Case o' The Week: A Great One - Pocklington and Juridisction to Revoke Probation
Hiding assets from creditors -- not good, but the Ninth could still stomach a reversal.
But making the Great One cry? Lucky this case isn’t in a Canadian court.
United States v. Pocklington, 2015 WL 4038740 (9th Cir. July 2, 2015), decision available here.
Players: Decision by Judge McKeown, joined by Judges Kleinfeld and M. Smith.
Facts: Among other crimes, Pocklington traded away Wayne Gretzky while he was a very successful Canadian businessman who owned the Edmonton Oilers. Id. at *1. His fortunes turned, he moved to California from Canada, and he filed for bankruptcy. Id. In his bankruptcy petition, he certified he didn’t hold or control property controlled by another. Id. In reality, however, he controlled storage units and a bank account that had his wife’s property and funds. Id. He pleaded to perjury to avoid bankruptcy fraud charges, and was sentenced to two years of probation. Id.
Near the end of his probation term, his P.O. got a letter for the creditors’ attorney alleging Pocklington had failed to disclose millions of dollars in various assets. Id. Probation notified the court, the court was – concerned – Probation got an FBI agent involved, and (five days after probation expired) the court extended his probation term to investigate further. Ultimately the district court revoked his probation (after probation was over). Id. He was sentenced to six months custody and two years of supervised release. Id.
Issue(s): The central issue in this appeal is whether the requirements for extending probation under 18 U.S.C. § 3565 are jurisdictional.” Id. at *2. “In this appeal, we consider the court’s authority to retroactively revoke probation and impose a criminal sentence after the period of probation has expired.” Id. at *1.
Held: “We hold that § 3565 is jurisdictional and that when Congress used the words ‘warrant or summons,’ it mean them. Close enough doesn’t fly under the statute. If the government suspects wrongdoing and wants to extend the probation period, § 3565 provides easy-to-follow instructions: get a warrant and summons before probation expires. Because the government did not do so, the district court lacked jurisdiction to extend Peter Pocklington’s probation beyond its termination date. We reverse and vacate the district court’s post-termination order revoking Pocklington’s probation and imposing penalties for purported probation violations.” Id. at
Of Note: Here’s an appellate quiz. Pocklington didn’t raise this challenge in the district court. Plain error? Nope. “We review subject matter jurisdiction de novo despite any failure to object . . . in the trial court.” Id. at *2 (internal quotations and citation omitted). A welcome appellate review standard – though beware, perhaps unique to the Ninth. Id. (noting Sixth Circuit pain-error review of jurisdiction inquiry under 18 U.S.C. § 3583(i).” Id.
How to Use: Pocklington’s value to stave off late Probation (and by extension, supervised release) violations is obvious. The decision has broader import, however, for its thoughtful discussion of jurisdiction. Judge McKeown explains how the Court determines whether Congress wants statutory provisions to be jurisdictional. She flags the magic statutory phrase – “the power of the court” – as an awfully strong indication that jurisdiction is in play. Id. at *2-*3. It’s a useful analysis, because winning on jurisdiction has many benefits (the aforementioned de novo review, for example). Moreover, the Court has “no authority to create equitable exceptions to jurisdictional requirements.” Id. at *3 (quotation and citation omitted). As Judge McKeown explains, “[t]hat wiggle room falls within Congress’s province.” Id. Good stuff for j/x fights – the Ninth refuses to “fudge the plain language” to get around this jurisdictional bar. Id. at *4.
For Further Reading: Johnson is rolling like a slow quake through the system, as Defenders grapple with the impact for ACCA and Career Offender clients.
For a very interesting scholarly take (with a worrisome “why categorical?” kicker), see Prof. Rory Little’s piece, Opinion analysis: The Court strikes down the ACCA’s residual clause as vague. But is the real problem the “categorical” approach?, SCOTUSblog (Jun. 29, 2015, 10:55 AM), available here.
Image of Wayne Gretzky from http://www.edmontonjournal.com/sports/hockey/edmonton-oilers/gretzky-trade/assets/img/gretzky-front-page.jpg
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org