United States of America v. Tammy Watkins

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2386
UNITED STATES OF AMERICA
Appellant
v.
TAMMY WATKINS; ANISSA PEOPLES
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 02-cr-00120)
District Judge: Honorable Berle M. Schiller
Argued January 23, 2003
Before: NYGAARD, AMBRO and LOURIE*, Circuit Judges
(Opinion filed: August 6, 2003)
* Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit,
sitting by designation.

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2
Patrick L. Meehan
United States Attorney
Laurie Magid
Deputy U.S. Attorney for Policy and Appeals
Robert A. Zauzmer (Argued)
Assistant U.S. Attorney, Senior Appellate Counsel
Barbara J. Cohan
Walter S. Batty, Jr.
Assistant U.S. Attorney
Office of United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Appellant
David L. McColgin, Esquire (Argued)
Dina Chavar, Esquire
Maureen K. Rowley, Esquire
Defenders Association of Philadelphia
Federal Court Division
Curtis Center, Suite 540 West
601 Walnut Street
Philadelphia, PA 19106
Attorneys for Appellee
Tammy Watkins
Elizabeth K. Ainslie, Esquire
Matthew B. Holmwood, Esquire (Argued)
Schnader, Harrison, Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Attorneys for Appellee
Anissa Peoples
OPINION OF THE COURT

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1We have jurisdiction over the District Court’s final order dismissing the indictment
pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291.
3
AMBRO, Circuit Judge
Tammy Watkins and Anissa Peoples were arrested while attempting to smuggle
drugs into the United States. Following a violation of their rights under the Speedy Trial
Act, the United States District Court for the Eastern District of Pennsylvania dismissed all
charges against them with prejudice. The Government appeals this ruling on the ground that
the clear terms of the Speedy Trial Act, as construed by our Court’s precedent, authorized
the District Court to dismiss only those charges contained in the complaint (conspiracy to
import cocaine), and not the subsequent charges for which the Defendants were indicted
(importation of cocaine). We agree.1
I. BACKGROUND
On July 19, 2001, Watkins and Peoples were arrested at Philadelphia International
Airport after arriving on a flight from Jamaica. The next day a Special Agent of the United
States Customs Service, Richard J. Stingle, filed a complaint charging them with conspiracy
to import cocaine in violation of 21 U.S.C. § 963. The complaint stated:
That on or about 7/19/01, at Philadelphia International Airport, at Essington, in
the Eastern District of Pennsylvania, defendants TAMMY WATKINS and
ANISSA PEOPLES did knowingly and intentionally conspire, combine,
confederate and agree to import more than 500 grams, that is, approximately
one kilogram of a mixture or substance containing a detectable amount of
cocaine, a Schedule II controlled substance, into the United States from
Jamaica, in violation of Title 21, United States Code, Section 963.
In a box on the complaint, where the Government was to indicate the “basis of

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4
complainant’s charge against the accused,” was typed “see attached affidavit.” That affidavit
stated:
Your affiant, Richard J. Stingle, a Special Agent of the United States Customs
Service, being duly sworn, deposes and says as follows:
1. I am a Special Agent of the United States Customs Service and have been
so employed for the past 21 years. The information contained in this
affidavit is based upon my personal observations and investigation as well
as my interviews of other participating agents and employees of the
United States Customs Service.
2. On July 19, 2001, defendants Tammy Watkins and Anissa Peoples
arrived at Philadelphia International Airport on USAirways flight 670
from Montego Bay, Jamaica.
3. Defendant Anissa Peoples told Customs inspectors that she was traveling
with defendant Tammy Watkins. She was visibly nervous, fidgety and
avoided eye contact with inspectors. When her responses to routine
Customs questions were found to be wholly inconsistent with those of
Watkins, both women were asked to submit to a patdown.
4. Defendant Watkins consented to a patdown, which disclosed a hard
object in her groin area. She removed the object, which contained a
white powder that was field-tested with positive results for cocaine.
Defendant Peoples subsequently was patted down, yielding one hard
object in the groin area and numerous pellets from her buttocks. These
were also field tested with positive results for cocaine.
5. It was subsequently determined that both women had also swallowed
numerous pellets of cocaine. Both were taken to Fitzgerald Mercy
[H]ospital. At the time this affidavit is being prepared, defendant
Watkins (who admitted swallowing 100 pellets of cocaine) has passed
more than 110 pellets of the drug. Defendant Peoples has passed 100
pellets and medical personnel have yet to determine whether any more
pellets remain in her body. At least one pellet from each defendant has
been field-tested with positive results for cocaine.
6. The packet which had been carried vaginally by defendant Watkins had a
gross weight of 191 grams. The packet which had been carried vaginally

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5
by defendant Peoples had a gross weight of 154 grams. Your affiant
estimates that the total weight of all of the cocaine imported by Peoples
and Watkins is approximately one kilogram.
7. Defendant Watkins told your affiant that she had been paid to smuggle
drugs into the United States, and had traveled with Peoples, who she
claims to have known since high school. Cocaine is a Schedule II
narcotic controlled substance.
Defendants initially appeared before a magistrate judge on July 23, 2001, and on
July 26th they waived hearings on the Government’s motion for pretrial detention and were
ordered held without bail pending indictment and trial. The Speedy Trial Act, 18 U.S.C. §
3161 et seq., requires that an indictment or information be filed within thirty days from the
date on which the defendant was arrested. Id. at § 3161(b). In this case, both parties agree
that the Government was required to charge Defendants by indictment or information by
August 20, 2001.
With Defendants’ consent, the Government over the next five months moved for a
series of five thirty-day continuances extending the initial thirty-day deadline, as permitted
by § 3161(h)(8)(A). Each motion was approved by a magistrate judge, and each stated that
Defendants had been arrested on warrants “issued pursuant to a criminal complaint charging
them with conspiracy to import a controlled substance.” The fifth and last of these orders
was entered on December 19, 2001, making January 18, 2002, the thirtieth and final day for
an indictment. The Government failed to charge either Defendant by January 18th.
On February 20, 2002, Peoples moved to dismiss with prejudice the charge against
her on the ground that her Speedy Trial Act rights had been violated. The Magistrate Judge

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6
granted the motion on February 22nd, but vacated the order on February 26th after the
Government moved for an opportunity to respond.
On February 27, 2002 – forty days after the Speedy Trial Act clock had expired – a
grand jury returned an indictment charging both Defendants with one count of conspiracy to
import more than 500 grams of cocaine (in violation of 21 U.S.C. § 963) and one count of
importation of more than 500 grams of cocaine (in violation of 21 U.S.C. § 952).
On March 7, 2002, Peoples moved to dismiss the indictment against her with
prejudice, again arguing a violation of her Speedy Trial Act rights. The Government’s
response conceded that the Speedy Trial Act had been violated, but requested that the
charges be dismissed without prejudice. The District Court heard oral argument and issued
a memorandum opinion and order on March 12, dismissing the indictment against Peoples
with prejudice.
On March 14, 2002, Watkins likewise moved to dismiss the indictment against her
with prejudice for the same reason. The Government this time responded that its
concession of dismissal (without prejudice) was limited only to Count One (conspiracy),
and argued that dismissal of Count Two (importation) was precluded by our decision in
United States v. Oliver, 238 F.3d 471 (3d Cir. 2001). The Government at the same time
filed a motion to reconsider the dismissal with prejudice of the indictment against Peoples,
and repeated its argument that under Oliver the District Court properly may dismiss only
the charge contained in the complaint; i.e., conspiracy.
The District Court disagreed. In an April 19, 2002, opinion the District Court

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2The District Court’s finding that the complaint, when read together with the affidavit,
contained the substantive importation charge in addition to the explicitly stated conspiracy
charge, is a factual conclusion and is reviewed for clear error. United States v. Lattany,
982 F.2d 866, 870 (3d Cir. 1992). The District Court’s interpretation of Third Circuit
precedent construing the Speedy Trial Act is a legal conclusion and is subject to plenary
review. Id.
7
granted Watkins’s motion to dismiss the indictment with prejudice and denied the
Government’s motion for reconsideration. United States v. Watkins, 200 F. Supp. 2d 489
(E.D. Pa. 2002). (Thus, both the conspiracy and importation counts against each Defendant
had been dismissed with prejudice.) The District Court based its decision on two lines of
reasoning: the “inartfulness of the complaint and the affidavit of probable cause,” and the
“Government’s misplaced reliance on Third Circuit caselaw.” Id. at 491. On the first line,
the Court noted that, although the charging complaint alleged only conspiracy, the affidavit
of probable cause upon which the complaint was based failed to mention or even imply the
existence of a conspiracy. Had the Government drafted a complaint that was fairly based on
the underlying affidavit, it would have included the importation charge from the outset. As
for the second line, the Court concluded that the Government’s reliance on Oliver was
unavailing because in that case the dismissal of the earlier indictment was without
prejudice, the later indictment contained no overlapping charges with the original
complaint, and, unlike here, there was no evidence of evasion of the Speedy Trial Act
deadlines. The Government appeals both dismissal rulings.2
II. CHARGES CONTAINED IN THE COMPLAINT
We address first the District Court’s conclusion as to which charges were contained

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in the complaint. As noted above, the complaint filed on July 20, 2001, charged that
Defendants “did knowingly and intentionally conspire . . . to import . . . cocaine . . . in
violation of Title 21, United States Code, Section 963.” But it was not until February 27,
2002 – after the Speedy Trial Act violation had occurred – that the grand jury returned an
indictment formally charging each Defendant with one count of conspiracy and one count
of importation. Section 3161(b) of the Speedy Trial Act requires that an indictment must
be filed within thirty days after arrest. Section 3162(a)(1) sets the sanctions for failure to
do so:
If, in the case of any individual against whom a complaint is filed charging such
individual with an offense, no information or indictment is filed within the time
limit required by section 3161(b) as extended by section 3161(h) of this
chapter, such charge against that individual contained in such complaint shall
be dismissed or otherwise dropped.
(Emphasis added). Because only the conspiracy charge was “contained” in the complaint,
argues the Government, that alone should have been dismissed, permitting prosecution of
both Defendants on the importation charge.
The District Court accepted that “[i]n a very narrow sense the Government is
correct: the complaint in these cases literally alleged only conspiracy.” 200 F. Supp. at
491. The District Court also found, however, that the affidavit upon which the complaint is
based does not support a conspiracy charge because it “fails to mention or even imply the
existence of a conspiracy,” and “is devoid of any reference to collusion, conspiracy, or an
agreement.” Id. Instead, “the affidavit is directed entirely at the substantive offense of
importation, outlining how, and in what quantity, Ms. Peoples and Ms. Watkins allegedly

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3Id. We note that the District Court did not explicitly state that the importation charge
was contained in the complaint, but merely implied (albeit strongly) that it should have
been. Nevertheless, because the District Court dismissed both the conspiracy and
importation charges pursuant to the Speedy Trial Act, and § 3162(a)(1) requires the
dismissal of only those charges “contained in” the complaint, we read the District Court’s
opinion to find that the complaint contained both charges.
9
brought cocaine into the country.” Id. Thus, “[h]ad the Government drafted a complaint that
was fairly based on the underlying affidavit, it would now be unable to contend that its case
against Defendants for the substantive offense can go forward.”3
Both sides agree that a complaint and affidavit are to be read in conjunction with one
another. See Fed. R. Crim. P. 4(a) (“If the complaint or one or more affidavits filed with
the complaint establish probable cause to believe that an offense has been committed and
that the defendant committed it, the judge must issue an arrest warrant to an officer
authorized to execute it.”). But the Government takes issue with the District Court’s
finding that the affidavit does not support the conspiracy charge named in the complaint.
Because the two documents are read together, it argues, it is irrelevant that the complaint
uses the word “conspiracy” while the affidavit does not. And according to the Government,
the affidavit here included the allegations that Defendants: were traveling together on the
same flight; were found, after consenting to a patdown, to have been carrying cocaine in a
hard object in their groin area; were determined to have swallowed multiple pellets of
cocaine; and were carrying approximately the same quantities of cocaine. Further, Watkins
told the customs agent that she and Peoples had been friends since high school. Thus, the
Government contends that the contents of the affidavit amply supported the conspiracy

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10
charge stated in the complaint.
We agree. A magistrate judge determining if probable cause to arrest exists is
permitted to infer agreement, collusion, or conspiracy from the facts in the affidavit. See
Fed. R. Crim. P. 4(a); Giordenello v. United States, 357 U.S. 480, 486 (1958). Cf. United
States v. Whitner, 219 F.3d 289, 296 (3d Cir. 2000) (noting in the context of a magistrate
judge’s determination of probable cause to issue a search warrant, “[t]he supporting
affidavit must be read in its entirety and in a commonsense and nontechnical manner”)
(quoting United States v. Conley, 4 F.3d 1200, 1206 (3d Cir. 1993)). The facts alleged in
the affidavit are sufficient to establish probable cause to believe Defendants had a criminal
agreement to act in concert to import cocaine. But although we conclude that the District
Court’s statements to the contrary were clearly erroneous, the point is not dispositive.
Even were the affidavit inadequate to establish probable cause to arrest Defendants on the
conspiracy charge, the proper remedy was to dismiss the conspiracy charge as not based on
probable cause. Cf. Giordenello, 357 U.S. at 486-87. In any event, dismissal of that
charge clearly was required by the Speedy Trial Act violation.
Our resolution of this appeal turns not on the District Court’s findings as to the
charge that was explicitly stated in the complaint (conspiracy), but rather its findings as to
the charge that was not mentioned (importation). Neither the District Court nor the
Defendants have cited any caselaw or statutory provision that supports a trial judge’s
authority to “find” – and then subsequently dismiss with prejudice – a charge not stated in
the complaint.

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11
In fact, at least one case arguably supports a contrary rule, i.e., that courts should be
wary of finding charges in a complaint for the purposes of a Speedy Trial Act dismissal. In
United States v. Derose, 74 F.3d 1177, 1882-83 (11th Cir. 1996), two defendants were
charged in a criminal complaint with conspiracy in attempting to procure marijuana. Both
defendants eventually were indicted for conspiracy (under 21 U.S.C. § 846), and possession
with intent to distribute marijuana (in violation of 21 U.S.C. § 841). Following a Speedy
Trial Act violation, the conspiracy charge was dismissed, but the defendants were tried and
convicted on the substantive possession charge. On appeal, the defendants argued that the
possession charge also had been stated in the complaint, and thus likewise should have been
dismissed with prejudice, because the conspiracy charge under 21 U.S.C. § 846 recited the
elements of the possession charge under 21 U.S.C. § 841. The Eleventh Circuit
acknowledged that the conspiracy charge in “the complaint tracked the statutory language of
21 U.S.C. § 841(a)(1) when it alleged that they ‘did knowingly and intentionally possess
with intent to distribute a controlled substance,’” but also noted that the Government is
required when alleging conspiracy to state the elements of the substantive offense that the
defendants conspired to violate. Id. at 1183. As a result, the Eleventh Circuit rejected the
argument that the “mere presence of the statutory language of the substantive offense
demonstrates that the complaint contained the substantive charge.” Id.
Derose is neither controlling nor directly on point, but it does caution reluctance to
parse the contents of the charging documents to “find” charges that could have been, but
were not, contained in the complaint. Just as a complaint alleging conspiracy “must state

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4Section 3162(a)(1) of the Speedy Trial Act includes a number of factors to guide a
district court in determining whether to dismiss a case with prejudice. The Government
does not appeal the District Court’s ruling on prejudice as to the dismissal of the
conspiracy charge.
12
the substantive offense that the defendants conspired to violate,” id., so too must an
affidavit attached in support of the complaint state the facts establishing probable cause to
believe the defendants conspired to violate the substantive offense. It does not necessarily
follow, however, that reciting those facts in an affidavit necessarily amends the complaint
to charge the defendant with the substantive offense. The District Court’s finding – “[h]ad
the Government drafted a complaint that was fairly based on the underlying affidavit, it
would now be unable to contend that its case against Defendants for the substantive offense
can go forward,” 200 F. Supp. 2d at 491 – thus was clearly erroneous.
We conclude that the complaint charged Defendants only with conspiracy.
Accordingly, the Government’s violation of Defendants’ Speedy Trial Act rights mandates
that this charge be dismissed, and we agree with the District Court’s decision to do so with
prejudice.4
III. WHETHER IMPORTATION CHARGE SHOULD BE DISMISSED
Our inquiry is not complete, however, as we still must determine whether the
Speedy Trial Act violation precludes the Government from charging Defendants with the
substantive importation offense. The District Court rejected the Government’s argument
that it was permitted to do so under our decision in United States v. Oliver, 238 F.3d 471
(3d Cir. 2001). As much of today’s decision rests on our understanding of Oliver, we first

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5Id. (citing United States v. Miller, 23 F.3d 194, 199 (8th Cir. 1994) (“A defendant’s
arrest on one charge does not necessarily trigger the right to a speedy trial on another
charge filed after his arrest.”); United States v. Nabors, 901 F.2d 1351, 1355 (6th Cir.
1990) (“18 U.S.C. § 3162(a)(1) only requires the dismissal of the offense charged in the
complaint . . . .”); United States v. Giwa, 831 F.2d 538, 541 (5th Cir. 1987) (“The Act
requires dismissal of only those charges contained in the original complaint.”); United
13
revisit its holding.
Gerold Oliver, on leave from the Post Office, sought and received total disability
benefits while also working as a registered nurse. The Government filed a complaint
charging him with false application for benefits, in violation of 18 U.S.C. §§ 1920-1922
and 18 U.S.C. §§ 1001-1002. Following a series of continuances, the Government moved
to dismiss its own complaint, which the Magistrate Judge granted without prejudice. A
grand jury later indicted Oliver for embezzling Government property, in violation of 18
U.S.C. §§ 641-642. After he argued unsuccessfully to dismiss the indictment because it
violated the Speedy Trial Act, Oliver was convicted. Id. at 472.
On appeal he again raised his Speedy Trial Act argument, asserting the indictment
was an “invalid evasion” of the statutory time limits and that the Government brought the
subsequent charges only because the original charges were time-barred. Id. at 473. Oliver
claimed that “evidence of a run-around is clear because the charges in the indictment are
based on the same underlying conduct as the initial complaint.” Id. We rejected both of
these arguments. First, “our review of decisions by other courts of appeals reveals a
consensus that the Speedy Trial Act requires the dismissal of only those charges that were
made in the original complaint that triggered the thirty-day time period.”5 Second, “courts

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States v. Napolitano, 761 F.2d 135, 137 (2d Cir. 1985) (“The statutory language is clear: it
requires dismissal only of ‘such charge against the individual contained in such
complaint.’”); United States v. Heldt, 745 F.2d 1275, 1280 (9th Cir. 1984) (“Charges not
included in the original complaint are not covered by the Act . . . .”); United States v.
Pollock, 726 F.2d 1456, 1462 (9th Cir. 1984) (“We hold that when the government fails to
indict a defendant within 30 days of arrest, section 3162(a)(1) requires dismissal of only
the offense or offenses charged in the original complaint.”); United States v. Brooks, 670
F.2d 148, 151 (11th Cir. 1982) (“An arrest triggers the running of § 3161(b) of the Speedy
Trial Act only if the arrest is for the same offense for which the accused is subsequently
indicted.”)).
6Id. (citing Derose, 74 F.3d at 1184 (“Congress considered and declined to follow the
suggestion that the Speedy Trial Act’s dismissal sanctions should be applied to a subsequent
charge if it arose from the same criminal transaction or event as those detailed in the initial
complaint or were known or reasonably should have been known at the time of filing the
initial complaint.”); Napolitano, 761 F.2d at 137 (“[T]he legislative history of the Act
clearly indicates that Congress considered and rejected defendant’s suggestion that the
Act’s dismissal sanction be applied to subsequent charges if they arise from the same
criminal episode as those specified in the original complaint or were known or reasonably
should have been known at the time of the complaint.”)).
14
have rejected the application of the transactional test suggested by Oliver and point out that
Congress itself considered and rejected this option.”6 We adopted the position of these
courts and “affirm[ed] the District Court’s decision not to dismiss the indictment against
Oliver which contained no overlapping charges with the original complaint against him.” Id.
The District Court in this case distinguished Oliver on three specific grounds and
one general policy concern.
First, in Oliver, the dismissal of the earlier indictment was without prejudice.
Second, the later indictment in Oliver “contained no overlapping charges with
the original complaint” against the Defendant. Oliver, 238 F.3d at 474. Cf.
United States v. Napolitano, 761 F.2d 135, 138 (2d Cir. 1985) (“a subsequent
prosecution may be barred if it is based on an indictment which merely ‘gilds’
an earlier charge”). Third, the cases at bar involve[] evidence of a run-around not
present in Oliver. Here, it was only after the indictment was dismissed with
prejudice that the Government advanced its argument, premised on its

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15
disingenuous reading of the affidavit of probable cause, that the prosecution of
the importation offense is permissible.
Moreover, the broader implications of the Government’s argument are
troubling. The Government advances an interpretation of the Speedy Trial Act
that would not merely encourage irresponsible gamesmanship, but eviscerate the
Act altogether. Under its interpretation of Oliver, the Government would be
free to file a complaint charging only conspiracy, knowing full well that in the
event of a dismissal for violations of the Speedy Trial Act it would nevertheless
be free to prosecute the substantive offense which the defendant allegedly
conspired to do. For this reason, as well, the Government’s position is
untenable.
200 F. Supp. at 492 (internal footnote omitted). We address each of these well-made
reasons in turn.
A. Dismissal Without Prejudice
The District Court’s statement that “in Oliver, the dismissal of the earlier
indictment was without prejudice,” id., is not correct. In Oliver, the earlier dismissal
without prejudice was of the complaint, not the indictment. 238 F.3d at 472. More
importantly, whether an initial dismissal of a complaint was without prejudice was not a
dispositive factor relied on by the cases cited with approval in Oliver. For example, in both
Miller, 23 F.3d at 198, and Derose, 74 F.3d at 1180-81, the Eighth and Eleventh Circuits,
respectively, held that even though the initial complaint was dismissed with prejudice, the
Speedy Trial Act did not preclude the later indictment and prosecution for a separate
offense not contained in the complaint.
B. “Gilding Exception” to the Speedy Trial Act
The second point on which the District Court distinguished Oliver – the so-called

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“gilding exception” to the Speedy Trial Act – is the dominant disagreement between the
parties on appeal. The District Court’s cited source of the phrase, the Second Circuit’s
1985 decision in Napolitano, does not provide much content to the term beyond
recognizing that some cases “hold only that a subsequent prosecution may be barred if it is
based on an indictment which merely ‘gilds’ an earlier charge or if the subsequent charge is
a mere difference in accusational dates.” 761 F.2d at 138. In Napolitano, “the initial
charge against the defendant for making a false application for a bank account was entirely
different from and based on different proof than the later indictment for larceny of bank
funds.” Id.
Other courts similarly have recognized the existence of the gilding exception, but
also failed to provide any significant explanation of the doctrine’s contours. For example,
in United States v. Giwa, 831 F.2d 538 (5th Cir. 1987), the Fifth Circuit accepted that
“there does exist a notable exception to the general rule that an arrest on one charge does
not trigger the right to a speedy trial on another charge filed after arrest.” Id. at 542. “If a
subsequent charge merely ‘gilds’ the initial charge filed against an individual and the
different accusatorial dates between the two charges are not reasonably explicable, the date
of the initial arrest may trigger the applicable time periods of the Act as to prosecution for
both offenses.” Id. (citing Napolitano, 761 F.2d at 138; United States v. Nixon, 634 F.2d
306, 309 (5th Cir.), cert. denied, 454 U.S. 828 (1981) (quoting United States v.
DeTienne, 468 F.2d 151, 155 (7th Cir. 1972), cert. denied, 410 U.S. 911 (1973)). The
defendant in Giwa had been arrested and charged with credit card fraud in violation of 18

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U.S.C. § 1029(a)(3). After a Speedy Trial Act violation, he was indicted for mail fraud and
use of a false Social Security number in violation of 18 U.S.C. § 1341 and 42 U.S.C. §
408(g)(2). Id. Because “[t]he offenses for which Giwa was arrested and indicted, while
arising from the same criminal transaction, are separate and distinct offenses each
requiring proof of different elements,” the Fifth Circuit concluded that “the ‘gilding’
exception does not apply and section 3162(a)(1) bars prosecution of only the initial
offense charged, the charge of credit card fraud.” Id. at 543.
A more recent discussion of the gilding exception is found also in a Fifth Circuit
decision, United States v. Bailey, 111 F.3d 1229 (5th Cir. 1997). The Court again
acknowledged the existence of the exception, and noted, as had at least one other court, that
dictionaries variously define “gilding” as “embellishing” and “unnecessary ornamentation.”
Id. at 1236 (quoting Webster’s Third New International Dictionary, Webster’s Collegiate
Dictionary; citing United States v. Oliver, 683 F. Supp. 35, 38 (E.D.N.Y. 1988)). “Thus, a
gilded charge is one that merely annotates in more detail the same charge alleged in the
initial accusatory instrument . . . .” Id. The Court also concluded that its interpretation of
the gilding exception aligned with the Supreme Court’s approach to analyzing multiple
prosecutions for double jeopardy purposes. Id. Under the so-called “same-elements” test
– based on the Supreme Court’s decision in Blockburger v. United States, 284 U.S. 299,
304 (1932) – a court “inquires whether each offense contains an element not contained in
the other; if not, they are the ‘same offense’ and double jeopardy bars additional
punishment and successive prosecution.” Bailey, 111 F.3d at 1236 (quoting United States

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v. Dixon, 509 U.S. 688, 696 (1993)). In other words, different charges will be construed
as the same if they contain the same elements. Applied to the circumstances in Bailey, the
Fifth Circuit concluded the gilding exception did not apply where felony and misdemeanor
charges for receipt of the same stolen handgun contained different elements as to the
valuation of the weapon. Id. at 1236-37.
We have not heretofore addressed the gilding exception, and other courts question
whether it even exists. United States v. Archer, 984 F. Supp. 321, 325 n.4 (E.D. Pa. 1997)
(noting both points). For example, in Derose – a case we already have cited for analyzing
whether unstated charges may be found in a complaint – the Eleventh Circuit declined to
decide whether the gilding exception was a viable doctrine, but concluded that, even
assuming it was, the exception would not apply to the facts of that case. 74 F.3d at 1183.
The defendants argued that the charged offenses – conspiracy to possess with intent to
distribute marijuana and possession with intent to distribute marijuana – arose from the
same events, were both contained in the complaint, and therefore the “application of the
gilding exception is appropriate here because the two counts are not separate and distinct.”
Id. The Eleventh Circuit disagreed on two grounds.
First, Congress considered and declined to follow the suggestion that the
Speedy Trial Act’s dismissal sanctions should be applied to a subsequent charge
if it arose from the same criminal transaction or event as those detailed in the
initial complaint or were known or reasonably should have been known at the
time of filing the initial complaint. United States v. Napolitano, 761 F.2d 135,
137-38 (2d Cir. 1985) (citing A. Partridge, Legislative History of Title I of the
Speedy Trial Act of 1974, pp. 194-195, Federal Judicial Center, 1980). Second,
it is well established that conspiracies and substantive offenses are separate and
distinct offenses requiring proof of different elements. E.g., Callanan v.

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United States, 364 U.S. 587, 593 (1961). Thus, it is questionable whether a
substantive offense can ever gild a conspiracy charge, since they are separate
and distinct offenses.
Id. at 1184. Accordingly, while “not decid[ing] the fate of the gilding exception in this
ruling,” the Derose Court held “the substantive offense contained in the indictment did not
gild the conspiracy charge found in the complaint.” Id.
We find Derose instructive in this context as well. Even assuming (without
deciding) that the gilding exception to the Speedy Trial Act is viable, it does not apply in
this case. We agree with the Eleventh Circuit that because conspiracies and substantive
offenses contain different elements, “it is questionable whether a substantive offense can
ever gild a conspiracy charge.” Id. This view is further supported by the statements of the
Fifth Circuit – which explicitly has recognized the gilding exception – in Bailey
analogizing the exception’s operation to the Blockburger test for determining if multiple
prosecutions are barred by principles of double jeopardy. See 111 F.3d at 1236. Under
this formulation, the dismissal of the charge against Defendants for conspiracy to import
cocaine does not preclude prosecution for the substantive offense of importation of
cocaine because “a substantive crime and a conspiracy to commit that crime are not the
‘same offence’ for double jeopardy purposes.” United States v. Felix, 503 U.S. 378, 389
(1992).
Anticipating this hurdle, Defendants argue that the gilding exception should not be
limited to a narrow comparison of the elements of the offenses; instead, a court should
focus on whether the proofs underlying the two charges are the same. But a “same-proofs”

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test is untenable. Whether the proofs underlying the two charges are identical is no
different than whether the charges in the indictment are “based on the same underlying
conduct as the initial complaint,” i.e., the transaction test we specifically rejected in
Oliver. 238 F.3d at 473. Defendants disagree, arguing that “Oliver did not have occasion
to address the gilding exception because . . . the two charges at issue there – making false
statements and embezzlement – plainly required different proofs even though they both
arose from the same criminal transaction.” Appellees’ Br. at 31. This distinction does not
rehabilitate the same-proofs test. Conspiracy and substantive offenses require separate
evidence. A conspiracy charge does not require proof of success in committing the
offense (as does a substantive offense), only an agreement to commit it. And a conspiracy
charge (unlike a substantive offense) also requires proof that multiple persons agreed to
commit the crime in concert. See, e.g., United States v. Dansker, 537 F.2d 40, 51 (3d Cir.
1976) (“the crime of conspiracy is separate and distinct from the related substantive
offense. It requires proof of the additional element of an agreement between the alleged
co-conspirators. Hence, it is neither illogical nor impossible for a jury to find an alleged
conspiracy nonexistent while, at the same time, convicting the defendants of the substantive
offenses charged.”) (citing Pinkerton v. United States, 328 U.S. 640 (1946); United
States v. Pappas, 445 F.2d 1194 (3d Cir. 1971)).
Even were we inclined to recognize the validity of a gilding exception to the Speedy
Trial Act (a question left for another day), it would not prevent the prosecution of
Defendants on the substantive importation charge following the dismissal of the related

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conspiracy charge.
C. Government “Run-Around”
The District Court’s third stated reason for distinguishing Oliver – “the cases at bar
involve[] evidence of a run-around not present in Oliver” – is plausible on its face: “[h]ere,
it was only after the indictment was dismissed with prejudice that the Government advanced
its argument, premised on its disingenuous reading of the affidavit of probable cause, that
the prosecution of the importation offense is permissible.” 200 F. Supp. 2d at 492.
Nonetheless, we view the record differently. First, the Government’s reading of the
affidavit is not, we discern, disingenuous. As explained above, we believe it is correct.
Second, while the Government should have offered its arguments based on Oliver before
the indictment was dismissed, its failure to do so does not mean that Oliver is
distinguishable or that its construction of the Speedy Trial Act may be disregarded.
D. “Gamesmanship” Aspect of Prosecution
The District Court’s final concern that “the broader implications of the
Government’s argument are troubling,” id., is an extension of its finding of a Government
“run-around.” According to the Court,
[t]he Government advances an interpretation of the Speedy Trial Act that would
not merely encourage irresponsible gamesmanship, but eviscerate the Act
altogether. Under its interpretation of Oliver, the Government would be free
to file a complaint charging only conspiracy, knowing full well that in the event
of a dismissal for violations of the Speedy Trial Act it would nevertheless be
free to prosecute the substantive offense which the defendant allegedly
conspired to do. For this reason, as well, the Government’s position is
untenable.

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Id. The District Court’s alarm is, paradoxically, both misdirected and well-founded. It is
misdirected because the Court’s real quarrel is with Congress and our Circuit, which
respectively drafted and construed the Speedy Trial Act in such a way that the Government
may file a complaint charging conspiracy, aware that, in the event of a dismissal for
violating the Speedy Trial Act, it may still prosecute the substantive offense. Nevertheless,
the District Court’s reservations are also well-founded, especially as Defendants in their
reply brief raise for the first time another Speedy Trial Act violation in this case,
previously unnoticed by all involved. When the Government filed its motion for a second
thirty-day continuance, it misstated both the date that the first thirty-day period had expired
and the date that the second thirty-day period was to begin. In other words, by incorrectly
stating on September 20, 2001, that the first continuance was to expire that day, when in
fact it had expired the day before, the Government had violated the Speedy Trial Act by one
day. The Government concedes the error, which it attributes to inadvertence and poor
recordkeeping. (This is, we note, the same excuse the Government offers for its later
violation in failing to indict the Defendants timely.)
The disclosure of this additional error obviously is relevant, as it bolsters the
District Court’s warnings that relaxed enforcement of the Speedy Trial Act’s strictures
inevitably increases noncompliance by the Government. Though we accept the assurances
provided by the Government in its briefs and at argument that it has implemented safeguards
to prevent future mistakes, we empathize with the District Court’s frustration. But this

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additional error, unhelpful as it is, ultimately does not affect our disposition of this appeal.
The day-late motion for a second continuance was consented to by both Defendants to
permit the parties additional time to explore a plea bargain. And as a practical matter, even
were we inclined to hold that this Speedy Trial Act violation merited dismissal with
prejudice, the result still would be dismissal of the conspiracy charge contained in the
complaint, not the importation charge contained in the later indictment.
* * * * *
We conclude on plenary review that the District Court erred in finding that the
Government’s reliance on Oliver was misplaced. The District Court’s distinguishing of
Oliver is pertinent but not persuasive. To the extent that there exists a gilding exception to
the general rule that a Speedy Trial Act violation does not preclude a subsequent
prosecution for an offense not contained in the dismissed original complaint, it does not
apply here where the conspiracy and importation charges are separate offenses requiring
proof of different elements. For these reasons, we reverse the decision of the District
Court and remand for proceedings not inconsistent with this opinion.
JUDGE NYGAARD, Concurring.
NO. 02-2386

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I join in the Majority’s excellent opinion in its entirety. I write separately, however,
to further address and express my support the District Court’s “well founded” reservations
concerning the potential for the Government to abuse the Speedy Trial Act. I share the
District Court’s concern. To further illustrate the District Court’s frustration with the
Government in this case, I will start with additional facts concerning the Appellee’s
willingness to acquiescence to the Government’s requests for extension.
The defense agreed to these numerous extensions in the obvious hope of reaching a
plea agreement. Neither woman had any prior criminal record and were (and apparently
remain) willing to cooperate with the Government. Unfortunately, as the District Court
noted in reference to the progress of a plea agreement with Peoples, “Despite that these
extensions were secured to allow time for plea negotiations, in fact the Government met
only once with Ms. Peoples.” United States v. Watkins, No. 02-120-1, 02-120-2, 2002
U.S. Dist. LEXIS 12284, at *3 (E.D. Pa. Mar. 12, 2002). Similarly, there were few
meetings between the Government and Watkins. Both Appellees express a well-founded
claim they felt the Government had simply forgotten them.
The Government, in a classic understatement, admits that the case was “somewhat
back burnered.” App. at 107-08. That is not good enough. In addition, Peoples’
confinement conditions were terrible. After allegedly being sexually assaulted in the
Federal Detention Center in Philadelphia, she was transferred from the frying pan to the
fire – the Camden County Prison. See App. at 96. The conditions at the Camden County
Prison are described as “notoriously poor, ” and Peoples raises various complaints about

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her confinement. See id. at 95, 98. Throughout this time, which eventually totaled eight
months, Peoples’ attorney attempted to contact the prosecution to reinitiate the negotiation
process; but without success.
The District Court is empowered, when conditions warrant, to dismiss an indictment
for failure to prosecute, even where the delay is not of constitutional proportions. See
United States v. Goodson, 204 F.3d 508, 513–14 (4th Cir. 2000). Federal Rule of
Criminal Procedure Rule 48(b) and the court’s supervisory powers provide authority to
dismiss indictments, and when warranted, to dismiss with prejudice. Id.; Fed. R. Crim. Pro.
Rule 48(b); see also United States v. Dreyer, 533 F.2d 112, 113 n.1 (3d Cir. 1976)
(noting that Rule 48(b) is a “restatement of the court's inherent power to dismiss a case for
want of prosecution.”).
Rule 48(b) states: “The court may dismiss an indictment, information, or complaint
if unnecessary delay occurs in: (1) presenting a charge to a grand jury; (2) filing an
information against a defendant; or (3) bringing a defendant to trial.” Fed. R. Crim. P. 48(b)
(2002). The advisory committee notes to the rule explain that Rule 48 operates
independently from the Speedy Trial Rule. The Committee noted several cases addressing
the court’s power under Rule 48 and stated that it did not intend to change the relationship
between that power and the Speedy Trial Act.
Although I will not conclude at this time that it would be appropriate for this court
or the District Court to sua sponte dismiss the importation indictment, I write separately
to suggest that if the Government does not live up to its assurances to implement

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safeguards to prevent future mistakes, the courts are not without a remedy.

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