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Ninth Circuit:
Reimbursement Order Stands Though Indictment Vacated
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that an order vacating ab initio the indictment of a man who died after his conviction but before the appellate process had been completed did not render invalid an order that reimbursement be made for a portion of the government-provided defense costs.
The decedent, Joseph Robertson, had been indicted on two counts of unauthorized discharge of pollutants into U.S. waters in violation of the Clean Water Act. He was advised at the time a deputy public defender was appointed to defend him that if it were found that he had assets he had not disclosed, he would be required, pursuant to the Criminal Justice Act (“CJA”), “to reimburse the United States for all or part of the defense costs expended in his behalf.”
“Whether a CJA reimbursement order falls within the scope of the abatement of an indictment is a matter of first impression for this court,” District Court Judge Richard G. Stearns of the District of Massachusetts, sitting by designation, wrote. Circuit Judges Jay S. Bybee and Daniel P. Collins joined in the opinion.
Robertson died in March 2019 while his petition for certiorari was pending to the U.S. Supreme Court.
Robertson’s first trial in October 2015 resulted in a hung jury and mistrial. During that trial, he was determined e ordered to contribute to the costs of his defense and made a lump sum payment of $12,000, followed by monthly $300 payments.
The second trial resulted in his conviction, along with an 18-month prison sentence and an order to pay nearly $130,000 in restitution to the U.S. Forest Service. The Ninth Circuit affirmed the conviction, and Robertson petitioned the U.S. Supreme Court for certiorari.
After his death, the high court granted certiorari and the Ninth Circuit’s opinion affirming the conviction was vacated; the matter was remanded to the Ninth Circuit to determine if the matter were moot.
Robertson’s widow, Carri Robertson, moved to vacate his conviction and sentence ab initio and to refund payments he had made toward restitution. A Ninth Circuit panel granted the motion and remanded the case to the District Court of Montana with instructions to vacate the indictment, judgment of conviction, special assessments, and the restitution order.
The District Court for the District of Montana followed the instructions but held that the CJA reimbursement order was not abated by the dismissal of the indictment and that Robertson’s estate still owes $13,800 under the reimbursement order.
Yesterday’s opinion affirms that decision, holding that a reimbursement order is a final order entirely separate from a criminal proceeding. Stearns noted that the CJA “does not by its terms require that a defendant be convicted before the court may order reimbursement of the cost of appointed representation.”
He added:
“Because a CJA reimbursement may be ordered in the absence of a conviction (after a mistrial, in this case)…it is not a part of the criminal proceeding that is extinguished by abatement ab initio.”
Stearns added:
“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.”
The case is United States v. Robertson, 19-30237.
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