Appeal from the United States District Court for the District of Nevada Robert Clive Jones, Chief District Judge, Presiding D.C. No. 3:09-cv-00379-RCJ-RAM
The opinion of the court was delivered by: Bea, Circuit Judge:
Argued and Submitted December 5, 2011-San Francisco, California
Before: Stephen S. Trott and Carlos T. Bea, Circuit Judges, and Rebecca R. Pallmeyer, District Judge.*fn1
Robert Farmer was sentenced to death in Nevada in 1984 after a three-judge post-conviction sentencing panel found the existence of two statutory aggravating circumstances, both of which were based on the murder's commission in the course of other felonies. The panel found no mitigating circumstances. However, Farmer's death sentence was vacated in 2007 after the Nevada Supreme Court held that it was unconstitutional to use as an aggravating circumstance the fact that a murder was committed in the course of committing another felony or felonies. McConnell v. State, 102 P.3d 606 (2004). It then applied that decision retroactively. Bejarano v. State, 146 P.3d 265 (Nev. 2006). Nevada now seeks to reimpose the death penalty on Farmer, using different statutory aggravating circumstances. Farmer contends that to impose the death penalty a second time, albeit based on aggravating circumstances different than those used in the first trial, would violate his right under the Fifth Amendment's Double Jeopardy Clause not to be "twice put in jeopardy of life or limb." U.S. Const. amend. V. We hold that Farmer's double jeopardy rights would not be violated by the state again seeking a death sentence based on aggravating circumstances different from those found and used by the sentencer to impose the first death penalty sentence.
Farmer committed a series of terrible, random crimes in Nevada in the early 1980s. In January 1982, Farmer killed Thomas Kane, a man whose car Farmer had stolen. Then, Far- mer robbed and killed a Nevada taxidriver named Greg Gelunas. Farmer fled to Florida, where he was arrested and extradited to Nevada.
Upon his return to Nevada, Farmer faced several prosecutions. In July 1982, Farmer was convicted in Nevada state court of armed robbery and second degree kidnapping with use of a deadly weapon in relation to an incident, known as the Cobb robbery, that preceded both the Kane and Gelunas murders. In February 1983, Farmer was convicted of first degree murder and possession of a stolen vehicle in relation to the Thomas Kane incident.
In March 1984, Farmer pleaded guilty to the Gelunas charges of first degree murder with use of a deadly weapon (a knife) and robbery with use of a deadly weapon. The state filed a notice of intent to seek the death penalty for the Gelunas murder. In its notice, the state sought the death penalty on the basis of the following aggravating circumstances listed in the applicable Nevada statute:*fn2 1) the Gelunas murder was committed by a person who was previously convicted of another murder or of a felony involving the use or threat of violence to the person of another-specifically, the Cobb robbery (hereinafter, the "prior conviction aggravating circumstance"); 2) the Gelunas murder was committed by a person who was engaged, or was an accomplice, in the commission of or an attempt to commit robbery and burglary (hereinafter the "felony murder aggravating circumstances"); 3) the Gelunas murder involved torture, depravity of mind, or the mutilation of the victim; and 4) the Gelunas murder was committed by a person under sentence of imprisonment.
Under then-existing Nevada law, the capital sentencing proceeding occurred before a three-judge panel.*fn3 See Nev. Rev. Stat. 175.552 (1985). After presenting the state's case at the penalty hearing, the prosecutor suggested to the court that "in [his] opinion" the prior conviction aggravating circumstance (notice of intent #1, above) probably did not apply because, even though the crimes leading to those convictions had occurred prior to the Gelunas murder, the actual convictions in the Cobb robbery (July 1982) and the Kane murder (February 1983) were not entered until after the Gelunas murder (January 1982). However, the prosecutor did not remove that charge, stating that "His Honors can determine that for theirselves [sic]."*fn4 The prosecutor also expressed some reservations about the applicability of the "torture, depravity of mind, or mutilation" (notice of intent #3, above) and "under sentence of imprisonment" (notice of intent #4, above) aggravating circumstances, but those aggravating circumstances were nonetheless submitted to the three-judge panel for determination.
After deliberating, the sentencing panel found two aggravating circumstances beyond a reasonable doubt, both of which were felony murder aggravating circumstances (notice of intent #2, above): (1) the Gelunas murder had been committed during the commission of a robbery, and (2) the Gelunas murder had been committed during the commission of a burglary. The panel found no mitigating circumstances and imposed the death penalty. The sentencing panel's written decision is silent as to ...