United States v. Balter

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

7-29-1996

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Precedential or Non-Precedential: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 130.
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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

(Opinion Filed: July 29, 1996)

____________________

Faith S. Hochberg
United States Attorney
Kevin McNulty (Argued)
Chief, Appeals Division
Renee M. Bumb
Assistant United States Attorney
970 Broad Street
Newark, New Jersey 07102

Counsel for Appellee
 Paul B. Brickfield, P.C. (Argued)
70 Grand Avenue
River Edge, New Jersey 07661

Richard E. Mischel, Esq.
Kenneth Cutler, Esq.
233 Broadway, Suite 3507
New York, New York 10279

Salvatore C. Adamo, Esq.
412 Liggett Boulevard
Phillipsburg, New Jersey 08865-4016

Counsel for Appellant

OPINION OF THE COURT

ALITO, Circuit Judge:
This case comes before us as a consolidated appeal from judgments
of sentence
imposed upon Richard Balter, Kenneth Cutler, and Chris Oscar DeJesus.
After a joint trial,
Balter, Cutler, and DeJesus were convicted for the murder-for-hire of
Richard Cohen, in
violation of 18 U.S.C. 1958 and 2, and Balter and Cutler were also
convicted on related
counts of mail fraud, in violation of 18 U.S.C. 1341, 1342. Although
numerous
allegations of error are raised, one issue -- whether New Jersey Rule of
Professional Conduct
4.2 which prohibits an attorney from contacting a represented party
applies to federal
prosecutors acting in the course of a pre-indictment investigation -- is a
question of first
impression for our court. We affirm.

I.
Richard Balter was the president and sole shareholder of
Northeastern Poly
Products, Inc. ("NPP") of Fairfield, New Jersey. NPP sold and distributed
plastic bag
products. Balter met Kenneth Cutler in the mid-1980's when Cutler was
working for one of
NPP's customers. Balter and Cutler had an arrangement under which Balter
paid cash
kickbacks to Cutler in exchange for the purchase of NPP's products. The
cash for these
kickbacks was generated by issuing checks to the fictitious payee "Robert
Katz." In 1992,
Balter hired Cutler to work at NPP, and shortly after Cutler arrived,
Balter and Cutler formed
another plastic bag product company, International Syndication of America
("ISA").
Robert Cohen owned and operated Uneeda Manufacturing Corporation
("Uneeda") in the Bronx, New York. Uneeda was an NPP customer that
manufactured
garbage cans and distributed plastic garbage bags. Uneeda was NPP's most
delinquent
account. By the early 1990's, Uneeda's outstanding balance had grown to
approximately
$600,000. Balter initially tried to collect this debt by calling
Cohen, and Cutler became
involved with these collection efforts soon after joining NPP. Cutler had
known Cohen for
many years prior to his involvement with Balter. In fact, Cutler had been
Cohen's best man at
his wedding. Trial tr. at 3393. Cutler believed that NPP could not
withstand the "financial
blow" if Uneeda defaulted. At one point, Cutler commented to an NPP
employee that
"something had to be done" and that "he was going [to] take care of the
Uneeda problem."
SA. 354.
Cohen began to worry that his business relationship with NPP had
deteriorated
to such a point that Balter would refuse to supply him with products.
Fearing that this would
thwart Uneeda's ability to make sales and generate income to pay its
debts, Cohen discussed
this problem with his long-time insurance agent, Jefferey Liederman, at
New York Life
Insurance Company ("New York Life"). Liederman suggested that Cohen take
out a life
insurance policy and that he name Balter as the beneficiary as a sign of
good faith to convince
Balter not to cut off Uneeda's product supply. Cohen agreed.
Balter and Cutler were also Liederman's clients, and Liederman
discussed the
Uneeda account deficit with them over lunch on several occasions. After
Cohen agreed to take
out the life insurance policy, Liederman reviewed with Balter the tax
advantages that he would
gain as the owner and beneficiary of that policy.
In February 1992, New York Life received an application for a
$600,000 life
insurance policy designating Cohen as the owner of the policy and his
estate as the beneficiary.
The application was accepted. About a month later, New York Life received
a change of
beneficiary form changing the ownership of the policy to Richard Balter
and designating
"Richard Balter-Creditor" as the new beneficiary. Balter paid the first
month's premium on
the policy and each monthly payment thereafter.
In September 1992, Cutler contacted Gustavo Gil, a former co-
worker. Cutler
and Gil had worked together at the Chrysler Corporation beginning in 1979,
but they had not
spoken in several years. Cutler told Gil that he wanted to introduce him
to a friend, but would
not explain the reason for the introduction.
Gil met Cutler and Balter at a diner in Secaucus, New Jersey.
After
introductions, Balter told Gil that "there was a person who owed him a lot
of money and who
ha[d] insulted him and he wanted this man shot and killed." SA. 21.
Balter described the
victim as a businessman in the Bronx, but he did not name him. Balter
asked Gil if he knew
anyone who could do the killing, and Gil indicated that he did. Balter
explained that he was
willing to pay "ten thousand dollars or more if necessary" for the murder.
SA. 22. Cutler
instructed Gil to call them when he located someone to commit the murder.
Balter and Cutler
also offered to set Gil up in NPP's warehouse so that Gil could start his
own business.
Over the course of the next month, Balter and Cutler pressed Gil
to find
someone to commit the murder. NPP's bankers were threatening to withdraw
NPP's line of
credit due to concern about the Uneeda account. Balter gave Gil an office
in the NPP
warehouse and other assistance to start his own business reconditioning
automotive engines.
During this period, Gil learned that Cohen was the intended victim. On
one occasion, he
travelled with Balter's driver to Uneeda at Balter's behest. Gil met
Cohen at Uneeda and
engaged him in conversation for approximately five minutes.
In December 1992, Gil contacted Manuel Garcia at a video store in
Brooklyn,
New York, to help him find someone to kill Cohen. Garcia had worked for
Gil in 1989, and
Garcia had often talked about the people he knew in a gang called the
"Tigres." Garcia had
told Gil that the "Tigres" were involved in drug sales, murders, and other
violent crimes. SA.
13-14.
Gil told Garcia that the people he represented would pay $10,000
to have Cohen
killed. Garcia expressed interest and said that he had "just the guy" to
carry out the murder.
SA. 51. Garcia immediately introduced Gil to DeJesus. DeJesus
acknowledged that he had
done this type of work in the past, but stated that he had not done it
recently. However, he
admitted that he needed the money and therefore agreed to commit the
murder. DeJesus
demanded half of the money in advance. Gil then drove DeJesus to Uneeda
and explained to
him the details of the plan to kill Cohen.
Gil went to Balter that same day and informed him that DeJesus
would do the
job for $10,000, if half was paid up front. Balter gave Gil $5,000 in
cash that he had
generated by writing checks for fictitious expenses. Gil delivered the
$5,000 to DeJesus the
following day.
Meanwhile, Balter and Cutler were planning the details of the
murder. On
January 8, 1993, they 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 Cutler were
near Cohen's house,
his housekeeper spotted them and became suspicious. She told Cohen what
she had seen and
described Balter's car to him. Cohen became concerned and contacted
Liederman. He told
Liederman that he believed that Balter meant to harm him and indicated
that he wanted Balter
removed as the beneficiary of the insurance policy. Liederman explained
that Balter owned
the policy and that Cohen therefore could no longer change the
beneficiary.
Gil and DeJesus drove to Uneeda on the morning of January 19,
1993. Garcia
was originally supposed to drive DeJesus, but the two had had a
disagreement, and Gil had
assented that morning to drive DeJesus to the murder scene. Cohen arrived
late for work. By
the time he arrived, the street was too busy to attempt the shooting. Gil
and DeJesus left
Uneeda and went directly to Balter's office at NPP to tell him of the
aborted attempt. They
agreed to try again the next morning. Balter stressed to DeJesus
that he wanted Cohen
dead, not injured. He told DeJesus to shoot Cohen in the head and to drop
a bag of cocaine
by the body to give the appearance of a drug-related killing. DeJesus
assured Balter that he
knew what to do and that he had done this before. Balter also told
DeJesus that "if there are
other people there when [Cohen's] there . . . shoot them all." SA. 94.
Gil and DeJesus drove to Uneeda the next morning, January 20,
1993. When
Cohen arrived, DeJesus engaged him in a short conversation and then shot
him at least three
times in the chest with a pistol. An eyewitness to the shooting described
the shooter as a light-
skinned Hispanic man, between 21-27 years old, approximately 5'6," of
medium build, with
straight black bangs and a moustache.
After the murder, Gil and DeJesus drove back to NPP. Balter gave
DeJesus
more money and told him that he would give him additional money "in a
couple of months."
SA. 111. Cohen remained unconscious until he died on March 5, 1993.
Balter and Cutler
then submitted a claim form requesting payment on the life insurance
policy.
In the meantime, federal law enforcement agents began
investigating the
murder. Shortly after the investigation commenced, Gil admitted his role
in the killing and
secretly began cooperating with federal officers. He surreptitiously
recorded numerous live
and telephone conversations with each of his co-conspirators. The taped
conversations include
discussions about the murder, the cover-up, and payments made to DeJesus
for committing the
murder. They largely corroborate Gil's extensive testimony identifying
the different roles
each of the defendants had in the murder scheme.
On November 9, 1993, a federal grand jury in the District of New
Jersey
returned an indictment against Balter, Cutler, DeJesus, and Garcia, and
all of the defendants
were arrested the following day. DeJesus was arrested in Aberdeen, North
Carolina. After
signing a written waiver-of-rights form and answering some brief
biographical questions, he
was given a copy of the indictment against him and was taken for an
initial appearance. He
made no further statements until two days later when he called the
arresting postal inspector in
an attempt to make a deal.
The defendants were jointly tried in the United States District
Court for the
District of New Jersey beginning in late May 1994. At the end of the
government's case, the
defendants moved for judgment of acquittal on all counts, and the
government moved for the
voluntary dismissal of three counts of mail fraud and aiding and abetting
against Balter and
Cutler. The district court granted the government's motion and denied the
defendants' motion
to dismiss the remaining counts.
Balter presented no defense. Cutler testified on his own behalf,
but presented
no other witnesses. DeJesus presented one witness. The jury found the
defendants guilty of
all the remaining counts on June 27, 1994. The district court imposed
sentences of life
imprisonment on all of the defendants, and they then appealed.

II.
On appeal, Balter argues that the district court erred by: (1)
denying his
repeated motions for a severance; (2) refusing to suppress his taped
statements on the ground
that they were made in violation of New Jersey Rule of Professional
Conduct 4.2; and (3)
admitting certain evidence under Federal Rule of Evidence 404(b). Cutler
appeals solely on
the issue of severance. DeJesus contends: (1) that the district court
erred by improperly
admitting Rule 404(b) evidence against him; (2) that the government
impermissibly commented
on his post-arrest silence in its summation in violation of Doyle v. Ohio,
426 U.S. 610 (1975);
(3) that the government improperly shifted the burden of proof to him
during its summation;
(4) that the government retreated from its theory of the case during its
closing and created a
variance from the indictment; (5) that the district court erroneously
admitted his high school
yearbook photograph; and (6) that the cumulative effect of these alleged
errors requires the
reversal of his conviction. We will address each of these arguments
seriatim.

III.
A. Balter and Cutler claim that they had "mutually antagonistic
defenses" at
trial and that the district court therefore erred in failing to grant
their repeated motions for a
severance. We reject this argument.
As the Supreme Court observed in United States v. Zafiro, 506
U.S. 534, 537
(1993) (quoting Richardson v. Marsh, 481 U.S. 200, 209 (1987)), "[t]here
is a preference in
the federal system for joint trials of defendants who are indicted
together," because joint trials
"promote efficiency and `serve the interests of justice by avoiding the
scandal and inequity of
inconsistent verdicts.'" In Zafiro, as in this case, the defendants
argued that they had been
prejudiced because they had "mutually antagonistic" or "irreconcilable"
defenses, and they
urged the Court to adopt "a bright-line rule, mandating severance whenever
codefendants have
conflicting defenses." Id. at 538. The Court, however, explicitly
declined to adopt such a
rule. Id. at 538. Rather, the Court instructed that trial courts should
grant a severance under
Fed. R. Crim. P. 14 "only if there is a serious risk that a joint trial
would compromise a
specific trial right of one of the defendants, or prevent the jury from
making a reliable
judgment about guilt or innocence." Zafiro, 506 U.S. at 538-39. "Such a
risk might occur,"
the Court observed, "when evidence that the jury should not consider
against a defendant and
that would not be admissible if a defendant were tried alone is admitted
against a
codefendant." Id. at 539. The Court cited three specific examples in
which this might take
place: (1) "a complex case" involving "many defendants" with "markedly
different degrees of
culpability," (2) a case such as Bruton v. United States, 391 U.S. 123
(1968), where evidence
that is probative of one defendant's guilt is technically admissible only
against a co-defendant,
and (3) a case where evidence that exculpates one defendant is unavailable
in a joint trial.
Zafiro, 506 U.S. at 539.
Since Zafiro, claims based on mutually antagonistic defenses
have usually been
found insufficient to warrant severance without a strong showing that such
specific rights were
impaired. See, e.g., United States v. Voight, ___ F.3d ___, ___ (3d Cir.
1996); United
States v. Frost, 61 F.3d 1518, 1526 (11th Cir. 1995); United States v.
Quintero, 38 F.3d
1317, 1341-42 (3d Cir. 1994), cert. denied, 115 S.Ct. 1263 (1995); United
States v. Linn, 31
F.3d 987, 992 (10th Cir. 1994); United States v. Dimas, 3 F.3d 1015, 1020
(7th Cir. 1993).

A denial of a motion for severance may be reversed only if the
district court
abused its discretion. Zafiro, 506 U.S. at 541; United States v.
Thornton, 1 F.3d 149, 152
(3d Cir.), cert. denied, 114 S.Ct 483 (1993). Defendants seeking to
overturn a district court's
discretionary decision to deny a motion for severance "must demonstrate
clear and substantial
prejudice resulting in a manifestly unfair trial." United States v.
Voight, ___ F.3d at ___;
United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991), cert. denied
502 U.S. 925
(1991). "`Prejudice should not be found in a joint trial just because all
evidence adduced is
not germane to all counts against each defendant' or some evidence adduced
is `more
damaging to one defendant than others.'" United States v. Console, 13
F.3d 641, 655 (3d Cir.
1993), cert. denied, 114 S. Ct. 1660 (1994) (citing Eufrasio, 935 F.2d at
568).
 In this case, although Balter and Cutler maintain that they had
mutually
antagonistic defenses at trial, they have not identified any specific
trial rights that were
compromised by the joint trial; nor have they demonstrated that the joint
trial impeded the jury
from making a reliable judgment about guilt or innocence. Accordingly, we
find no abuse of
discretion on the part of the trial judge in denying their severance
requests.

B. Balter claimed complete innocence and alleged that Cutler,
Gil, Garcia, and
DeJesus murdered Cohen and then sought to extort Balter by threatening to
frame him with the
murder. Balter alleges generally that the joint trial was unreliable and
that he was "repeatedly
denied the opportunity to present his defense and adequately cross-examine
witnesses testifying
against him." Balter Br. at 15. Balter's most specific allegations of
prejudice are (a) that he
was denied the right to cross-examine Gil "on numerous occasions" and (b)
that the court
refused to admit evidence that he proffered to show that he had sought to
disassociate himself
from DeJesus and to show that Garcia had a history of murder and other
violent conduct. This
latter evidence, Balter argues, would have supported his defense that he
succumbed to the
others' extortion after the murder because he feared Garcia.
Balter's arguments are inconsistent with the record. Although he
claims that his
attorney was unduly restricted in his cross-examination of Gil, this
cross-examination was
detailed and extensive, JA. 491-869, and Balter has not cited any
specific information that
would have been helpful to his defense and that he was not permitted to
elicit from Gil. Nor
has he cited any evidence that was admitted against him that would have
been inadmissible had
he been tried separately.
Furthermore, neither of the two rather routine evidentiary
rulings of which
Balter complains resulted in prejudice that approached a level that would
have warranted a
severance. First, Balter sought to introduce a portion of transcript
containing his statement
that he did not want to be associated with DeJesus because DeJesus had a
criminal record.
Balter wanted to introduce this portion of the transcript to corroborate
his claim that he feared
DeJesus. However, DeJesus, although he might have been involved in past
criminal conduct,
did not have a criminal record. Consequently, the court permitted Balter
to introduce a
redacted version of the transcript that included Balter's statement that
he did not wish to be
associated with anyone but that omitted the portion of the statement
reflecting Balter's
erroneous belief that DeJesus had a criminal record. SA. 243. The court
further ruled that
Balter's attorney, in cross-examining Gil, could ask him if he had told
Balter that DeJesus had
a criminal record but that if Balter's attorney asked this question the
court would instruct the
jury that DeJesus did not have a record. Balter's attorney then elected
not to pursue this
matter in cross-examining Gil. The district court's handling of this
issue was fair and sensitive
to the needs of Balter's defense, and the likelihood that the redaction of
the transcript had any
detrimental effect on Balter seems quite low.
Second, Balter challenges the district court's exclusion of Gil's
proposed
testimony that Garcia had told him that he had recently committed another
murder in order to
convince Gil that he was qualified for the present job. The court ruled
that the prejudicial
effect of this statement on co-defendant Garcia outweighed the probative
value for Balter to
establish fear. Nevertheless, the court permitted Balter to elicit
testimony about Garcia's
involvement with a violent drug gang that was involved in "[d]rug sales,
violent acts, [and]
murder." JA. 1310-11. This was adequate to support Balter's claim of
fear.
We conclude that Balter cannot show prejudice from the joint
trial and that the
district court did not abuse its discretion in denying his motions for a
severance.

C. Cutler maintained that he did not participate in the murder
and merely
helped to cover up Balter's involvement after the fact. Cutler argues
that the trial court's
failure to grant his severance motions prejudiced him by creating the
incentive for Balter's
counsel to become a "second prosecutor." There are pre-Zafiro cases that
advanced the
"second prosecutor" theory as a ground for requiring severance. See
United States v. Tootick,
952 F.2d 1078, 1082 (9th Cir. 1991); United States v. Romanello, 726 F.2d
173, 179 (5th
Cir. 1984). Justice Stevens also noted it as a potential problem in his
concurrence in Zafiro.
Id. 506 U.S. at 544. Cutler, however, cites no post-Zafiro cases
reversing a trial judge's
denial of a severance on the basis of this theory, and we are not aware of
any such cases. In
fact, Cutler concedes that Tootick, one of the leading cases embracing
this theory and one of
the cases on which he relies most heavily, was subsequently limited to its
facts by the Ninth
Circuit after Zafiro. United States v. Buena-Lopez,987 F.2d 657, 660-61
(9th Cir. 1993).
The court observed in Buena-Lopez that the relevant inquiry after Zafiro
focuses on specific
and significant prejudice to the defendant, not on a more general "second
prosecutor" theory.
Id.
Cutler's only specific claim of prejudice is that the district
court refused to
permit him to introduce hundreds of checks made out to the fictitious
payee "Robert Katz."
After the government introduced five such checks in order to show the
method by which Balter
generated cash to pay for the murder, Cutler sought to introduce all of
the "Robert Katz"
checks to show that Balter had used such checks to pay Cutler for other
services and that
therefore that the five checks introduced by the government were not
necessarily related to the
murder. The court excluded the hundreds of checks that Cutler sought to
introduce because
the court thought that they would confuse the jury, but the court allowed
another witness to
testify about all of the checks. JA. 1071. Indeed, Cutler agreed on the
record to this
approach. Id.
In view of Cutler's acceptance of this approach, we would not
find that the
district court erred even if Cutler could show that he was prejudiced by
not being permitted to
introduce the actual checks. See United States v. Olano, 113 S.Ct. 1770,
1777 (1993). But in
any event, Cutler has not shown that he suffered prejudice. We therefore
hold that the district
court did not abuse its discretion in denying his motions for a severance.
IV.
Balter also contends that the district court erroneously
admitted taped
telephone conversations between himself and Gil. Balter argues that these
tapes were made in
violation of New Jersey Rule of Professional Conduct 4.2, which prohibits
a lawyer from
contacting a represented party. Balter maintains that, even before he was
indicted, Rule 4.2
prohibited the government from using Gil as its agent to contact him
because he had already
retained counsel. According to Balter, the required remedy for these
alleged violations of
Rule 4.2 is the suppression of these statements.
Local Rule 6(A) of the United States District Court for the
District of New
Jersey provides that the Rules of Professional Conduct of the American Bar
Association as
revised by the New Jersey Supreme Court shall apply to attorneys
practicing before the
District Court, "subject to such modifications as may be required or
permitted by federal
statute, regulation, court rule or decision of law." D.N.J.R. 6(A). Rule
4.2 of the New
Jersey Rules of Professional Conduct ("Rule 4.2" or "the Rule") provides:
In representing a client, a lawyer shall not communicate about
the
subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless authorized by
law to do so.
N.J.R.P.C. 4.2. The New Jersey Supreme Court has not considered the
applicability of this
Rule to prosecutors acting in the course of a pre-indictment
investigation. "Where there is no
definitive state court decision interpreting the rules as promulgated by
the [New Jersey]
Supreme Court, the federal Court will proceed to reach its own conclusion
as to the
appropriate application of the Rules of Professional Conduct." D.N.J.R.
6, Comment. In this
case, the district court rejected Balter's argument on the theory that
federal prosecutors are
"authorized by law" to conduct pre-indictment investigations and that
contact with a
represented party in the course of such an investigation if therefore
permitted under Rule 4.2.
Whether Rule 4.2 applies to government attorneys who communicate
with a
suspect as part of a pre-indictment criminal investigation is a question
of first impression for
this court, but we have no doubt that the district court's decision was
correct. The language
of Rule 4.2 and the opinions of the Appellate Division of the New Jersey
Superior Court
construing that rule support the view that the Rule is inapplicable to
cases such as the one
before us. Moreover, the overwhelming majority of circuits to have
addressed this issue have
also concluded that Model Rule of Professional Conduct 4.2, upon which New
Jersey Rule 4.2
is based, is not applicable in such circumstances.
By its terms, Rule 4.2 applies to a "party" represented in a
"matter." A "party"
is necessarily a "party" to something. The Appellate Division of the New
Jersey Superior
Court has held that a criminal suspect is not a "party" until "after
formal legal or adversarial
proceedings are commenced." State of New Jersey v. Ciba-Geigy Corp., 589
A.2d 180, 183
(App. Div. 1991), appeal dismissed, 617 A.2d 1213 (N.J. 1992). The court
in Ciba-Geigyexplained that in the criminal context adversarial
proceedings commence "by complaint or
indictment after investigation." Id. at 185 (emphasis added). We agree.
Moreover, even if a criminal suspect were a "party" within the
meaning of the
Rule, pre-indictment investigation by prosecutors is precisely the type of
contact exempted
from the Rule as "authorized by law." New Jersey case law has explicitly
exempted ordinary
pre-indictment investigation as within the "authorized by law" exception
to the Rule. State v.
Porter, 510 A.2d 49, 54 (App. Div. 1986). Prohibiting prosecutors from
investigating an
unindicted suspect who has retained counsel would serve only to insulate
certain classes of
suspects from ordinary pre-indictment investigation. Furthermore, such a
rule would
significantly hamper legitimate law enforcement operations by making it
very difficult to
investigate certain individuals. Thus, even assuming that Gil contacted
Balter at the direction
and under the supervision of government attorneys, the conduct of these
attorneys was clearly
in the course of a legitimate pre-indictment investigation and was
therefore "authorized by
law" under New Jersey Rule 4.2.
This conclusion is supported by the decisions of many other
courts of appeals.
Indeed, with the exception of the Second Circuit, every court of appeals
that has considered a
similar case has held, for substantially the same reasons as those noted
above, that rules such
as New Jersey Rule 4.2 do not apply to pre-indictment criminal
investigations by government
attorneys. See, e.g., United States v. Powe, 9 F.3d 68 (9th Cir. 1993);
United States v.
Ryans, 903 F.2d 731 (10th Cir.), cert. denied, 498 U.S. 855 (1990); United
States v. Sutton,
801 F.2d 1346 (D.C. Cir. 1986); United States v. Dobbs, 711 F.2d 84 (8th
Cir. 1983); United
States v. Weiss, 599 F.2d 730 (5th Cir. 1979); But see United States v.
Hammad, 858 F.2d
834 (2d Cir. 1988), cert. denied, 498 U.S. 871 (1990). And even the
Second Circuit has held
that ordinary pre-indictment investigation, such as that involved in this
case, falls within the
"authorized by law" exception to the Rule absent some independent
misconduct by the
prosecutors. Hammad, 858 F.2d at 840.
We hold that New Jersey Rule 4.2 is inapplicable to contacts made
by
prosecutors or their agents with criminal suspects in the course of a pre-
indictment
investigation. The district court therefore did not abuse its discretion
in refusing to suppress
the taped statements at issue here.

V.
A. Balter and DeJesus also contend that the district court
violated Federal Rule
of Evidence 404(b) by admitting certain of their statements that show, in
their view, nothing
more than a propensity to commit crimes. Trial court rulings under Rule
404(b) are reviewed
for an abuse of discretion and may be reversed only when they are "clearly
contrary to reason
and not justified by the evidence." United States v. Bethancourt, 65 F.3d
1074, 1079 (3d Cir.
1995), cert. denied, 116 S.Ct. 1032 (1996) (citation omitted). This
stringent standard has not
been met here.

B. Balter objects to the admission of a statement that he made
to Gil in a taped
conversation that took place after the murder. After Gil mentioned to
Balter that DeJesus
wanted more money, Balter responded that if DeJesus "just disappears, then
we'll have no f----
-- problems." Balter added, however, that "then we'll be involved with
someone else again."
SA. 234. Balter asserts that there was no proper basis for admitting
this statement under
Rule 404(b) and that it was admitted merely to show criminal propensity.
He maintains that
the statement has "no probative value," Balter Br. at 30 (emphasis in
original), and is highly
prejudicial. We disagree.
Under Rule 404(b), evidence of "other crimes, wrongs, or acts"
may be
admissible to show, among other things, "preparation, plan, and
knowledge." The statement
in question here is clearly relevant to show Balter's knowledge of the
original plan and his
involvement in the plan to cover up the murder. It casts significant
doubt on his defense that
he had nothing to do with the planning of the murder but was merely
extorted to make
payments after the fact by the other parties. Consequently, the district
court's admission of
this statement did not violate Rule 404(b).
C. DeJesus objects to the admission of testimony that he had
boasted of
previous experience as a murderer for hire. Gil was questioned about the
conversation he had
with DeJesus when he first asked DeJesus if he would be interested in
committing the murder
for payment, and Gil testified that DeJesus acknowledged that he was
interested. Gil added
that DeJesus had "told [him] that he had done this type of thing before,
. . . that he had not
been doing it, but would do it because he needed the money," and "that he
knew what he had
to do, he had done it before and he knew what he had to do to kill [the
victim]." SA. 81, 99.
DeJesus asserts that these statements had no probative value and
were highly
prejudicial. Again, however, we see no basis for reversing the trial
judge's ruling. DeJesus's
defense was that he was present at the murder scene but that he did not
commit the murder.
These statements were relevant to show, among other things, that he had a
financial motive to
commit the murder and the intent to do so. They also show preparation.
DeJesus was trying
to sell himself to Gil as a seasoned professional. His motive for getting
involved and his intent
in going to the scene are central to the charge of traveling interstate
with the intent to commit
murder for hire. Thus, the district court had a sound basis for
concluding that these
statements were admissible under Rule 404(b).

VI.
DeJesus contends that one of the prosecutors violated the rule of
Doyle v. Ohio,
426 U.S. 610 (1976), during her summation by commenting on his post-arrest
silence for the
purpose of impeaching a subsequent exculpatory statement. We are troubled
by the
prosecutor's comments, but we are convinced that even if they were
improper they constituted
harmless error.
A. DeJesus was arrested in Aberdeen, North Carolina, by Postal
Inspector
William Johnson. Upon his arrest, DeJesus was read his Miranda rights,
and he signed a
written waiver of those rights. He then disclosed information about his
identity and personal
history, but he did not comment on the offenses for which he had been
arrested. JA. 1455-57.
He was taken to court in Winston-Salem for his initial appearance. JA.
1459-60. Upon
arrival, he was given a copy of his indictment. After having the
opportunity to read the
indictment for approximately 25 minutes, DeJesus was brought before a
magistrate judge.
Although the record of the initial appearance has not been made a part of
the record of this
case, the district court and the parties have all proceeded on the
assumption that the initial
appearance was conducted in conformity with Rule 5(c) of the Federal Rules
of Criminal
Procedure and that the magistrate judge therefore informed DeJesus that he
was "not required
to make a statement and that any statement made by [him could] be used
against [him]." Fed.
R. Crim. P. 5(c). See JA. 1575.
After the initial appearance, DeJesus was incarcerated, and two
days later, he
telephoned Inspector Johnson and tried to make a deal. JA. 1461. DeJesus
said that he was
afraid of Gil. He admitted that he drove with Gil to the homicide, but he
maintained that Gil
had actually done the shooting. He explained that he had testified in
other similar cases and
offered to help in any way he could. JA. 1462.
DeJesus complains specifically of two comments that the
prosecutor made in
summation. The prosecutor remarked:
If DeJesus is totally innocent and in his mind all he did was he
drove there and he was totally innocent, okay, then why didn't he
as he's reading the indictment pop up and say wait a minute, wait
a minute, they're saying I was the hit man here, I wasn't the hit
man here, I just drove there. And if in his own mind he's
totally
innocent and he just drove there then why doesn't he just pop
right up and say whoa, he knew what it meant to talk? But he
waits two days, he waits two days to concocted [sic] his story. .
.
. He's trying to cut himself a break because he thinks that the
Government doesn't know about Gus Gil because his name's not
in [the indictment]. So he's saying to himself, he's sitting
there
pondering for two days well, I'll tell them, I'll blame it on Gus
Gil,and I'll tell them I just drove then as the Government
probably doesn't know about Gus Gil so let me, let me tell him
and I'll cut myself a break.

JA 1543-44. The prosecutor also commented: "If [DeJesus] just drove and
he's totally
innocent, then why didn't he tell Inspector Johnson immediately? Why wait
two days?" JA.
1557.
DeJesus's counsel immediately moved for a mistrial based on these
comments.
The court denied this motion but gave a limiting instruction that
admonished the jury not to
consider the portion of the prosecutor's argument that focused on
DeJesus's silence at his
preliminary hearing. Nonetheless, the court explained that the jury could
consider the
chronology of events, so long as it did not consider DeJesus's silence.
At the conclusion of
the trial, DeJesus's counsel made a second motion for a mistrial, but this
motion was also
denied.

B. In Doyle v. Ohio, supra, the Supreme Court held that "the use
for
impeachment purposes of [a defendant's] silence, at the time of arrest and
after receiving
Miranda warnings, violate[s] the Due Process Clause." The Court
reasoned:
The warnings mandated by [Miranda], as a prophylactic means of
safeguarding Fifth Amendment rights, . . . require that a
person taken into custody be advised immediately that he
has the right to remain silent, that anything he says may be used
against him, and that he has a right to retained or appointed
counsel before submitting to interrogation. Silence in the
wake of these warnings may be nothing more than the arrestee's
exercise of these Miranda rights. Thus, every post-arrest
silence
is insolubly ambiguous because of what the State is required to
advise the person arrested. . . . Moreover, while it is true
that
the Miranda warnings contain no express assurance that silence
will carry no penalty, such assurance is implicit to any person
who receives the warnings. In such circumstances, it would be
fundamentally unfair and a deprivation of due process to allow
the arrested person's silence to be used to impeach an
explanation
subsequently offered at trial.

426 U.S. at 617-18 (citations and footnote omitted).
In attempting to defend the prosecutor's comments, the government
points out
that the present case differs from Doyle in that Doyle concerned a
defendant's silence
immediately after the administration of Miranda warnings whereas this case
concerns
DeJesus's silence during the two days following the (presumed)
administration of warnings at
his initial appearance. The government then notes that the Supreme Court
has repeatedly
declined to extend the rule of Doyle beyond its original scope. See
Jenkins v. Anderson, 447
U.S. 231 (1979) (pre-arrest silence may be used to impeach exculpatory
testimony at trial);
Anderson v. Charles, 447 U.S. 404 (1979) (inconsistent statement given
after arrest and
Miranda warnings may be used to impeach exculpatory trial testimony);
Fletcher v. Weir, 455
U.S. 603 (1981) (post-arrest silence may be used to impeach exculpatory
testimony at trial
where no Miranda warnings were ever given). Furthermore, the Court has
held that there is
no Doyle violation where the trial court gives a curative instruction
informing the jury that the
defendant's post-arrest silence is not evidence and cannot be used to
infer guilt. Greer v.
Miller, 483 U.S. 756 (1986).
We are not convinced that the government's suggested distinction
is valid. It
may be that a defendant's silence immediately after receiving Miranda
warnings is more likely
to represent the exercise of Miranda rights than is a defendant's silence
for an extended period
after the receipt of warnings, but the amount of time that elapsed in this
case between the
(presumed) administration of warnings at the initial appearance and the
defendant's telephone
call to Inspector Johnson -- two days -- was not great. A defendant might
well remain silent
for such a period in reliance on the belief, engendered by the warnings,
that his silence could
not in any way be used against him.
The government also argues that this case is distinguishable from
Doyle because
the prosecutor commented, not on DeJesus's silence, but on the timing of
his call to Inspector
Johnson. The government insists that the prosecutor merely noted that
DeJesus had a two-day
opportunity to construct an alibi based on the indictment he had read.
However, we question
whether this argument can be distinguished from an argument that was
expressly rejected in
Doyle. There, the prosecution maintained that "the discrepancy between an
exculpatory story
at trial and silence at the time of arrest gives rise to an inference that
the story was fabricated
somewhere along the way, perhaps to fit within the seams of the state's
case as it was
developed[.]" Doyle 426 U.S. at 616. But the Court refused to accept
that argument. Id. at
617-18.

C. While we are doubtful that the present case can be
distinguished from
Doyle, we find it unnecessary to decide this question, with respect to
which there is apparently
no precedent that is directly on point. Assuming that the prosecutor's
imprudent comments
violated DeJesus's rights under Doyle, and assuming that they were not
cured by the district
court's limiting instruction, any error was harmless beyond a reasonable
doubt in light of the
overwhelming evidence admitted against DeJesus at trial.
 The Supreme Court has held that "Doyle error fits squarely into
the category of
constitutional violations which [it] ha[s] characterized as `trial
error.'" Brecht v.
Abrahamson, 507 U.S. 619, 629 (1993)(quoting Arizona v. Fulminante, 499
U.S. 279, 307
(1991)). Such constitutional errors are subject to harmless error
analysis under the "harmless-
beyond-a-reasonable-doubt standard." Brecht, 507 U.S. at 630 (citing
Chapman v. California,
386 U.S. 18 (1967)). Moreover, this court has previously recognized that
Doyle violations are
harmless beyond a reasonable doubt where the evidence against the
defendant is
"overwhelming." United States v. Dunbar, 767 F.2d 72, 76 (1985).
The evidence against DeJesus in this case, like the evidence
against the
defendant in Dunbar, was "overwhelming." DeJesus was charged with
knowingly and
willfully travelling in interstate commerce and using and causing another
to use a facility in
interstate commerce with intent that a murder be committed. JA 78, 84.
He admitted that he
drove with Gil to Uneeda on the morning that Cohen was murdered. JA. 419,
1585.
Therefore, the only remaining element the prosecution needed to prove was
the requisite
intent, and the evidence of this intent was enormous.
There was abundant evidence that DeJesus agreed to participate in
the murder
prior to its commission and that he took part in the planning and the
prior unsuccessful attempt
to kill Cohen. Gil testified to every aspect of DeJesus's involvement.
He explained that
Garcia had introduced them and that Gil had explained the job to DeJesus.
Gil testified that
DeJesus was immediately interested because he said that he needed the
money. SA. 81. Gil
recounted that he and DeJesus drove from that initial meeting to Uneeda so
that he could show
DeJesus where and how the murder was to take place. SA. 59-62. Gil
described the failed
attempt to kill Cohen at Uneeda on January 19, 1993, and the subsequent
meeting with
DeJesus and Balter at NPP where Balter told DeJesus that he wanted to make
sure Cohen was
dead and that it should look like a drug-related killing. SA. 85-96.
Portions of taped
conversations among Gil, Balter, Cutler, Garcia, and DeJesus corroborated
much of Gil's
testimony. See e.g., SA. 232 (DeJesus "did this for [Balter] and now
[Balter's] turning his
back on me"); SA. 269 (Garcia found DeJesus for Gil); Id. (DeJesus "did
it"); SA. 282-83
(DeJesus was looking for more money and had given some to Garcia "after
the job"); SA. 234
(Gil had brought DeJesus to NPP). It is also noteworthy that the
prosecutor's challenged
comments did not focus directly on the question whether DeJesus had the
"intent that a murder
be committed," as required by 18 U.S.C. 1958, but rather on the question
whether DeJesus
was the person who actually did the shooting, an element that was not
required for conviction
under that provision.
In light of overwhelming evidence that DeJesus travelled in
interstate commerce
with the intent that the murder of Cohen be committed, we hold that if the
prosecutor's
comments violated the rule of Doyle v. Ohio, supra, the error was harmless
beyond a
reasonable doubt.

VII.
DeJesus argues that the government improperly shifted the burden
of proof in
its closing argument by commenting on defense counsel's failure to explain
why DeJesus was
at the scene of the crime at all if he was not the person who actually did
the shooting. The
prosecutor stated: "Now what Mr. Brickfield [counsel for DeJesus] never
tells you and he is
the master of the uncompleted thought here. What he never tells you is
why he was there.
What was he doing there[?]" JA 1645. If this issue had been preserved,
DeJesus would have
to show that any error affected the jury's ability to judge the evidence
fairly. United States v.
Young, 470 U.S. 1, 12 (1985). However, DeJesus's attorney did not object
to this comment
at trial, and therefore DeJesus must show that the trial judge committed
plain error in failing
to strike this comment sua sponte. We find no plain error.
DeJesus correctly points out that the prosecution may not comment
on a
defendant's failure to testify or to produce evidence. See 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
to produce evidence
tending to show his innocence. 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").
The prosecutor's comment attempted to focus the jury's attention
on holes in
the defense's theory. Permitting this comment did not constitute plain
error.

VIII.
DeJesus argues that the government retreated from the theory
contained in the
indictment, i.e., that DeJesus was the person who actually did the
shooting, and thereby
created a prejudicial variance. According to DeJesus, this occurred when
the prosecutor
stated, in rebuttal summation, that "whether or not he [DeJesus] was the
shooter is not an issue
here." JA 1646. DeJesus argues that he was substantially prejudiced
because the timing of
this alleged change in the government's strategy -- after the close of
evidence and just before
the case was given to the jury -- made it impossible for him to mold his
defense strategy
properly.
To prevail on this issue, DeJesus must show (1) that there was a
variance
between the indictment and the proof adduced at trial and (2) that the
variance prejudiced some
substantial right. United States v. Adams, 759 F.2d 1099, 1109 (3d Cir.),
cert. denied, sub
nom. Mustacchio v. United States, 474 U.S. 906, and cert. denied, sub nom.
Alongi v. United
States, 474 U.S. 906, and cert. denied, 474 U.S 971 (1985). A variance
occurs when "the
charging terms are unchanged, but the evidence at trial proves facts
materially different from
those alleged in the indictment." United States v. Castro, 776 F.2d 1118,
1121 (3d Cir.),
cert. denied, 475 U.S. 1029 (1985). To show prejudice, a defendant must
generally show that
the indictment either did not sufficiently inform him of the charges
against him so that he
could prepare his defense and not be misled or surprised at trial or that
the variance created a
danger that the defendant could be prosecuted a second time for the same
offense. Id. at 1123.
We are convinced that there was no prejudicial variance in this
case. In order
to show that DeJesus committed the violation of 18 U.S.C. 1958 and 2
that was charged in
count I of the superseding indictment, the government was not obligated to
show that DeJesus
actually did the shooting, and accordingly the charging paragraph of this
count did not tie the
prosecution to this theory. Instead, it merely alleged that DeJesus --
and the other defendants -
- "knowingly and willfully travelled in and caused another to travel in
interstate commerce and
used and caused another to use a facility in interstate commerce with
intent that a murder be
committed." J.A. 84. Although a later paragraph of this count did allege
that "DeJesus
attempted to kill Robert cohen by shooting him several times with a
pistol," J.A. 88, DeJesus
and his attorney undoubtedly understood that the charge set out in count I
did not require proof
that DeJesus did the shooting, and thus we see no basis for concluding
that the alleged switch
in the government's theory caused them to be surprised, misled, or
prejudiced in the
preparation of DeJesus's defense.
In any event, the record does not support DeJesus's argument that
the
prosecution abandoned its theory that DeJesus did the shooting. Instead,
the prosecutor's
statement was merely a correction of defense counsel's misstatement of the
law, i.e., that "the
only issue with respect to [DeJesus] was he was the shooter as charged?
Was he the shooter as
Gus Gil has testified[?]" JA 1613. The prosecutor responded by stating:
The point being whether or not he was the shooter, we don't
concede for a
minute that DeJesus was not the shooter, whether or not he was
the shooter is
not an issue here, the issue is did he travel in interstate
commerce with the
intent that a murder be committed?

JA 1646. Although the district court found this to be a "fair response"
to defense counsel's
misstatement of the law, the court allowed defense counsel an extra two
minutes to address the
jury. In surrebuttal, the government restated its contention that the
evidence was sufficient to
prove, beyond a reasonable doubt, that DeJesus was the shooter. JA 1658-
59. Under these
circumstances, any variance between the facts alleged in the superseding
indictment and those
proved at trial was not prejudicial to DeJesus.

IX.
 DeJesus contends that the district court should have excluded a
high school
yearbook photograph of him under Federal Rule of Evidence 403. A district
court has broad
discretion to determine the admissibility of relevant evidence in response
to an objection under
Rule 403. United States v. Pelullo, 14 F.3d 881, 888 (3d Cir. 1994). "If
judicial restraint is
ever desirable, it is when a Rule 403 analysis of a trial court is
reviewed by an appellate
tribunal." United States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir.), cert.
denied, 488 U.S. 910
(1988).
The prosecution offered the yearbook photo to corroborate the
testimony of an
eyewitness, Lisa Allen, who described the shooter as having straight black
bangs and a
moustache. When he was arrested, DeJesus had a moustache, but at the time
of trial, he had
neither a moustache nor straight black bangs. In the yearbook photo,
which had been taken
six years earlier when DeJesus was 16, he had both straight black bangs
and a moustache.
DeJesus suggests that the photograph had little probative value
for the purpose
of establishing his appearance at the time of the shooting, six years
after the picture was taken,
and he argues that the photo created an undue danger of unfair prejudice
because it was old
and depicted him when he was "a mere adolescent." DeJesus Br. at 43.
We hold that the district court did not abuse its discretion in
concluding that the
probative value of the photo outweighed the potential unfair prejudice. A
trial judge could
reasonably conclude that a jury was well capable of assessing the
likelihood that the six-year-
old photo accurately depicted DeJesus's appearance at the time of the
shooting.

X.
Finally, DeJesus argues that the cumulative effect of errors
allegedly committed
at trial require a new trial. United States v. Williams, 739 F.2d 297
(7th Cir. 1984). In light
of our conclusion that the sole potential error before us was harmless, we
reject this argument.

XI.
For the reasons stated above, we affirm the judgment of the
district court.
____________________