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United States v. Howard

United States District Court, M.D. Pennsylvania

August 15, 2019


          ARBUCKLE, M.J.


          BRANN, D.J.


         This case began with the indictment of one person, Nathan Crowder, on September 28, 2017. (Doc. 1). A Superseding Indictment of Crowder only was issued on December 14, 2017. On May 24, 2018, a Second Superseding Indictment was filed charging Crowder and adding Defendants Martin Askew (Counts 10, 14-17), Wayne Davidson (Counts 1, 4-6, & 8-9), and Raymond Howard (Count 1 conspiracy only) (Doc. 46). Arrest warrants for the new Defendants, including Howard were issued that day (Doc. 52). An arraignment was set for Howard for June 1, 2018 (Doc. 53). Howard waived his appearance at arraignment on May 31, 2018 (Doc. 56). An initial Scheduling Order setting trial for August 1, 2018 was issued on June 12, 2018. (Doc. 83). That trial date was continued over Howard's objection (Doc. 96-2) until November 5, 2018. (Doc. 98). The November trial was continued until January 7, 2019, (Doc. 105) again over Howard's objection (Doc. 104-2). The January trial was then continued until April 1, 2019 (Doc. 150), this time with the concurrence of Howard (Doc. 149).

         On January 22, 2019 Howard filed his first Motion for Bail (Doc. 156). After a Brief in Opposition to Bail was filed (Doc. 164), a hearing was held on February 22, 2019 (Doc. 170). An Order of Continued Detention was issued after the hearing (Doc. 171). Bail was denied at that time based on Howard's lengthy history of arrest and conviction while on supervision, and the lengthy period of incarceration if convicted. (Doc. 171, pp 2-3). It was also noted during the hearing that Howard was being held on state felony drug charges so bail in this case would have been moot. However, the state drug case was resolved on May 2, 2019, with a ungraded misdemeanor plea and an order to pay a fine and costs. All other charges were dismissed. No. jail time was credited to that sentence (Doc. 203, p. 2).[1]

         On June 3, 2019, the Government filed its First Motion to Continue the trial (Doc. 198) to allow the acquisition of an expert report, over the objection of all Defendants including Howard. The trial was continued from June 3, 2019 to August 5, 2019 (Doc. 200).

         On July 11, 2019, Howard filed a Second Motion for Bail (Doc. 203), the Motion that is the subject of this Opinion and Order. A hearing was held on that Motion on August 1, 2019 (Doc. 211) and a decision was reserved pending a home inspection report from Probation. A revised Pre-Trial Memorandum with the result of the home inspection dated August 14, 2014, was provided by the Court to the Parties on August 15, 2019.

         While this Bail Motion was pending, a Third Superseding Indictment was filed on July 25, 2019 (Doc. 206). Also, a Joint Motion to continue the August 5, 2019 jury trial was filed (Doc. 215), once again over the objection of Defendant Howard (Doc. 215-1). The Motion was granted, and trial is now scheduled to begin on February 3, 2020 (Doc. 217). If that date holds, Defendant Howard will have been held on these charges for 620 days (or 20 months and 10 days).[2]


         The Speedy Trial Act, 18 U.S.C. § 3161 et seq., not the preventive detention provisions of the Bail Reform Act, is the vehicle chosen by Congress to regulate the length of pretrial delays for both detained and undetained defendants. Congress' choice in this matter is clear from the legislative history of the Bail Reform Act. As the courts stated in United States v. Colombo, 777 F.2d 96 (2nd Cir. 1985), and United States v. Accetturo, 783 F.2d 382, 387 (3d Cir. 1986), the Bail Reform Act is not unconstitutional because it fails to consider length of detention. However, detention under the Bail Reform Act may be subject to a proper due process challenge.

As Colombo recognized, complex cases are occasionally not brought to trial until substantially after the 90 day time period set forth in the Speedy Trial Act. Indeed, Section 3161(h)(8)(B)(ii) specifically directs judges to consider, in determining whether to order or grant continuances, “whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation ... within the time limits established by this section.” Thus, in multi-count, multi-defendant cases such as the case sub judice, delays excludable from Speedy Trial calculations under section 3161(h) are commonplace. We agree with the Second Circuit that in some such situations “the Speedy Trial Act might not ‘work perfectly well to *388 protect against lengthy incarceration,' ” and that the length of the “defendant's pretrial detention might not survive a proper due process challenge.” Colombo, 777 F.2d at 101 (quoting 130 Cong.Rec. 938, 945 (Feb. 3, 1984) (Senator Grassley). United States v. Accetturo, 783 F.2d 382, 387-88 (3d Cir. 1986).

         During the second bail hearing, Counsel for Howard cited United States v. Witkovich, 353 U.S. 194 (1957) to support his due process argument. That case deals with the statutory scheme of the Internal Security Act of 1950. Justice Frankfurter's opinion on the constitutional construction of the Act does not shed any light on the question before this court, namely can length of delay, on due process grounds, assist in overcoming the presumption of detention found in the Bail Reform Act.

         The third case relied upon by Howard involved an alien who filed a petition for writ of habeas corpus, challenging his continued detention while subject to a final order of deportation. The District Court held that continued detention of an alien who was subject to a final order of deportation violated his substantive due process rights where his country of origin refused to allow his return. Kay v. Reno, 94 F.Supp.2d 546 (M.D. Pa. 2000). In that case the detention could have been indefinite. In this case, while delayed, the end of detention is in sight with the slowly approaching trial[3].

         Factors other ...

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