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Precedential or Non-Precedential: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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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.

____________________