act. " Narrowing the scope of the statute in Percoco would fit well
within the recent trend.
Outside of the honest services fraud context, the Supreme
Court has also recently limited the scope of the traditional mail
and wire fraud statutes. In Kelly v. United States,8
the Court
overturned the convictions of two aides to former New Jersey
Gov. Chris Christie who improperly used their influence to cause
the closure of multiple lanes on the George Washington Bridge
as payback for a local mayor's refusal to support Gov. Christie's reelection
campaign. Because the aides' aim was to achieve political
retribution, and not money or property, the Supreme Court held
that they did not commit wire fraud.9
The Supreme Court will have
another chance to further cabin the traditional fraud statutes in
Ciminelli v. United States,10
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
File your client's motion after the
another case it will be hearing in the
coming term. Ciminelli will resolve a circuit split as to whether a
defendant can be convicted of wire fraud where the only injury
the government suffers is a deprivation of complete and accurate
information that it would consider valuable in deciding how to
spend government funds.
* 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.
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The Supreme Court's recent grant of certiorari in Percoco and
Ciminelli might mean that, at least for now, the writing may be on
the wall when it comes to aggressive interpretations of the federal
fraud statutes. The Supreme Court signaled as much in Kelly,
when it cautioned that not every " abuse of power " is a federal
crime.11
Harkening back to its Congressionally-overruled decision
the Supreme Court sent out a warning
shot across the bow of federal prosecutors. The mail and wire fraud
statutes are not intended to " set standards of disclosure and good
government for local and state officials. " 13
to the legislative branch of government.
That is a job that is left
Although bribes may often be accomplished through a " wink
and a nod, " whether something qualifies as bribery in the first
instance should never be in the eye of the beholder, or, more
accurately, the eye of the prosecutor assigned to the case. Our
criminal law requires more definition. This is particularly true in the
area of honest services fraud, which has always been an ethereal
and potentially boundless theory of liability. There may be a fine
line between honest services fraud and legitimate action, but the
Supreme Court would do well to brighten that line in Percoco and
Ciminelli.
* 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.
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.
NOTES:
1
fraud).
2
180, 190 (2d Cir. 2021), cert. granted, 142 S. Ct. 2901 (2022).
3
United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982).
4 Id. at 123-26, 138.
5 The Supreme Court has held that the government violates the Due
Process Clause when it takes away someone's life, liberty, or property
under a criminal law so vague that it fails to give ordinary people fair
notice of the conduct it punishes, or so standardless that it invites
arbitrary enforcement. See Johnson v. United States, 576 U.S. 591, 595,
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1
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).
10
Ct. 2901 (2022).
11
Kelly, 140 S. Ct. at 1574.
12 McNally v. United States, 483 U.S. 350 (1987).
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).
13 Kelly, 140 S. Ct. at 1574 (citing McNally, 483 U.S. at 360).
About the Authors
About the Author
Click here to view and/or print the
full notes section for this article.
Patrick Egan partner at
Fox Rothschild LLP, resident in
the firm's Philadelphia office, is
a former co-chair of the firm's
White-Collar Criminal Defense &
Regulatory Compliance Practice.
A Fellow of the American College
of Trial Lawyers, he has more
than 30 years of experience
representing businesses,
executives, professionals and
other individuals in federal
white-collar criminal defense matters and parallel civil
actions. He regularly represents clients in matters involving
banking and FDIC enforcement, FCPA, antitrust, securities,
international trade, health care, tax and accounting oversight,
and public corruption.
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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Vol. 7, Issue 4 l For The Defense 11
Vol. 4, Issue 4 l For The Defense 9
Saverio S. Romeo is an associate
at Fox Rothschild LLP whose
practice focuses on white-collar
criminal defense and complex
commercial litigation. He has
represented clients in U.S. Justice
Department investigations as well
as in criminal and civil matters
involving alleged violations of
consumer financial protection
laws, health care statutes, the
Foreign Corrupt Practices Act,
the False Claims Act, and AntiKickback
statutes. He previously served as a law clerk to the
Honorable Jan E. DuBois of the U.S. District Court for the
Eastern District of Pennsylvania and, before law school, as a
Marshal's Aide for the Supreme Court of the United States.
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(2015) (citing Kolender v. Lawson, 461 U.S. 352, 357-358 (1983)).
6
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
9 Id. at 1568-59, 1574.
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
8 Kelly v. United States, 140 S. Ct. 1565 (2020).
Skilling v. United States, 561 U.S. 358 (2010).
7 McDonnell v. United States 579 U.S. 550 (2016).
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
See https://www.supremecourt.gov/search.aspx?filename=/docket/
docketfiles/html/public/21-1170.html; United States v. Percoco, 13 F.4th
158 (2d Cir. 2021), cert. granted sub nom. Ciminelli v. United States, 142 S.
See 18 U.S.C. §§ 1341, 1343, 1346 (regarding honest services mail/wire
See https://www.supremecourt.gov/search.aspx?filename=/docket/
docketfiles/html/public/21-1158.html; United States v. Percoco, 13 F.4th
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21-1158.html https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21-1158.html https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21-1170.html https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21-1170.html
For the Defense - Vol. 7, Issue 4

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