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Precedential or Non-Precedential: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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996
Recommended Citation
"United States v. Balter" (1996). 1996 Decisions. Paper 131.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/131
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
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