United States v. Robertson
| Citation | 410 F.Supp.3d 1114 |
| Decision Date | 07 October 2019 |
| Docket Number | CR 15-07-H-DWM |
| Parties | UNITED STATES of America, Plaintiff, v. Carri ROBERTSON, as Personal Representative of the Estate of Joseph Robertson, Defendant. |
| Court | U.S. District Court — District of Montana |
Bryan R. Whittaker, Office of the U.S. Attorney, Helena, MT, Eric E. Nelson, U.S. Environmental Protection Agency - OCEFT, Denver, CO, for Plaintiff.
On April 15, 2019, the Supreme Court made the perplexing decision to grant Robertson's petition for certiorari upon his death, notwithstanding its practice of dismissing petitions in such circumstances. See Dove v. United States , 423 U.S. 325, 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976) (per curiam) overruling in part Durham v. United States , 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971) ; Warden, Green Haven St. Prison v. Palermo , 431 U.S. 911, 97 S.Ct. 2166, 53 L.Ed.2d 221 (1977). The Supreme Court's decision contravened the rule that "the death of a criminal defendant pending an appeal of right will abate the prosecution ab initio , although death pending the Supreme Court's discretionary determination on a petition for a writ of certiorari will not." United States v. Oberlin , 718 F.2d 894, 896 (9th Cir. 1983). It also put this Court in the peculiar position of having to adjudicate the validity of Robertson's outstanding obligation to pay funds related to his appointed counsel.
Having reviewed the parties' briefing, (see Docs. 294, 294), and heard argument on October 4, 2019, the defendant's reimbursement obligations under the Criminal Justice Act ("CJA") have not been abated and the $1,550 currently held by the Court will be paid toward that debt.
In May 2015, Defendant Joseph David Robertson was indicted on charges of unauthorized discharge of pollutants into waters of the United States, 33 U.S.C. §§ 1311(a), 1319(c)(2)(A), (Counts I and III); and malicious mischief – injury/depredation of property of the United States, 18 U.S.C. § 1361 (Count II). (Doc. 1.) His trial in October 2015 resulted in a hung jury and a mistrial was declared. (See Doc. 78.) A second jury trial was held in April 2016, and Robertson was convicted on all three counts. (Docs. 203, 204.) On July 20, 2016, he was sentenced to 18 months imprisonment. (See Docs. 240, 244.) He was also ordered to pay $300 in special assessments and $129,933.50 in restitution. (Id. ) He appealed, (Doc. 246), and his conviction and sentence were affirmed by the Ninth Circuit Court of Appeals, (Docs. 270, 271). Robertson filed a petition for certiorari with the United States Supreme Court, which was granted in the name of his wife, Carri Robertson, after Joseph died in March 2019. (Doc. 283.) The case was remanded to the Ninth Circuit for a mootness determination, (id. ), and the Ninth Circuit then remanded to this Court with the direction that the undersigned vacate the indictment, judgment of conviction, the special assessment, and the restitution order, (Doc. 284). A mandate was issued on August 1, 2019, (Doc. 285), and on August 12, this Court did just that, (Doc. 289).
However, the August 12 Order also identified an outstanding issue in the case regarding the refund of Robertson's criminal monetary penalties. (Id. ) Court records indicate that Joseph Robertson has paid $300.00 in assessments and $1,250.00 in restitution, for a total of $1,550.00. In light of his death, those payments are presumptively refundable. See Nelson v. Colorado , ––– U.S. ––––, 137 S. Ct. 1249, 1257–58, 197 L.Ed.2d 611 (2017) (addressing restitution); United States v. Hayes , 385 F.3d 1226, 1229–30 (9th Cir. 2004) (addressing special assessments); Fed. R. Crim. P. 41(g) (). However, this case is unique in that prior to his conviction, Robertson was ordered to pay a lump sum of $12,000.00, plus an additional $300.00 per month, toward the cost of his representation under the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A(f). (See Docs. 113, 137, 146.) Robertson initially challenged the Court's CJA order on interlocutory appeal, (Doc. 153), but was unsuccessful, (Doc. 222). The Court's order for payment of fees was affirmed on direct appeal, (Doc. 271), and was not challenged at the Supreme Court.
Financial records indicate that the Court has not received any payments from Robertson towards his outstanding CJA obligation. At the time he sought interlocutory appeal, the lump-sum payment of $12,000.00 was stayed pending the outcome of his appeal. (Docs. 158, 160.) Robertson was required, however, to continue to make his monthly payments of $300.00.
(Id. ) He did not do so. In addition to the lump sum of $12,000.00, Robertson's monthly obligations total $1,800.00 ($300.00 per month from February 2016 to July 2016). Appellate proceedings have concluded and $13,800.00 remains outstanding.
The two questions thus remain: (1) whether an order for the repayment of CJA funds survives when an indictment and judgment are vacated and (2) if so, whether the refund of the monies paid by the now-deceased defendant towards his special assessment ($300) and his restitution ($1,250) can be put towards amounts owed under the CJA. Both are answered in the affirmative.
The defendant's estate first argues that counsel was only appointed because the defendant was charged with a felony, see 18 U.S.C. § 3006A(a)(1)(A), meaning any CJA repayment obligation vanished when the indictment forming the basis of that felony charge was vacated. Second, the estate argues that the payment obligation abated upon the defendant's death: "death pending appeal of a criminal conviction abates not only the appeal but all proceedings in the prosecution from its inception." United States v. Rich , 603 F.3d 722, 724 (9th Cir. 2010) (quoting Oberlin , 718 F.2d at 895 ). Neither argument is persuasive.
Section § 3006A confers broad authority to appoint counsel and, contrary to the estate's position, does not necessarily require the filing of felony charges. Section 3006A(a) outlines ten circumstances under which the provision of representation is mandatory and two where it is discretionary. Mandatory appointment includes situations where an individual "is entitled to appointment of counsel under the sixth amendment to the Constitution," § 3006A(a)(1)(H), and where an individual "faces loss of liberty in a case, and Federal law requires the appointment of counsel," § 3006A(a)(1)(I). These provisions are sometimes used to appoint pre-indictment counsel to a person under investigation by Federal authorities. Thus, an indictment is not a condition precedent for counsel to be appointed. Even if it were, however, the defendant's abatement argument is unpersuasive.
The doctrine of abatement does not support vacating the payment of monies owed under the CJA.1 This doctrine is based on the common law concept that when a defendant dies pending appeal, "everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted." United States v. Libous , 858 F.3d 64, 66 (2d Cir. 2017) (internal quotation marks omitted); see also United States v. Brooks , 872 F.3d 78, 90 (2d Cir. 2017). But the application of the abatement doctrine has been far from uniform. See Bevel v. Commonwealth , 282 Va. 468, 717 S.E.2d 789, 793–94 (2011) (collecting cases) ("Given the diversity of opinion in the application of the abatement doctrine, it is perhaps not surprising that the doctrine's legal underpinnings are not well established."). It has, however, been extended to payments made related to fines, Libous , 858 F.3d at 67 ; restitution, Brooks , 872 F.3d at 90–91 ; and criminal forfeiture, Oberlin , 718 F.2d at 896.
Whether the doctrine of abatement applies specifically to CJA obligations appears to be a question of first impression. But two cases provide useful guidance. In Rich , the Ninth Circuit determined that abatement does not apply to a presentence receivership order. 603 F.3d at 727–28. Early in the case, the district court entered an order and appointed "a receiver to take from Rich the property he fraudulently obtained from investors and to restore it to them." Id. at 725. The Ninth Circuit ultimately determined that even though Rich's conviction was abated, the receivership "was not dependent in any way on [that] conviction" and therefore remained in place. Id. at 727. In contrast, the court held that the later-imposed "Restitution Order," which was contingent on the judgment, had to be abated because "it is inappropriate to impose restitution on the estate of a deceased individual who, in the eyes of the law, was never indicted or convicted." Id. at 729.
Analogously, the Second Circuit has held that a forfeited bond security is not subject to abatement because a bail bond order "was not made to adjudicate [the defendant]'s guilt or innocence for the charged offenses" but was "collateral to the determination of guilt or innocence in [the underlying] criminal case, arising out of a violation of separate orders and conditions entered by the court and agreed to by [the defendant] and his family members." See Brooks , 872 F.3d at 93–94 (). It further explained that "bond forfeiture also does not implicate the two principles underlying the doctrine of abatement ab initio (finality and punishment)." Id. at 94.
The situation here is similar to that in Rich and Brooks . An order requiring a criminal defendant to make payments or partial payments towards his or her representation under the CJA is not made to adjudicate guilt or innocence. It is not dependent "in any way" on the defendant's conviction. Rich , 603 F.3d at 727 ; see United States v. Wilson , 597 F.3d 353, 358 (6th Cir. 2010) (). Rather, a CJA payment obligation is set by separate order...
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