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March 11, 2017
  United States v. Monsalvatge
Headline: Second Circuit Affirms District Court's Admission of Clips From 2010 Film "The Town" into Evidence During Armed Robbery Trial

Area of Law: Evidence and Criminal Law

Issue Presented: Whether the district court abused its discretion in admitting into evidence at trial clips from the 2010 film The Town, which were intended to shed light on the defendants' modus operandi in carrying out a bank robbery.

Brief Summary:
Defendant-appellants Akeem Monsalvatge, Edward Byam, and Derrick Dunkley were convicted in the Eastern District of New York of armed robberies of two Pay-O-Matic check-cashing stores. At the trial, the prosecution had played for the jury several short clips from the 2010 film The Town, which was about a group of Boston bank robbers. The Government used the clips to illustrate and explain the differences in modus operandi between the two robberies that occurred almost two years apart, arguing that before the second robbery, the defendants saw and admired The Town and used ideas from it. On appeal, the defendant-appellants argued that the district court abused its discretion in allowing the prosecution to show the clips. The Second Circuit disagreed. Affirming the Defendant-Appellants' convictions, the court found that the clips were relevant and that their probative value outweighed the potential for prejudice, particularly given the clips' very short length, the clips' narrow tailoring, and the district court's two curative instructions.

Extended Summary: Defendant-Appellants Akeem Monsalvatge, Edward Byam, and Derrick Dunkley appealed from their judgments of conviction in the United States District Court for the Eastern District of New York entered on April 10, 2014. The Defendant-Appellants were convicted after a jury trial of committing two armed bank robberies in violation of 18 U.S.C. § 1951(a), two counts of unlawful use of a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 9124(c)(1)(A)(ii), and conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a). On April 10, 2014, District Court Judge Dearie sentenced each of the three Defendant-Appellants to thirty-two years of imprisonment, five years of supervised release, $240,795.62 in restitution, and a $500 special assessment.
On appeal, Defendant-Appellants raised a variety of claims. The Second Circuit's opinion addresses one of Monsalvagte's claims, which Dunkley joins: whether the district court abused its discretion in admitting into evidence at trial four clips from the the film The Town.

In advance of the trial, the Government filed a motion in limine requesting to play for the jury at trial film clips from The Town, a 2010 crime drama about a group of Boston bank robbers. The Government asserted the clips would serve as evidence regarding the genesis of the Defendant-Appellants' modus operandi in the second 2012 robbery and to explain the change in modus operandi between the first robbery committed in 2010 and the second in 2012. The district court granted the Government's motion to admit the clips over the Defendant-Appellants objections.
In the first robbery on February 24, 2010, three bandana-covered men, wielding guns, stole $44,039.73 from a Pay-O-Matic in Queens, New York, with one of the robbers gaining access to the protected area of the store by descending through the roof. In the second robbery on February 14, 2012, three robbers stole $200,755.89 at gunpoint from a Pay-O-Matic also located in Queens, New York. This time, however, the robbers wore police uniform disguises and lifelike special effects masks. The robbers also accosted a store employee by showing her pictures of her home in gaining access to the store. In addition, unlike in the first robbery, the robbers poured bleach on the teller counter in order to remove any fingerprints or DNA.

The clips from The Town, totaling one minute and seven seconds, depicted the film's protagonists utilizing the same methods in robbing banks as the robbers who committed the second robbery: pouring bleach on bank surfaces, threatening an employee by revealing knowledge of the employee's home address, wearing police badges, uniforms, and sunglasses, and wearing special effect masks. Furthermore, the Government admitted evidence intended to show that Defendant-Appellant Monsalvatge had seen The Town and admired it.

At trial, before and after the playing of the clips, the district court gave two curative instructions to the jury emphasizing that anything heard on the clips was not before them for the truth of it. Additionally, the district court also further instructed the jury about two differences between the 2012 robbery and the movie clips: that there was no evidence that any perpetrators of the robbery were at the home of the store employee and that unlike the movie clips, there was no evidence that the 2012 robbers used assault weapons in the commission of the robbery.

The Second Circuit reviewed the district court's evidentiary ruling over objection for abuse of discretion. The circuit court will only reverse an evidentiary ruling under abuse of discretion review if the ruling was arbitrary and irrational. Furthermore, the circuit court noted it had in the past declined to second-guess a district court's admission of relevant video or media evidence where the evidence bears an identifiable connection to an issue or defendant in the case.

In affirming the district court's admittance of the movie clips, the Second Circuit found the clips, in conjunction with other evidence, tended to make more probable the factual inference that the 2010 and 2012 robberies were part of the same conspiracy. The Second Circuit noted the aforementioned similarities between the 2012 robbery and the robberies portrayed in The Town as well as the fact that the film had not yet been released prior to the 2010 robberies. In rejecting the Defendant-Appellants contention that the admittance of the clips was prejudicial, the Second Circuit held any prejudicial effect was minimal given the clips' extreme short length, the clips' narrow tailoring and the district court's two curative instructions.
Thus, the Second Circuit found the district court did not abuse its discretion in admitting into evidence the clips from the The Town and therefore affirmed the convictions of Defendant-Appellants Monsalvatge and Dunkley.

To read the full opinion, click .

Panel: Circuit Judges Livingston and Droney; District Judge Torres, sitting by designation

Argument Date: 10/02/2015

Date of Issued Opinion: 03/08/2017

Docket Numbers:

Decided: Affirmed

Case Alert Author: Thomas J. Baroni

Counsel: Jonathan I. Edelstein, Edelstein & Grossman, New York, N.Y. for Defendant-Appellant Akeem Monsalvatge; Patrick Michael Megaro, Orlando, Fla. for Defendant-Appellant Edward Byam; Daniel M. Perez, Law Offices of Daniel M. Perez, Newton, N.J. for Defendant-Appellant Derrick Dunkley; Tyler J. Smith, Jo Ann M. Navickas, Tiana A. Demas, Maria Cruz Melendez, Assistant United States Attorneys, New York, N.Y., (Kelly T. Currie, Acting United States Attorney for the Eastern District of New York) for Appellee United States of America

Author of Opinion: Judge Livingston; concurrence by Judge Torres

Circuit: Second Circuit

Case Alert Circuit Supervisor: Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 03/11/2017 02:55 PM     2nd Circuit  

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