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'Scarface' Reference In Closing Argument Not Cause For Retrial

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By Brett Snider, Esq. on July 18, 2013 9:58 AM

Imagine one minute you’re being accused of conspiracy to deal large amounts of heroin, and the next minute the prosecutor at your trial is calling you Tony Montana from “Scarface” in closing arguments.

In U.S. v. Antonio Valdez (aka Tony), Appellant Antonio Valdez didn’t have to imagine too hard after the same stunt was pulled at his federal drug trial, and although the D.C. Circuit frowned on it, they didn’t believe the prosecutor’s movie trivia shenanigans were worth a new trial.

C'mon Jurors, You've Seen The Movie ...

Although Valdez had other complaints about the introduction of prior drug evidence at this trial, one of his main beefs was that the federal prosecutor explicitly told jurors that his co-conspirators called him "Montana," like the "Scarface" character Tony Montana.

Tony Montana, for the uninitiated, is a gangster aptly played by Al Pacino who makes millions trafficking cocaine and murdering people, and you might understand why someone on trial for drug trafficking might not appreciate the reference. Valdez argued that the link between a co-conspirator calling him "Montana" and the full "Scarface" reference were not at all supported by evidence in the trial, and therefore were completely inappropriate for closing arguments.

Say Hello To My Substantial Prejudice

There were no arguments from the D.C. Circuit that the prosecutor was out of line in making Valdez into a movie monster with his comment, but the question remained whether the comment was substantially prejudicial, requiring a new trial.

The D.C. Circuit's standard for "improper prosecutorial arguments" is substantial prejudice, one which is determined by three factors:

  1. Closeness of the case
  2. Centrality of the issue
  3. Steps taken to mitigate

This wasn't exactly a dramatic movie finish for the Valdez court, who noted that there was plenty of evidence to support Valdez's guilt outside this fringe comment in closing, and the jury was instructed only to consider those arguments for which they had been presented evidence.

Since it was basically a sour grace note by the prosecutor, and not much more, the D.C. Circuit found that it was a shady move (they quote an almost 8-decade-old case advising against "foul blows"), but not one deserving a retrial.

Say Goodnight to the Appellant

Valdez also argued that, "Scarface" references aside, the trial court failed to answer some pressing sentencing issues that left him at the statutory minimum of 20 years (240 months) in prison:

  • "Safety valve" consideration. This law allows for a departure below the statutory minimum for defendants who cooperate with the government.
  • Smith sentencing. Deals with ignoring Federal Sentencing Guidelines when the defendant, like Valdez, is facing deportation.

Regarding the "safety valve" departure from the statutory minimum, the D.C. Circuit ignores the argument since "Tony" didn't bother to actually comply and "debrief" with government officials.

The Smith issue is more interesting, but also easily distinguished, as Smith dealt with sentencing guidelines and Valdez is asking for a departure from mandatory minimums, a departure which would have been available under "safety valve" considerations... which he didn't comply with.

Bottom Line -- "The World is Yours"

Prosecutors shouldn't get cute with movie references, even "Scarface," and defendants should try complying with federal law before complaining that it didn't help them.

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