1996 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
 

 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