FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30237
Plaintiff-Appellee,
D.C. No.
v. 6:15-cr-00007-
DWM-1
CARRI ROBERTSON, in her capacity
as Personal Representative of the
Estate of Joseph David Robertson, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted September 2, 2020
Seattle, Washington
Filed November 12, 2020
Before: Jay S. Bybee and Daniel P. Collins, Circuit Judges,
and Richard G. Stearns, * District Judge.
Opinion by Judge Stearns
*
The Honorable Richard G. Stearns, United States District Judge
for the District of Massachusetts, sitting by designation.
2 UNITED STATES V. ROBERTSON
SUMMARY **
Criminal Law
The panel affirmed the district court’s order, on remand
from this court, regarding continuing obligations under a
Criminal Justice Act (CJA) reimbursement order in a case in
which the defendant, whose conviction had been affirmed by
this court, died while his Supreme Court certiorari petition
was pending.
Following the defendant’s death, the Supreme Court
remanded to this court, which allowed the motion of the
defendant’s widow to vacate his conviction and sentence ab
initio and to refund the amounts he had paid towards the
special assessments and restitution. This court then
remanded to the district court with instructions to vacate the
indictment, judgment of conviction, special assessments,
and restitution order. The district court did so, but held
(1) that the CJA reimbursement order—entered after the
defendant’s first trial resulted in a mistrial, and requiring the
defendant to make payments to reimburse in part the costs of
his defense—was not abated by the dismissal of the
indictment; and (2) that the amount the defendant had paid
in special assessments and towards restitution was
“available” under the CJA to be applied against the CJA
obligation.
Rejecting the defendant’s widow’s contention that the
dismissal of the indictment ab initio deprived the district
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. ROBERTSON 3
court of subject matter jurisdiction, the panel held that the
district court had jurisdiction to determine whether its CJA
reimbursement order was within the scope of the abatement
doctrine.
The panel held that because a CJA reimbursement may
be ordered in the absence of a conviction, the CJA
reimbursement is not part of the criminal proceeding that is
extinguished by abatement ab initio. The panel added that
the CJA reimbursement order, which this court had
previously affirmed, is a final order not subject to abatement.
Rejecting the defendant’s widow’s contentions
regarding waiver, and “availability” of funds under the CJA,
the panel held that the Government’s agreement—on
remand from the grant of certiorari from the Supreme
Court—to return the restitution payments the defendant had
made to his estate did not implicate the defendant’s CJA
reimbursement obligation.
COUNSEL
Anthony L. François (argued) and Ethan W. Blevins, Pacific
Legal Foundation, Sacramento, California, for Defendant-
Appellant.
Eric E. Nelson (argued), Special Assistant United States
Attorney; Kurt G. Alme, United States Attorney; United
States Attorney’s Office, Denver, Colorado; for Plaintiff-
Appellee.
4 UNITED STATES V. ROBERTSON
OPINION
STEARNS, District Judge:
We consider whether vacating the indictment against a
criminal defendant ab initio following his death during the
pendency of a certiorari petition to the Supreme Court
requires vacation of an order issued under the Criminal
Justice Act (CJA), 18 U.S.C. § 3006A, to make payments to
reimburse in part the costs of his defense.
I
In May of 2015, Joseph Robertson (Robertson) was
indicted on two counts of unauthorized discharge of
pollutants into United States waters under the Clean Water
Act, 33 U.S.C. §§ 1311(a) and 1319(c)(a)(2), and one count
of injury/depredation of property of the United States under
18 U.S.C. § 1361. Based on Robertson’s representation of
his assets, the district court appointed a public defender to
represent Robertson pursuant to the CJA. 1 At the time of the
appointment, the court informed Robertson that under the
CJA, “if investigation reveals that [he] owns or has control
over assets not disclosed herein, [he] will be required to
reimburse the United States for all or part of the defense
costs expended in his behalf.” 2
1
At the expense of public funds, the CJA provides representation
for a defense to “any person financially unable to obtain adequate
representation” charged with, inter alia, a felony. 18 U.S.C.A.
§ 3006A(a).
2
Such reimbursement authority is granted by the following
provision of the CJA:
UNITED STATES V. ROBERTSON 5
Robertson’s first trial, in October of 2015, resulted in a
hung jury and a mistrial. Based on information gleaned at
trial regarding Robertson’s personal finances, the district
court referred the case to a magistrate judge to evaluate his
eligibility for court-appointed counsel. The magistrate judge
determined that Robertson had sufficient assets to make
partial payments. In January of 2016, the district court found
that Robertson was “partially eligible for an appointed
attorney,” and the court ordered Robertson to contribute
towards the costs of his defense by making a lump sum
payment of $12,000, followed by monthly payments of $300
beginning in February of 2016.
Robertson was convicted on all three counts at a second
jury trial in April of 2016. In addition to being sentenced to
a term of imprisonment for eighteen months, he was ordered
to pay $300 in special assessments and $129,933.50 in
restitution to the United States Forest Service. He appealed
the conviction and the sentence, as well as the CJA
reimbursement order. This court, in two separate
dispositions, affirmed. See United States v. Robertson,
875 F.3d 1281 (9th Cir. 2017) (Robertson I) (conviction and
Whenever the United States magistrate judge or the
court finds that funds are available for payment from
or on behalf of a person furnished representation, it
may authorize or direct that such funds be paid to the
appointed attorney, to the bar association or legal aid
agency or community defender organization which
provided the appointed attorney, to any person or
organization authorized pursuant to subsection (e) to
render investigative, expert, or other services, or to the
court for deposit in the Treasury as a reimbursement to
the appropriation, current at the time of payment, to
carry out the provisions of this section.
Id. § 3006A(f).
6 UNITED STATES V. ROBERTSON
sentence), and United States v. Robertson, 704 F. App’x 705
(9th Cir. 2017) (Robertson II) (CJA reimbursement order).
Roberts filed a petition for certiorari with the Supreme
Court challenging his conviction. His petition did not seek
further review of the CJA reimbursement order. Robertson
died in March of 2019, while the petition was pending. The
Supreme Court granted the petition, vacated Robertson I,
and remanded with instructions to this court to consider the
issue of mootness.
In July of 2019, this court allowed the motion of Carri
Robertson, Joseph Robertson’s widow (Appellant), to vacate
his conviction and sentence ab initio and to refund the
amounts he had paid towards the special assessments and
restitution. It then remanded the case to the district court
with instructions to vacate the indictment, the judgment of
conviction, the special assessments, and the restitution order.
The district court did so in an August 12, 2019 order, but
noted that Robertson still owed $13,800 under the CJA
reimbursement order. 3 In its October 7, 2019 order that is
the subject of this appeal, the district court held that the CJA
reimbursement order was not abated by the dismissal of the
indictment, and further, that the $1,550 that Robertson had
paid in special assessments and towards restitution was
“available” under the CJA to be applied against the CJA
obligation. This appeal ensued.
3
The parties agree that Robertson had made two $300 CJA
payments, and that the corrected amount outstanding is $13,200.
UNITED STATES V. ROBERTSON 7
II
Appellant first contends that the dismissal of
Robertson’s indictment ab initio deprived the district court
of subject matter jurisdiction to adjudicate any further
obligations under the CJA reimbursement order. Questions
of a district court’s subject matter jurisdiction are reviewed
de novo. United States v. Aguilar-Reyes, 653 F.3d 1053,
1055 (9th Cir. 2011). Appellant relies on United States v.
Rich, 603 F.3d 722 (9th Cir. 2010), for the proposition that
“[t]here is no doubt that death pending appeal of a criminal
conviction abates not only the appeal but all proceedings in
the prosecution from its inception.” Id. at 724 (internal
quotation marks and citation omitted). 4 In Appellant’s view,
because the CJA reimbursement order was part of the
criminal proceeding against Robertson, the district court had
no power to adjudicate the matter once the indictment had
been vacated.
The Government correctly states that a district court has
the power to determine whether its underlying orders are
subject to abatement when an indictment is vacated. “[I]t is
familiar law that a federal court always has jurisdiction to
determine its own jurisdiction.” United States v. Ruiz,
536 U.S. 622, 628 (2002). In Ruiz, the relevant statute
authorized an appeal of a sentence if it “was imposed in
violation of law.” Id. at 626–27. Although the Supreme
Court ultimately held that the contested sentence did not
violate the law and that the statute therefore did not authorize
an appeal, “[i]n order to make that determination, it was
necessary for the Ninth Circuit to address the merits. We
therefore hold that appellate jurisdiction was proper.” Id.
4
This principle is termed the rule (or sometimes doctrine) of
abatement ab initio. Id.
8 UNITED STATES V. ROBERTSON
at 628. Even in Rich, the court exercised jurisdiction to
determine whether the pre-indictment receivership and the
post-indictment reimbursement orders abated. Rich,
603 F.3d at 724. It follows here that the district court had
jurisdiction to determine whether its CJA reimbursement
order was within the scope of the abatement doctrine.
III
Whether a CJA reimbursement order falls within the
scope of the abatement of an indictment is a matter of first
impression for this court. Questions of law are reviewed by
this court de novo. United States v. Lo, 839 F.3d 777, 783
(9th Cir. 2016).
A
Both the Appellant and the Government identify Rich,
supra, as the closest in-circuit authority. In Rich, a criminal
defendant died while his conviction on twenty-four fraud
counts related to a Ponzi scheme was on appeal. This court
held that a restitution order imposed pursuant to the Victim
and Witness Protection Act (VWPA), 18 U.S.C. § 3663, and
the Mandatory Victim Restitution Act (MVRA), 18 U.S.C.
§ 3663A, was abrogated by abatement ab initio. See Rich,
603 F.3d at 724 (“[T]he rule of abatement ab initio[]
prevents, among other things, recovery against the estate of
a fine imposed as part of the conviction and sentence and use
of an abated conviction against the estate in related civil
litigation.”) (emphasis in original). By providing for the
imposition of restitution when sentencing a defendant
convicted of a specified offense, 18 U.S.C. § 3661(a)(1),
§ 3663A(a)(1), the VWPA and MVRA require “that the
defendant first must be ‘convicted of an offense’ so
enumerated to support an order of restitution.” Rich,
603 F.3d at 728. “Abatement of the convictions for those
UNITED STATES V. ROBERTSON 9
offenses, thus, nullifies the accompanying restitution order.”
Id. 5
In so holding, the court rejected the argument that,
because restitution orders are compensatory remedies that
are equivalent to civil judgments, the doctrine of abatement
ab initio does not encompass them. Id. at 729–30. While
pointing out that restitution has always served dual penal and
compensatory purposes, the court noted that a rationale for
the abatement ab initio rule is the principle of finality. “‘[A]
criminal conviction is not final until resolution of the
defendant’s appeal as a matter of right.’” Id. at 730 (quoting
United States v. Logal, 106 F.3d 1547, 1552 (1997)).
Accordingly, “death abates even the record of a criminal
conviction, as opposed to merely its use in collateral
proceedings, even though the former has no immediate penal
effects.” Id.
The court in Rich, however, also held that a receivership
established prior to Rich’s conviction—receivership to
which Rich had agreed—was not subject to abatement. Id.
at 727. The receivership had been established on a
temporary basis after Rich violated his conditions of pretrial
release by excessively spending over $600,000. It was made
permanent several months later (eighteen months prior to
trial) by a stipulated order. Id. at 723. The stated purpose of
the receivership was to preserve assets held by or seized
from Rich with the view of eventually distributing them to
the victims of his scheme. Id. “The receivership continues
regardless of abatement of the conviction because the
5
Circuit courts have split over the issue of whether criminal
restitution orders fall under the abatement ab initio rule. See Rich,
603 F.3d at 728 (noting the split); see also United States v. Coddington,
802 F. App’x 373, 375 n.3 (10th Cir. 2020) (collecting cases).
10 UNITED STATES V. ROBERTSON
receivership was not dependent in any way on Rich’s
conviction. Nothing in the Receivership Order suggests it is
extinguished by the Restitution Order, which, in turn, is
silent on the point.” Id. at 727.
B
The parties also cite United States v. Brooks, 872 F.3d
78 (2d Cir. 2017), as persuasive authority. In Brooks, the
Second Circuit held that the death of a defendant during the
pendency of the appeal of his conviction for various
shareholder fraud counts abated not only the convictions, but
also the special assessments, fines, and the asset forfeiture
and restitution orders. See id. at 87–90. Although
recognizing the compensatory purpose of restitution, the
Second Circuit noted that “because the language of the
statute requires restitution in cases only where a defendant
has been ‘convicted of an offense,’ we cannot separate
restitution from conviction. [18 U.S.C. § 3663A(a)(1).]
Without a valid conviction, the statute-based restitution
order must be vacated.” Id. at 89–90.
The Second Circuit did not, however, extend abatement
to a forfeited security bond. Brooks had been released
pretrial subject to posting a substantial bond, making a full
disclosure of his financial holdings, and returning all his
overseas assets to the United States. Id. at 83. Prior to trial,
the district court determined that Brooks and his family had
concealed substantial assets in violation of the pretrial
release conditions. Id. at 84. It then revoked his bail and
ordered the forfeiture of the forty-eight-million-dollar cash
security bond. Id. In refusing to extend abatement to the
security bond, the Second Circuit reasoned that “[t]he terms
of the [pretrial release] Order were not part of the direct
prosecution of the case, but were part of the district court’s
responsibility to assure the appearance of a criminal
UNITED STATES V. ROBERTSON 11
defendant separate from the ultimate—and subsequent—
determination of the criminal defendant’s ultimate guilt or
innocence.” Id. at 93. 6 Accordingly, “the bail forfeiture
hearing was [also] collateral to the determination of guilt or
innocence in Brooks’s criminal case, arising out of a
violation of separate orders and conditions entered by the
court and agreed to by Brooks and his family members.” Id.
Further, bond forfeiture also does not
implicate the two principles underlying the
doctrine of abatement ab initio (finality and
punishment). Brooks previously filed [an]
interlocutory appeal of the revocation of his
bail to this Court, and we affirmed the
revocation. We address the family’s later
motion for return of the forfeited bail security
pursuant to Fed. R. Crim. P. 46(f) below. But
in neither case is there a non-final matter to
abate, one that is tied to the ultimate
determination of guilt or innocence.
Similarly, a forfeited bail bond is not a
punishment for a criminal offense that ceases
to have purpose after a defendant’s death, but
instead is a remedy for a breach of the terms
of the bail release order.
Id. at 94.
6
The Second Circuit also noted that a “bail bond is interpreted
‘within the general framework of suretyship and contract law.’” Id. at 93
(citation omitted). It followed that “[t]he forfeiture of a bail bond
functions as damages for breach of the civil contract, not as a punishment
for the commission of a criminal offense.” Id.
12 UNITED STATES V. ROBERTSON
C
Although Appellant accurately states that the CJA
reimbursement order is neither an agreed-upon receivership
nor a forfeited bond security, her attempt to distinguish Rich
and Brooks is unavailing. Like the receivership and the
forfeited bond security, the CJA reimbursement order “was
not dependent in any way on [Robertson’s] conviction.”
Rich, 603 F.3d at 727. This court previously made the same
determination in Robertson’s initial appeal of the CJA
reimbursement order. Robertson had argued that he should
not have to pay for the partial cost of his defense because his
CJA eligibility was assessed and the reimbursement order
entered after his mistrial, but before his eventual conviction
and sentencing. Robertson II, 704 F. App’x at 705–06. This
court noted that “the [CJA] statute itself does not by its terms
require that a defendant be convicted before the court may
order reimbursement of the cost of appointed
representation.” Id. at 705 (citing 18 U.S.C. § 3006A(f)).
While another section of the CJA Guidelines
permits the court to order reimbursement at
sentencing, that provision does not limit the
time to reassess eligibility to only sentencing
after a conviction. See [Criminal Justice Act
Guidelines] § 210.40.30(d). More
importantly, the statute allows the court to
order reimbursement “[w]henever the United
States magistrate judge or the court finds that
funds are available for payment from or on
behalf of a person furnished representation.”
18 U.S.C. § 3006A(f). The plain language of
this statute makes it clear that the district
court acted within its discretion when it
reassessed Robertson’s eligibility and
UNITED STATES V. ROBERTSON 13
ordered reimbursement and payment for
future defense costs before sentencing.
Id. at 706. Because a CJA reimbursement may be ordered in
the absence of a conviction (after a mistrial, in this case), see
also States v. Wilson, 597 F.3d 353 (6th Cir. 2010) (requiring
CJA reimbursement after defendant was acquitted), it is not
a part of the criminal proceeding that is extinguished by
abatement ab initio. See United States v. Standiford,
148 F.3d 864, 870 (7th Cir. 1998) (A CJA reimbursement
order “must be regarded as an independent civil liability.”).
In response, Appellant makes a species of “but-for”
argument: because a felony indictment is a statutory
prerequisite to the appointment of an attorney under the CJA,
see 18 U.S.C. § 3006A(a)(1), the appointment and the
associated costs are similarly abated when the indictment is
nullified ab initio. The Brooks court addressed this
contention squarely in the context of a bail security
forfeiture.
While it is true that “but-for” the prosecution
of the case against him, Brooks would not
have been subject to the bail bond and the
resulting forfeiture, this argument fails.
When the district court in this case imposed
the terms of pre-trial release on Brooks, it did
so for reasons independent of the
determination of his guilt or innocence.
These terms and conditions were not
determined by the outcome of the offenses
prosecuted, and therefore the principles of
abatement do not apply.
14 UNITED STATES V. ROBERTSON
Brooks, 872 F.3d at 94. Similarly, the CJA reimbursement
order at issue here was imposed on a basis independent from
the determination of Robertson’s guilt or innocence—
namely, a reassessment of his financial condition. 7
D
There is also heft to the argument that enforcing
Robertson’s CJA reimbursement order comports with the
principle of finality. As the courts in Rich and Brooks
explained, only “non-final matter[s],” Brooks, 872 F.3d
at 94, are abated because a defendant’s death prevents the
proceeding from reaching a conclusion. See Rich, 603 F.3d
at 730. Here, Robertson did not challenge this court’s
affirmance of the CJA reimbursement order when he sought
certiorari from the Supreme Court. Accordingly, the
affirmed CJA reimbursement order is a final order not
subject to abatement.
7
The soundness of a CJA reimbursement order is also determined
against the circumstances as of the time it was issued. In Robertson II,
Robertson argued that he should not have to pay any part of his defense
because his presentence investigation report indicated that he did not
have the ability to pay a fine. Robertson II, 704 F. App’x at 706. This
court rejected the argument, noting that because the reimbursement order
was issued prior to Robertson’s conviction, the presentence investigation
report was not properly before the court. “Robertson [did] not contest
the district court’s factual findings or the conclusions that it made when
it ordered reimbursement and payment of future defense costs. The
district court did not abuse its discretion by not relying on a document
that did not exist at the time it issued its order.” Id. (emphasis added).
Moreover, the reimbursement order here specifically stated that, if
“Robertson’s financial condition changes, he may petition the Court for
a reduction in the defense costs in this matter.” Although Robertson
sought and obtained partial stays of his reimbursement obligation
pending appeal, he never formally asked the district court to reduce the
amount of that underlying obligation.
UNITED STATES V. ROBERTSON 15
IV
Appellant finally contends that the Government waived
the right to enforce the CJA reimbursement order when it
acquiesced, on remand from the grant of certiorari from the
Supreme Court, to return the restitution payments Robertson
had made (in the amount of $1,550) to his estate, and further,
that because the estate has obligations to other creditors, this
fund is not “available” within the meaning of the CJA. See
18 U.S.C. § 3006A(f). Questions of waiver, as well as
statutory interpretation, are reviewed de novo. Lo, 839 F.3d
at 783. As previously noted, Robertson’s petition for
certiorari to the Supreme Court did not address the CJA
reimbursement order. Neither Appellant nor the
Government raised the issue of the CJA reimbursement
order when raising the abatement motion to this court. There
is no reason to conclude that the Government’s agreement to
return the restitution funds implicated Robertson’s CJA
reimbursement obligation. 8
V
The CJA reimbursement order is a final order “not
dependent in any way on [Robertson]’s conviction,” Rich,
603 F. 3d at 727, and is beyond the application of the
abatement ab initio rule. The district court’s order to enforce
this obligation is AFFIRMED.
8
Having determined that the CJA reimbursement order is an
unabated final order, the outstanding amount ($13,200) constitutes a debt
owed by Robertson’s estate to the United States. Robertson’s estate
receives full benefit of the returned $1,550 by having it applied towards
this obligation.