United States v. Robert Cutler

Robert Cutler appeals from his conviction of conspiracy to commit mail fraud and arson in violation of 18 U.S.C. § 371 , Count One, use of an explosive to destroy a building in violation of 18 U.S.C. § 844 (i), Count Two, and mail fraud in violation of 18 U.S.C. § 1341 , Counts Three through Six. We affirm the conspiracy and mail fraud charge and reverse the conviction for the use of an explosive to destroy a building.

I. OPERATIVE FACTS

On December 11, 1976, Cutler’s warehouse was destroyed by a fire. Approximately twenty gallons of gasoline were spread throughout the warehouse and out the door into the alley. The “trailer” of gasoline that was spread from the ware-, house into the alley was ignited by a match. At trial, counsel entered into a written stipulation that the building was destroyed by an “explosion” within the meaning of 18 U.S.C. § 844 (i).

The evidence adduced at trial indicated that Cutler paid his employee, Walter Levoff to hire an arsonist to burn the warehouse. During Levoff’s testimony, the defense attempted to cross-examine him concerning other fires that had occurred on the premises of other businesses in which he had been involved. The…

concurring and dissenting:

I concur in the affirmance of Count One and Counts Three through Six. I also agree that we cannot affirm the conviction on Count Two, for the reasons stated in the majority’s opinion. I dissent, however, from the majority’s decision to remand Count Two for a new trial.

*1251 The district court imposed concurrent sentences on the defendant on all six counts. On appeal, the government urged that we apply the concurrent sentence doctrine as to Count Two and affirm the conviction on that count without reviewing it on the merits. 1 I agree with the majority’s decision not to utilize the concurrent sentence doctrine in this case. However, I would vacate the unlawful conviction rather than reversing and remanding for a new trial.

Serious questions exist regarding the use of the concurrent sentence doctrine to affirm convictions without reviewing the merits. In my opinion, we should reexamine that practice and determine how best to treat convictions which have no “adverse collateral legal consequences” for defendants. I have recently set forth the reasons why I believe such a reexamination is required. United States v. Barker; 675 F.2d 1055 (9th Cir. 1982)…

676 F.2d 1245 10 Fed. R. Evid. Serv. 831 UNITED STATES of America, Plaintiff-Appellee, v. Robert CUTLER, Defendant-Appellant. No. 81-1366. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 5, 1982. Decided May 10, 1982. Richard G. Sherman, Los Angeles, Cal., for defendant-appellant. Nancy Weiben Stock, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before WRIGHT, ALARCON and REINHARDT, Circuit Judges. OPINION ALARCON, Circuit Judge: 1 Robert Cutler appeals from his conviction of conspiracy to commit mail fraud and arson in violation of 18 U.S.C. § 371 , Count One, use of an explosive to destroy a building in violation of 18 U.S.C. § 844 (i), Count Two, and mail fraud in violation of 18 U.S.C. § 1341 , Counts Three through Six. We affirm the conspiracy and mail fraud charge and reverse the conviction for the use of an explosive to destroy a building. I. OPERATIVE FACTS 2 On December 11, 1976, Cutler's warehouse was destroyed by a fire. Approximately twenty gallons of gasoline were spread throughout the warehouse and out the door into the alley.…