                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-16-1996

United States v. Balter
Precedential or Non-Precedential:

Docket 94-5593,94-5625,94-5626




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Recommended Citation
"United States v. Balter" (1996). 1996 Decisions. Paper 131.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/131


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                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                         ____________

                Nos. 94-5593, 94-5625, 94-5626
                         ____________

                    UNITED STATES OF AMERICA

                               v.

                         RICHARD BALTER
                             Appellant No. 94-5593


                    UNITED STATES OF AMERICA

                               v.

                         KENNETH CUTLER
                            Appellant No. 94-5625


                  UNITED STATES OF AMERICA

                               v.

                      CHRIS OSCAR DEJESUS
                            Appellant No. 94-5626
                      ____________________

       ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW JERSEY
  (D.C. Criminal Nos. 93-00536-1, 93-00536-2 and 93-00536-4)
                     ____________________

                     Argued: March 6, 1996
     Before:   MANSMANN, ALITO, and LEWIS, Circuit Judges

                (Order Filed: August 16, 1996)
                     ___________________

                             ORDER
                      ____________________

         The opinion in this case is hereby amended as follows:
         1. The paragraph that begins at the bottom of page 5 and
continues on page 6 is
amended as follows. The first four sentences are deleted and the
following is inserted:

             On January 8, 1993, Balter and Gil drove to Cohen's
        home near Peekskill, New York. They considered ambushing
         Cohen in his own neighborhood but concluded that Cohen's
         business in the Bronx would be a better location for the killing.
         While Balter and Gil were near Cohen's house, his housekeeper
         spotted them and became suspicious.

         2. The paragraph that begins at the bottom of page 24 and
continues at the top
of page 25 is amended as follows. The current paragraph is deleted and
the following is
inserted:

              DeJesus correctly points out that the prosecution may not
         comment on a defendant's failure to testify and may not
         improperly suggest that the defendant has the burden to produce
         evidence. United States v. Parker, 903 F.3d 91, 98 (2d Cir.),
         cert. denied, 498 U.S. 872 and 874 (1990); United States v.
         Drake, 885 F.2d 323 (6th Cir. 1989), cert. denied, sub nom.Clark
v. United States, 495 U.S. 1033, and cert. denied, 493
         U.S. 1049 (1990). But the prosecutor did not do that; he
         commented on the failure of DeJesus's attorney to point to any
         evidence in the record supporting his theory of what occurred.
         Such a comment does not implicate any of the burden-shifting
         concerns that are raised when a prosecutor points to a
defendant's
         failure to testify or improperly suggests that the defendant has
the
         burden of producing evidence. See United States v. Gotchis, 803
         F.2d 74, 81 (2d Cir. 1986) (noting without reaching the issue
         that a court "would place especially undesirable constraints on
         the government by precluding . . . comments [on the absence of
         evidence to rebut its case] where defense counsel himself has
         suggested the alternative theory that the prosecutor then
         undertakes to debunk").

                           /s/ Samuel A. Alito, Jr.
                                 ______________________________
                                         Circuit Judge

DATED:   August 16, 1996
