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United States v. Monsalvatge

United States Court of Appeals, Second Circuit

March 8, 2017

United States of America, Appellee,
v.
Akeem Monsalvatge, Edward Byam, Derrick Dunkley, Defendants-Appellants.

          Argued: October 2, 2015

         Defendants-Appellants Akeem Monsalvatge, Edward Byam, and Derrick Dunkley appeal from their judgments of conviction in the United States District Court for the Eastern District of New York (Dearie, J.), entered on April 10, 2014 in connection with the armed robberies of two Pay-O-Matic check-cashing stores, as well as for conspiracy to commit those robberies. A summary order issued concurrently with this opinion addresses the majority of the claims on appeal. This opinion considers one of Monsalvatge's claims, which Dunkley joins: whether the district court abused its discretion in admitting into evidence clips from the 2010 film The Town. We conclude that the movie clips were clearly relevant to establishing that Monsalvatge and Dunkley committed the 2012 robbery and participated in the conspiracy. Further, any potential for prejudice did not outweigh the clips' probative value because the prejudice, if any, was minimal given the clips' extremely short length, the clips' narrow tailoring, and the district court's two curative instructions. We conclude that the district court did not abuse its discretion in admitting the film clips into evidence. For the reasons stated herein and in the summary order filed simultaneously with this opinion, the judgments of conviction as to Monsalvatge and Byam are AFFIRMED. Dunkley's judgment of conviction is AFFIRMED as to Counts One, Four, and Five and REVERSED as to Counts Two and Three. The case is remanded for resentencing as to Dunkley.

         Judge Torres concurs in the judgment in a separate opinion.

          For Appellee: Tyler J. Smith, Jo Ann M. Navickas, Tiana A. Demas, Maria Cruz Melendez, Assistant United States Attorneys, New York, N.Y., for Kelly T. Currie, Acting United States Attorney for the Eastern District of New York, for the United States of America.

          For Defendants-Appellants: Jonathan I. Edelstein, Edelstein & Grossman, New York, N.Y., for Akeem Monsalvatge. Patrick Michael Megaro, Orlando, Fla., for Edward Byam. Daniel M. Perez, Law Offices of Daniel M. Perez, Newton, N.J., for Derrick Dunkley.

          Before: Livingston, Droney, Circuit Judges, and Torres, District Judge. [*]

          Debra Ann Livingston, Circuit Judge

         This is an appeal by three individuals - Akeem Monsalvatge, Edward Byam, and Derrick Dunkley - 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. § 924(c)(1)(A)(ii), and conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a). On April 10, 2014, the district court (Dearie, J.) sentenced each of the three Defendant-Appellants principally to thirty-two years of imprisonment.

         On appeal, Monsalvatge, Byam, and Dunkley raise a variety of claims. This opinion considers one of Monsalvatge's claims, which Dunkley joins: whether the district court abused its discretion in admitting into evidence at trial four clips (lasting a total of one minute and sixteen seconds) from the 2010 film, The Town. A summary order filed simultaneously with this opinion addresses the balance of the Defendant-Appellants' claims on appeal. For the reasons stated below and in that summary order, we AFFIRM the judgments of conviction as to Monsalvatge and Byam; and we AFFIRM Counts One, Four, and Five and REVERSE Counts Two and Three of the judgment of conviction as to Dunkley. We remand for resentencing as to Dunkley.

         BACKGROUND

         I. Factual Background[1]

         Monsalvatge, Byam and Dunkley were convicted after a jury trial of committing armed robberies of two Pay-O-Matic check-cashing stores and of conspiring to commit these crimes. As set forth below, the two robberies differed in their modus operandi. In the first robbery, on February 24, 2010, three bandana-covered men, wielding guns, stole $44, 039.73 from a Pay-O-Matic located at 160-30 Rockaway Boulevard 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, almost two years later, three robbers stole $200, 755.89 at gunpoint from a Pay-O-Matic located at 247-12 South Conduit Avenue, also in Queens, New York. This time, however, the robbers did not wear bandanas, but rather police-uniform disguises and lifelike "special-effects" masks, and they accosted an employee in gaining access to the store. And unlike in the first robbery, so as to remove any fingerprints or DNA, one of the robbers poured bleach on the teller counter. At trial, the Government played three of four The Town movie clips admitted by the district court (lasting a total of one minute and seven seconds) for the jury. The Government argued that Monsalvatge was familiar with The Town and admired it, and that the co-conspirators altered their modus operandi to carry out the second robbery in a manner resembling robberies depicted in the movie.

         A. The February 24, 2010 Robbery

         The first Pay-O-Matic robbery occurred in the early morning hours of February 24, 2010.[2] That morning, Muhammed Hafeez was working as the cashier at the Pay-O-Matic. His workspace, the cashier area, was separated from the counter by a bulletproof-glass divider and two locked doors. Hafeez left to use the restroom, which was located at the back of the store, still behind the secure cashier area. While he was in the bathroom, he heard a crash.

         Upon leaving the restroom to investigate the disturbance, Hafeez saw a robber ("Robber 1") holding a gun and standing in the secure cashier area. The crash Hafeez heard occurred when the robber gained entry to the store's secure area by descending through an air duct that had been pried open on the store's roof, leaving a large hole in the store's ceiling. The robber wore a black hooded sweatshirt with jeans; his face was covered with a black bandana; and he wore blue gloves with white text. The robber aimed his gun at Hafeez, directed him to lie on the floor face down, and handcuffed him.[3]

         A second robber ("Robber 2") appeared on the scene in the customer area of the store. Robber 2 also wore jeans and had his face covered but, unlike Robber 1, he wore an orange construction vest with yellow stripes over a blue jacket. In order to confer with Robber 2, Robber 1 left the secure cashier area of the store, with the door locking behind him and leaving Hafeez by himself. The robbers, realizing they were now locked out of the secure cashier area, demanded that Hafeez open the door. Hafeez refused. The robbers attempted to force open the door but failed. At that point, Robber 1 left the store. Robber 2 stayed behind, pointing the gun at Hafeez through the window while making calls on his cell phone.[4]

         Robber 1 crashed through the ceiling again, gaining entry to the cashier area. He removed the money from the cashier's drawers and put it in his bag. Robber 2 continued to use his cell phone. At that point, Robber 1 asked Hafeez to open the safe. Hafeez responded that he did not know the combination to the safe. The scene turned violent. Robber 1 began to beat Hafeez with a metal chair. Robber 2 attempted to pass a gun to Robber 1 through a slot in the teller window, but the slot was not wide enough to allow the gun to pass from the customer area, where Robber 2 stood, to the cashier area, where Robber 1 stood. Robber 2 made another phone call.

         Soon, a third robber ("Robber 3") entered the store. Robber 3's appearance was not clearly captured on the surveillance footage. He wore dark clothing, a dark jacket, and dark pants. In the store lobby, Robber 3, who had a gun, switched his weapon with Robber 2. Robber 2 handed the apparently slimmer gun to Robber 1 through the slot in the teller window. Robber 3 left the store.

         Robber 1, now again armed, questioned Hafeez about the safe, asking him who would know the combination if not him. When Hafeez told Robber 1 that his supervisor had the combination, Robber 1 demanded that Hafeez call the supervisor, which Hafeez did. Hafeez's supervisor, however, would not give Hafeez the combination to the safe. After that unsuccessful call, Robber 1 threw Hafeez's cell phone into one of the drawers. Robber 1 told Hafeez to move to the restroom. While Hafeez was in the bathroom, Robber 1 left the store using the emergency exit, and Robber 2 left through the front door. The robbers absconded with $44, 039.73.

         B. The February 14, 2012 Robbery

         As already noted, the second robbery occurred almost two years later, on February 14, 2012, also at a Queens Pay-O-Matic.[5] At 7:56 a.m., a black Ford Explorer SUV pulled into the parking lot of the Pay-O-Matic check-cashing store on South Conduit Avenue in Queens. What appeared to be a bag covered a damaged right rear window of the SUV, which also bore a distinctive dent on the front passenger side of its bumper. Fifteen minutes later, just past eight o'clock in the morning, Liloutie Ramnanan, a teller at the Pay-O-Matic, drove her car into the parking lot. Ramnanan saw three people in the SUV. As Ramnanan walked toward the store and passed the vehicle, the three stepped out of the car.

         They appeared to be white- or light-skinned men. All three men, however, also appeared to have brown lips. Ramnanan assumed they were law enforcement officials because they wore police attire: blue police jackets with hoods (bearing the police shield on the left side of the chest), police badges, and sunglasses. Two men wore baseball caps, but one did not-the third who did not wear a baseball cap appeared to be a bald man with a goatee.[6]

         The goateed man suddenly approached Ramnanan, stopped her, and asked whether she worked at Pay-O-Matic. Ramnanan responded that she did. At that point, he pulled out three papers with photographs of houses on them. According to Ramnanan, he showed her one of the photographs, and asked whether she "kn[ew] this photo of this house." Joint App'x 701. She answered, yes, recognizing the house in the photograph as her own.[7] He then asked her who was inside the store and Ramnanan realized, "this is a hold up." Id.

         The goateed man directed Ramnanan to walk inside the store. Inside, there were two other people: a customer and the outgoing overnight teller named Sean Anderson. Anderson stood in a secured teller area. That area was protected by bulletproof glass and separated from the lobby by two doors that could be unlocked only from the teller area. Anderson noticed that the men wore gloves and that one of the pairs of gloves was blue with white text. The goateed man, upon entering the store, demanded that Anderson open the door. Anderson obliged, and the goateed man directed Ramnanan along with the two other robbers inside that space.

         Inside the teller area, one robber emptied a safe and put the money into a black bag. The other robber demanded at gunpoint that Anderson and Ramnanan lie down on the floor. The armed robber emptied the teller drawers and splashed the teller counter with a liquid that smelled like bleach.[8] The three robbers then left the Pay-O-Matic with the cash, driving off in the SUV.[9] In total, the robbers stole $200, 755.89.

         Bank records showed that thousands of dollars of cash were deposited into Dunkley's account shortly after the February 14, 2012 robbery. Monsalvatge opened a new account on February 15, and shortly thereafter made several large cash deposits. Within months, Monsalvatge and Byam also took a trip to Cancun. Records show, and employees from various luxury goods retailers testified, that each of the defendants spent thousands of dollars on high-end goods during the spring and summer of 2012.

         * * *

         On August 21, 2012, Monsalvatge was arrested pursuant to an arrest warrant.[10] Shortly thereafter, Byam, while in his apartment, was also arrested pursuant to a warrant. Upon arrival, the arresting officers brought Byam into the apartment building hallway and proceeded to conduct a protective sweep of the apartment.[11] The next day, Derrick Dunkley purchased a bus ticket from New York City to Hartford, Connecticut. Approximately one month later, law enforcement officers located and arrested Dunkley at his aunt's house in Hartford.[12]

          II. Procedural History

         On January 4, 2013, a grand jury indicted Monsalvatge, Byam, and Dunkley, charging each of them with Hobbs Act robbery conspiracy, in violation of 18 U.S.C. § 1951(a) (Count One); Hobbs Act robbery on February 24, 2010, in violation of 18 U.S.C § 1951(a) (Count Two); unlawful use of a firearm in a crime of violence in connection with the February 24, 2010 robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count Three); Hobbs Act robbery on February 14, 2012, in violation of 18 U.S.C § 1951(a) (Count Four); and unlawful use of a firearm in a crime of violence in connection with the February 14, 2012 robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count Five).

         A. Pre-Trial Proceedings

         The district court considered a number of motions in advance of trial. As relevant here, the Government filed a motion in limine concerning The Town, a 2010 crime drama about a group of Boston bank robbers.[13] The robberies in the film bore certain similarities to the charged 2012 robbery, and the Government had evidence that at least one of the defendants had seen and admired the film. In its motion, the Government requested to play for the jury at trial film clips from The Town. These clips would serve "as evidence regarding the genesis of the defendants' modus operandi in the 2012 robbery and to explain the change in modus operandi between robberies committed in 2010 and 2012." Joint App'x 406.

         The first clip ("Clip 1") is nine seconds long. See Gov't Ex. 79 (Clip 1). It begins by showing two investigators outside a Harvard Square bank that has been robbed. They both wear navy-blue jackets, one with a hood. One, in bold letters, reads "POLICE" on the back, while the other reads "FBI." The labels "POLICE" and "FBI" appear in smaller letters on the front, left sides of the jackets as well. As they enter the crime scene, the police investigator tells the FBI agent that the perpetrators had "bleached the entire place for DNA, " which "kills all the clothing fibers so [the investigators] can't get a match." Id. at 0:05-0:09.

         The second clip ("Clip 2") is nine seconds long. See Gov't Ex. 79 (Clip 2). There are a number of robbers - four, it seems - who wear black hooded sweatshirts and elaborate masks. The masks depict blue skulls with hanging blue dreadlocks. For one second, one of the robbers is shown to be holding an assault rifle[14] - but only the butt of the gun appears, because the rest of it is cropped at the bottom of the frame. Id. at 0:01. The mise-en-scène is difficult to absorb in nine seconds, but the mood is tense: in the midst of the robbery, the perpetrators realize there are people gathering outside the bank doors. One robber says, "We gotta go." Id. Another yells, "Let's go!" Id. at 0:02. For two seconds, the robber holding the weapon runs across the frame - the firearm is visible, but blurred by the movement. A robber yells, "Let's bleach it up! Let's bleach it up!" Id. at 0:04-0:06. The robbers then pour bleach on the bank teller's counter as the clip ends.

         The third clip ("Clip 3") is twenty-one seconds long. See Gov't Ex. 79 (Clip 3). The scene opens with a closely framed image of one of the robbers, played by Ben Affleck, who appears stern. He is sitting in the second row of a van with the other robbers as they drive through the North End neighborhood of Boston. They are on their way to commit a robbery. A police scanner discloses the location of the authorities to the robbers. The driver advises the rest of the group, "Say your prayers; here we go." Id. at 0:08-0:09. At that point, the robbers, beginning with Affleck's character, put on masks which disguise them as elderly nuns. These masks show excessively wrinkled, sagging skin. The masks have holes for the robbers' real eyes and mouths - through which the audience can see a bit of the robbers' actual skin. For the final four seconds of the clip, the audience sees a robber through the van's window. The robber is now masked as an older nun and holding an assault rifle. Only the top half of the weapon is visible.

         The fourth and final clip ("Clip 4") is thirty-seven seconds long. See Gov't Ex. 79 (Clip 4). This scene shows one of the robbers dressed as a police officer, knocking on the door of the "cash room" at Fenway Park. He wears a dark-blue jacket (bearing the police department crest on the shoulder), a cap, a face scarf or bandana, and sunglasses. On the left side of the front of the jacket, the robber wears a police badge. He knocks on the locked door of the secured cash room. He reveals to the employees on the other side that he knows their home addresses and family members' names, and that there are "men outside [their] homes." Id. at 0:28-0:31. Their wives, the robber advises, would want them to open the door. They do so, and the robber walks through the threshold pointing a handgun.

         The Government sought to admit the film clips as relevant because, given the similarities between the actions depicted in these scenes and the February 2012 robbery, the clips helped to explain why the 2010 and 2012 robberies had proceeded differently. The similarities included: (1) pouring bleach on the bank surfaces; (2) threatening an employee by revealing knowledge of the employee's home address; (3) wearing police badges, uniforms, and sunglasses; and (4) wearing masks. In connection with its motion, the Government submitted an iPhone photograph that showed Monsalvatge standing next to Byam and wearing a t-shirt with a silk-screened image of one of the masked robbers from Clip 3 of The Town. The Government also included text messages showing that Monsalvatge had designed and custom-ordered the t-shirt at a mall.[15] Dunkley and Byam each raised a Federal Rule of Evidence 403 objection in their papers opposing the Government's motion in limine. The district court granted the Government's motion to admit the evidence. In doing so, the district court explained that it had "looked at the clips" and noted that Monsalvatge had "a T-shirt . . . depicting a particular still scene from th[e] movie." Joint App'x 643. On that basis, the district court "underst[ood]" the Government's theory and granted the motion. Id.

         B. Trial Proceedings

         The trial began on July 30, 2013. As part of the extensive proof at trial, which included both surveillance footage of the two robberies and testimony from Hafeez, Ramnanan, and Anderson, the Government introduced evidence that all three defendants had frequented Pay-O-Matic cash-checking stores during the period of the alleged conspiracy and that each defendant's cell phone records showed a flurry of communications among the defendants surrounding each of the robberies.[16] Montsalvatge's cell phone also contained photographs and incriminating text messages among the three defendants.[17]

         Specifically as to the February 24, 2010 robbery, the Government introduced forensic evidence showing that Monsalvatge's DNA was found on the handcuffs used on Hafeez. Specifically as to the February 14, 2012 robbery, the Government adduced testimony from digital retailers and manufacturers regarding the defendants' purchase of law enforcement paraphernalia and lifelike masks worn during the robbery.[18]

         At trial, the Government introduced the four clips from The Town into evidence, which the district court admitted over objections by all three defendants. The Government then played three of the four clips for the jury. Before playing the clips, the district court provided an instruction to the jury: "Folks, this is a movie, all right. It's make believe. Anything that you hear on this movie is not before you for the truth of it. This is Hollywood and not Brooklyn federal court, so we'll leave it at that for the time being." Joint App'x 1075. A Government witness, an investigating detective, highlighted aspects of the clips as they were played for the jury.

         The Government began by playing Clip 2 - the nine-second-long excerpt depicting the robbers pouring bleach on the counter - for the jury. After playing the clip, the witness described the clip as showing "the perpetrators robbing a bank and in th[e] container it contained bleach and they are pouring ...


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