In United States v. Monsalvatge (Nos. 14-1113, 14-1139, and 14-1206), a divided panel of the Second Circuit explored the contentious topic of introducing blockbuster films as evidence in a criminal prosecution. Defendants Akeem Monsalvatge, Edward Byam, and Derrick Dunkley were tried and convicted of committing (and conspiring to commit) two armed robberies of Pay-O-Matic check-cashing stores in Queens. The robberies occurred nearly two years apart—in 2010 and 2012—and there were significant differences in the manner in which each crime was carried out. The government believed that these differences were attributable to the fact that the defendants admired and were inspired by the 2010 Hollywood crime thriller, The Town, and altered their modus operandi to carry out the 2012 robbery in a manner resembling the crimes committed in the film. At trial, the district court permitted the government to play for the jury several brief clips from The Town, in order to highlight the similarities between the film and the 2012 robbery. On appeal, the Second Circuit concluded that the district court did not abuse its discretion in admitting these clips into evidence. Judge Livingston authored an opinion joined by Judge Droney; District Judge Analisa Torres, sitting by designation, found the introduction of the clips inappropriate but ultimately concurred in the judgment based on a finding of harmless error.
During the first robbery, which was captured on surveillance video, three armed men stole $44,000 from a Queens Pay-O-Matic. They wore bandanas to obscure their faces; gained entry to the store’s secure cashier area by descending through an air duct; and committed several blunders, including at one point locking themselves out of the cashier area and leaving behind DNA evidence. The 2012 robbery was a more polished effort. There, the three robbers disguised themselves in police uniforms, wore lifelike “special-effects” masks, gained access to the store by revealing to a Pay-O-Matic employee that they had tracked her movements between her work and her home, and poured bleach on the teller counter—presumably in an effort to remove fingerprints or DNA. In a matter of minutes, they absconded with over $200,000. During the course of its investigation, the government observed that several of the salient features of the 2012 robbery mirrored the robberies depicted in The Town, which was released several months after the 2010 robbery. In addition, the government discovered a photograph and several text messages indicating that Monsalvatge had custom-ordered a t-shirt featuring one of the primary promotional images from the film. The Town, directed by and starring Academy Award winner Ben Affleck, portrayed robberies committed by four friends in the Boston area and the fateful aftermath of their criminal enterprise. The New York Times review commented on the opening robbery sequence at a Cambridge bank, describing it as “lean, brutal and efficient.”
At trial and over the defendants’ objections, the government introduced three brief clips from the film, which played for a total of just over one minute. The government contended that the film clips were relevant because they explain why the defendants’ modus operandi changed between the 2010 and the 2012 robberies. Defendants argued, pursuant to Federal Rule of Evidence 403, that the risk of unfair prejudice substantially outweighed the clips’ probative value; however, the court permitted the government to proceed. The clips highlighted the fact that the robbers in The Town (1) poured bleach on countertops, (2) wore police uniforms and lifelike masks as disguises, and (3) used a victim’s personal information to threaten him. The district judge provided two limiting instructions to the jury: before the clips were played, the court commented that the movie was “make believe,” “Hollywood,” and “not before [the jury] for the truth of it.” After the clips had been played, the court clarified that the defendants were not alleged to have imitated certain elements of the crimes depicted in the film clips—specifically, the 2012 robbers did not use assault-like weapons and did not expressly threaten to harm their victim’s family. The clips were played and discussed only briefly over the course of a multi-day trial, in which the remaining evidence against the defendants was overwhelming. The jury convicted each defendant on all counts.
The Second Circuit upheld the district court’s admission of the film clips. Noting the “remarkable—even obvious” resemblance between the film and the 2012 robbery and the fact that the defendants were clearly aware of the movie, the court concluded that the film clips were relevant as they tended to make more probable the factual inference that the 2010 and the 2012 robberies were part of the same conspiracy, despite the differences in modus operandi. The panel considered several factors, including that the clips were both short (ranging from nine to thirty-seven seconds each) and narrowly tailored (confined to highlighting the similarities between the 2012 robbery and the crimes depicted in the film); they depicted no violence (although the actors in the film were carrying assault rifles); and the dialogue suggested that the robbers were the film’s protagonists. Most important, the district court provided curative instructions to the jury, which, absent evidence to the contrary, the panel “must presume that juries understand and abide by.” In sum, the panel determined that the clips had “real probative value” and created only a “slight” risk of prejudice.
The panel did not appear to struggle in reaching its decision that the district court “acted well within its discretion” in admitting the clips. The panel pointed to several instances in which other courts have permitted the introduction of Hollywood film clips at trial where the defendant was alleged to have shown the film to his victim, see, e.g., United States v. Schneider, 501 F.3d 186, 199-200 (3d Cir. 2015) (affirming decision to admit excerpts from the 1980 film Nijinsky about a ballet dancer and his older lover in a prosecution where the older defendant had shown the film to his victim, a young ballet dancer), or where the defendant expressly referenced the film during a recorded conversation, see, e.g., United States v. Wills, 346 F.3d 476, 489, 497 (4th Cir. 2003) (affirming decision to admit excerpts from the 1995 film Casino to explain defendant’s comment that he “was doing a Casino joint”). Judge Livingston commented, “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.”
Judge Torres disagreed. She would have held that the district court abused its discretion by admitting the film clips, but she believed the error was harmless. In Judge Torres’s opinion, the film clips highlighted only “generic and superficial” similarities between the 2012 robbery and the crimes carried out in The Town. She noted that an online search easily reveals that bleach can be used to destroy DNA evidence and pointed out that it is not uncommon for criminal defendants to dress in police uniforms and wear masks. In her assessment, “[t]he inference that the defendants sought to emulate the actions of fictive criminals because one individual ordered a t-shirt depicting a scene from a widely released, blockbuster film is beyond tenuous.” Judge Torres was also concerned that the crimes carried out on film were more aggravated than those crimes alleged against the defendants—i.e., the actors carried assault-like rifles and explicitly threatened victims’ family members. Moreover, Judge Torres explained that the district court, in admitting the evidence, did not expressly evaluate its probative value or the risk of unfair prejudice to the defendants and did not appear to conduct the requisite balancing test that Federal Rule of Evidence 403 demands. Judge Torres also suggested that the government might have sought to demonstrate the similarities between the 2012 robbery and the film through less prejudicial means, including via a stipulation or testimony from a detective who had seen the movie several times and could testify to the parallels.
The question of whether to admit the film clips is a nuanced, fact-specific inquiry and neither the majority nor the dissenting opinion appears to advocate for a bright line rule that might provide clear guidance going forward. Perhaps the deferential abuse-of-discretion standard of review is enough to justify deference to the district court’s ruling. Here, there were several distinct similarities between the 2012 robbery and the selected film clips and the fact that one of the defendants custom designed a t-shirt that featured an image from The Town suggests more than a passing interest in the movie. That said, the panel opinion appears to underestimate the persuasive power of the Hollywood blockbuster. As Judge Torres pointed out, commercial cinema “is a manipulative art designed to elicit an emotional response from the viewer.” Fortunately here, the remaining evidence of the defendants’ guilt was overwhelming but other prosecutions may present a closer case.
One question that lurks behind this decision is whether we want prosecutors, emboldened by the affirmance in this case, to make a habit of showing movie scenes based on assertions of relevance. Should scenes from The Godfather or The Sopranos be shown at a trial involving alleged racketeering by La Cosa Nostra because those movies arguably have influenced members of LCN? Should clips from Wall Street be shown at an insider trading trial if one of the defendants is heard to say “Greed is good”? Or should prosecutors generally confine themselves to the actual evidence—testimonial and physical—of the crime in question without playing movie excerpts to the jury? While the majority opinion correctly notes that other circuits have affirmed the introduction of clips from Hollywood films in certain, limited circumstances, in each of those examples, there was a stronger nexus between the film and the alleged crime—either the defendant showed the movie to the victim of the crime, or the defendant made specific reference to the film in the course of the conspiracy. Surely there are less prejudicial alternative methods of introducing the same information, particularly where that information is minimally important to the prosecution’s case. While both the majority and the dissent agreed that the evidence of guilt was strong in this case, a defendant’s right to a fair and unbiased trial might be better safeguarded by a general rule that keeps Hollywood films on the big screen and out of the courtroom.