U.S. v. Agofsky, s. 92-3767

• Decision Date: 10 May 1994
• Docket Number: 92-3783,Nos. 92-3767,s. 92-3767
• Citation: 20 F.3d 866
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shannon Wayne AGOFSKY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseph Anthony AGOFSKY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 866

20 F.3d 866

UNITED STATES of America, Plaintiff-Appellee, v. Shannon Wayne AGOFSKY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Anthony AGOFSKY, Defendant-Appellant.

Nos. 92-3767, 92-3783.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 8, 1993.

Decided April 1, 1994.

Rehearing Denied May 10, 1994 in No. 92-3767.

Rehearing and Suggestion for Rehearing En Banc Denied May

13, 1994 in No. 92-3783.

Paul D. Snyder, Kansas City, MO, argued, for Shannon Agofsky.

Bruce C. Houdek, Kansas City, MO, argued for Joseph Anthony Agofsky.

Michael A. Jones, U.S. Atty's Office, Springfield, MO, argued, for appellee.

Before HANSEN, Circuit Judge, JOHN R. GIBSON ^*, Senior Circuit Judge, and MELLOY ^**, Chief District Judge.

JOHN R. GIBSON, Senior Circuit Judge.

A jury convicted Shannon and Joseph Agofsky, following a joint trial, of three charges: 1) conspiracy to rob a federally insured bank, 18 U.S.C. Sec. 371 (1988); 2) aggravated armed robbery of a federally insured bank, 18 U.S.C. Sec. 2113(a), (d) & (e) (1988); and 3) use of a firearm during the commission of a federal crime of violence, 18 U.S.C. Sec. 924(c)(1) (1988). The district court ¹ sentenced each of them to life imprisonment plus sixty months in accordance with the applicable sentencing guidelines. ² On appeal, both argue the district court erred in: 1) concluding there was sufficient evidence to support the jury's verdicts; 2) denying their motions for severance; 3) refusing to give an alibi instruction; and 4) refusing to rule on certain pro se motions prior to sentencing. Shannon Agofsky also argues that the district court erred in refusing to declare a mistrial after allegedly improper prosecutorial statements and in denying his motions to suppress evidence. We affirm the convictions.

On Friday morning, October 6, 1989, an assistant cashier, Pauline Coonrod, discovered that the State Bank of Noel, located in rural southwest Missouri, had been robbed during the night. A subsequent examination of the bank revealed empty bullet casings, vault keys (normally kept in a desk) in the vault door, overturned empty teller drawers, and the surveillance camera with spray paint covering its lens and two indentations later determined to be the result of .45 caliber bullets. In all, $71,562.25 was stolen, including a substantial amount in rolled coins. Dan Short, the bank president, was missing. ³ Short's truck was located later Friday morning in a parking lot three miles from Noel. The truck bed contained seven rolls of pennies.

On October 11, Short's body was found floating in Grand Lake of the Cherokees, near Cowskin Bridge. Investigators found a chair, a concrete block, and a chain hoist attached with gray duct tape to Short's left ankle. A wallet found on the body contained Short's identification. After conducting an autopsy and reviewing Short's dental records, Dr. Robert Hemphill determined the body to be that of Short, and submitted a death certificate that listed drowning as the cause of death. Following a lengthy investigation, Shannon and Joseph Agofsky were arrested. A jury convicted them on all counts and this appeal followed.

I.

The Agofskys argue that there was insufficient evidence to support the jury's verdicts. Shannon Agofsky contends that the government offered no evidence that he entered into an agreement to rob the State Bank of Noel. He also claims insufficient evidence exists of his participation in the substantive aggravated robbery and firearm crimes. Joseph Agofsky makes similar arguments, asserting a lack of evidence indicating an agreement and inadequate direct evidence linking him to the substantive crimes.

We must affirm the Agofskys' convictions "if, viewing the evidence in the light most favorable to the government and giving the government the benefit of all reasonable inferences, ... a reasonable fact-finder could have found guilt beyond a reasonable doubt." United States v. Brown, 956 F.2d 782, 785 (8th Cir.1992) (quoting United States v. Foote, 898 F.2d 659, 663 (8th Cir.), cert. denied, 498 U.S. 838, 111 S.Ct. 112, 112 L.Ed.2d 81 (1990), and cert. denied, 498 U.S. 938, 111 S.Ct. 342, 112 L.Ed.2d 307 (1990)); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1941). The jury must resolve conflicts in testimony and judge the credibility of witnesses. United States v. Nelson, 984 F.2d 894, 898-99 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2945, 124 L.Ed.2d 693 (1993). We must affirm if substantial evidence exists to support the verdicts. Glasser, 315 U.S. at 80, 62 S.Ct. at 469; United States v. Thomas, 992 F.2d 201, 204 (8th Cir.1993).

We begin by considering the government's evidence against Shannon Agofsky. ⁴ The government introduced expert testimony identifying four separate fingerprints of Shannon Agofsky, recovered from the tacky side of duct tape used to bind Short to the chair. Two of the prints were recovered from the tape found attached to Short and the chair. The other two came from a piece of tape washed up nearby which, the evidence showed, had been torn from the tape found on the chair. A government expert testified that, in his opinion, the prints were placed as the tape was removed from its spool. The government also introduced testimony of Shannon Agofsky's detailed admission to a fellow inmate during which Agofsky explained how he used a gun to kidnap the banker and rob the bank. The government's additional evidence linking Shannon Agofsky to the robbery included his access to a van similar to one used by the perpetrators, testimony by Short's neighbor that a man looking like Shannon had been in front of Short's house a few days before the robbery, Shannon's possession of a gun like the one used in the crime, and his possession of eight rolls of nickels at the time of his arrest. ⁵ This evidence, with all reasonable inferences which favor the government, supports the jury's firearm and aggravated armed robbery convictions, and indeed, Shannon Agofsky's involvement in Short's death.

Shannon Agofsky also contests the adequacy of the government's evidence of a conspiracy. A conspiracy requires the government to prove beyond a reasonable doubt that there was an agreement to achieve an illegal purpose, that the defendant knew of this agreement, and that the defendant intentionally joined the conspiracy. United States v. Rogers, 982 F.2d 1241, 1244 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 3017, 125 L.Ed.2d 706 (1993). Due to the highly secretive nature of conspiracies, however, an agreement may be inferred from the surrounding circumstances. Id.; United States v. Kellermann, 992 F.2d 177, 179 (8th Cir.1993) ("Evidence of a conspiracy need not be direct and, in fact, may be totally circumstantial."); United States v. Kroh, 915 F.2d 326, 332 (8th Cir.1990) (en banc). The government meets its burden if it proves that the defendants acted in concert to achieve a common goal, Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974), or acted with a tacit understanding, United States v. Powell, 853 F.2d 601, 604 (8th Cir.1988). The fact that the identity of some or all other members of the conspiracy remains unknown will not preclude a conspiracy conviction. United States v. Smiley, 997 F.2d 475, 479 (8th Cir.1993).

The government presented ample evidence implicating Shannon Agofsky in an agreement to rob the State Bank of Noel. There was considerable evidence that Shannon Agofsky did not carry out the crime alone. Several witnesses testified of simultaneous use of multiple vehicles. One witness saw three vehicles, including one which looked like Dan Short's pickup, stopped on the Main Street bridge in Noel at approximately 3:00 a.m. on October 6, 1989. Another witness saw a pickup and a brown van on Cowskin Bridge at 3:30 a.m. Furthermore, the government showed that the collective weight of Dan Short, the chair, the chain hoist and the cement block exceeded 250 pounds. From this, the jury could reasonably infer that more than one person was required to lift Short over the three foot railing on the Cowskin Bridge.

Gant Sanders, a friend of Shannon Agofsky, testified that Joseph Agofsky questioned him in September 1989, only one month before the robbery, about the availability of bank blueprints prepared by Sanders' father during a past remodeling of the bank. Shannon was present during this discussion. Sanders also related a late September conversation between himself and the Agofskys about the possible kidnapping of a banker. After identifying a man entering the salvage garage where the three men were talking as a Joplin banker, Joseph Agofsky explained how the three could easily follow the banker home, take him to the bank, and force him to open the vault. Sanders also testified about how Shannon Agofsky had once discussed the possibility of driving a tow truck through the wall of the Noel Bank. Shannon knew, from a relative, that the walls were constructed of concrete blocks. Just days before the robbery occurred, a man who "looked similar" to Shannon Agofsky was seen twice near Short's home. Finally, in 1990, after the robbery, Sanders saw Joseph and Shannon Agofsky "wiping" firearms and ammunition for the stated purpose of preventing fingerprints from being present on any spent bullet casings. A reasonable juror could believe, based on this evidence, that Shannon Agofsky participated in a conspiracy to rob the Noel Bank.

We are similarly convinced that sufficient evidence supports the jury's verdicts against Joseph Agofsky. Once the existence of "a conspiracy is established, even slight evidence connecting a defendant to the conspiracy may be sufficient to prove the defendant's involvement." United States v. Akers, 987 F.2d 507, 511 (8th Cir.1993) (quoting United States v. Ivey, 915 F.2d 380, 383 (8th Cir.1990)). In addition to the evidence discussed above, the government...