For the Defense - Vol. 7, Issue 4 - 27

e
al
ve an
s
nt
ing
ce.
uch
h
e
e 600
cally
u
ce,
e
at
the
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
NOTES:
1
30, 2022).
4
United States v. Adair, 38 F.4th 341 (3d Cir. 2022).
2 United States v. Nasir, 17 F.4th 459 (3d Cir. 2021).
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
* 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.
See https://www.ussc.gov/ (last accessed Oct. 19, 2022).
Robbins, 519 U.S. 452 (1997).
7
139 S. Ct. 2400 (2019).
8 Kisor, 139 S. Ct. at 2415.
9 Id. at 2415-17.
10
(1993), Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)).
6
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), Auer v.
* 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.
guidelines. " ).
11
not
made
that
urden
nd
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.
distribute. " ).
12
See id. at 469-70.
13 25 F.3d 182 (3d Cir. 1994).
14 Id. at 469.
* 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.
the Kisor framework to the applicable guideline).
16
inchoate offenses).
17
Id. at 472.
See Adair, 38 F.4th at 346 ( " Adair gained access to prescription opiate
pills as a treatment for back pain. A physician prescribed her 300 opioid
pills per month (240 oxycodone and 60 oxymorphone), and she became
addicted. Despite her addiction, Adair recognized that a broader
market existed for prescription pills. . . . For the next several years, Adair
See id. at 354-55 (discussing evidence of record that supported Adair
being an " organizer " based on " her efforts [that] gave functional
structure to a coordinated opiate distribution scheme that involved
at least five participants " and also that Adair could be considered a
" leader " given that she " retain[ed] control over the prescription-pill
scheme that she coordinated " and " made high-level decisions essential
to its continued operation. " ).
18
Vol. 4, Issue 4 l For The Defense 9
participated in and coordinated transactions for prescription pills. " ).
19
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About the Author
Click here to view and/or print the
full notes section for this article.
3 United States v. Banks, Nos. 19-3812 & 20-2235, __ F.4th __ (3d Cir. Nov.
5 See Nasir, 17 F.4th at 470 (citing Stinson v. United States, 508 U.S. 36
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.
About the Authors
PANTONE
2955C
CMYK
7406C
See Nasir, 17 F.4th at 472 ( " In light of Kisor's limitations on deference
to administrative agencies, and after our own careful consideration
of the guidelines and accompanying commentary, we conclude that
inchoate crimes are not included in the definition of 'controlled
substance offenses' given in section 4B1.2(b) of the sentencing
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
See id. at 469 ( " After evaluating Nasir's criminal history, the Court
concluded that two of his prior convictions in Virginia state court also
qualify as predicate controlled substance offenses: a 2000 conviction
for an attempt to possess with intent to distribute cocaine and a 2001
conviction for possession of marijuana and cocaine with intent to
File your client's motion after the
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
5
90/78/39/30
NOTES:
1
RGB
9/22/91/0
22/58/92
234/194/56
HEXIDECIMAL
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
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).
15 See id. at 470-71 (emphasizing the importance of Kisor and applying
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.
See id. at 471-72 (providing Kisor analysis and commenting, inter alia,
that the plain text of the guideline suggested an intentional exclusion of
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
full notes section for this article.
Lauren Anthony is a litigation
associate with McNees Wallace
& Nurick LLC in Harrisburg. At
McNees, she works on a variety
of matters, including in the
areas of criminal law and civil
litigation in the federal courts
and across the Commonwealth
of Pennsylvania. Before
entering private practice,
Lauren served as a term law
clerk for the U.S. District Court for the Middle District
of Pennsylvania. In 2017, Lauren graduated from the
Villanova University Charles Widger School of Law,
where she was the editor-in-chief of the Villanova Law
Review.
Sarah Hyser-Staub is a member
of McNees Wallace & Nurick
LLC and co-chair of the firm's
White Collar Defense, Public
Corruption & Investigations
Group. She represents
businesses and individuals
accused of misconduct before
state and federal agencies.
Sarah also maintains a civil
litigation practice through which she defends public
and private entities in civil rights cases and represents
businesses in complex commercial disputes. Prior to
joining McNees, Sarah was a law clerk for the Late
Honorable William W. Caldwell of the United States
District Court for the Middle 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
* 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.
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
Vol. 7, Issue 4 l For The Defense 27
Jim Clancy was a federal
prosecutor for more than 30
years, both at Main Justice
and in the Middle District of
Pennsylvania. He has handled
the full gamut of federal
offenses. He brought his
experience to the McNees
White Collar Defense, Public
Corruption & Investigations
Group in 2021 and enjoys
helping clients in the crosshairs of federal, state, and
local law enforcement agencies.
https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue4_2022/src/RE01122022_PACDL_Magazine_notes_Lauren_Anthony_Sarah_Straub_James_Clancy.pdf https://www.ussc.gov/
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