Title United States v. Balter
LEXSEE 91 F.3D 427
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
Nos. 94-5593, 94-5625, 94-5626
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
91 F.3d 427; 1996 U.S. App. LEXIS 18624; 45 Fed. R. Evid. Serv. (Callaghan) 337
March 6, 1996, Argued
July 29, 1996, Filed
SUBSEQUENT HISTORY: **1 As Amended August
16, 1996. Certiorari Denied December 2, 1996, Reported at: 1996 U.S. LEXIS 7231.
PRIOR HISTORY: 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). DISPOSITION: Affirmed. LexisNexis(R) Headnotes
COUNSEL: 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
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.
JUDGES: Before: MANSMANN, ALITO, and LEWIS, Circuit Judges.
*429 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. n1 Although **2 numer- ous allegations of error are raised, one issue -- whether New Jersey Rule of Professional Conduct 4.2 which pro- hibits 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 im- pression for our court. We affirm.
n1 A fourth defendant, Manuel Garcia, a/k/a
"Rafael Garcia," a/k/a "Manny Garcia" was tried and convicted at the same trial. His appeal, No. 94-
5647, is being considered separately.
Richard Balter was the president and sole share- holder 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 cus- tomers. 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 kick- backs was generated by issuing checks to the fictitious payee "Robert Katz." In 1992, Balter **3 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 manufac- tured garbage cans and distributed plastic garbage bags. Uneeda was NPP's most delinquent account. By the early
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45 Fed. R. Evid. Serv. (Callaghan) 337
1990's, Uneeda's outstanding balance had grown to ap- proximately $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 involve- ment 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 em- ployee 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 **4 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 ben- eficiary 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 ap- plication for a $600,000 life insurance policy designating Cohen as the owner of the policy and his estate as the ben- eficiary. 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 **5 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 had in- sulted 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 mur- der. 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 **6 credit *431 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 au- tomotive engines. During this period, Gil learned that Cohen was the intended victim. On one occasion, he trav- elled 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 in- terest 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.
**7 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.
On January 8, 1993, Balter and Gil drove to Cohen's home near Peekskill, New York. They considered am- bushing Cohen in his own neighborhood but concluded that Cohen's business in the Bronx would be a better lo- cation for the killing. While Balter and Gil were near Cohen's house, his housekeeper spotted them and be- came 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 be- lieved that Balter meant to harm him and indicated that he wanted Balter removed as the beneficiary of the insur- ance policy. Liederman explained that Balter owned the
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45 Fed. R. Evid. Serv. (Callaghan) 337
policy and that Cohen therefore could no longer change the beneficiary.
Gil and **8 DeJesus drove to Uneeda on the morn- ing 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 shoot- ing described the shooter as a light-skinned Hispanic man, between 21-27 years old, approximately 5'6," **9 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 be- gan investigating the murder. Shortly after the investiga- tion commenced, Gil admitted his role in the killing and secretly began cooperating with federal officers. He sur- reptitiously recorded numerous live and telephone con- versations 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 testi- mony 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, *432 and Garcia, and all of the defendants were arrested the following day. DeJesus was arrested in Aberdeen, **10 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) **11 denying his repeated motions for a sever- ance; (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 cer- tain 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, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1975); (3) that the government improperly shifted the burden of proof to him during its summation; (4) that the government re- treated from its theory of the case during its closing and created a variance from the indictment; (5) that the dis- trict 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.
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
**12 for a severance. We reject this argument.
As the Supreme Court observed in United States v. Zafiro, 506 U.S. 534, 537, 122 L. Ed. 2d 317, 113 S. Ct. 933 (1993) (quoting Richardson v. Marsh, 481 U.S.
200, 209, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987)),
"there 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 jus-
91 F.3d 427, *432; 1996 U.S. App. LEXIS 18624, **12;
45 Fed. R. Evid. Serv. (Callaghan) 337
tice 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 sever- ance whenever codefendants have conflicting defenses."
506 U.S. at 538. The Court, however, explicitly declined to adopt such a rule. Id. at 538. Rather, the Court in- structed 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 reli- able judgment about guilt or innocence." Zafiro, 506 U.S. at 538-39. "Such a risk might occur," the Court observed,
"when evidence **13 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 codefen- dant." Id. at 539. The Court cited three specific examples in which this might take place: (1) "a complex case" in- volving "many defendants" *433 with "markedly dif- ferent degrees of culpability," (2) a case such as Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (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 excul- pates 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, 131
L. Ed. 2d 142, 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 **14 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, 510 U.S. 982, 126 L. Ed. 2d 433,
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 preju- dice 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, 112 S. Ct. 340, 116 L. Ed. 2d 280 (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 defen- dant than others.'" United States v. Console, 13 F.3d 641,
655 (3d Cir. 1993), cert. denied, 114 S. Ct. 1660, 128 L.
Ed. 2d 377 (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 compro- mised by the joint trial; nor have they demonstrated that the joint trial impeded the jury **15 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 ad- mit 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 re- stricted in his cross-examination of **16 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 per- mitted to elicit from Gil. Nor has he cited any evidence that was admitted against him that would have been inad- missible had he been tried separately.
Furthermore, neither of the two rather routine eviden- tiary rulings of which Balter complains resulted in prej- udice 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 crim- inal 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
*434 in past criminal conduct, did not have a criminal record. Consequently, the court permitted Balter to in- troduce 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. **17 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
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45 Fed. R. Evid. Serv. (Callaghan) 337
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 han- dling 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 exclu- sion 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 "drug sales, vio- lent acts, and murder." JA. 1310-11. This was adequate to support Balter's claim of fear.
We conclude that Balter **18 cannot show preju- dice 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 involve- ment 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 ad- vanced the "second prosecutor" theory as a ground for re- quiring 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 lim- ited to its facts by the Ninth Circuit after Zafiro. United
**19 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 sig- nificant 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 or- der 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 be- cause 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 **20 Cutler could show that he was prejudiced by not being per- mitted to introduce the actual checks. See United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 1777, 123 L. Ed.
2d 508 (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. n2
n2 We also see no merit in Cutler's argument that the district court was required to impanel a separate jury to consider only his case. First, as we have noted, Cutler has not shown that he was preju- diced by the joint trial, and consequently there was no need to employ the costly and unwieldy pro- cedure of impaneling multiple juries. Second, as the district court noted in denying Cutler's motion, this procedure has been used almost exclusively in Bruton situations. Cutler relies on State v. Hunt,
115 N.J. 330, 558 A.2d 1259 (N.J. 1989), and other cases cited therein for the proposition that multiple juries have been used in cases of mutually antago- nistic defenses. Cutler Br. at 42-43. However, these cases predate Zafiro and were the exception even when they were decided. Because Cutler cannot show a Bruton problem or any other prejudice, his motion was properly denied.
Balter also contends that the district court erroneously admitted taped telephone conversations between himself and Gil. Balter argues that these tapes were made in vi- olation 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
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45 Fed. R. Evid. Serv. (Callaghan) 337
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 rep- resentation with **22 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 inter- preting 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 n3 who communicate with a suspect as part of a pre- indictment criminal investigation is a question of first im- pression for this court, n4 but we have no doubt that the district court's decision was correct. n5 The language of Rule 4.2 and the opinions of the Appellate Division of the New Jersey Superior **23 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 applica- ble in such circumstances. n6
n3 The district court assumed that Gil was the
"alter-ego" of prosecuting attorneys without hold- ing a hearing regarding the factual basis for this conclusion. Our holding on the applicability of Rule
4.2 does not require us to reach this issue.
n4 This court considered a similar challenge under Rule 4.2 of the Pennsylvania Rules of Professional Conduct, which is virtually identi- cal to the New Jersey Rule. See United States v. Veksler, 62 F.3d 544, 548-49 (3d Cir. 1995), cert. denied, sub. nom. McNaughton v. United States,
133 L. Ed. 2d 731, 116 S. Ct. 780 (1996). However, we did not reach the applicability of the Rule in that case because the defendant was not "represented by counsel" at the time of the allegedly improper con- tacts. Id.
n5 We therefore need not consider whether the district court pursuant to its local rulemaking au- thority, could adopt a rule proscribing such contact by federal prosecutors.
n6 New Jersey Rule 4.2 is based on Rule 4.2 of the American Bar Association's Model Rules of Professional Conduct, which in turn "is substan- tially identical to former DR 7-104 (A)(1)." Ann. Mod. R. Prof. Cond. Rule 4.2, Comment. As we discuss at page 20, infra, the applicability of this model rule, and state rules based upon it, to federal prosecutors has been a topic of substantial litiga- tion and heated public debate. See Memorandum of Attorney General Richard Thornburgh, June 6,
1989, "Communications with Persons Represented by Counsel" (articulating policy that federal pros- ecutors will not be prohibited from investigating suspects who have retained counsel despite con- trary interpretations of state disciplinary rules); ABA House of Delegates Report No. 301 (approved
13-13, 1990) (rejecting the Justice Department's position); Glaberson, Thornburgh Policy Leads to Sharp Ethics Battle, N.Y. Times, March 1,
1991, B9. Moreover, the Department of Justice has since promulgated a regulation formally establish- ing the policy identified in the original memoran- dum. "Communications with Represented Persons,
59 Fed. Reg. 39,910 (1994) (codified at 28 C.F.R.
§ 77 (1995)).
*436 By its terms, Rule 4.2 applies to a "party" rep- resented 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 proceed- ings are commenced." State of New Jersey v. Ciba-Geigy Corp., 247 N.J. Super. 314, 589 A.2d 180, 183 (App. Div.
1991), appeal dismissed, 130 N.J. 585, 617 A.2d 1213
(N.J. 1992). The court in Ciba-Geigy explained 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"
91 F.3d 427, *436; 1996 U.S. App. LEXIS 18624, **25;
45 Fed. R. Evid. Serv. (Callaghan) 337
within the meaning of the Rule, pre-indictment investi- gation by prosecutors is precisely the type of contact ex- empted 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, 210 N.J. Super. 383, 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 sus- pects from ordinary pre-indictment **26 investigation. Furthermore, such a rule would significantly hamper le- gitimate law enforcement operations by making it very difficult to investigate certain individuals. Thus, even as- suming 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 "autho- rized 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 consid- ered 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, 112 L. Ed. 2d 118, 111 S. Ct. 152 (1990); United
States v. Sutton, 255 U.S. App. D.C. 307, 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, **27 858
F.2d 834 (2d Cir. 1988), cert. denied, 498 U.S. 871, 112 L. Ed. 2d 154, 111 S. Ct. 192 (1990). And even the Second Circuit has held that ordinary pre-indictment investiga- tion, 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. n7
n7 Even if the Rule applied in this context, ev- idence obtained in violation of a disciplinary rule need not be suppressed under New Jersey Law. Ciba-Geigy Corp., 589 A.2d at 181 (citations omit- ted).
A. Balter and DeJesus also contend that the district court violated Federal Rule of Evidence 404(b) by ad- mitting certain of *437 their statements that show, in their view, nothing more than a propensity **28 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, 134 L. Ed. 2d 109 (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 crim- inal 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
**29 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 af- ter the fact by the other parties. Consequently, the district court's admission of this statement did not violate Rule
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 inter- ested. 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.
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 **30 ruling. DeJesus's defense was that he was present at the murder scene but that he did not commit the murder. These state- ments were relevant to show, among other things, that
91 F.3d 427, *437; 1996 U.S. App. LEXIS 18624, **30;
45 Fed. R. Evid. Serv. (Callaghan) 337
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 inter- state 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).
DeJesus contends that one of the prosecutors violated the rule of Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96
S. Ct. 2240 (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 **31 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 ar- rival, 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
*438 judge. Although the record of the initial appear- ance 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 there- fore 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 incarcer- ated, 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. **32 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 re- marked:
If DeJesus is totally innocent and in his mind all he did was he drove there and he was to- tally 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 **33 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 hear- ing. Nonetheless, the court explained that the jury could consider the chronology of events, so long as it did not consider DeJesus's silence. n8 At the conclusion of the trial, DeJesus's counsel made a second motion for a mis- trial, but this motion was also denied.
n8 The district court gave the following limiting instruction:
You may recall that there was an argument made regarding defendant DeJesus in which it was argued that he was arrested in North Carolina, that he executed a waiver of rights state- ment before the arresting officer, who I think was Inspector Johnson; that he was brought to court that same day; that he was given the charges against him contained in the indictment; that he took 25 minutes to read the charges, that he said nothing at the court hear- ing, but then two days later he placed a telephone call to Inspector Johnson and gave him a version of the happen- ing of the alleged shooting. Please be
91 F.3d 427, *438; 1996 U.S. App. LEXIS 18624, **33;
45 Fed. R. Evid. Serv. (Callaghan) 337
instructed that you are to disregard the aspect of that argument which points to the fact that the defendant DeJesus was silent at the time that he was in court. In other words, after he was arrested and even though he executed a waiver
of rights earlier that day in front of an agent, when he was brought to court, he was brought before a judge, he was instructed once again as to his right to remain silent and if he did remain silent at that hearing, as the evidence suggests, that he had a right to do so, and that you may not draw any infer- ence against him from his silence. And that is because he has a constitutional right to remain silent at the court hear- ing and that no inference can be drawn by you against him from his remaining silent at that hearing. But you may con- sider the aspect of the Government's argument for whatever weight or con- sideration that you care to give it, that argues that the passage of time of two days until coming forward after his court hearing and calling the Postal Inspector has some evidentiary value. You may consider the chronology of events here, but you may not consider in any way the fact that he said nothing at his hearing. Indeed, he had a right to say nothing, and you may not hold that against him or even give it any consideration.
*439 B. In Doyle v. Ohio, supra, the Supreme Court held that "the use for impeachment purposes of a defen- dant's silence, at the time of arrest and after receiving Miranda warnings, violates the Due Process Clause." n9
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 any- thing 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 per- son 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 de- privation of due process to allow the arrested person's silence to be used to impeach **35 an explanation subsequently offered at trial.
426 U.S. at 617-18 (citations and footnote omitted).
n9 Although Doyle was decided under the Fourteenth Amendment, id., 426 U.S. at 619, "the right recognized in Doyle applies to federal prose- cutions under the Fifth Amendment." United States v. Agee, 597 F.2d 350, 354 n.11 (3d Cir. 1979), cert. denied, 442 U.S. 944, 61 L. Ed. 2d 315, 99 S. Ct.
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 warn- ings 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, 65 L. Ed. 2d 86, 100
S. Ct. 2124 (1979) (pre-arrest silence may be used to im- peach exculpatory testimony at **36 trial); Anderson v. Charles, 447 U.S. 404, 65 L. Ed. 2d 222, 100 S. Ct.
2180 (1979) (inconsistent statement given after arrest and Miranda warnings may be used to impeach exculpatory trial testimony); Fletcher v. Weir, 455 U.S. 603, 71 L. Ed.
2d 490, 102 S. Ct. 1309 (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, 97 L. Ed. 2d 618, 107 S. Ct. 3102 (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
91 F.3d 427, *439; 1996 U.S. App. LEXIS 18624, **36;
45 Fed. R. Evid. Serv. (Callaghan) 337
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 **37 the belief, engendered by the warn- ings, that his silence could not in any way be used against him.
The government also argues that this case is distin- guishable 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 pros- ecutor merely noted that DeJesus had a two-day opportu- nity 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 re- jected 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, per- haps to fit within the seams of the state's case as it was developed . " Doyle 426 U.S. at 616. *440 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 ap- parently no precedent that is directly on point. Assuming that the prosecutor's imprudent **38 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 has characterized as 'trial error.'" Brecht v. Abrahamson, 507 U.S. 619, 629, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993)(quoting Arizona v. Fulminante, 499 U.S.
279, 307, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991)). Such constitutional errors are subject to harmless er- ror analysis under the "harmless-beyond-a--reasonable- doubt standard." Brecht, 507 U.S. at 630 (citing Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824
(1967)). Moreover, this court has previously recognized that Doyle violations are harmless beyond a reasonable doubt where the evidence against the defendant is "over- whelming." United States v. Dunbar, 767 F.2d 72, 76
The evidence against DeJesus in this case, like the ev- idence against the defendant in Dunbar, was "overwhelm- ing." DeJesus was charged with knowingly and willfully
travelling in interstate commerce and using and causing another to **39 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 unsuccess- ful 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 in- terested 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. **40 Portions of taped conversations among Gil, Balter, Cutler, Garcia, and DeJesus corroborated much of Gil's testi- mony. 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 di- rectly 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. n10
n10 Even though the government was not obli- gated to prove that DeJesus actually did the shoot- ing, it introduced substantial evidence that he did. Gil testified extensively about DeJesus's role as the person who actually did the shooting. SA. 107; JA. 617-18. Gil's testimony was buttressed by eye- witness testimony. Lisa Allen, who was standing only a few feet away from Cohen when he was shot, described the man who did the shooting as a light-skinned Hispanic in his 20's, about 5'6" tall, with a moustache and straight black bangs. JA. 1695-96, 1724-25. This description closely matched DeJesus's appearance.
91 F.3d 427, *440; 1996 U.S. App. LEXIS 18624, **41;
45 Fed. R. Evid. Serv. (Callaghan) 337
In light of overwhelming evidence that DeJesus trav- elled in interstate commerce with the intent that the mur- der of Cohen be committed, we hold that if the prosecu- tor's comments violated the rule of Doyle v. Ohio, supra, the error was harmless beyond a reasonable doubt.
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 er- ror affected the jury's ability to judge the evidence fairly. United States v. Young, 470 U.S. 1, 12, 84 L. Ed. 2d 1,
105 S. Ct. 1038 (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 **42 that the prosecu- tion may not comment on a defendant's failure to testify and may not improperly suggest that the defendant has the burden to produce evidence. United States v. Parker,
903 F.3d 91, 98 (2d Cir.), cert. denied, 498 U.S. 872, 112
L. Ed. 2d 158, 111 S. Ct. 196 and 874 (1990); United States v. Drake, 885 F.2d 323 (6th Cir. 1989), cert. de- nied, sub nom. Clark v. United States, 495 U.S. 1033, and cert. denied, 493 U.S. 1049, (1990). But the pros- ecutor did not do that; he commented on the failure of DeJesus's attorney to point to any evidence in the record supporting his theory of what occurred. Such a comment does not implicate any of the burden-shifting concerns that are raised when a prosecutor points to a defendant's failure to testify or improperly suggests that the defendant has the burden of producing evidence. See United States v. Gotchis, 803 F.2d 74, 81 (2d Cir. 1986) (noting without reaching the issue that a court "would place especially undesirable constraints on the government by precluding
. . . comments on the absence of evidence to rebut its case where defense counsel himself has suggested the alternative theory that the prosecutor then undertakes to debunk").
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.
DeJesus argues that the **43 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 re- buttal 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, 106 S. Ct. 275, 88 L. Ed.
2d 236, and cert. denied, sub nom. Alongi v. United States, 474 U.S. 906, 88 L. Ed. 2d 236, 106 S. Ct. 275, and cert. denied, 474 U.S. 971, 106 S. Ct. 336, 88 L. Ed. 2d 321 (1985). A variance occurs when "the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged in the **44 in- dictment." United States v. Castro, 776 F.2d 1118, 1121
(3d Cir.), cert. denied, 475 U.S. 1029, 89 L. Ed. 2d 342,
106 S. Ct. 1233 (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 sur- prised at trial or that the variance created a danger that the defendant could be prosecuted a second time for the same offense. 776 F.2d at 1123.
We are convinced that there was no prejudicial vari- ance in this case. In order to show that DeJesus committed the violation of *442 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 com- merce with intent that a murder be committed." J.A. 84. Although a later paragraph of this count did allege that
"DeJesus attempted **45 to kill Robert cohen by shoot- ing 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
91 F.3d 427, *442; 1996 U.S. App. LEXIS 18624, **45;
45 Fed. R. Evid. Serv. (Callaghan) 337
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 state- ment was merely a correction of defense counsel's mis- statement 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 **46 of the law, the court allowed defense counsel an extra two minutes to address the jury. In surrebuttal, the govern- ment restated its contention that the evidence was suffi- cient 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.
DeJesus contends that the district court should have excluded a high school yearbook photograph of him un- der Federal Rule of Evidence 403. A district court has broad discretion to determine the admissibility of rele- vant 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, 102 L. Ed. 2d 251,
109 S. Ct. 263 (1988).
The prosecution offered the yearbook photo to cor- roborate 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, **47 but at the time of trial, he had neither a moustache nor straight black bangs. In the year- book 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 proba- tive 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 dan- ger 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 discre- tion 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. *443 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.
For **48 the reasons stated above, we affirm the judgment of the district court.