United States v. Decator ( 1997 )

UNPUBLISHED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 unpub-
lished per curiam opinion.
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COUNSEL
ARGUED: Michael Schatzow, VENABLE, BAETJER & HOW-
ARD, L.L.P., Baltimore, Maryland, for Appellant. James G. War-
wick, Assistant United States Attorney, Baltimore, Maryland, for
Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney,
Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit.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 dis-
trict court imposed concurrent sentences of 77 months for the conspir-
acy, 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 rob-
bery, 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
2
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 concur-
rent sentences for conspiracy, bank robbery, and attempted bank rob-
bery. 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 ses-
sions, 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 Balti-
more 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 apart-
ment 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.
3
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 dur-
ing 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 acti-
vated 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 seven-
count 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 com-
mission 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 sev-
ered 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, how-
ever, 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 imprison-
ment 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).
4
indictment charged Decator and Scott with the September 21 robbery,
the June 6 attempted robbery, two related firearms charges, and con-
spiracy -- the identical five charges that previously had been dis-
missed. 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 dis-
trict 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 admis-
sibility of certain evidence, the failure to give a requested jury instruc-
tion, 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.
5
reindictment after finding that the Government had moved for dis-
missal of original indictment in bad faith). We review the district
court's disposition of the Government's motion to dismiss the indict-
ment 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 dis-
missal. 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 dis-
miss.
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
6
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 stead-
fastly 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 appre-
hension that the evidence accumulated at that time was insufficient to
secure a conviction. According to the Government, it moved for dis-
missal 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 compli-
cated prosecution on the remaining five counts, thereby raising sched-
uling 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 pro-
cedural conundrum, coupled with the prosecutor's personal dissatis-
faction 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 dis-
missal, he eventually consented, and he never objected to the suffi-
ciency of the first indictment prior to reindictment. The Government
contends, therefore, that Decator cannot now complain that the dis-
trict 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
7
admissions of insufficient evidence, the prosecutor explained to the
satisfaction of the district court and this Court that the statements sim-
ply reflected his personal uneasiness about the evidence acquired and
were not meant to suggest that the Government had insufficient evi-
dence 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 (dismiss-
ing 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 mis-
conduct 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 Gov-
ernment argued that it needed additional time to corroborate the testi-
mony 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. Consider-
ing 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 dif-
ferent panel of this Court, who heard arguments on this issue in con-
nection with Decator's appeal of his November 1995 conviction. See
United States v. Decator, No. 95-5207(L) (appeal pending).
8
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 rob-
bery." 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 cre-
ation of an entertainment company. Decator's request for an instruc-
tion on multiple conspiracies was based on his interpretation of
Jones's testimony that two separate conspiracies took place. Accord-
ing 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 sub-
stantial evidence supporting the Government's theory of a single,
ongoing conspiracy.
The Government presented evidence that (1) the same four defen-
dants 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-
9
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 conspira-
cies when there was "ample evidence that the[defendants] were
related by virtue of their extensive and long-lasting . . . relation-
ships").
D.
Decator also challenges his sentences for conspiracy, the Septem-
ber 21 bank robbery, and the June 6 attempted bank robbery, contend-
ing 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 hear-
ing. Rather, the district court failed to sentence Decator until it issued
its written judgment of conviction, outside Decator's presence, in vio-
lation 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 sen-
tence, 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
10
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 dis-
agree 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 cor-
respondence from counsel, the district court ultimately issued its writ-
ten 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 pro-
nouncement 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 out-
side 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 pro-
priety 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, par-
tially 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).
11
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 wit-
nesses of lying, and verbally assaulting the jurors. This type of contu-
macious 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 con-
tempt) (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 dis-
turbs the court's business, where all of the essential ele-
ments 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 origi-
nal); 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 dis-
cretion in convicting Decator of criminal contempt.
12
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
13