FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CARRI ROBERTSON, in her capacity 

as Personal Representative of the 

Estate of Joseph David Robertson,

Defendant-Appellant.

No. 19-30237

D.C. No.

6:15-cr-00007-

DWM-1

OPINION

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 DefendantAppellant.

Eric E. Nelson (argued), Special Assistant United States 

Attorney; Kurt G. Alme, United States Attorney; United 

States Attorney’s Office, Denver, Colorado; for PlaintiffAppellee.
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.