### 1996 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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. e du/thir dc ir c uit_1996/131UNITED 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 C OURT FOR THE DISTRICT OF NEW JERSEY (D.C. Criminal Nos. 93-00536-1, 93-00536-2 and 9 3-00536-4)

____________________ 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 botto m of page 5 and continues on page 6 is amended as follows. The first four sentences are d eleted and the following is inserted:
On January 8, 1993, Balter and Gil dr ove to Cohen's home near Peekskill, New York. They consi dered ambushingCohen in his own neighborhood but conclude d that Cohen's

business in the Bronx would be a better lo cation for the killing. While Balter and Gil were near Cohen's hou se, his housekeeper spotted them and became suspicious.

2. The paragraph that begins at the botto m of page 24 and continues at the top of page 25 is amended as follows. The current para graph is deleted and the following is inserted:
DeJesus correctly points out that the prosecution may not comment on a defendant's failure to testif y 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 atto rney to point to any evidence in the record supporting his theo ry of what occurred. Such a comment does not implicate any of t he 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 undes irable constraints on the government by precluding . . . comment s [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 Jud ge
DATED: August 16, 1996