United States District Court, M.D. Pennsylvania
MEMORANDUM & ORDER (ON MOTION FOR BAIL, DOC.
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
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).
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).
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.
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).
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).
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.
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