UNITED STATES оf America, Appellant v. Tammy WATKINS; Anissa Peoples
No. 02-2386
United States Court of Appeals, Third Circuit
Argued Jan. 23, 2003. Opinion filed: Aug. 6, 2003.
339 F.3d 167
David L. McColgin (Argued), Dina Chavar, Maureen K. Rowley, Defenders Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Appellee Tammy Watkins.
Elizabeth K. Ainslie, Matthew B. Holmwood (Argued), Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for Appellee Anissa Peoples.
Before: NYGAARD, AMBRO and LOURIE*, Circuit Judges.
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 аppeals 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
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
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 intentiоnally 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 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:
- 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.
- On July 19, 2001, defendants Tammy Watkins and Anissa Peoples arrived at Philadelphia International Airport on USAirways flight 670 from Montego Bay, Jamaica.
- 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.
- 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.
- 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. - The packet which had been carried vaginally by defendant Watkins had a gross weight of 191 grams. The packet which had been carried vaginally 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.
- 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 wеre ordered held without bail pending indictment and trial. The Speedy Trial Act,
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
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 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
On March 7, 2002, Peoples moved to dismiss the indictment against her with prejudice, again arguing a violation of her Speedy Triаl 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 District Court disagreed. In an April 19, 2002, opinion the District Court 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 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 com
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.2d 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 brought cocaine intо 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
We agree. A magistrate judgе determining if probable cause to arrest exists is permitted to infer agreement, collusion, or conspiracy from the facts in the affidavit. See
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.
In fact, at least one case arguably supports a contrary rule, i.e., that courts should be wary of finding charges in a complaint fоr the purposes of a Speedy Trial Act dismissal. In United States v. Derose, 74 F.3d 1177, 1182-83 (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
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 the substantive offеnse 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
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 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
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-dаy time period.”5 Second, “courts have rejected the application of the transactional test suggested by Oliver and point out that Congress itself considered and rejected this option.”6 We
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 indiсtment 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.
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.2d 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 “gilding exception” to the Speedy Trial Act—is the dominаnt 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
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), thе 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.1981), 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
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 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 felоny and misdemeanor charges for receipt of the same
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 contаined 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. 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” test is untenable. Whethеr the proofs underlying the
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 оf Defendants on the substantive importation charge following the dismissal of the related 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 construсtion 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.
Id. The District Cоurt‘s alarm is, paradoxically, both misdirected and well-founded. It is misdirected because the Court‘s real
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 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.
NYGAARD, Circuit Judge, Concurring.
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 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 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 negotiatiоn 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.;
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.”
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 safeguards to prevent future mistakes, the courts are not without a remedy.