Monday, July 31, 2006

Federal Murder Conviction Reversed on Double Jeopardy Grounds, But Death Sentence Nevertheless Affirmed

United States v. Agofsky, No. 04-41219 (5th Cir. July 28, 2006)

Agofsky killed a fellow inmate at a federal pentitentiary in Beaumont, Texas. He was charged and convicted of murder by a federal prisoner serving a term of life imprisonment (18 U.S.C. §§ 1111, 1118), and premeditated first degree murder (18 U.S.C. § 1111). "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."

On appeal, Agofsky argued that his conviction of both murder counts violated the Double Jeopardy Clause because they were for the same offense. Applying the Blockburger elements test, the court agreed. Both offenses share three common elements: "(1) an unlawful killing (2) with malice aforethought and (3) premeditation." Murder by a Federal Prisoner has an additional element: "that the defendant be a federal prisoner serving a life sentence." The government argued that the two offenses have different jurisdictional elements, thus making them different offenses under the Blockburger test. However, the Fifth Circuit held in United States v. Gibson, 820 F.2d 692 (5th Cir. 1987) that "jurisdictional elements do not count for double jeopardy purposes." The court therefore held that "Federal Murder, as charged in this indictment, is the same offense for double jeopardy purposes as Murder by a Federal Prisoner." The court expressed "some concern with the reasoning of Gibson" (apparently there's a circuit split on the issue), but it was nevertheless bound to follow Gibson.

The court therefore vacated Agofsky's convictions on both counts and remanded with instructions for the district court to enter a guilty verdict and death sentence on the count elected by the Government. The court declined to vacate Agofsky's death sentence because the jury made separate recommendations on both counts, and so it was "'clear' that the invalid conviction 'did not lead the district court to impose a harsher sentence' on the surviving count."

The court also rejected Agofsky's claims regarding his sentence, holding that 1) a note sent by the jury during deliberations did not indicate that the death sentence was influenced by an arbitrary factor, 2) there was sufficient evidence to support the jury's finding that Agofsky committed the murder in an "especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim[,]", and 3) "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." The opinion does not elaborate on what that inconsistentcy might have been.


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