UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5982

KITTRELL BERNARD DECATOR,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4371

KITTRELL BERNARD DECATOR,

Defendant-Appellant.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Frank A. Kaufman, Senior District Judge.

(CR-95-202-K)

Argued: March 6, 1997

Decided: May 6, 1997

Before HAMILTON, and WILLIAMS, Circuit Judges, and

KISER, Senior United States District Judge for the

Western District of Virginia, sitting by designation.

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Affirmed in part, vacated in part, and remanded in part by unpublished per curiam opinion.

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COUNSEL

ARGUED: Michael Schatzow, VENABLE, BAETJER & HOWARD, L.L.P., Baltimore, Maryland, for Appellant. James G. Warwick, Assistant United States Attorney, Baltimore, Maryland, for

Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney,

Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

In December 1995, a jury convicted Kittrell Bernard Decator of

conspiracy to commit bank robbery, see 18 U.S.C.A. § 371 (West

1966 & Supp. 1997); armed bank robbery, see 18 U.S.C.A. § 2113(a)

(West Supp. 1997); attempted armed bank robbery, see 18 U.S.C.A.

§ 2113(f) (West Supp. 1997); and two counts of using or carrying a

firearm during the commission of a crime of violence, see 18

U.S.C.A. § 924(c) (West Supp. 1997). Additionally, the district court

found Decator guilty of criminal contempt during the trial. The district court imposed concurrent sentences of 77 months for the conspiracy, robbery, and attempted robbery convictions. The court sentenced

Decator to 20 years for each of the two firearms convictions, and 6

months for the criminal contempt. These three sentences were to run

consecutively to each other and to the 77-month concurrent sentences.

Decator noted timely appeals from his convictions and sentences on

the five conspiracy-related counts and from his criminal contempt

conviction. We have consolidated the two appeals.

Decator asserts that the underlying indictment, upon which his robbery, firearms, and conspiracy convictions were based, should have

been dismissed with prejudice due to prosecutorial misconduct, thus

vacating the convictions. Decator also claims that he is entitled to a

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new trial because the district court erroneously denied various

motions to suppress physical evidence and statements he made, and

erroneously denied his request for a jury instruction on single versus

multiple conspiracies. Decator also challenges his 77-month concurrent sentences for conspiracy, bank robbery, and attempted bank robbery. In addition, he challenges his criminal contempt conviction.

After a careful review of the briefs and record, and after hearing oral

arguments from counsel, we affirm Decator's convictions, but remand

for resentencing on the conspiracy, robbery, and attempted robbery

convictions.

I.

During the summer of 1993, Decator, Craig Lamont Scott, Keith

E. Bryant, and Jonathan Mark Jones agreed to rob a bank to obtain

funds to finance the development of an entertainment company. In

anticipation of the robbery, the four men had regular practice sessions, obtained a layout of the Maryland National Bank on York Road

in Baltimore County, Maryland, conducted surveillance, and selected

getaway routes. On September 21, 1993, the defendants, armed with

guns, entered the bank and stole approximately $290,000 in cash. In

November 1993, I.C. Entertainment, Inc. was established. By April

1994, however, the company and the individual defendants began

experiencing financial difficulties. As a result, the group decided to

rob another bank to satisfy their individual debts and those of I.C.

Entertainment. On June 6, 1994, Decator, Scott, and Bryant botched

a robbery of the First National Bank on Woodlawn Drive in Baltimore County.1 However, two days later, Decator, Scott, and Jones

successfully stole $117,000 from the same Maryland National Bank

they had robbed nine months earlier. Bryant remained in his apartment during the robbery, readying items for cleaning the money

should the bank's dye packs explode. Fortunately, a witness became

suspicious when he observed the three men fleeing the scene of the

robbery and obtained the getaway vehicle's license plate number. The

police discovered that the vehicle was registered to Decator. They

then surveilled Decator's residence where they arrested Decator and

Jones when they returned to the residence in a rented vehicle later that

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1 Jones helped plan the robbery of the First National Bank, but was

unable to participate because he was recovering from a stab wound.

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afternoon. The rented vehicle was impounded and a subsequent

search of the vehicle revealed two .9 mm pistols, a dye-stained latex

glove, a loaded revolver that had been taken from the bank guard during the June 8 robbery, and various articles of clothing matching the

description given by witnesses of what the robbers wore during the

heist. A digital beeper recovered from Decator was subsequently activated and led police to Scott, who was leaving a nearby hotel. He had

been cleaning the stolen money which had been stained when the

bank's dye-packs had exploded. Bryant was not identified and

arrested until months later.

In July 1994, Decator, Jones, and Scott were charged in a sevencount indictment with conspiracy to commit bank robbery (count 1),

a September 21, 1993 armed bank robbery (count 2), a June 6, 1994

attempted armed bank robbery (count 4), a June 8, 1994 armed bank

robbery (count 6), and using and carrying a firearm during the commission of a crime of violence (counts 3, 5 and 7). Each defendant

pleaded not guilty and moved for severance of counts and defendants.

The district court agreed to sever Jones's trial from the remaining

defendants. The court ordered Decator and Scott tried jointly, but severed the counts so that the joint trial was for the June 8 robbery and

the related firearms charge only.2

During the course of the November 1994 trial, the Government

moved to dismiss without prejudice the remaining five charges

(counts 1, 2, 3, 4, and 5) against Decator and Scott, which had been

severed from the two counts being tried. After a lengthy discussion,

both Decator and Scott consented to the dismissal without prejudice,

and the district court granted the motion. The court required, however, that the Government make an election regarding reinstatement

of the charges by March 15, 1995. On March 15, the district court

granted the Government's ex parte motion for an extension of time to

reindict to May 5, 1995. On May 4, 1995, the grand jury returned an

indictment against Decator, Scott, and a fourth defendant, Bryant. The

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2 Decator and Scott were both convicted of the June 8 bank robbery and

related firearms charge. Decator was sentenced to 87 months imprisonment for the robbery charge and 5 years, consecutively, for the firearms

offense. Their appeals are presently pending before another panel of this

court. See United States v. Decator, No. 95-5207(L).

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indictment charged Decator and Scott with the September 21 robbery,

the June 6 attempted robbery, two related firearms charges, and conspiracy -- the identical five charges that previously had been dismissed. Bryant was charged with the September 21 and June 8 bank

robberies, the June 6 attempted robbery, three related firearms

charges, and conspiracy.

Decator and Scott moved to dismiss the second indictment based

on prosecutorial misconduct and the Government's failure to reindict

by the district court's original March 15 deadline. Although the district court denied their motion, the court granted Scott and Bryant's

motion for severance of defendants and ordered Decator tried

separately.3 On December 6, 1995, a jury found Decator guilty of all

five counts. In addition, the district court found Decator guilty of

criminal contempt after a verbal outburst during the delivery of the

verdict.

II.

As noted, Decator raises numerous issues on appeal. He challenges

the district court's failure to dismiss the second indictment, the admissibility of certain evidence, the failure to give a requested jury instruction, his sentencing, and the basis of his criminal contempt

conviction. We address each argument in turn.

A.

Decator appeals the district court's denial of his motion to dismiss

the second indictment. He contends that the Government acted in bad

faith when it moved for a dismissal without prejudice of counts 1, 2,

3, 4, and 5 of the first indictment. He argues that the only adequate

remedy is dismissal of the second indictment and subsequent reversal

of the convictions. Cf. United States v. Derr , 726 F.2d 617, 619 (10th

Cir. 1984) (dismissing second indictment, thereby effectively altering

first dismissal to one with prejudice after finding prosecutor failed to

articulate reasons for first dismissal); United States v. Salinas, 693

F.2d 348, 353 (5th Cir. 1982) (reversing convictions arising from

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3 In October 1995, Bryant and Scott were found guilty on all counts

charged.

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reindictment after finding that the Government had moved for dismissal of original indictment in bad faith). We review the district

court's disposition of the Government's motion to dismiss the indictment for abuse of discretion. See United States v. Smith, 55 F.3d 157,

158 (4th Cir. 1995).

The Federal Rules of Criminal Procedure require a prosecutor to

obtain leave of court to terminate a prosecution by dismissal of an

indictment. See Fed. R. Crim. P. 48(a)."The principal object of the

`leave of court' requirement is apparently to protect a defendant

against prosecutorial harassment, e.g., charging, dismissing, and

recharging, when the Government moves to dismiss an indictment

over the defendant's objection." Rinaldi v. United States, 434 U.S. 22,

29 n.15 (1977); see also Smith, 55 F.3d at 158-59 (quoting United

States v. Cowan, 524 F.2d 504, 509-11 (5th Cir. 1975)). Although the

prosecution must obtain leave of court, the district court has limited

discretion in considering the Government's motion to dismiss. As this

Court has held:

The disposition of a government's motion to dismiss an

indictment should be decided by determining whether the

prosecutor acted in good faith at the time he moved for dismissal. A motion that is not motivated by bad faith is not

clearly contrary to manifest public interest, and it must be

granted.

Smith, 55 F.3d at 159. As a result, unless the prosecutor's motivation

was contrary to the public interest, e.g.,"the prosecutor's acceptance

of a bribe, personal dislike of the victim, [or] dissatisfaction with the

jury impaneled," id., the district court must grant the motion to dismiss.

On appeal, Decator contends that the Government sought dismissal

of the initial indictment in bad faith. Specifically, he contends that the

Government abused the grand jury process when it obtained the first

indictment knowing that it lacked evidence to sustain the five counts

it later sought to dismiss, and thereafter improperly induced Decator's

consent to the dismissal by failing to disclose the insufficiency of its

evidence. Decator bases his allegations of prosecutorial misconduct

on two statements submitted by the Government to the district court

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in pretrial memorandums. He contends that these"admissions," made

subsequent to the grant of the dismissal, are conclusive evidence that

the Government sought dismissal of the initial indictment in bad faith.

First, Decator points to the Government's statement in its ex parte

motion that it moved to dismiss the five counts against Decator

because "[a]dequate evidence to proceed to trial against Decator . . .

was not available." (J.A. at 107.) Second, in a consolidated response

to various motions by the defendants, the Government again stated

that it sought the dismissal after "[i]t became apparent that there was

insufficient evidence at that time to sustain the charges relative to

those events against Decator and Scott." (J.A. at 136.)

The Government responds that the above statements are not to be

construed as admissions that it improperly obtained an indictment

knowing that it lacked a prosecutable case. The Government steadfastly maintains that it presented a legally sufficient case to the grand

jury to acquire an indictment on all charges. Rather, the Government

argues, the quoted statements described the prosecutor's own apprehension that the evidence accumulated at that time was insufficient to

secure a conviction. According to the Government, it moved for dismissal without prejudice of the remaining five charges in a good faith

and common-sense effort to structure more efficiently its prosecution

of the entire conspiracy. As the Government explained to the district

court, the various severance motions necessarily delayed and complicated prosecution on the remaining five counts, thereby raising scheduling concerns, and the Government was attempting to work within

the district court's calendar. The Government also admitted that it

was still engaged in "an ongoing investigation" into this complex

bank robbery conspiracy. The Government asserts that it was this procedural conundrum, coupled with the prosecutor's personal dissatisfaction with the evidence accumulated against Decator at the time,

that led it to move in good faith for dismissal of the charges without

prejudice. Moreover, although Decator initially objected to the dismissal, he eventually consented, and he never objected to the sufficiency of the first indictment prior to reindictment. The Government

contends, therefore, that Decator cannot now complain that the district court abused its discretion when it granted the motion.

We find that Decator has failed to present any credible evidence

that the prosecutor moved for dismissal in bad faith. As to the alleged

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admissions of insufficient evidence, the prosecutor explained to the

satisfaction of the district court and this Court that the statements simply reflected his personal uneasiness about the evidence acquired and

were not meant to suggest that the Government had insufficient evidence to support the first indictment. The Government's lack of bad

faith is further demonstrated by the promptness of its dismissal

motion, and by its timely and successful prosecution of Decator for

the June 8 robbery and related firearms charge. Cf. Derr, 726 F.2d at

618-19 (dismissing reindictment when motion to dismiss initial

indictment was made on the first day of the trial, no explanation was

given, and defendant objected); Salinas, 693 F.2d at 352-53 (dismissing reindictment when motion to dismiss initial indictment was made

after selection of jury and resolution of numerous pretrial motions).

Considering the total lack of evidence suggesting prosecutorial misconduct and Decator's consent to the dismissal without prejudice, the

district court did not abuse its discretion in granting the dismissal

without prejudice.

Furthermore, we conclude that the second indictment was not

untimely. In its motion to extend the time for reindictment, the Government argued that it needed additional time to corroborate the testimony of Jones, a co-conspirator who had just begun cooperating with

law enforcement, and to collect additional evidence regarding two

more suspects that had been identified with the conspiracy. Considering Jones's newly-acquired cooperation and the new evidence coming

to light, we cannot say that the district court abused its discretion in

granting the motion. We, therefore, affirm the district court's refusal

to dismiss the second indictment.

B.

Decator also argues that the district court committed reversible

error when it denied his motion to suppress statements he made and

tangible evidence seized by police during a warrantless search of his

automobile on June 8, 1994, the day of the second bank robbery. We

do not address this issue, however, because both Decator and the

Government stipulated that they would abide by the decision of a different panel of this Court, who heard arguments on this issue in connection with Decator's appeal of his November 1995 conviction. See

United States v. Decator, No. 95-5207(L) (appeal pending).

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C.

Decator also contends that because a factual question existed as to

whether the bank robberies were all part of a single conspiracy or

multiple conspiracies, the district court erred in denying his motion

to charge the jury on multiple conspiracies. We review a district

court's refusal to give a defendant's requested jury instruction for

abuse of discretion. See United States v. Bostian, 59 F.3d 474, 480

(4th Cir.), cert. denied, 116 S. Ct. 929 (1996). "A multiple conspiracy

instruction is not required unless the proof at trial demonstrates that

appellants were involved only in `separate conspiracies unrelated to

the overall conspiracy charged in the indictment.'" United States v.

Kennedy, 32 F.3d 876, 884 (4th Cir. 1994) (quoting United States v.

Casteneda-Cantry, 20 F.3d 1325, 1333 (5th Cir. 1994)). Because

Decator failed to present evidence to support a multiple conspiracy

instruction, we find his argument to be without merit.

Decator was indicted, along with Scott and Bryant, on a single

charge of conspiracy "to commit and attempt to commit bank robbery." The indictment alleged that the robbery of September 21, 1993,

the attempted robbery of June 6, 1994, and the robbery of June 8,

1994, were all relevant acts done in furtherance of a single conspiracy

to secure money for themselves and to obtain funds to finance the creation of an entertainment company. Decator's request for an instruction on multiple conspiracies was based on his interpretation of

Jones's testimony that two separate conspiracies took place. According to Decator, Jones's testimony supported Decator's theory that the

initial conspiracy, undertaken solely to obtain funds to finance the

entertainment company, culminated with the September 21 robbery.

A second conspiracy was then initiated several months later for the

entirely different purpose of acquiring funds to satisfy the individual

co-conspirator's debts and to begin new and separate ventures. The

district court denied Decator's request, concluding that there was substantial evidence supporting the Government's theory of a single,

ongoing conspiracy.

The Government presented evidence that (1) the same four defendants participated in all three robberies, (2) extensive planning and

preparation took place prior to the robberies which were all executed

in a similar and sophisticated manner, (3) the four defendants main-

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tained their close affiliation throughout the intervening nine months

between robberies, and (4) the primary motivation for all three bank

robbery incidents was the promotion of I.C. Entertainment, Inc. Based

on the foregoing, the district court did not abuse its discretion by

refusing to instruct on multiple conspiracies. Cf. Kennedy, 32 F.3d at

884 (affirming district court's refusal to instruct on multiple conspiracies when there was "ample evidence that the[defendants] were

related by virtue of their extensive and long-lasting . . . relationships").

D.

Decator also challenges his sentences for conspiracy, the September 21 bank robbery, and the June 6 attempted bank robbery, contending that the district court, after imposing a sentence of 67 months

during the sentencing hearing, erroneously increased the sentence to

77 months in its written judgment. We conclude that the district court

failed to impose any sentence on Decator during the sentencing hearing. Rather, the district court failed to sentence Decator until it issued

its written judgment of conviction, outside Decator's presence, in violation of Rule 43 of the Federal Rules of Criminal Procedure. Rule 43

requires that a "defendant shall be present at the arraignment, at the

time of the plea, at every stage of the trial including the impaneling

of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule." Fed. R. Crim. P.

43(a). Accordingly, we remand for resentencing.

As a result of his November 1994 convictions for the June 8 bank

robbery and related firearms charge, Decator had already served 20

months for his conspiracy-related crimes when he appeared before the

district court in February 1996 for sentencing on the five convictions

arising out of his second indictment. During the hearing, at which

Decator was present, the district court stated its intent not to penalize

Decator for being tried and convicted in two separate trials rather than

in a single trial. In other words, the district court explained that it

intended to sentence Decator as if all his conspiracy-related sentences

had been imposed at the same time. However, the district court also

wanted to give Decator "full credit" for the 20 months served.

A lengthy discussion ensued regarding how the district court could

accomplish these objectives. Counsel for Decator suggested that the

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district court could simply reduce Decator's final sentences on the

three convictions by 20 months to account for the time already served.

This computation would produce a sentence of 67 months. We disagree with Decator that the district court agreed to this calculation.

Instead, the court directed counsel for Decator and the Government

to coordinate with the Bureau of Prisons to determine the proper

wording for a written order that would impose a sentence on Decator

equal to the time he would have served if he had been sentenced for

all seven convictions simultaneously, taking into account the 20

months he had already served. After the sentencing hearing, counsel

for Decator and the Government failed to agree on the proper wording

to carry out the district court's intentions. After receiving written correspondence from counsel, the district court ultimately issued its written judgment in which it adopted, without explanation, the

Government's proposed sentence of 77 months.

Although we disagree with Decator's assertion that the district

court sentenced him to 67 months and then improperly increased this

sentence, we also disagree with the Government's argument that the

sentence should be affirmed because "[t]he ambiguity in the oral pronouncement of sentence was effectively and conclusively resolved in

the written Judgment and Commitment." (Appellee's Br. at 38.)

Unfortunately, the district court failed to reconvene the sentencing

hearing to pronounce the sentence in Decator's presence, explain its

reasoning, and allow opposing arguments from counsel. As a result,

we conclude that the district court erroneously sentenced Decator outside of his presence in violation of Rule 43 of the Federal Rules of

Criminal Procedure. Accordingly, we must remand for resentencing.4

E.

Decator contends that his conviction for criminal contempt should

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4 Nothing we have said should be construed as a comment on the propriety of the ultimate sentence imposed on Decator. We simply note that

under the circumstances of this case, the district court has the discretion

to impose a sentence for the instant offense that runs "concurrently, partially concurrently, or consecutively to the prior undischarged term of

imprisonment . . . to achieve a reasonable punishment." U.S. Sentencing

Guidelines Manual § 5G1.3(c), p.s. & comment. (n.3) (1995).

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be reversed because his conduct did not constitute criminal contempt.

Decator also argues that even if his actions were contemptuous, the

district court failed to certify that it "saw or heard the conduct" and

that the conduct "was committed in the actual presence of the court,"

as required by Rule 42(a) of the Federal Rules of Criminal Procedure.

We conclude that Decator's arguments are without merit and affirm

Decator's contempt conviction.

As the jury delivered its guilty verdict, Decator became loud and

abusive, proclaiming his innocence, accusing the prosecutors and witnesses of lying, and verbally assaulting the jurors. This type of contumacious behavior clearly warrants a conviction of criminal contempt.

See In re Chaplain, 621 F.2d 1272, 1277 (4th Cir. 1980) (en banc)

(acknowledging that "`threatening the judge or disrupting a hearing or

obstructing court proceedings'" are examples of direct criminal contempt) (quoting Harris v. United States, 382 U.S. 162, 164 (1965))).

Also, the district court's order, in which it stated that it based its

finding of criminal contempt on Decator's "statements and actions

[made] during the taking of the jury verdicts in open Court," (J.A. at

484), fully satisfies the requirements of Rule 42(a). Moreover, in

United States v. Neal, 101 F.3d 993 (4th Cir. 1996), this court held

that a criminal contempt charge involving

conduct occurring in the presence of the judge, which disturbs the court's business, where all of the essential elements of the misconduct are under the eye of the court . . .

and where immediate punishment is essential to prevent

demoralization of the court's authority before the public . . .

may be punished summarily without notice and a hearing.

Id., at 997 (quotation and citations omitted) (first alteration in original); see also Fed. R. Crim. P. 42(a). Therefore, "[e]xcept for serious

criminal contempts, the procedural safeguards required for criminal

contempt proceedings do not apply when the conduct in question

occurs in the actual presence of the court." Neal, 101 F.3d at 997 n.1

(citing International Union, UMWA v. Bagwell, 114 S. Ct. 2552, 2557

n.2 (1994)). We conclude that the district court did not abuse its discretion in convicting Decator of criminal contempt.

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III.

In conclusion, we affirm all of Decator's convictions, including his

conviction for criminal contempt. However, we vacate Decator's 77-

month concurrent sentences for conspiracy, bank robbery, and

attempted bank robbery, and remand for resentencing.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED IN PART

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