United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 28, 2006
______________________
Charles R. Fulbruge III
No. 04-41219 Clerk
______________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHANNON WAYNE AGOFSKY,
Defendant - Appellant.
______________________
Appeal from the United States District Court
for the Eastern District of Texas
_____________________
Before: DeMOSS, BENAVIDES, and PRADO, Circuit Judges.
BENAVIDES, Circuit Judge:
In this direct criminal appeal, Shannon Agofsky challenges his
two capital murder convictions and two death sentences, which arise
out of a single killing. We vacate the convictions because, under
the circumstances of this case, the dual murder convictions
violated Agofsky’s double jeopardy rights. We remand for the
Government to elect which conviction and death sentence should
remain.
I. BACKGROUND
The Government charged Agofsky with two types of capital
murder. Count 1 of the indictment charged Agofsky with
premeditated murder by a federal prisoner serving a term of life
imprisonment, in violation of 18 U.S.C. §§ 1118, 1111 (2000 & 2003
Supp.) (“Murder by a Federal Frisoner”). Count 2 of the indictment
charged Agofsky with premeditated, first degree federal murder, in
violation of 18 U.S.C. § 1111 (2000 & 2003 Supp.) (“Federal
Murder”).
The two murder charges stemmed from a single death. The
evidence adduced at trial showed that Agofsky murdered Luther
Plant, an inmate incarcerated with Agofsky at the federal
penitentiary in Beaumont, Texas. Agofsky killed Plant by striking
him to the floor and then repeatedly stomping his head and neck
into the concrete. The jury returned a guilty verdict on both
counts of the indictment.
At the sentencing phase, the Government introduced evidence of
Agofsky’s prior murder conviction. He had killed a bank president
during the course of an armed robbery by tying him to a chair and
throwing him into a lake. The Government also presented the jury
with evidence that Agofsky had engaged in prior serious misconduct
while in prison and bragged about his violent tendencies. The jury
found several statutory and non-statutory aggravating factors,
including that the murder was especially heinous, cruel, or
depraved. After considering a variety of mitigating factors, the
jury found that a death sentence was warranted as to each count of
conviction. In this appeal, Agofsky challenges his convictions and
sentences on a number of grounds.
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II. DISCUSSION
A. DOUBLE JEOPARDY
Agofsky first argues that the two-count indictment charged him
twice for the same offense, thereby violating the Double Jeopardy
Clause. The parties agree that we should review de novo. They
also agree that Blockburger v. United States, 284 U.S. 299 (1932),
controls our analysis of whether the offenses are the same for
double jeopardy purposes. “Under the Blockburger test, each
offense must contain an element not contained in the other; if not,
they are the same offense . . . and double jeopardy bars subsequent
punishment or prosecution.” United States v. Sharpe, 193 F.3d 852,
863 (5th Cir. 1999).
1. ANALYSIS
As charged by the Government in this case, both Federal Murder
and Murder by a Federal Prisoner require proof of (1) an unlawful
killing (2) with malice aforethought and (3) premeditation.1 The
parties agree that Murder by a Federal Prisoner contains a unique
additional element, i.e., that the defendant be a federal prisoner
serving a life sentence. The only dispute is whether Federal
Murder contains an element not contained in Murder by a Federal
Prisoner.
1
Since the Government does not contend that the
premeditation element charged in the Count 1 of the indictment
was superfluous for double jeopardy purposes, we do not consider
the complex issues that might be raised by such an argument here.
3
The Government argues that Federal Murder’s jurisdictional
element—that the crime must occur “within the special maritime and
territorial jurisdiction of the United States”—is distinct from any
jurisdictional element found in Murder by a Federal Prisoner.2 See
18 U.S.C. § 1111(b). The Government argues further that such a
distinct jurisdictional element renders two crimes different for
double jeopardy purposes. Because we reject the second contention,
we do not consider the first.
The Government’s argument overlooks that we have held that
jurisdictional elements do not count for double jeopardy purposes.
In United States v. Gibson, 820 F.2d 692 (5th Cir. 1987), this
Court addressed a double jeopardy challenge to convictions under
two federal robbery statutes. One statute proscribed “robbery of
one having lawful custody of mail or other property of the United
States.” Id. at 697. The other prohibited “robbery within the
special maritime and territorial jurisdiction of the United
States.” Id. The Gibson Court agreed with the Government that the
two robbery statutes each contained a distinct element. Id. at
698. Gibson nonetheless held that conviction under both statutes
violated the Double Jeopardy Clause:
We do not believe . . . that the differences [between the
2
The Murder-by-a-Federal-Frisoner statute does not
explicitly state the same jurisdictional element as the Federal
Murder statute, though the former does provide that the murder
must occur while the defendant is “confined in a Federal
correctional institution.” 18 U.S.C. § 1118.
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statutes] here would satisfy the intended purpose of the
Blockburger test. In Blockburger itself, the two facts
to be proven constituted two evils that Congress sought
to combat . . . . By contrast, in the instant case one
of the two facts to be proven under one section but not
the other is strictly jurisdictional: that the crime
occurred within United States jurisdiction. As one
writer on the subject has stated, “when offenses differ
only because they have different jurisdictional bases
they should not be punished cumulatively.” A
jurisdictional fact, while a prerequisite to prosecution
under a particular statute, is not in itself an evil that
Congress seeks to combat.
Id. (internal citation omitted).
The jurisdictional element that the Gibson Court refused to
consider for double jeopardy purposes is identical to the element
the Government relies on in the case at bar.
We have some concern with the reasoning of Gibson. See United
States v. Harrison, 64 F.3d 491, 496 (9th Cir. 1995) (rejecting
Gibson because it “ignores the fact that Congress may have strong
interests in treating crimes occurring within the jurisdiction of
the United States differently from those occurring elsewhere”).
However, Gibson is still binding on this panel. See United States
v. Avants, 278 F.3d 510, 518 n.7 (5th Cir. 2002). We must follow
Gibson “until either this court sitting en banc or the Supreme
Court says otherwise.” See Cardenas v. Dretke, 405 F.3d 244, 253
(5th Cir. 2005). Therefore, we hold that Federal Murder, as
charged in this indictment, is the same offense for double jeopardy
purposes as Murder by a Federal Prisoner. Accordingly, we vacate
Agofsky’s convictions for Federal Murder and Murder by a Federal
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Prisoner; on remand the district court should enter a guilty
verdict, as the Government may elect, of either Federal Murder or
Murder by a Federal Prisoner. See United States v. Goff, 847 F.2d
149, 179 (5th Cir. 1988) (on reh’g).
2. REMEDY
Agofsky maintains that neither of his death sentences can
stand in light of this double jeopardy violation, citing United
States v. Causey, 185 F.3d 407 (5th Cir. 1999). We disagree.
Agofsky’s reliance on Causey is misplaced. After finding a
double jeopardy violation, Causey did vacate each of the three
death sentences at issue there. However, such a course was
required in Causey primarily because “[t]he jury did not make
separate recommendations concerning the appropriate penalties for
each count of conviction.” Id. at 423. Rather than addressing
each death-eligible count separately, the jury simply made one
generalized finding that “the aggravating factors sufficiently
outweighed any mitigation to justify a sentence of death.” Id. at
412. By contrast, in the case at bar, the jury made separate
recommendations concerning the appropriate penalty for each count
in the indictment. In light of the jury’s distinct recommendations
on each count, Causey is inapposite.
The separate sentencing recommendations not only distinguish
Causey but also explain why Agofsky’s case falls under the general
rule that reversal of one conviction on double jeopardy grounds
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does not require resentencing on any remaining count. No such
resentencing is required on a surviving count so long as it is
“clear” that the invalid conviction “did not lead the district
court to impose a harsher sentence” on the surviving count. United
States v. Narviz-Guerra, 148 F.3d 530, 534 (5th Cir. 1998); United
States v. Dixon, 132 F.3d 192, 196 (5th Cir. 1997). Here, it is
clear that Agofsky’s conviction for either murder did not lead the
jury to recommend a harsher sentence for the other, inasmuch as the
verdict forms strictly segregated the jury’s sentencing decision
between the two counts. Accordingly, the district court should
reenter on remand, pursuant to the jury’s previous sentencing
verdict, a death sentence as to the murder conviction the
Government elects to retain.
B. THE JURY NOTE AS EVIDENCE OF AN ARBITRARY FACTOR
Agofsky’s second claim is that his death sentence was imposed
under the influence of an arbitrary factor. During the punishment
phase deliberations, the jury sent a note to the district court as
follows: “If a verdict of life is imposed, will the jury be polled
as it will for the death penalty[?]” With Agofsky’s agreement, the
district court sent a response note. It advised the jury, “After
a verdict is returned but before the jury is discharged, the court
must on a party’s request, or on its own, poll the jurors
individually.” Agofsky never complained below regarding the jury
note or the court’s response. He now contends, however, that the
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note shows that some jurors feared being polled individually due to
possible negative public reaction to imposition of a life sentence.
This fear, he alleges, was an arbitrary factor that tainted the
jury’s decision to recommend death.
1. STANDARD OF REVIEW
Although the parties agree that Agofsky failed to preserve his
claim, they dispute the standard of review. In particular, the
parties disagree over how to interpret Jones v. United States, 527
U.S. 373 (1999). However, we need not decide which standard is
correct because Agofsky’s arbitrary-factor claim fails even under
de novo review.
2. ANALYSIS
The Federal Death Penalty Act requires a court of appeals to
vacate a death sentence if it “finds” that the sentence was imposed
“under the influence of passion, prejudice or any other arbitrary
factor.” 18 U.S.C. § 3595(c)(2) (2000) (emphasis added). In light
of the statutory language requiring a “find[ing]” of arbitrariness
before granting relief, and in accord with persuasive authority, we
hold that the circumstances must show that an arbitrary factor
“most likely” influenced the sentence. See United States v.
Johnson, 223 F.3d 665 (7th Cir. 2000). The jury note pointed to by
Agofsky does not make such a showing.
Other explanations for the jury note seem equally plausible as
Agofsky’s theory that the jurors voted for death to avoid negative
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public reaction. Perhaps the jurors were considering evading the
unanimity requirement and rendering a secretly-divided verdict for
life, which they could accomplish if they would not be polled
individually for a life verdict. Alternatively, perhaps potential
public reaction was on the minds of the jurors, but they ultimately
refused to let their personal concerns impact their duty to follow
the law and base their verdict on the evidence.3 Neither of these
explanations seem materially more or less likely than Agofsky’s
theory. In any event, Agofsky’s speculations as to the
significance of the jury’s note do not suffice for us affirmatively
to find an arbitrary influence. Thus, Agofsky’s claim fails.
C. SUFFICIENCY OF EVIDENCE THAT CRIME WAS ESPECIALLY HEINOUS,
CRUEL OR DEPRAVED
Agofsky’s next claim of error in his sentencing is that the
evidence is insufficient to support the jury’s finding that he
committed the murder in an “especially heinous, cruel, or depraved
manner in that it involved torture or serious physical abuse to the
victim.” 18 U.S.C. § 3592(c)(6) (2000) (listing this as a
statutory aggravator). “As with any criminal verdict, [this Court]
reviews jury findings of aggravating factors by asking whether,
after viewing the evidence in a light most favorable to the
3
In this regard, the Government points out that the note was
sent in the morning only two minutes after deliberations
reconvened for a new day and posits that the note may simply
reflect questions that occurred to one or two jurors while they
were adjourned for the night.
9
government, any rational trier of fact could have found the
existence of the aggravating circumstance beyond a reasonable
doubt.” United States v. Bernard, 299 F.3d 467, 481 (5th Cir.
2002).
As indicated by the statute, a murder may be especially
heinous, cruel, or depraved if it involves either torture or
serious physical abuse. The jury’s verdict form, however, only
mentioned serious physical abuse and omitted any reference to
torture. Therefore, the question for us reduces to whether there
was sufficient evidence of heinousness, cruelty, or depravity in
the context of serious physical abuse.
For serious physical abuse to be aggravating in a murder case,
a defendant must inflict suffering or mutilation above and beyond
that necessary to cause death. See United States v. Hall, 152 F.3d
381, 414–15 (5th Cir. 1998), abrogated on other grounds by United
States v. Martinez-Salazar, 528 U.S. 304, 310 (2000) (approving a
jury instruction which so provided). Furthermore, a defendant must
intend such gratuitous violence for the murder to involve serious
physical abuse. See id. (approving an instruction which provided
that “the defendant must have specifically intended the abuse apart
from the killing”); United States v. Webster, 162 F.3d 308, 324
(5th Cir. 1998) (stating that the “especially heinous, cruel, and
depraved” factor focuses on the defendant’s “actions and intent”).
In this case, a rational jury could find beyond a reasonable
10
doubt that Agofsky intended to inflict (and in fact inflicted) more
abuse than necessary to cause Plant’s death. Agofsky’s attack
involved continued stomping of Plant’s face and neck. The jurors
heard eyewitness testimony that Agofsky stomped Plant’s head and
neck into the concrete “around 11” times. A medical examiner later
confirmed that Plant’s injuries were the result of “repeated
blows.” Furthermore, the corrections officer who witnessed the end
of the assault testified that Agofsky continued stomping Plant even
after Plant lost consciousness. While Agofsky delivered his final
blows, Plant did not put his hands up to defend himself; rather, he
was “just . . . laying down face up on his back on the ground.”
Cf. United States v. Robinson, 367 U.S. 278, 289 n.18 (5th Cir.
2004) (“[T]he evidence that Robinson riddled Reyes’s body with
bullets after he was on the ground provides probable cause to
believe that the murder was committed in an especially heinous,
cruel, or depraved manner . . . .”).
The assault was so violent that it splattered Plant’s blood
and other bodily fluids on the floor and wall of the exercise area.
Medical evidence adduced at trial revealed that Plant suffered the
following injuries: a crushed neck (i.e., numerous broken neck
bones), large abrasions on the back of his head, hemorrhaging
around both eyes, a broken nose, a large bruise across his nose,
abrasions and lacerations around his mouth, a broken jaw, one lost
tooth, three other broken teeth, cheek abrasions, and internal
11
bleeding into his trachea, lungs, esophagus, and stomach. Based on
the evidence above, the jury rationally could have found that
Agofsky intended to inflict, and did inflict, greater suffering or
mutiliation than necessary to cause death.
Agofsky makes two main arguments in opposition to this
conclusion. He points to Government testimony that the entire
assault lasted only a matter of seconds. He also represents that
he voluntarily stopped the assault while Plant was still alive
(though apparently already brain dead). Agofsky argues that these
two circumstances belie an intent to cause needless injury or
mutilation beyond that required to kill. These arguments cannot
surmount the high standard-of-review hurdle on appeal. First,
violence need not be protracted to be gratuitous. See United
States v. Chanthadara, 230 F.3d 1237, 1262 (10th Cir. 2000)
(holding that a murder victim could be tortured within the meaning
of the Federal Death Penalty Act without being subjected to
prolonged harm). Thus, a rational jury could have rejected
Agofsky’s time-line inference and found that he inflicted serious
physical abuse despite the brevity of the attack. Second, the jury
rationally could have found that Agofsky ceased the attack only
after delivering abuse over and above that necessary to cause
death. For the reasons above, Agofsky’s challenge to the jury’s
aggravating-factor finding fails.
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D. INCONSISTENT VERDICTS
Finally, we find no merit in Agofsky’s argument that his
conviction or sentence for Federal Murder is invalid because the
jury may have rendered inconsistent verdicts as between the guilt
and punishment phases on that count. See Dunn v. United States,
284 U.S. 390 (1932); United States v. Powell, 469 U.S. 57, 69
(1984) (“The rule [permitting inconsistent verdicts] established in
Dunn v. United States has stood without exception . . . .”)4
III. CONCLUSION
Accordingly, we VACATE Agofsky’s convictions to prevent double
jeopardy. See Goff, 847 F.2d at 179. We REMAND to the district
court WITH INSTRUCTIONS to impose, at the Government’s election, a
guilty verdict and death sentence for either Federal Murder or
Murder by a Federal Prisoner. See id; Narviz-Guerra, 148 F.3d at
534.
4
Agofsky asserts additional claims solely to preserve them
for further review. Inasmuch as Agofsky concedes that these
claims are foreclosed by precedent binding on this Court, we do
not address them.
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