The law of "Midnight Run"

Midnight Run is a great movie--a buddy/road trip/action-comedy with a surprising heart and amazing performances. It features Robert DeNiro in his first comedy role, Charles Grodin in his career-defining role, and great supporting performances from Yaphet Kotto, Joe Pantoliano, and Dennis Farina. It has a bunch of great quotations and one-liners, including the line that I use to close class ("See you in the next life, Jack.").

"The Duke" (Grodin) is an accountant who embezzles $ 15 million in mob money and donates it to charity; he is arrested in California, then skips on his bond. Jack Walsh ("DeNiro") is a bounty hunter. Moscone (Pantaliono), the bail bondsman who put up a $ 450,000 bond on the Duke, hires Walsh to bring the Duke back from New York to California in three days or he forfeits the bond. Also looking for the Duke are FBI agent Alonzo Mosely (Kotto) who wants him to testify against Jimmy Serrano, the wiseguy from whom he stole, and Serrano (Farina), who wants to kill him for stealing from him and to keep him from testifying. Hijinks ensue.

The latest episode of the Blank Check podcast features an in-depth (almost 3-hour) discussion of the film. Around the 1:25 mark, they attempt to unpack the underlying legal issues and processes driving the plot. As often happens when non-lawyers discuss procedure, it does not go well--including insistence that the "Ninth District" includes California and Nevada and has its home in California where federal crimes are charged. So let me try to unpack the underlying legal process and ask the crim-law folks a few questions. Spoilers, but the movie is 36 years old this summer.

Legal process first, as the case has a quiet federalism theme: The Duke was arrested in California on state embezzlement charges; he lived and worked there and that is where he took the money (although the money belonged to Serrano in Vegas). Moscone needs the Duke to appear in California state court to avoid forfeiting the bond. Mosely wants to get Serrano on federal charges and he wants the Duke in federal custody (and eventually witness protection) to testify against him, without interference from (what he regards as) pissant state charges. Serrano wants to kill the Duke. It creates a narrative triangle--Moscone loses his money if the Duke does not appear because he is killed or taken into federal custody; Mosely loses his federal case against Serrano if the Duke is killed or gets back to California; and Serrano is in federal trouble if the Duke  is taken by the feds and pissed if the Duke gets away with stealing from him. Meanwhile, the Duke fears that Serrano will kill him in any of those situations; only Walsh setting him free and leaving him to his own devices keeps him safe.

So the dueling prosecutions that drive the plot make sense. Nevertheless, the plot raises some legal questions that perhaps crim law readers can answer:

    • Would Moscone forfeit the bond if the Duke does not appear because he is murdered or taken into federal custody as a witness? It seems hard to believe a bondsman loses his money if the bailee is murdered or taken into federal custody. Federal prosecutors should be able to work out the latter with the state court. Anyway, why did Moscone have no collateral to cover all or part of the bond? It makes sense that Moscone needs the Duke to appear and cannot have him on the lamb; it makes less sense if he is worried about Serrano or the feds stopping the Duke from appearing.

    • Put aside whether a state would spend its resources prosecuting an accountant for embezzling from the mob and donating to charity. I do not see why the Duke defending himself in California undermines the Duke serving as a witness in any federal prosecution. The state case should not prevent the feds from pursuing a federal cases against Serrano, as Mosely suggests. There may be timing and administrative concerns, but courts and prosecutors handle those all the time. Maybe the Duke is somehow more vulnerable to Serrano's people in state custody than in federal custody. Again, however, state and federal officials should be able to work out the best way to do this, in terms of timing and security.

    • The movie ends with Walsh tricking Serrano into going to the Airport-formerly-known-as-McCarran to trade the Duke (whom his goons had caught) for incriminating evidence on THE DISKS and with the plan of killing the Duke and Walsh. The idea being that coming to the airport to take the disks (even though they had nothing on them) was an overt act in furtherance of a conspiracy to obstruct justice. Plus bringing the Duke to the airport was interstate kidnapping; having armed goons at the airport was conspiracy to commit murder; and doing this in the airport was interstate transport in aid of racketeering. Is that all bullshit?

    • Walsh lets the Duke go at the end, causing Moscone to lose the $ 450k. Would that get Walsh in trouble with the feds? Do the feds need Walsh and/or the Duke to testify as to these particular charges? (I would think he would need the Duke for the kidnapping charge).

Because we never see a courtroom, I do not regard this as yet another movie getting the law wrong. Plus, it's too much fun. But we do have some open questions.