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)
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. Section(s) 1958 and 2, and Balter and Cutler were also convicted on related counts of mail fraud, in violation of 18 U.S.C. Section(s) 1341, 1342. *fn1 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.
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.
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 ...