339 F.3d 167
UNITED STATES of America, Appellantv.Tammy WATKINS; Anissa Peoples
No. 02-2386.
United States Court of Appeals, Third Circuit.
Argued January 23, 2003.
Opinion filed: August 6, 2003.

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, Philadelphia, PA, for Appellant.
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.
OPINION OF THE COURT
AMBRO, Circuit Judge.

1
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

2
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:

3
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.

4
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:

5
Your affiant, Richard J. Stingle, a Special Agent of the United States Customs Service, being duly sworn, deposes and says as follows:

6
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.

7
2. On July 19, 2001, defendants Tammy Watkins and Anissa Peoples arrived at Philadelphia International Airport on USAirways flight 670 from Montego Bay, Jamaica.

8
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.

9
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.

10
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.

11
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 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.

12
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.

13
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.

14
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.

15
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.

16
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).

17
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.

18
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.

19
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

20
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:

21
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.

22
(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.

23
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 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

24
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 charge stated in the complaint.

25
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, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (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, 78 S.Ct. 1245. In any event, dismissal of that charge clearly was required by the Speedy Trial Act violation.

26
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.

27
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, 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 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.

28
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 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.

29
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

30
III. WHETHER IMPORTATION CHARGE SHOULD BE DISMISSED

31
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.

32
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.

33
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 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.

34
The District Court in this case distinguished Oliver on three specific grounds and one general policy concern.

35
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 disingenuous reading of the affidavit of probable cause, that the prosecution of the importation offense is permissible.

36
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.

37
200 F.Supp.2d at 492 (internal footnote omitted). We address each of these well-made reasons in turn.

A. Dismissal Without Prejudice

38
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.

39

B. "Gilding Exception" to the Speedy Trial Act

40
The second point on which the District Court distinguished Oliver — the so-called "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.

41
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, 102 S.Ct. 120, 70 L.Ed.2d 103 (1981) (quoting United States v. DeTienne, 468 F.2d 151, 155 (7th Cir.1972), cert. denied, 410 U.S. 911, 93 SCt. 974, 977, 35 L.Ed.2d 274 (1973)). The defendant in Giwa had been arrested and charged with credit card fraud in violation of 18 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.

42
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, 52 S.Ct. 180, 76 L.Ed. 306 (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, 113 S.Ct. 2849, 125 L.Ed.2d 556 (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.

43
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.

44
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, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961). Thus, it is questionable whether a substantive offense can ever gild a conspiracy charge, since they are separate and distinct offenses.

45
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.

46
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, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992).

47
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. 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, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Pappas, 445 F.2d 1194 (3d Cir.1971)).

48
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 conspiracy charge.

49

C. Government "Run-Around"

50
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

51
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,

52
[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.

53
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.)

54
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.

55
* * * * * *

56
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.

Notes:

*
 Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit, sitting by designation

1
 We 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

2
 The 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 errorUnited 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.

3
 Id. 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.

4
 Section 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

5
 Id. (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 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.")).

6
 Id. (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.")).

57
NYGAARD, Circuit Judge, Concurring.

58
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.

59
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.

60
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 negotiation process; but without success.

61
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.").

62
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.

63
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.


914 F.2d 1492Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.James Preston SMITH, Plaintiff-Appellant,v.D.A. WILLIAMS, Warden, J. Edmonds, Sergeant, T. Lundy, OIC,H.R. Barksdale, Defendants-Appellees.
No. 90-7349.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 27, 1990.Decided Sept. 27, 1990.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond.  Richard L. Williams, District Judge.  (CA-90-37-R)
James Preston Smith, appellant pro se.
Mary Sue Terry, Attorney General, Richmond, Va., for appellees.
E.D.Va.
DISMISSED.
Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:

1
James Preston Smith appeals the district court's order dismissing this 42 U.S.C. Sec. 1983 action for failure to demonstrate administrative exhaustion.  Acting pursuant to 42 U.S.C. Sec. 1997e, the district court ordered appellant to exhaust administrative remedies and to advise the court within 100 days of the result of the administrative proceedings.  It warned appellant that failure to advise the court regarding exhaustion would result in dismissal of the action.  The district court dismissed the case without prejudice upon expiration of the 100-day period, appellant not having complied with its order.

2
The district court could properly require exhaustion of administrative remedies under 42 U.S.C. Sec. 1997e.  Its dismissal of the action, without prejudice, when appellant failed to comply with its order was not an abuse of discretion.  We therefore deny leave to proceed in forma pauperis and dismiss the appeal.  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

3
DISMISSED.


644 F.2d 1132
SOHYDE DRILLING & MARINE CO. and Sohyde Drilling &Exploration Co., whose name has been changed toSpade Drilling & Exploration Co., Plaintiffs,v.COASTAL STATES GAS PRODUCING CO., Defendant-3rd PartyPlaintiff-Appellee,v.SOHYDE DRILLING & MARINE CO. and Sohyde Drilling &Exploration Co. (Sohyde Drilling & Workovers, Inc.), namechanged to Spade Drilling & Exploration Co. and MarketInsurance Co., 3rd Party Defendants-Appellants,The Travelers Insurance Co., 3rd Party Defendant.
No. 78-2817.
United States Court of Appeals,Fifth Circuit.
May 14, 1981.

William A. Porteous, III, New Orleans, La., for plaintiffs.
Monroe & Lemann, William J. Hamlin and Benjamin R. Slater, Jr., New Orleans, La., for defendant-3rd party plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before BROWN, AINSWORTH and FRANK M. JOHNSON, Jr., Circuit Judges.
JOHN R. BROWN, Circuit Judge:

1
Appellants, Sohyde Drilling and Marine Co.  (Sohyde) and others, appeal from an adverse judgment by the District Court which found them liable to Appellee, Coastal States Gas Producing Co.  (Coastal), for property damages arising out of the blowout of Coastal's high pressure gas well.  The blowout occurred while Sohyde was performing workover operations on the well aboard its submersible drilling barge which, at the time, was resting on the bottom of a dead-end dredged canal slip in Louisiana. Because we find that the District Court improperly assumed admiralty jurisdiction in this case, we vacate and remand.

Blowout In The Marsh

2
The essential facts of this case are not in dispute.  In 1971, Coastal was the operator of a high pressure gas well which was dually completed so that production was being obtained from two separate producing zones.  The well was located within the State of Louisiana, approximately six miles south of the town of Delcambre, in a dead-end dredged canal slip approximately eight feet deep and 120 feet wide.  The slip was connected to the Intracoastal Waterway and Vermillion Bay by navigable canals and was accessible only by water transportation such as barges, crew boats or sea planes the nearest solid ground being approximately two miles away.

3
In June 1971, Coastal determined that damaged tubing in the well was causing gas to leak from the lower producing zone to the upper zone.  On July 7, 1971, Coastal contracted with Sohyde to perform workover operations on the well.1  Thereafter, Sohyde towed a submersible drilling barge, the Sohyde 28, onto location, submersed it to the bottom of the canal, and commenced operations.  On July 13, during the course of operations, the well blew out and ultimately caught on fire, causing extensive damage.

4
Following the well blowout, various claims, counter-claims and cross-claims ensued.  Ultimately all of these actions, including Jones Act claims, were settled, save claims by Coastal against Sohyde and its liability insurers Market Insurance Co. and Employers Surplus Lines Insurance Co.  Coastal's claims were solely for property damages arising out of the well blowout, including damages for control of the blowout, repair of damaged well facilities, compensation for lost gas and the like.

5
After a bench trial, the District Court concluded first that it had jurisdiction in admiralty.  The Court then found that the well blowout was proximately due 75% to the negligence of Sohyde and 25% to the negligence of Coastal.  In accordance with these findings, the Court entered judgment in favor of Coastal for $1,761,898.74.  The Court further concluded that Sohyde's liability to Coastal was covered under the insurance policies it had with the two insurance companies.

6
This appeal was brought by Market Insurance Co. on its own behalf and on behalf of Sohyde for purposes of simplification the collective appeal is referred to as one by Sohyde limited solely to that portion of the judgment apportioned to Market.2  Two points are urged on this appeal.  First, it is contended that admiralty jurisdiction does not lie over this claim.  Second, it is argued that Market's insurance policy does not cover the liability of Sohyde to Coastal.

7
A Maritime Blowout?

8
The jurisdictional question is of crucial importance in this case.  Sohyde maintains that admiralty jurisdiction was improperly assumed by the District Court and that under diversity jurisdiction Louisiana's contributory negligence rule bars recovery.3  Coastal contends that the District Court properly assumed jurisdiction in admiralty and, therefore, properly applied the maritime rule of comparative negligence.

9
Although the express stated findings of the District Court with respect to the jurisdictional question are not extensive, it is evident that the Court felt admiralty jurisdiction to be appropriate under the Admiralty Extension Act, 46 U.S.C. § 740.  We agree with the District Court that if admiralty jurisdiction is to be found in this case, this Act must be its source.

The Act, in pertinent part, provides:

10
The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.

11
Under the express terms of the Act, our jurisdictional inquiry on appeal would seem to be limited to whether the Sohyde 28 was a "vessel" and whether it was on "navigable water" at the time it caused the property damage in question.  However, we believe that there is a more fundamental inquiry which confronts us that is, whether the wrong asserted in the instant action bears a significant relationship to maritime activity.  In short we believe, the seemingly unequivocal language of the Act notwithstanding, that "vessel" plus "navigable water" does not necessarily equal admiralty jurisdiction under the Act.

12
Our conclusion on this score stems from our conviction that jurisdiction under the Admiralty Extension Act, enacted in 1948, is necessarily constrained by the principles set forth in the subsequent Supreme Court case of Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), and the case law left in its somewhat irregular contrails.  In this regard, it is now well established in this Circuit, on the strength of Executive Jet, that for admiralty jurisdiction to lie over a general maritime tort action not only must the locality test be met but also the injury complained of must bear a significant relationship to maritime activity.  Moser v. Texas Trailer Corp., 623 F.2d 1006, 1009 (5th Cir. 1980); Sperry Rand Corp. v. Radio Corp. of America, 618 F.2d 319, 321 (5th Cir. 1980).  This, of course, does not answer the related question of whether the Executive Jet rule, clearly applicable to general maritime tort actions, is also applicable to tort actions brought under the Admiralty Extension Act.  Because we find no case in this Circuit which has squarely resolved this question, we believe that before proceeding further this point merits discussion.

The Extent of Extension

13
We find support for our conclusion that the Executive Jet rule constrains the Admiralty Extension Act in the legislative history of the Act itself.  The legislative history makes clear that the purpose of the Act was to correct the inequities, and anomalies, arising under then existing law which extended admiralty jurisdiction only to those cases in which injury was actually done or consumated upon navigable waters.  For example, as the legislative history observes, prior to 1948 when a vessel collided with a bridge through mutual fault and both were damaged, the owner of the bridge was denied an action in admiralty and thus was barred from recovery because of the contributory negligence barrier, whereas the vessel owner was entitled to recovery against the bridge owner in admiralty, contributory negligence operating only to reduce the recovery under the then available theory of mutual fault more recently replaced by application of the rule of real comparative fault.  United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975).  The Act was designed to correct situations such as this, arising from the strict locality test, allowing actions by both vessel owner and bridge owner to be resolved in admiralty.  U.S.Code Cong.  Service, pp. 1898, 1899 (1948).  Even more significant, the Act afforded an effective remedy to the innocent owner of land-based property damaged as a result of glaring fault upon the part of a compulsory pilot aboard the vessel for whose fault the vessel owner would ordinarily not be held liable.  See Homer Ramsdale Transp. Co. v. LaCompagnie Generale Transatlantique, 182 U.S. 406, 21 S.Ct. 831, 45 L.Ed. 1155 (1901).

The legislative history further observes:

14
Adoption of the bill will not create new causes of action.  It merely specifically directs the courts to exercise the admiralty and maritime jurisdiction of the United States already conferred by article III, section 2 of the Constitution and already authorized by the Judiciary acts.

15
Id., at 1900.  This observation was echoed by this Court in Louisville & N.R. Co. v. M/V Bayou Lacombe, 597 F.2d 469 (5th Cir. 1979).  In that case, a railroad company brought a claim in admiralty for damages for the loss of the use of a bridge which the railroad did not own and in which it had no Alabama property interest negligently struck by a vessel.  Although recovery for damages of this kind was seemingly barred under the established rule of maritime law enunciated in Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), the railroad company argued that the rule in question was irrelevant under the Admiralty Extension Act which, according to the railroad, permitted recovery for all injuries to property.  This Court, in an opinion by Judge Wisdom, rejected this argument finding, "the Act ... does not create new causes of action; it merely expands the locality rule of admiralty jurisdiction to encompass 'ship-to-shore' torts."  Id., at 472, and on the basis of Robins, and our cases following it, held there was no claim for tortious interference with contractual relations.  To do so would, in the Court's view, be the creation of a new cause of action.

16
In sum, we find that the Admiralty Extension Act was intended to eliminate the inequities, and anomalies, resulting from the strict application of the locality rule in admiralty under then existing law.  The Act was not intended to grant claimants new substantive rights of recovery nor relieve them from jurisdictional constraints unrelated to locality a la Executive Jet imposed on general maritime tort claimants.  Accordingly, we find claims under the Admiralty Extension Act to be subject to the "maritime relationship" rule of Executive Jet.4

Substantially Salty?: Of Jets And Vessels

17
Having concluded that actions under the Admiralty Extension Act are subject to the Executive Jet "maritime relationship" rule, we now consider that rule in light of the facts of the instant case.  This Court in Kelly v. Smith, 485 F.2d 520, 525 (5th Cir. 1973) outlined four factors which may be considered in determining the existence of a substantial maritime relationship: (i) The functions and roles of the parties; (ii) the types of vehicles and instrumentalities involved; (iii) the causation and type of injury; and (iv) traditional concepts of the role of admiralty law.  Upon consideration of each of these factors, we are unable to say that the circumstances surrounding the incident which gave rise to this action had a substantial maritime relationship.

18
Factor (i) under Kelly is the functions and roles of the parties.  The two principal parties involved in this case are Coastal and Sohyde.  At the time of this incident, Coastal was the operator of the gas well, and its basic function was to obtain production of gas from the well.  Sohyde was a contractor whose function was to perform workover operations on the well to correct loss of production.  The functions and roles of these parties was hardly of a peculiarly maritime nature.

19
Factor (ii) under Kelly, the vehicles and instrumentalities involved, gives us somewhat greater pause.  The "vehicle" involved in this case was a submersible drilling barge which, at the time of the well blowout, was resting on the bottom of an eight foot deep canal.  There seems little doubt that if the present action were one for personal injuries under the Jones Act or maritime law sustained by one having the status of a Robison seaman that the drilling barge, even in its submerged position, would be considered a "vessel" for purposes of the Act.  See, Offshore Co. v. Robison, 266 F.2d 769, 779, 1959 A.M.C. 2049 (5th Cir. 1959); Producers Drilling Company v. Gray, 361 F.2d 432, 434 (5th Cir. 1966).  However, we are not convinced that the term "vessel" for Jones Act purposes, which is subject to liberal construction consistent with the purposes of the Act, is necessarily a vessel for other purposes as well.5  At any rate, we believe that even though a structure may meet some abstract definition of "vessel" under certain circumstances, this is not necessarily dispositive of the issue of whether the structure has a substantial relationship to maritime activity at the time of the incident in question.  With regard to the instant case, if prior to the well blowout Sinbad had been retrieved from Davey Jones' locker and placed on the deck of the Sohyde 28, it is doubtful that among the first words to leave his mouth would have been "weigh anchor".  Although the Sohyde 28 may have had some maritime character at the time of the well blowout in the sense that it floated in and presumably would float out it clearly was not substantial.

20
As for the "instrumentalities" involved in this case, they were essentially the same as those involved in a land-based workover operation.  The record is littered with references to blowout preventers (consisting of pipe rams, blind rams and hydrils), tubing, drilling mud, and the like.  None of these instrumentalities have a peculiarly salty flavor.

21
Factor (iii) under Kelly, the causation and type of injury, similarly has little maritime character.  The District Court found among the causes of the well blowout were the failure of Sohyde to maintain proper mud levels during the process of changing rams on the blowout preventers, the failure of Sohyde to complete the ram change operations within a reasonable period of time under the prevailing emergency conditions, the failure of Sohyde to maintain its equipment in fit condition, and the failure of Coastal properly to supervise the operations.  All of these causative factors could just as easily have occurred on land.

22
The injury occasioned in this case was merely a well blowout with attendant property damage and loss.  The District Court awarded damages to Coastal for expenses incurred in attempting to control the well blowout, repairing surface facilities at the well, achieving partial production of reserves from a relief well, and plugging and abandoning the original well.  The Court awarded additional damages for the value of gas which burned or escaped before the well was controlled and the value of gas lost in reserves which could have been produced.  Damages of this type are indistinguishable from those arising from land-based well blowouts.

23
The final Kelly factor (iv), the traditional concept of the role of admiralty, similarly does not compel us to find a substantial maritime relationship in this case.  As the Court stated in Kelly : "The admiralty jurisdiction of federal courts stems from the important national interest in uniformity of law and remedies for those facing the hazards of waterborne navigation."  485 F.2d at 526.  This case, which involves a well blowout in a dead-end canal slip in Louisiana is simply not of such a character that leaving the parties to pursue state law remedies would disturb the federal interest of maintaining the uniformity of maritime law.  Under the circumstances, we believe that the interests of federal-state comity would be best served by having this dispute resolved under state law.

Dispute Anchored In Louisiana

24
Although we conclude that admiralty jurisdiction was improperly assumed in this case because of the lack of a substantial maritime relationship, we nevertheless remand this case for further proceedings by the District Court.  The District Court's conclusion that the cause of the well blowout was 25% due to the negligence of Coastal was made in light of its erroneous conclusion that the maritime rule of comparative negligence controlled the case.  Findings which are made under erroneous legal principles cannot be credited.  See Kirksey v. City of Jackson, 625 F.2d 21, 21-22 (5th Cir. 1980); NLRB v. Alterman Transport Lines, 587 F.2d 212, 220 (5th Cir. 1979); Theriault v. Silber, 547 F.2d 1279, 1280 (5th Cir.), cert. denied, 434 U.S. 871, 98 S.Ct. 216, 54 L.Ed.2d 150 (1977); Costello v. Lipsitz, 547 F.2d 1267, 1276-77 (5th Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 109, 54 L.Ed.2d 88 (1977).  Consequently, we are unable to say that the District Court would have reached the same conclusion if it had considered the case in light of the contributory negligence rule of Louisiana, and accordingly we deem remand to be appropriate.

25
By our remand, we make no intimations as to the appropriate allocation of fault by the District Court in this case, nor, even more fundamentally, as to whether Federal jurisdiction lies under some ground other than admiralty.  Furthermore, we not pass at this time on the question of whether Market's insurance policy covers any liability which Sohyde might ultimately have to Coastal since there is at least a reasonable possibility that this question may be rendered moot by the liability decision, if any, of the District Court on remand.

26
VACATED AND REMANDED.

1
 Various Sohyde entities were involved in this case.  Sohyde Drilling and Workover Company entered into the contract with Coastal; Sohyde Drilling and Marine Company owned the barge; and Sohyde Drilling and Exploration Company owned certain equipment located on the barge.  Because it is unnecessary to distinguish between these various entities, for purposes of this appeal we refer to them collectively as "Sohyde"

2
 Market's policy with Sohyde contained a $100,000.00 policy limit

3
 Sohyde asserts in the alternative that even if admiralty jurisdiction lies in this case, Louisiana substantive law should apply.  In light of our ultimate holding, we need not pass on this question

4
 At least three Federal District Courts and one noteworthy treatise have reached this same conclusion.  See Jorsch v. LeBeau, 449 F.Supp. 485, 487 (N.D.Ill., 1978); Roberts v. Grammer, 432 F.Supp. 16, 18 (E.D.Tenn.1977); Complaint of Cook Transportation System, Inc., 431 F.Supp. 437, 442 (W.D.Tenn.1976).  See also 7A Moore's Federal Practice (2d ed.) P .325(4) n. 30 (Supp.): "The fact that a vessel causes shore-inflicted harm is not itself sufficient to trigger application of the Extension of Admiralty Jurisdiction Act.  There must, additionally, be some maritime nexus."

5
 Certain language in Robison suggests that the term "vessel" is given particularly liberal construction under the Jones Act and thus that a "Jones Act vessel" might not necessarily be a "vessel" for other purposes:
The (Jones) Act has always been construed liberally, but recent decisions have expanded the coverage of the Jones Act to include almost any workman sustaining almost any injury while employed on almost any structure that once floated or is capable of floating on navigable waters.
266 F.2d at 771.
... under the Jones Act a vessel may mean something more than a means of transport on water.
Id. at 776.
Expansion of the terms 'seaman' and 'vessel' are consistent with the liberal construction of the Act that has characterized it from the beginning and is consistent with its purposes.
Id. at 780.  See also 7A Moore's at P .215(6):
When attempting to determine whether a structure is or is not a "vessel", within the scope of a particular statutory enactment, the underlying intent of the legislature should be ascertained, if at all feasible.  Notwithstanding that two statutes contain substantially similar definitions of the term vessel, what may reasonably qualify as a "vessel" for the purpose of one statute might well thwart the purpose of the other statute.
Id. at pp. 2432-33.
Thus, notwithstanding two statutes may contain substantially identical language or even both adopt the same statutory definition of "vessel," it is entirely conceivable that what may constitute a "vessel" for one purpose may well constitute a different type of structure for purposes of applying the other statute.  In short, reason and legislative intent must prevail over a literal reading of the acts.
Id. at p. 2434.
The problem is also posed in determining whether a structure classed as a vessel for Jones Act purposes is a "vessel" for purposes of Limitation of Shipowner's Liability, 46 U.S.C.A. § 181, et seq.  See, In re United States Air Force Texas Tower No. 4, 203 F.Supp. 215 (S.D.N.Y.1962).
Finally, for a review of cases in which courts have been forced to draw distinctions between terms which have different meanings depending on the federal statute or policy being invoked, see Stevens v. Seacoast Company, 414 F.2d 1032, 1039 n. 8 (5th Cir. 1969).


92 B.R. 713 (1988)
In re Rodney B. RICHMOND, Debtor.
Bankruptcy No. 83-02630-H3-3.
United States Bankruptcy Court, S.D. Texas, Houston Division.
July 29, 1988.
*714 Michael J. Pledger, Houston, Tex., for debtor.
Lillian D. Brigman, Atty., Tax Div., Dept. of Justice, Dallas, Tex., for U.S. (IRS).

MEMORANDUM AND ORDER ON MOTIONS FOR PARTIAL SUMMARY JUDGMENT
LETITIA Z. CLARK, Bankruptcy Judge.
This cause having come before the Court on Debtor's Motion for Partial Summary Judgment and United States of America's Internal Revenue Service ("IRS") Motion for Partial Summary Judgment and the Court finding that there are no genuine issues of material fact as to the following issues, finds and concludes:
1. The IRS claim for 1977 individual income taxes was timely filed November 3, 1983; that portion of the Supplemental No. 1 Proof of Claim filed on behalf of the IRS regarding Debtor's individual income taxes for the year 1977 including interest is hereby allowed and the claim classified as a secured claim.
2. That portion of the Supplemental No. 1 Proof of Claim filed on behalf of the IRS for Debtor's individual income taxes for the years 1978, 1980, 1981, and 1982 including interest is hereby allowed as a priority claim. The timely filed claim for 1977 federal income taxes indicated an intent on the part of the IRS to hold the Debtor liable for past-due federal income taxes and pre-petition interest. In re Simms, 40 B.R. 186 (N.D.Ga.1984). If both a timely claim and a late claim are "of the same generic origin," then notice to the debtor of the timely claim results in adequate notice to the debtor of the late claim. Menick v. Hoffman, 205 F.2d 365 (9th Cir. 1953); (A timely IRS claim for unpaid employer withholding taxes gave adequate notice of a late claim for individual income taxes); Matter of Saxe, 14 B.R. 161 (S.D.N.Y.1981) (A timely IRS claim for personal income taxes gave sufficient notice of potential claims for personal liability on unpaid corporate payroll taxes.) And See I.R.C. § 7501.
3. The Administrative claim filed on behalf of the IRS for post-petition individual income taxes for the year 1983 including interest is not dischargeable under 11 U.S.C. § 1328(a) as it did not become due until April 15, 1984, after confirmation of the plan on December 20, 1983, and as it was not provided for in the plan.
4. The Supplemental No. 2 Proof of Claim filed on behalf of the IRS for employment taxes including penalties and interest is hereby allowed as a priority claim but only to the extent that Debtor is personally liable for same as opposed to the corporate liability of Debtor's business. Menick v. Hoffman, supra; I.R.C. § 7501. Thus, it is hereby,
*715 ORDERED that Debtor's Motion for Partial Summary Judgment is granted in part and denied in part in accordance with the above findings and conclusions and it is further,
ORDERED that IRS' Motion for Partial Summary Judgment is granted in part and denied in part in accordance with the above findings and conclusions, and it is further,
ORDERED that a Pre-Trial Order will issue with regard to docket control dates for trial of the remaining issues.


889 F.2d 1091
Webb Corporationv.American Centennial Ins. Co.
NO. 88-2836
United States Court of Appeals,Eighth Circuit.
JUL 18, 1989

1
Appeal From:  W.D.Mo.

2
AFFIRMED.


      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                      NO. 03-03-00674-CR

                                 The State of Texas, Appellant

                                                 v.

                                Kelly Michelle Nance, Appellee

             FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY
           NO. 2C03-06551, HONORABLE JOHN BARINA JR., JUDGE PRESIDING

                            MEMORANDUM OPINION

               The State appeals from the trial court’s order granting appellee Kelly Michelle

Nance’s motion to suppress evidence. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp.

2004). We affirm the order.

               Nance was arrested for driving while intoxicated after she was stopped by Temple

Police Officer Curtis Hills on July 20, 2003. Nance moved to suppress all evidence obtained by

Hills on the ground that the warrantless stop was without constitutional or statutory justification.

See U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. arts. 14.01-.06 (West

1977 & Supp. 2004), art. 38.23 (West Supp. 2004).
                   The only witness at the suppression hearing was Officer Hills. He testified that he

was behind Nance as she drove east on Southwest Loop 363 at about 9:00 p.m. He noticed that she

was “weaving within her lane.” That is, she was moving from side-to-side within a single lane of

traffic, but never left that lane. Hills said that Nance made this weaving maneuver ten or fifteen

times within a space of three hundred feet.

                   Nance, who was driving in the far left lane, made a U-turn under the loop and began

to drive west. As she was merging with the westbound traffic, which Hills described as heavy, she

made a “sudden stop” at a yield sign to permit vehicles to pass. Hills continued to follow Nance for

another three hundred feet before stopping her, and noticed that she continued to weave within her

lane of traffic.

                   Hills testified that he did not see Nance commit a traffic offense or suspect her to be

driving while intoxicated. She was driving about ten miles-per-hour under the posted speed limit,

but this was not unlawful. He said that he decided to stop Nance, “Due to the heavy traffic, with her

weaving, I thought that she’s probably tired.” He explained that tired drivers are a danger to

themselves and others because they can fall asleep and cause accidents. He was of the opinion that

the potential for harm posed by a sleepy driver required immediate action on his part.

                   In her argument to the court, the prosecutor urged that the stop was a lawful exercise

of the officer’s community caretaking function. See Corbin v. State, 85 S.W.3d 272, 276-77 (Tex.

Crim. App. 2002). Nance’s counsel replied that the facts shown did not warrant the stop on

                                                     2
community caretaker grounds. Without further comment, the court granted the motion to suppress.

The court did not make written findings and conclusions.

               When we review a trial court’s ruling on a motion to suppress evidence, we defer to

the court’s factual determinations but review de novo the court’s application of the law to the facts.

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When, as here, the trial court does not

make findings of fact, we assume that the court made implicit findings supported by the record that

buttress its ruling. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).

               Viewing the evidence in the light most favorable to the trial court’s ruling, we believe

that the court could reasonably conclude that the level of distress manifested by Nance was not

sufficiently serious to warrant the stop. See Corbin, 85 S.W.3d at 277. But even if we agreed with

the State that the officer’s testimony supported the application of the community caretaker rule, we

would nevertheless affirm the suppression order. We will not adopt a legal theory that leads to

reversal if there is a viable theory that supports the ruling. State v. Ross, 32 S.W.3d 853, 858 (Tex.

Crim. App. 2000). When there are no findings of fact, we will not assume that the court granted the

motion to suppress because it erroneously applied the law to the facts. Id. Instead, we must assume

that the court granted the motion because it did not credit the officer’s testimony. Id. at 859.

               The State makes the alternative argument that the stop was justified by a reasonable

suspicion that Nance was intoxicated. This argument is not properly before us because it was not

made in the trial court. See State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998). But even

if it were before us, we would not assume error for the reason explained above.

                                                  3
              Finding no basis for disturbing the trial court’s ruling, we affirm the order granting

the motion to suppress evidence.

                                             __________________________________________

                                             Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: July 15, 2004

Do Not Publish

                                                4


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 99-7260

WILLIAM HARTMAN,

                                           Petitioner - Appellant,

          versus

SEWALL B. SMITH, Warden; ATTORNEY GENERAL FOR
THE STATE OF MARYLAND,

                                          Respondents - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-
99-740-PJM)

Submitted:   December 7, 1999          Decided:     December 27, 1999

Before WILKINS and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

William Hartman, Appellant Pro Se. John Joseph Curran, Jr., Attor-
ney General, Ann Norman Bosse, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     William Hartman seeks to appeal the district court’s order

denying relief on his petition filed under 28 U.S.C.A. § 2254 (West

1994 & Supp. 1999).   We have reviewed the record and the district

court’s opinion and find no reversible error. Accordingly, we deny

a certificate of appealability and dismiss the appeal on the rea-

soning of the district court. See Hartman v. Smith, No. CA-99-740-

PJM (D. Md. July 12, 1999).*   We dispense with oral argument be-

cause the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.

                                                         DISMISSED

      *
         Although the district court’s memorandum and order are
marked as “filed” July 9, 1999, the district court’s records show
that they were entered on the docket sheet on July 12, 1999.
Pursuant to rules 58 and 79(a) of the Federal Rules of Civil
Procedure, it is the date that the memorandum and order were
entered on the docket sheet that we take as the effective date of
the district court’s decision.    See Wilson v. Murray, 806 F.2d
1232, 1234-35 (4th Cir. 1986).

                                 2


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 06-7839

BILLIE AUSTIN BRYANT,

                                           Petitioner - Appellant,

          versus

UNITED STATES PAROLE COMMISSION; A. F. BEELER,
Warden,

                                          Respondents - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:05-hc-00801-BO)

Submitted:   May 16, 2007                  Decided:   June 21, 2007

Before WILLIAMS, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Billie Austin Bryant, Appellant Pro Se. Steve R. Matheny, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Billie Austin Bryant, a federal prisoner, appeals the

district court’s order denying relief on his 28 U.S.C. § 2241

(2000)   petition.   We   have   reviewed   the   record   and   find   no

reversible error. Accordingly, we affirm for the reasons stated by

the district court. See Bryant v. United States Parole Comm’n, No.

5:05-hc-00801-BO (E.D.N.C. Sept. 26, 2006).       We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

                                                                 AFFIRMED

                                 - 2 -


176 Cal.App.4th 1355 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
TODD HOVDA, Defendant and Appellant.
No. C058800.
Court of Appeals of California, Third District.
August 24, 2009.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*1356 Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.

*1357 OPINION
ROBIE, J.
Defendant Todd Hovda had five convictions for driving under the influence and finally killed someone. A jury found him guilty of gross vehicular manslaughter while intoxicated (a felony) and driving with a license suspended for driving under the influence (DUI) (a misdemeanor), and it found he had a prior DUI conviction. The trial court found he had five prior DUI convictions. The court sentenced him to prison for 15 years to life on the felony and a concurrent 30 days on the misdemeanor.
(1) In the published part of our opinion, we conclude the trial court did not err in failing to instruct the jury that gross negligenceone of the elements of gross vehicular manslaughter while intoxicated (see Pen. Code, § 191.5, subd. (a))requires conscious indifference to consequences. No such instruction was necessary because CALCRIM No. 590, the pattern instruction on gross vehicular manslaughter while intoxicated the trial court gave here, conveys the equivalent of "conscious indifference" by informing the jury that gross negligence exists only if "[a] reasonable person would have known that acting in that way would create" "a high risk of death or great bodily injury."
In the unpublished part of our opinion, we conclude the trial court did not improperly impose two restitution fines, but we nonetheless order minor corrections to the abstract of judgment relating to the fines the court imposed.

DISCUSSION

I

Gross Vehicular Manslaughter
The underlying facts are not material to our decision. Suffice it to say that in January 2006, defendant was speeding while intoxicated and crashed his car into another car, killing his passenger. On appeal, he contends CALCRIM No. 590the pattern instruction on gross vehicular manslaughter while intoxicated given in this case"failed to advise the jury that it [had to] find that [he] was consciously indifferent to the consequences of his conduct," which he contends is an "essential element of gross negligence." We find no merit in this argument.
As relevant here, the trial court instructed the jury as follows: "Gross negligence involves more than ordinary carelessness, inattention, or mistaken judgment. [¶] A person acts with gross negligence when, one, he or she acts in a reckless way that creates a high risk of death or great bodily injury; and *1358 two, a reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with gross negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation, that his or her act amounts to disregard [f]or human life or indifference to the consequence of that act."
Defendant faults this instruction because the word "indifference" in the final sentence set forth above is not qualified with the word "conscious." He contends such qualification is necessary because "it alone demarcates the distinction between ordinary and gross negligence." Not so.
(2) It is true gross negligence "has been defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences." (People v. Watson (1981) 30 Cal.3d 290, 296 [179 Cal.Rptr. 43, 637 P.2d 279].) As defendant himself acknowledges, however, what the phrase "conscious indifference" is intended to express is the concept that "gross negligence requires an objective level of awareness of the risk involved." In Watson, our Supreme Court expressed this requirement in a different manner when it stated that "[a] finding of gross negligence is made by applying an objective test: if a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness." (Ibid., italics omitted.) Nearly the same expression appears in the part of CALCRIM No. 590 that tells the jury gross negligence exists if "[a] reasonable person would have known that acting in that way would create" "a high risk of death or great bodily injury."
If a person acted in a way that a reasonable person would have known would create a high risk of death or great bodily injury, then that person acted with conscious indifference to the consequences. Thus, CALCRIM No. 590 does convey the concept defendant contends is missing, and defendant's claim of instructional error is without merit.

II

Restitution Fine[*]

DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment: (1) adding reference to the $200 fine imposed pursuant *1359 to Penal Code section 672 as to count one; and (2) omitting reference to a $100 restitution fine as to count two. The trial court is further directed to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
Cantil-Sakauye, J., concurred. Blease, Acting P. J., concurred in the result.
NOTES
[*]  Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part II of the Discussion.
[*]  See footnote, ante, page 1355.