Robbers Convicted Off Clips of ‘The Town’ Lose Appeal

MANHATTAN (CN) – The Second Circuit saw no reason Wednesday to disturb armed-robbery convictions that relied in part on a courtroom viewing of several scenes from Ben Affleck’s 2010 bank-heist film “The Town.”

In establishing a tie between the years-apart robberies of two check-cashing stores in Queens, federal prosecutors believed that Affleck’s adaptation of the 2007 book “Prince of Thieves” was the key.

Seven months before the September 2010 release of “The Town,” the robbery of a Pay‐O‐Matic on Rockaway Boulevard had been a bumbling mess.

Recounting the high jinx in a 35-page ruling, the Second Circuit noted that the trio of robbers at one point tried to squeeze a gun through the too-small slot of a teller’s window and had to make a second crawl through the air ducts upon locking themselves in the front of the store. Unable to pry the combination to a safe out of a tight-lipped store employee, the sloppy operation took nearly two hours, left DNA at the scene and netted just $44,000.

Another Queens Pay‐O‐Matic, this one on South Conduit Avenue, was robbed nearly two years to the day of the first heist. This time, it took roughly three minutes to make off with more than $200,000.

Akeem Monsalvatge, Edward Byam and Derrick Bunkley were eventually charged with both robberies, but prosecutors believed that jurors needed to see the disparate crimes as pre- and post-Affleck to connect the dots.

They even had evidence that Monsalvatge enjoyed “The Town” so much that he designed and custom-ordered a T-shirt inspired by the movie at a mall.

As in “The Town,” the robbery of the second Queens location involved the use of special disguises: lifelike special-effects masks, sunglasses police badges and uniforms. The robbers also poured bleach on the store counters to cover up DNA, and they showed one of the tellers a photograph of her house to intimate that they knew where she lived.

Prosecutors found four clips from “The Town” where each of these themes occurs, and played them for a federal jury in Brooklyn.

A three-judge panel of the Second Circuit affirmed Wednesday that the clips did not demonstrate an abuse of discretion.

“Our courtrooms are not movie theaters,” U.S. Circuit Judge Debra Ann Livingston wrote for a three-judge panel. “But we cannot assume that our jurors — whom we routinely ask to pore over the violent and often grisly details of real crimes — are such delicate consumers of media that they would so easily have their passions aroused by short film clips of the sort at issue here. In this case, the district court acted well within its discretion in permitting the jury to see one minute and seven seconds of relevant Hollywood fiction during the course of a four‐day criminal trial in real‐life Brooklyn federal district court.”

Rejecting arguments that the clips were prejudicial, Livingston noted that the footage ranged in length from 9 to 37 seconds, while depicting zero acts of violence. Any shot of firearms was very brief, and dialogue was also minimal.

“With all this in mind, it is difficult to see how these clips could ‘unfairly … excite emotions against the defendants,’” Livingston wrote.

Each clip was relevant, however, to understanding the second robbery.

“Taken individually, each of these elements might not be sufficiently distinctive to raise a connection to the film,” Livingston wrote. “But taken together, as they occurred here, the attributes of the 2012 robbery are clearly connected to the film.”

Sitting on the panel by designation, U.S. District Judge Analisa Torres of New York’s Southern District wrote a concurring opinion that calls the use of the clips inappropriate but harmless error.

“In sum, I do not think Rule 403 allows a court to risk that a juror will watch clips featuring criminal acts and resist the film’s strong emotional appeal, an effect that a Hollywood movie is designed to have,” Torres wrote. “In particular, Clips 2 and 3, which were relevant only with respect to the similarities of robbers wearing a mask and spreading bleach, had only limited and speculative probative value. Considering the prejudicial effect of jurors conflating the defendants with the actors and actions depicted in the fictive sequences, and given the availability of equally probative but vastly less prejudicial forms of evidence, I would hold that the district court abused its discretion in allowing the film clips.”

Torres noted that the government had a strong enough case without “The Town,” and that the evidence from the movie was not very compelling.

As to bleaching the scene, Torres noted that the tactic is readily suggested in an internet search for cleaning a crime scene, and that it is a reasonable move for a robber who knew he left DNA at the 2010 robbery. Impersonating a police officer is not a new tactic either, Torres noted.

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