United States v. Shannon Wayne Agofsky, United States of America v. Joseph Anthony Agofsky

Citation: 20 F.3d 866Docket: 92-3767, 92-3783

Court: Court of Appeals for the Eighth Circuit; May 13, 1994; Federal Appellate Court

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Shannon and Joseph Agofsky were convicted by a jury of conspiracy to rob a federally insured bank, aggravated armed robbery, and the use of a firearm during the commission of a federal crime. The district court sentenced them to life imprisonment plus sixty months. On appeal, they contested the sufficiency of evidence supporting the verdicts, the denial of their motions for severance, the refusal to give an alibi instruction, and the failure to rule on certain pro se motions prior to sentencing. Additionally, Shannon Agofsky argued that the district court should have declared a mistrial due to purportedly improper prosecutorial remarks and should have granted his motions to suppress evidence. The court affirmed the convictions.

The robbery of the State Bank of Noel occurred on the night of October 5-6, 1989, with $71,562.25 stolen. Evidence included bullet casings, vault keys found in the vault door, and a surveillance camera lens covered with spray paint. The bank president, Dan Short, went missing, and his body was later discovered in Grand Lake, with evidence suggesting he was murdered. The investigation led to the arrest of the Agofskys, both of whom were convicted on all charges. They argued insufficient evidence for their involvement, particularly regarding the existence of an agreement to commit robbery and direct participation in the crimes.

The convictions of the Agofskys must be upheld if, when viewing the evidence favorably to the government, a reasonable fact-finder could determine guilt beyond a reasonable doubt. Key evidence against Shannon Agofsky includes four fingerprints found on duct tape used to bind a victim, with expert testimony suggesting these prints were made as the tape was removed from its spool. Additional evidence consists of Agofsky’s admission to a fellow inmate regarding his involvement in a kidnapping and bank robbery, his access to a similar van used in the crime, a neighbor’s testimony of seeing a man resembling Agofsky near the victim’s home prior to the robbery, possession of a gun matching the one used, and having rolls of nickels at arrest. This evidence supports convictions for firearm and aggravated armed robbery, as well as involvement in the victim's death.

Agofsky also challenges the sufficiency of evidence for conspiracy. To prove conspiracy, the government must show beyond a reasonable doubt that an agreement existed for an illegal purpose, that Agofsky was aware of this agreement, and that he intentionally joined it. Given the secretive nature of conspiracies, such an agreement may be inferred from circumstances, and can be established through circumstantial evidence. The government can satisfy its burden by showing the defendants acted in concert towards a common goal or with tacit understanding, and the lack of identification of other conspirators does not prevent a conspiracy conviction.

Shannon Agofsky was implicated in a conspiracy to rob the State Bank of Noel, supported by substantial evidence including witness testimonies about multiple vehicles being used during the crime, sightings of Shannon near Dan Short's home days before the robbery, and discussions he had about the bank's blueprints and potential kidnapping plans with his friend Gant Sanders. Witnesses observed Shannon and others discussing means to execute the robbery, including plans to drive a tow truck through the bank wall. Post-robbery, Shannon was seen cleaning firearms to eliminate fingerprints, which indicated consciousness of guilt.

Joseph Agofsky was also found to have sufficient evidence linking him to the conspiracy. He inquired about Short's residence and displayed unusual spending behavior post-robbery despite being unemployed. Additionally, a fellow inmate testified that Joseph admitted to participating in the crimes. Both Shannon and Joseph Agofsky could be reasonably linked to the conspiracy and thus held liable for the crimes committed in furtherance of it, with the possibility of conviction on aggravated robbery and firearm charges supported by the evidence presented.

Both defendants, Joseph and Shannon Agofsky, filed motions to sever their trials before the commencement, claiming reversible error when the court denied these requests. The appeals court applies a standard that requires proof of clear prejudice and abuse of discretion to reverse such rulings. Generally, co-defendants in a conspiracy are tried together, and mere disparity in the evidence against each does not warrant severance. Defendants must demonstrate actual prejudice, showing the jury could not compartmentalize the evidence related to each defendant. 

During the trial, each defendant pointed to evidence presented against the other as harmful, arguing it impeded the jury's ability to distinguish between their cases. However, given the straightforward nature of the charges against only two defendants, the court concluded that the jury was capable of appropriately handling the evidence without confusion and found no abuse of discretion in refusing severance.

Additionally, the Agofskys contended that the district court erred by not allowing their proposed alibi instructions, which would have directed the jury to acquit if they had reasonable doubt about a defendant's presence at the crime. The court rejected this claim, stating that the instructions were flawed because a conspirator can be held accountable for the actions of co-conspirators regardless of their physical presence. The defense argued that the alibi instructions were relevant to the charges of bank robbery and firearms, but since the charges included theories of direct participation and aiding and abetting, the jury could convict even if alibi evidence was persuasive. 

The court also noted that the alibi defense was presented during closing arguments, the jury was instructed on the burden of proof, and the evidence against the defendants was strong, rendering any potential error harmless beyond a reasonable doubt.

The Agofskys request remand for resentencing, arguing that the district court erred by not ruling on pro se motions filed by their mother, Sheila Agofsky Billbe, while the Agofskys were represented by counsel. Billbe lacked the authority to act as an attorney since she was neither a litigant nor a licensed attorney, as established in cases like Valiant-Bey v. Morris and Osei-Afriyie v. Medical College of Pa. Additionally, the Agofskys' counsel had not been granted leave to withdraw prior to sentencing, meaning the Agofskys were still represented when their mother made the filings. There is no constitutional or statutory right to proceed pro se while also being represented by counsel, as noted in Brasier v. Jeary and Munz v. Fayram. Although some jurisdictions have rules against such simultaneous representation, the court found no error in denying the pro se motions.

Shannon Agofsky contends that the district court incorrectly overruled his motion to suppress evidence obtained from an inventory search of his car, which revealed eight rolls of nickels. The motion was timely and the facts were undisputed. The search occurred following his arrest under an unrelated federal warrant. Inventory searches must be conducted at the stop location whenever feasible, and the search was performed according to police procedures. These procedures allow for inventory searches as long as they adhere to standard operating protocols, which can be either written or established unwritten procedures. The Rogers Police Department's guidelines permit inventory searches but require that the arrested person be given a chance to have a responsible individual take charge of the vehicle; if no such person is available in a reasonable timeframe, the vehicle must be impounded.

The Fourth Amendment does not mandate that police departments allow an arrested individual to arrange for another person to retrieve their vehicle to prevent impoundment. In this case, the district court evaluated whether Sergeant Russell's actions exceeded the Rogers Police Department's policy, ultimately finding no error in the district court's decision. Sergeant Russell, aware that Shannon Agofsky had a female acquaintance in Rogers but no other contacts nearby, chose to impound Agofsky's car after failing to locate the acquaintance and determining he could not wait for someone to travel from Noel. Russell's actions were deemed to be in good faith, consistent with reasonable police regulations.

Agofsky acknowledged that his arrest was unrelated to the investigation of the Noel bank incident, reinforcing the notion of lawful conduct. Even if the admission of certain evidence, such as nickel rolls, was improper, it was considered harmless error.

Additionally, Agofsky challenged the admission of dental records pertaining to a victim, arguing insufficient foundation due to the records being provided by a new dentist. However, since the defense only raised a general objection, specific foundation challenges were not preserved for appeal, and substantial additional evidence of identity rendered any potential error harmless.

Lastly, Agofsky argued against the district court's decision not to declare a mistrial following closing arguments that he deemed improper. The arguments pertained to the lack of evidence linking bullet casings found at the bank to firearms owned by the defendants. The defense suggested that the government failed to match the casings to the Agofskys' firearms, while the prosecution countered that the absence of a matching firearm from Shannon Agofsky negated the defense's claims.

Shannon Agofsky contended that statements made during the trial led the jury to wrongly infer that he bore the burden of producing evidence regarding the gun. The district court determined that the prosecutor's remarks were a proper reaction to the defense's closing arguments. Appeals courts will only reverse a district court's decision against declaring a mistrial if there is a clear abuse of discretion. In this case, the appellate court found no abuse of discretion in the district court's refusal to declare a mistrial, noting that the language cited by Agofsky was ambiguous and that the district court was in the best position to assess the context of the statements. Consequently, the convictions were affirmed. Shannon and Joseph Agofsky received sentences of five years for conspiracy and firearms charges, and life imprisonment for aggravated robbery, with the conspiracy and firearms sentences running concurrently and the aggravated robbery sentence running consecutively. Evidence indicated that the victim, Short, had been abducted, supported by the discovery of his belongings at his residence and the absence of his eyeglasses. The court acknowledged substantial evidence linking the nickel rolls found in Agofsky's possession to the robbery. Joseph Agofsky's argument regarding his counsel's lack of involvement at sentencing was deemed meritless, negating the need to address his self-representation concerns. The record includes ten volumes of transcripts, but the discussion is limited to facts pertinent to the court's decision.