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In Re John Robertson

May 19, 2011

IN RE JOHN ROBERTSON, APPELLANT.


Appeals from the Superior Court of the District of Columbia (VSP-785-99) (Hon. Linda Kay Davis,Trial Judge)

The opinion of the court was delivered by: Reid, Associate Judge, Retired:

Argued January 9, 2007

Decided January 24, 2008

Before REID,*fn1 Associate Judge, Retired,and FARRELL,*fn2 and KERN, Senior Judges.

This case was initiated by a motion to adjudicate criminal contempt, filed against appellant John Robertson by the Office of the Corporation Counsel for the District of Columbia*fn3 on behalf of Wykenna Watson. The contempt proceeding resulted from Mr. Robertson's alleged violation of a civil protection order ("CPO") issued by the Family Division of the Superior Court. After a bench trial, the trial court convicted Mr. Robertson on three counts of criminal contempt. He filed both a direct appeal (No. 00-FM-925) and a collateral appeal (No. 04-FM-1269). In his collateral appeal, he contends that the trial court (1) violated his due process right by failing to vacate his contempt conviction in light of his plea agreement with the United States Attorney's Office for the District of Columbia ("United States Attorney's Office"); and (2) erred by failing to find that his trial counsel rendered ineffective assistance of counsel when he did not move to dismiss the criminal contempt proceeding on the basis of the plea agreement. In his direct appeal, Mr. Robertson claims that the trial court erred by (1) misapplying the law of self-defense with respect to one count of his criminal contempt conviction; and (2) rejecting his demand for a jury trial.

Following oral argument relating to these consolidated appeals, we invited the United States Attorney for the District of Columbia to file a brief pertaining to three questions about Mr. Robertson's plea agreement with the United States Attorney's Office and his criminal contempt proceeding in the trial court,*fn4 and we requested responses to the government's brief from Mr. Robertson and Ms. Watson.*fn5

In response to this court's questions, Mr. Robertson argued that the United States, not Ms. Watson, was "the true party-in-interest to the contempt proceeding" and that, under D.C. Code § 16-1005 (f), the action against him "was maintained 'in the name of the relevant sovereign . . . the United States.'" He further contended that the criminal contempt prosecution breached his plea agreement with the United States. In contrast, the United States took the position that Mr. Robertson's criminal contempt prosecution "was conducted as a private action brought in the name and interest of [Ms.] Watson, not as a public action brought in the name and interest of the United States or any other governmental entity." The United States maintained that the criminal contempt proceeding was between Ms. Watson and Mr. Robertson, with OAG "acting in a representative capacity on [Ms.] Watson's behalf, not on behalf of the United States government, the District of Columbia government, or any other governmental entity." Therefore, the United States argued, Mr. Robertson's plea agreement with the United States did not bar the criminal contempt proceeding against him. The District government asserted that "in addition to criminal charges filed by the United States Attorney, Ms. Watson had a right to enforce the CPO through a criminal contempt proceeding and the United States Attorney's Office had no authority to bargain away this right."

Our initial decision in this case generally followed the arguments of the United States and the District of Columbia with respect to the prosecution of the criminal contempt proceeding and the impact of Mr. Robertson's plea agreement on that proceeding. In re John Robertson, 940 A.2d 1050 (D.C. 2008) (Robertson I). After the publication of our decision, Mr. Robertson filed a petition for rehearing or rehearing en banc which was opposed by the United States and the District. This court denied the petition and Mr. Robertson filed a petition for writ of certiorari in the Supreme Court of the United States on September 10, 2008. The Court granted the petition for writ of certiorari but limited it to one question.*fn6

During oral argument the Supreme Court heard from counsel for Mr. Robertson and Ms. Watson, as well as the Solicitor General of the United States.*fn7 On May 24, 2010, the Court dismissed the writ of certiorari as improvidently granted. However, after noting the complexity of the case, four dissenting justices*fn8 focused on the limited question posed in granting Mr. Robertson's petition for writ of certiorari, and they declared that the answer "is no": A criminal contempt prosecution in a congressionally created court may not be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States. Robertson v. United States ex rel. Watson, 130 S. Ct. 2184, 2185 (2010) (ROBERTS, Chief Justice, dissenting).

Following the dismissal of the writ of certiorari by the Supreme Court, Mr. Robertson filed in this court a motion to recall the mandate and for rehearing or rehearing en banc, which Ms. Watson opposed.*fn9 The panel in Robertson I decided to grant rehearing and on September 21, 2010, we requested supplemental briefing by the parties.*fn10

For the reasons stated below, we now hold that (1) the criminal contempt action, initiated in the Superior Court, an Article I court under the Constitution of the United States, by the OAG on behalf of Ms. Watson, had to be brought in the name and pursuant to the sovereign power of the United States; and (2) D.C. Code § 16-1005 (f) and D.C. Code § 23-101 allowed Ms. Watson, assisted by the OAG, to initiate a criminal contempt action involving an intrafamily offense in the name of the United States for the purpose of enforcing a Superior Court CPO.

Furthermore, because Mr. Robertson did not raise his plea agreement claim in the trial court during the criminal contempt proceeding, it is subject to the plain error standard. Under that standard it is not "obvious" that Mr. Robertson's plea agreement with the United States Attorney could bar the Superior Court from exercising its inherent authority to enforce its CPO by means of a contempt sanction against Mr. Robertson. We also reject Mr. Robertson's arguments pertaining to ineffective assistance of counsel, self-defense, and his jury trial demand.

FACTUAL SUMMARY

The record shows that on March 29, 1999, Ms. Watson filed a "Petition and Affidavit For Civil Protection Order" in the Family Division, Domestic Relations Branch, of the Superior Court. She alleged that on March 27, 1999, Mr. Robertson repeatedly pursued and hit her on various parts of her body, including her head and face, with his closed fist; kicked her several times in the head with his heavy work shoes; and threatened to kill her while holding a pocket knife. She suffered a black eye and head injuries. At Ms. Watson's request, the Family Division issued a temporary protection order on March 29, 1999. On April 26, 1999, the OAG entered its appearance on behalf of Ms. Watson in the Family Court, and after a hearing that same day, the Domestic Violence Unit of the Superior Court issued a CPO, effective for twelve ...


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