Sunday, November 15, 2020

Case o' The Week: Death, Taxes, and CJA Contributions - Robertson and CJA Contributions After Death

Ab initio, but not finito.

United States v. Carri Robertson, 2020 WL 6604323 (9th Cir. Nov. 12, 2020), decision available here.

Players: Decision by DJ Stearns, joined by Judges Bybee and Collins.  

Facts: Joseph Robertson was appointed an AFPD after being indicted for environmental crimes. Id. at *1. His first trial resulted in a hung jury and mistrial. Id. Assets revealed in that trial prompted the court to order CJA contributions. Id. at *2.

  Robertson was convicted at his second trial, lost in the Ninth, and sought cert.

  Robertson died while his petition was pending, and SCOTUS GVR’ed the petition. Id. at *2.

  On remand, the Ninth granted the motion of Carri Robertson (Robertson’s widow) vacated Joseph Robertson’s conviction and sentence ab initio, and directed refund of the amounts he had paid towards special assessments and restitution. Id.

  On remand the district judge, however, held that the CJA contribution order was not abated. Id.

   Widow Carri Robertson appealed. Id.

 Issue(s): “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.” Id. at *1.

  “Whether a CJA reimbursement order falls within the scope of the abatement of an indictment is a matter of first impression for this court.” Id. at *3.

Held: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. . . . . Id. at *4.

  “There is also heft to the argument that enforcing Robertson's CJA reimbursement order comports with the principle of finality. . . . [O]nly non-final matters . . . are abated because a defendant's death prevents the proceeding from reaching a conclusion. . . . Here, Robertson did not challenge this court's affirmance of the CJA reimbursement order when he sought certiorari . . . . Accordingly, the affirmed CJA reimbursement order is a final order not subject to abatement.” Id. at *5 (internal quotations and citations omitted).

 Of Note: The Ninth’s new rule is a bit of a head-scratcher. Whomever was entitled to restitution is out-of-luck when a defendant dies during a pending case, and the case is “extinguished by abatement ab initio.” But the debt for a CJA contribution survives? Visiting Mass. DJ Stearns announces this new Ninth Circuit rule, and tries to distinguish CJA contributions from restitution orders. See id. at *3.

One factor in this outcome appears to be that Robertson did not challenge the CJA contribution in his cert. petition. See id. at *5. Query whether there might be an exception to this new rule if the parties had kept the CJA contribution issue alive.

How to Use: To get to this new rule, the Ninth first rejected the widow’s challenge to the district court’s subject matter jurisdiction. Id. at *3. Along the way, it repeats some black letter law often helpful to the defense: “[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). Look to Robertson for a recent cite on the “j/x for its own j/x” proposition (particularly helpful when the Ninth is determining the legality of a sentence on appeal).

For Further Reading: Last week NorCal lost one of its legendary leaders: investigator Raymond McGrath. Raymond worked on the historic Irish extradition cases in the ‘80s, helping to defeat extradition orders and ultimately challenge the special terrorist courts of Northern Ireland. See article heresee also article here

Mr. Raymond McGrath

Raymond was inspired to professionalize investigations in human rights cases. He founded the Institute for International Criminal Investigations, which has trained over 200 people from 48 nationalities in the Hague. See article here

Raymond passed away after a brave, quarter-century battle with cancer. His courage and passion continues to inspire us all.  


Image of “ab initio” from

Image of Mr. Raymond McGrath from  



Steven Kalar, Federal Public Defender N.D. Cal. Website at



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