United States v. Joseph Robertson, 704 F. App'x 705

Defendant Joseph David Robertson was tried twice on Clean Water Act and 18 U.S.C. § 1361 charges; the first trial ended in a mistrial and the second trial resulted in conviction.
After the mistrial, the district court ordered Robertson to reimburse $12,000 for appointed counsel from the first trial and to pay $300/month toward future defense costs before his conviction in the second trial.
Robertson challenged the reimbursement/order to pay as improper because it was entered after the mistrial but before conviction, and argued CJA Guidelines call for post-conviction assessment and that he lacked ability to pay.
The district court reassessed eligibility under 18 U.S.C. § 3006A(f) and concluded funds were available from or on behalf of Robertson and imposed reimbursement and payment obligations prior to sentencing.
Robertson did not contest the district court’s factual findings about his ability to pay; a Presentence Investigation Report noting inability to pay was not available at the time of the district court’s interim order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court may order reimbursement of appointed counsel costs before conviction	Robertson: court may not require defendant to reimburse after a mistrial and before conviction	Government: statute permits reassessment and ordering reimbursement whenever court finds funds available	Court: 18 U.S.C. § 3006A(f) permits pre-conviction reimbursement; order affirmed
Whether CJA Guidelines restrict timing of ability-to-pay assessment to post-conviction	Robertson: CJA Guidelines require assessing ability to pay after conviction/sentencing	Government: Guidelines encourage early eligibility determinations and do not limit reassessment to post-conviction	Court: Guidelines do not bar pre-conviction reassessment; district court within discretion
Whether district court erred by not relying on Presentence Report showing inability to pay	Robertson: PSI shows inability to pay; court should not have ordered payments	Government: PSI was not available at time of the order; court based order on available information	Court: No abuse of discretion; court may act on available evidence and statute allows early orders
Whether district court abused discretion in ordering partial payment for future defense costs	Robertson: ordering future payments before conviction is improper and unfair	Government: statute and Guidelines permit court to order payments when funds available	Court: No abuse of discretion; order to pay $300/month affirmed

Fuller v. Oregon, 417 U.S. 40 (1974) (upholding state rule waiving reimbursement when prosecution does not end in conviction but not requiring such rule elsewhere)
James v. Strange, 407 U.S. 128 (1972) (courts should not substitute their policy judgment for Congress)
United States v. Danielson, 325 F.3d 1054 (9th Cir. 2003) (appellate review for abuse of discretion on CJA cost orders)
Nw. Airlines, Inc. v. Transport Workers Union of Am., AFL-CIO, 451 U.S. 77 (1981) (courts defer policy decisions to Congress)