United States v. Eldon Earl \Bud\" Cutler", 806 F.2d 933 (9th Cir. 1986). · Go Syfert
United States v. Eldon Earl \Bud\" Cutler", 806 F.2d 933 (9th Cir. 1986). Cases Citing This Book View Copy Cite
47 citation events (23 in the last 25 years) across 10 distinct courts.
Strongest positive: United States v. Yazzie (nmcca, 2016-05-31)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
cited Cited as authority (rule) United States v. Yazzie
N.M.C.C.A. · 2016 · confidence medium
United States v. Cutler, 806 F.2d 933, 935-36 (9th Cir. 1986).
discussed Cited as authority (rule) United States v. Fei Ye, AKA Ye Fei Ming Zhong, AKA Zhong Ming AKA Andy Zhong
9th Cir. · 2006 · confidence medium
We have previously clarified that Rule 15 “contemplates a party taking the deposition of only his own witness,” and “only if the witness may be unable to attend trial.” Id. at 934 ; United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986).
discussed Cited as authority (rule) United States v. Ye
9th Cir. · 2006 · confidence medium
United States v. Rich, 580 F.2d 929, 933-34 (9th Cir. 1978). 1278 UNITED STATES v. YE [8] We have previously clarified that Rule 15 “contem- plates a party taking the deposition of only his own witness,” and “only if the witness may be unable to attend trial.” Id. at 934 ; United States v. Cutler, 806 F.2d 933, 936 (9th Cir. 1986).
discussed Cited as authority (rule) In Re Air Crash Over Taiwan Straits on May 25, 2002
C.D. Cal. · 2004 · confidence medium
See Old Chief v. United States, 519 U.S. 172, 186-89 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997); United States v. Chambers, 918 F.2d 1455, 1462 (9th Cir.1990); United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986); United States v. Campbell, 774 F.2d 354, 356 (9th Cir.1985); Parr v. United States, 255 F.2d 86, 88 (5th Cir.1958).
examined Cited as authority (rule) Commonwealth v. Saletino (7×)
Mass. Super. Ct. · 2003 · confidence medium
Massachusetts has yet to assess discretionary discovery of additional Cl case information, though courts in other jurisdictions have addressed the issue. 3 Consistent with this jurisdiction’s use of a balancing test for confidential and sensitive material, three other courts have uniformly applied the Roviaro balancing test 4 in this fact situation, minus the requirement of the defendant carrying the threshold burden of proof, due to the fact that the privilege has already given way with disclosure of the Cl’s name. 5 United States v. Cutler. 806 F.2d 933, 935 (9th Cir. 1986); United State…
cited Cited as authority (rule) State v. Belken
Iowa · 2001 · confidence medium
Fed.R.Crim.P. 15(a); United States v. Cutler, 806 F.2d 933, 935-36 (9th Cir.1986).
discussed Cited as authority (rule) United States v. Darnell Hayes (2×)
9th Cir. · 2000 · confidence medium
However, this analysis is inconsistent with what actually happened in Hayes's case and with the text and purpose of Rule 15. 1 45 As Judge Silverman recognized in his dissenting opinion, unlike civil depositions, Rule 15 depositions are not taken for discovery or investigatory purposes but "for the unabashed purpose of preserving testimony for use against[a defendant] at trial." Hayes, 190 F.3d at 948 (Silverman, J., dissenting); see also Moore's Federal Practice S 615.02[1] (3d ed. 1999) ("Unlike depositions taken in civil litigation, criminal depositions are intended to preserve testimony . …
cited Cited as authority (rule) United States v. Wag-Aero, Inc.
E.D. Wis. · 1995 · confidence medium
Drogoul, 1 F.3d at 1551 ; United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986).
discussed Cited as authority (rule) United States v. Daniel Ames
9th Cir. · 1995 · confidence medium
See, e.g., United States v. Chambers, 918 F.2d 1455, 1462 (9th Cir.1990); United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986); United States v. Campbell, 774 F.2d 354, 356 (9th Cir.1985); United States v. Gilman, 684 F.2d 616, 622 (9th Cir.1982).
discussed Cited as authority (rule) United States v. Richard Santiago, A/K/A \Chuco\""
9th Cir. · 1995 · confidence medium
See, e.g., United States v. Winslow, 962 F.2d 845, 850 (9th Cir.1992) (admitting testimony on Aryan Nation as relevant to bombing of gay bar by group members); United States v. Skillman, 922 F.2d 1370, 1374 (9th Cir.1990) (admitting testimony, over Rule 403 objection, that defendant asked to attend a “skinhead” picnic as relevant on issue of racial animus in civil rights case); United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986) (admitting evidence of affiliation with Aryan Nation to show defendant’s motive to hire hit man to kill persons who might testify against the group).
discussed Cited as authority (rule) United States v. Raul Garcia-Escobar
9th Cir. · 1994 · confidence medium
See GER 183-93; United States v. Cutler, 806 F.2d 933, 935 (9th Cir.1986). 4 AFFIRMED. * The Honorable Wilfred Feinberg, Senior United States Circuit Judge, United States Court of Appeals for the Second Circuit, sitting by designation ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
discussed Cited as authority (rule) United States v. Miguel Abellaneda-Leon, United States of America v. Fernando Sebastian Perez-Luna, AKA F. Fernando Perez, AKA Sebastian Perez-Fernando, AKA Fernando Perez
9th Cir. · 1993 · confidence medium
See United States v. Washington, 797 F.2d 1461, 1474 (9th Cir.1986); United States v. Cutler, 806 F.2d 933, 935 (9th Cir.1986); United States v. Feldman, 788 F.2d 544, 554 (9th Cir.1986), cert. denied, 479 U.S. 1067 (1987).
cited Cited as authority (rule) United States v. Edward S. Nielsen
9th Cir. · 1993 · confidence medium
United States v. Cutler, 806 F.2d 933, 937 (9th Cir.1986).
discussed Cited as authority (rule) United States v. Mohammad Taghipour
9th Cir. · 1992 · confidence medium
See United States v. Gonzalo Beltran, 915 F.2d 487, 489 (9th Cir.1990) (appellate court reviews in camera transcript to determine whether district court abused its discretion); United States v. Cutler, 806 F.2d 933, 935 (9th Cir.1986) (government need not disclose information concerning unrelated investigation where other factors outweigh use to the defendant).
discussed Cited as authority (rule) United States v. Robert J. Winslow, United States of America v. Stephen E. Nelson, United States of America v. Procter J. Baker (2×) also: Cited "see"
9th Cir. · 1992 · confidence medium
See United States v. Marques, 600 F.2d 742, 749 (9th Cir.1979) (not misconduct for prosecutor to mention connection between defendant and Hell’s Angels because evidence showed defendant stated he sold drugs to them), cert. denied, 444 U.S. 1019 , 100 S.Ct. 674 , 62 L.Ed.2d 649 (1980); United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986); cf. Dawson v. Delaware, — U.S. —, —, 112 S.Ct. 1093, 1099 , 117 L.Ed.2d 309 (1992) (the first amendment prevents employing evidence of a defendant’s abstract beliefs at a sentencing hearing when those beliefs have no bearing on the issue being t…
cited Cited as authority (rule) United States v. Millard P. Chambers
9th Cir. · 1990 · confidence medium
United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986); United States v. Campbell, 774 F.2d 354, 356 (9th Cir.1985); United States v. Gilman, 684 F.2d 616, 622 (9th Cir.1982).
discussed Cited as authority (rule) In Re United States of America (2×)
5th Cir. · 1989 · confidence medium
See United States v. Troutman, 814 F.2d 1428, 1453 (10th Cir.1987); United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986); United States v. Hutchings, 751 F.2d 230, 236 (8th Cir.1984), cert. denied, 474 U.S. 829 , 106 S.Ct. 92 , 88 L.Ed.2d 75 (1985); United States v. Steele, 685 F.2d 793, 809 (3d Cir.), cert. denied, 459 U.S. 908 , 103 S.Ct. 213 , 74 L.Ed.2d 170 (1982); Wright, Federal Practice and Procedure: Criminal § 241 at 4 & n. 7 (2d ed.).
cited Cited as authority (rule) United States v. Pedro Ramirez-De Rosas
9th Cir. · 1989 · signal: cf. · confidence medium
Cf. United States v. Cutler, 806 F.2d 933, 937 (9th Cir.1986) (sentence less than half the statutory maximum not unconstitutionally severe). 2.
cited Cited "see" United States of America v. P Idrissa Gasana
D.N.H. · 2024 · signal: accord · confidence high
P. 15(a)(1); accord, e.g., United States v. Cutler, 806 F.2d 933, 936 (9th Cir. 1986); United States v. Stottlar, No. 20-cr-61-JD, 2020 WL 6802394 , at *1 (D.N.H.
cited Cited "see" United States v. Pedersen
9th Cir. · 2002 · signal: see · confidence high
See United States v. Cutler, 806 F.2d 933, 937 (9th Cir.1986).
cited Cited "see" 96 Cal. Daily Op. Serv. 6651, 96 Daily Journal D.A.R. 10,869, 96 Daily Journal D.A.R. 13,022 United States of America v. Jacob Harold Sherwood, United States of America v. Ray Marion Cuddy
9th Cir. · 1996 · signal: see · confidence high
See United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986) (applying abuse of discretion standard where defendant contended that pretrial publicity required voir dire by counsel).
cited Cited "see" United States v. Sherwood
9th Cir. · 1996 · signal: see · confidence high
See United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986) (applying abuse of discretion standard where defendant contended that pretrial publicity required voir dire by counsel).
discussed Cited "see" United States v. Mauricio Ramirez
9th Cir. · 1994 · signal: see · confidence high
See United States v. Cutler, 806 F.2d 933, 937 (9th Cir.1986). 5 As to two other potential jurors, the district court denied Ramirez the opportunity to pose additional questions after Andrea Lowy indicated that her husband was a police officer and David Lemmon indicated that he sold guns.
discussed Cited "see" State v. Tuttle
Neb. · 1991 · signal: see · confidence high
See, United States v. Cutler, 806 F.2d 933 (9th Cir. 1986) (Fed.
discussed Cited "see" United States v. Ismaili, Lakbir Moulay. Appeal of Lakbir Moulay Ismaili (2×)
3rd Cir. · 1987 · signal: see · confidence high
See U.S. v. Cutler, 806 F.2d 933, 935 (9th Cir.1986).
discussed Cited "see, e.g." United States v. Elwyn Has the Eagle, Sr.
9th Cir. · 2011 · signal: see also · confidence medium
Haslam v. United States, 431 F.2d 362, 364 (9th Cir.1970); see also United States v. Cutler, 806 F.2d 933, 937 (9th Cir.1986) (per curiam) (citing United States v. Blosvern, 514 F.2d 387, 389 (9th Cir.1975)). 2.
discussed Cited "see, e.g." United States v. Jose Abonce-Barrera
9th Cir. · 2001 · signal: see also · confidence medium
See also United States v. Cutler, 806 F.2d 933, 935 (9th Cir.1986) (holding that additional detailed information about a previous unrelated investigation involving an informant could be withheld after balancing the government’s interest in insuring the informant’s safety).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Eldon Earl “Bud” CUTLER, Defendant-Appellant
86-3058.
Court of Appeals for the Ninth Circuit.
Dec 19, 1986.
806 F.2d 933
Ronald D. Howen, Office of the U.S. Attorney, Boise, Idaho, for plaintiff-appel-lee., David Z. Nevin, Seiniger & Nevin, Boise, Idaho, for defendant-appellant.
Browning, Wright, Boochever.
Cited by 31 opinions  |  Published
PER CURIAM:

Cutler was convicted of contracting for the murder of a government informant and[*935] witness and was sentenced to 12 years incarceration.

He is a member of the Church Jesus Christ Christian/Aryan Nations, a white supremacist organization headquartered in Idaho. During 1983, its members together with members of other white supremacist organizations formed the Order. During 1984 and 1985, 22 Order members were indicted on criminal and racketeering counts.

Thomas Martinez was a candidate for membership until his arrest in June, 1984. After his arrest, Martinez provided the government with substantial information about the Order and he was a key witness in the Order trials.

During the summer of 1985, Cutler was introduced to Thomas Norris, an FBI agent posing as a hit man, by Bob Bowyer, a government informant. Cutler hired Norris to murder Martinez. After Martinez was supposedly murdered, Cutler and Norris discussed three additional murders. Cutler indicated that these homicides were intended to show that the Order was still active and to give potential witnesses “lockjaw.” The government videotaped Cutler’s meetings with Norris.

Cutler’s defense was entrapment. To develop it, he sought a pretrial deposition and/or interview of Bowyer and sought detailed information regarding Bowyer’s prior service as a government informant. Both requests were denied.

Cutler’s potential victims testified and a former member of the Order provided background information on the organization.

Cutler contends that this testimony was improperly admitted. He appeals also from the court’s pretrial discovery orders, jury voir dire and sentencing.

PRETRIAL DISCOVERY

A. Information About the Informant

Cutler was given substantial pretrial information about Bowyer, including his correct name, birth date, criminal record, relationship with the FBI and transcripts of recorded conversations involving Bowyer. The government also offered to produce Bowyer for an informal interview and to subpoena him for trial.

Cutler requested additional detailed information for impeachment about Bowyer’s role in a previous unrelated investigation. The government refused to disclose it because it would jeopardize Bowyer’s security. After a hearing, the court granted the request in part and denied it in part. It ordered the government to disclose the nature of the prior investigation, the charges against Bowyer (which were subsequently dismissed), and the cash payments to Bow-yer. The government was not ordered to disclose specific details of the investigation. This ruling is reviewed for abuse of discretion. United States v. Hoffman, 794 F.2d 1429, 1431 (9th Cir.1986).

Cutler contends that he is entitled to this information under Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), which held that a defendant may be entitled to learn an informant’s identity. But the right is not absolute, and must be balanced against the government’s interest in protecting its access to information and insuring an informant’s safety.

Assuming arguendo that Roviaro applies to disclosing information about an informant’s prior service, the court did not err in denying Cutler’s request. It considered expressly the Roviaro factors and concluded that the government’s security interests outweighed Cutler’s néed for the information. It applied the proper standard, considered the competing interests, and reached a reasonable conclusion. There was no abuse of discretion.

B. Deposing the Informant

The court denied the request to depose Bowyer under Fed.R.Crim.P. 15(a). Cutler admits that the deposition was not to preserve Bowyer’s testimony, but rather was a method of discovery. Denial of a Rule 15 deposition is reviewed for abuse of discretion. United States v. Richardson, 588 F.2d 1235, 1241 (9th Cir.1978), cert. [*936] denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979).

In United States v. Rich, 580 F.2d 929, 933-34 (9th Cir.1978), cert. denied, 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331, we held that Rule 15 depositions “are not allowed merely for the purpose of discovery. A defendant may depose a witness only if the witness may be unable to attend trial.” Other circuits agree. See United States v. Steele, 685 F.2d 793, 809 (3d Cir.1982), cert. denied, 459 U.S. 908, 103 S.Ct. 213, 74 L.Ed.2d 170 (“Fed.R.Crim.P. 15 ... does not authorize [depositions] as a means of discovery”); [1] Simon v. United States, 644 F.2d 490, 498 n. 12 (5th Cir.1981). No court has allowed a Rule 15 deposition solely for discovery. Cutler was not entitled to depose Bowyer.

Cutler also sought an informal interview with Bowyer and the government offered to make him available. At the interview, Cutler wanted either a tape or stenographic record or a third party witness. The government would not agree to either condition and no interview was held and the court declined to order one.

Cutler’s demand demonstrated that the interview was intended for impeachment purposes. As such, it was an effort to circumvent Rule 15 and get informally what he could not have under the rule. Since he could not depose Bowyer, he had no right to an interview which would be the equivalent of a deposition. Moreover, the government was not obliged to make Bow-yer available for trial nor did Bowyer have to consent to an interview. United States v. Bonilla, 615 F.2d 1262, 1264 (9th Cir.1980). There was no error in denying the request for an interview.

EVIDENTIARY RULINGS

The court permitted Cutler’s four potential victims to testify about their relationship with him and with the Order. It permitted a former member, Denver Par-menteer, to testify about how the group was formed, its activities, oaths, sanctions for informers and other background material. These witnesses also explained statements and references made in the videotapes.

The court concluded that this testimony was relevant to rebut Cutler’s entrapment defense. The evidence would also assist the jury to understand the videotaped events and Cutler’s motives. The court limited testimony about the Order’s prior crimes because it would be unfairly prejudicial. Evidentiary rulings are reviewed for abuse of discretion. United States v. Feldman, 788 F.2d 544, 557 (9th Cir.1986).

The court did not abuse its discretion. The judge and both counsel repeatedly advised the jury not to consider Cutler’s racial beliefs in its deliberations. The court twice heard arguments in limine on Cutler’s motion before denying it. The testimony was relevant to the entrapment defense; the court weighed the relevance and prejudice and found that the relevance outweighed the prejudice.

Cutler offered to stipulate to much of the evidence. The government refused and offered its procf. It was not bound by an offer to stipulate to some facts. United States v. Campbell, 774 F.2d 354, 356 (9th Cir.1985).

VOIR DIRE

The court conducted voir dire and denied Cutler’s request for attorney-conducted inquiry. Cutler contends that his controversial views and pretrial publicity required voir dire by counsel. Voir dire examination is reviewed for abuse of discretion. Feld-man, 788 F.2d at 556.

Both counsel submitted suggested voir dire questions and the court asked most of Cutler’s questions. Specifically, it asked[*937] jurors about their exposure to any pretrial publicity and their ability to disregard Cutler’s personal beliefs. Upon concluding his examination, the judge asked counsel if they had further questions. There were none.

Either the court or counsel may conduct voir dire. Fed.R.Crim.P. 24(a). “It is not an abuse of discretion for the trial judge to insist upon conducting a voir dire examination.” United States v. Giese, 597 F.2d 1170, 1181 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979). If counsel believe essential questions were not asked by the court, they must timely advise the court. United States v. Blosvern, 514 F.2d 387, 389 (9th Cir.1975).

Cutler had an opportunity to submit questions. He did not do so, nor does he identify any defect in the voir dire examination. There was no abuse of discretion. SENTENCING

Cutler was convicted on four counts [2] and was sentenced to a total of 12 years on the four counts. The maximum sentence for these convictions was 30 years. He contends that the sentence was unconstitutionally severe.

In Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the Court reaffirmed the proportionality principle behind the eighth amendment. The Court noted that “no penalty was per se constitutional.”, id. at 290, 103 S.Ct. at 3009, but must be evaluated under objective factors, including the harm to society, the nature of the crime, and relationship to sentences for similar crimes.

Solem did not eliminate the trial court’s broad discretion. United States v. Barker, 771 F.2d 1362 (9th Cir.1985). “[W]ith strictly limited exceptions, sentences that fall within statutory limits are not subject to appellate review.” United States v. Branco, 798 F.2d 1302, 1305 (9th Cir.1986). To the extent such sentences are renewable, review is for abuse of discretion. Jones v. United States, 783 F.2d 1477, 1479 (9th Cir.1986).

This sentence is not unconstitutionally severe. It is less than half the statutory maximum. Cutler was convicted of ordering a contract murder to silence government witnesses, a violent and cold blooded crime. After he thought that one murder had been committed, Cutler began to bargain for three more.

The district court considered and weighed the Solem criteria in light of Cutler’s actions as he committed the crimes. There was no abuse of discretion in imposing sentence.

The conviction and sentence are affirmed.

1

. The Tenth Circuit in United States v. Carrigan, 804 F.2d 599 (10th Cir.1986), recently held that neither Rule 15 nor Rule 16 permitted depositions for discovery purposes. The court did, however, sustain the district court’s order granting discovery depositions as a proper sanction for prosecutorial misconduct preventing defense counsel’s access to government witnesses. Since no such prosecutorial misconduct is present in this case, Carrigan does not provide a basis for Cutler to depose Bowyer.

2

. He was convicted of one violation of 18 U.S.C. §§ 1513(a)(1) & (2), one violation of 18 U.S.C. §§ 1512(a)(1) & (a)(2)(A), (D), and two violations of 18 U.S.C. § 1952(a).