United States v. Monsalvatge

850 F.3d 483, 102 Fed. R. Serv. 1136, 2017 WL 908205, 2017 U.S. App. LEXIS 4067
Court of Appeals for the Second Circuit·Decided March 8, 2017·No. 14-1113-cr(L), 14-1139-cr(CON), 14-1206-cr(CON)·Published·Cited by 12 cases

Opinions

Judge TORRES concurs in the judgment in a separate opinion.

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)(l)(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 [485] 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 in connection 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 anfi 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 resen-tencing as to Dunkley.

BACKGROUND

I. Factual Background1

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 Toum and admired it, and that the co-conspirators altered their mo-dus 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, di[486] rected 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 Haf-eez 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

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United States v. Monsalvatge, 850 F.3d 483, 102 Fed. R. Serv. 1136, 2017 WL 908205, 2017 U.S. App. LEXIS 4067 (2d Cir. 2017).

850 F.3d 483 (United States v. Monsalvatge) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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