For the Defense - Vol. 8, Issue 3 - 50

reimbursement number was ancillary to the offense and not " the
means . . . itself to defraud or deceive. "
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.
* 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.
7. United States v. Hansel (6/23/23) (Crimmigration, First
Amendment): The Court reversed the Ninth Circuit's ruling, which
held that 8 U.S.C. § 1324(a)(1)(A)(iv) - which prohibits " encourag[ing]
or induc[ing] " illegal immigration - is not facially overbroad under
the First Amendment. The Court reconstructed the statute by limiting
" encouraging " and " inducing " to their " specialized, criminal-law "
meanings in which they are synonymous with " solicitation " and
" facilitation. "
8. Smith v. United States (6/15/23) (Double Jeopardy, Venue): A
unanimous Court ruled that the Double Jeopardy clause does not
prohibit retrying a defendant whose conviction was vacated because
he was tried and convicted in the wrong venue.
9. Reed v. Goertz (4/19/23) (DNA, Procedural Due Process): The
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
Court dealt with a Circuit split regarding the statute of limitations for
Section 1983 suit based on a state court's denial of post-conviction
DNA testing. Here, the petitioner claimed that the state court
proceedings deprived him of his substantive due process rights to a
fair adjudication of his request for post-conviction DNA testing. The
Court ruled that the statute of limitations begins to run when the
state court's appellate process concludes, not when the trial court
denies relief. The Court also held that neither the Rooker-Feldman2
doctrine, nor basic Article III standing principals, prohibit federal
courts from exercising jurisdiction over these state court decisions.
File your client's motion after the
10. Cruz v. Arizona (2/22/23) (Death Penalty, Jury Instruction): Two
prior cases formed the bases of this critical capital case. The first case
was Simmons v. South Carolina3
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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13. Bittner v. United States (2/28/23) (Banking, Statutory
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
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).
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.
a capital defendant has a due process right to inform the jury that
the only alternative to the death penalty is life without parole, so
long as that is an accurate summation of the state's sentencing laws.
Historically, Arizona's sentencing law offered the potential for parole
at 25 years. But subsequent legislation banned parole in all felonies,
including murder, thereby ending the possibility of parole at 25 years.
But the Arizona courts felt Simmons still did not apply and regularly
refused capital defendants' requests for a Simmons instruction. In the
second case, Lynch v. Arizona4
, the Supreme Court held that Simmons
applies to Arizona and the state's court's erred in denying capital
defendants' requests for Simmons instructions. Here, the petitioner
was sentenced to death in Arizona prior to Lynch but he fruitlessly
asserted his right to inform the jury that the only alternative to the
death penalty was life imprisonment. After Lynch, he filed a postconviction
petition seeking a new trial based on that ruling. The
Arizona courts held that Lynch was not a significant change in the
law; instead, the state courts held they had just been interpreting
precent wrong and Lynch clarified the law. The Supreme Court
disagreed and held that Lynch was a significant change.
* 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.
50 For The Defense l Vol. 8, Issue 3
11. Turkiye Halk Bankasi A.S. v. United States (4/19/23) (Jurisdiction,
Immunity): The United States indicted Halkbank, which is owned
by the Republic of Turkey, in the Southern District of New York for
evading economic sanctions against Iran. The bank moved to dismiss.
It argued that the government did not have jurisdiction to prosecute
it and, in the alternative, the Foreign Sovereign Immunities Act (FSIA)
provided immunity. The Court disagreed on both accounts. It ruled
that 18 U.S.C. § 3231 grants the federal courts " sweeping " jurisdiction
over all criminal offenses against the United States, including those
committed by instrumentalities of foreign states. And the Court ruled
that the FSIA grants immunity in civil actions, but not in criminal ones.
, where the Supreme Court held that 6 Pa.R.Crim.P. Rule 600(D)(1).
391 U.S. 123 (1968).
NOTES:
1
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.
About the Author
Click here to view and/or print the
full notes section for this article.
512 U.S. 154 (1994) (plurality).
4 578 U.S. 613 (2016) (per curium).
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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M. Simon, LLC that maintained cases across trial, appellate, and
post-conviction stages in the Greater Philadelphia/South Jersey
corridor.
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
In 2020, he put his love of writing to work by founding Sullivan |
Simon to assist other criminal and civil litigators with writing and
research projects. He ghostwrites appellate and trial-level briefs for
matters in the Pennsylvania Court of Common Pleas, New Jersey
Superior Court, and United States District Court as well as advises
prominent litigators on strategy in personal injury and white-collar
criminal defense matters. David volunteers with South Jersey Legal
Services helping indigent individuals with expungements. David
earned his J.D. from Seton Hall Law School, where he was on the
Legislative Journal staff.
David M. Simon is a former
prosecutor with a track record of
success across various practice areas
and jurisdictions. David started his
legal career at the Philadelphia
District Attorney's Office where he
served in the appeals, municipal
court, and juvenile court units as well
as the Northeast Division Bureau. He
later founded a solo criminal defense
practice, of the Law Office of David
(1983); Booker v. Fidelity Trust Co., 263 U.S. 413 (1923).
3
12. Polselli v. IRS (5/18/23) (Tax Law; Summons): The Supreme
Court dealt with sovereign immunity and tax law while determining
who is due notice of summonses issued by the Internal Revenue
Service. A revenue officer with the IRS attempted to collect unpaid
taxes and penalties from the petitioner. The agent sent summonses
to banks and the petitioner's lawyer seeking information that might
lead to hidden assets. But he did not send notice of the summonses
to the petitioner. The named parties on the summonses filed motions
to quash, claiming that the petitioner had to be notified of the
summonses. The Supreme Court ruled that the petitioner was not due
any notice because the agent was attempting to collect a liability and
26 U.S.C. § 7602(a) expressly exempts agents from noticing taxpayers
when they issue third-party summonses when they are issued " in the
aid of collection " of a debt. As a result, the United States enjoyed
sovereign immunity from the motions by the parties named on the
summonses and the District Court had no jurisdiction to entertain
their claims.
Interpretation): U.S. citizens who have foreign bank accounts
must file an annual report with the federal government under the
Bank Secrecy Act (BSA). Citizens with more than one foreign bank
account still file only one annual report, but that report must contain
information on all the accounts. The BSA imposes a $10,000 penalty
for non-willful violations. Thus, a Circuit split developed: What is
the penalty for a single report with multiple non-willful errors? The
petitioner in the case was fined $2.72 million because he filed five
annual reports late collectively involving 272 accounts. The Supreme
Court ruled that " failure to file a legally compliant report [is] one
violation carrying a maximum penalty of $10,000, not a cascade of
such penalties calculated on a per-account basis. "
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For the Defense - Vol. 8, Issue 3

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