United States District Court, D. Montana, Helena Division
W. MOLLOY, DISTRICT JUDGE.
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 (1976) (per curiam)
overruling inpart Durham v. United States, 401 U.S.
481 (1971); Warden, Green Haven St. Prison v.
Palermo, 431 U.S. 911 (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.
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
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).
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, 137 S.Ct. 1249, 1257-58
(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)
(governing the return of property). 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
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
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
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.
Scope of §3006A
§ 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.