United States v. Pocklington

• Decision Date: 02 July 2015
• Docket Number: No. 13–50461.,13–50461.
• Citation: 792 F.3d 1036
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Peter Hugh POCKLINGTON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

792 F.3d 1036

UNITED STATES of America, Plaintiff–Appellee

v.Peter Hugh POCKLINGTON, Defendant–Appellant.

No. 13–50461.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 2015.

Filed July 2, 2015.

Becky Walker James (argued), James & Stewart LLP, Pacific Palisades, CA, for Defendant–Appellant.

Joseph B. Widman (argued), Assistant United States Attorney, Riverside, CA; Stephanie Yonekura, Acting United States Attorney, and Robert E. Dugdale, Assistant United States Attorney, Chief, Criminal Division, Riverside, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, District Judge, Presiding. D.C. No. 5:09–cr–00043–VAP–1.

Before: ANDREW J. KLEINFELD, M. MARGARET McKEOWN, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

The Violent Crime Control and Law Enforcement Act of 1994 conditions the “power of the court” to adjudicate probation violations after the probation period expires on the issuance of “a warrant or summons” before the expiration date. 18 U.S.C. § 3565(c). 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. We hold that § 3565(c) is jurisdictional and that when Congress used the words “warrant or summons,” it meant them. Close enough doesn't fly under the statute. If the government suspects wrongdoing and wants to extend the probation period, § 3565(c) provides easy-to-follow instructions: get a warrant or summons before the 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.

Background

In his heyday a few decades ago, Pocklington built a billion-dollar financial empire and was one of the most famous businessmen in Canada. By the 1980s, he owned the country's largest car dealership, an array of real estate holdings and food manufacturing companies, and, in a hockey-crazed country, the NHL's Edmonton Oilers—a team that, under his ownership, won a record five Stanley Cups but also earned a slice of sports infamy by trading away the game's all-time greatest player, Wayne Gretzky. By 2008, Pocklington's riches had run out, and he had amassed over $19 million in liabilities. He filed for bankruptcy that year after he moved south to Indian Wells, California.

As part of his bankruptcy petition, Pocklington certified that he did not hold or control property owned by another person. In truth, though, Pocklington controlled two storage units containing almost $10,000 of his wife's property—including clothes, pictures, china, fishing gear, and sports memorabilia—and $9,344.63 in two undisclosed bank accounts. When these assets were unearthed, Pocklington was charged with two counts of bankruptcy fraud. He averted these charges by pleading guilty to the lesser offense of perjury. Pocklington was sentenced to a two-year term of probation, running from October 27, 2010 to October 26, 2012.

In June 2012, toward the end of Pocklington's probation period, the Probation Office received a letter from an attorney representing Pocklington's creditors. The letter alleged that Pocklington failed to disclose his ownership interest in his $2 million house, a majority ownership stake in a nutritional drink company, and positions on four corporate boards. Pocklington also failed to disclose millions of dollars in assets and income, according to the letter.

The Probation Office notified the district court about the letter, but asserted that despite the allegations, “there is no violation of Probation” and requested that the court “allow supervision to expire as scheduled on October 26, 2012.” The district court disagreed, noting that Pocklington may have violated the probation term that he “shall not commit any violation of local, state or federal law or ordinance.” In response, the Probation Office assigned an FBI agent to review the matter; he “spent several days combing over the allegations” set forth in the letter. The agent concluded that he “did not see any obvious violations of Mr. Pockington's probation” and that investigating the matter would take a year or more. Nevertheless, the Probation Office requested that the court extend Pocklington's probation for 90 days “in an effort to work with the U.S. Attorney and their agents to determine if any additional information can be discovered regarding possible violations.”

On October 19, 2012, the district court issued an “order to show cause”—in effect, ordering a hearing on whether Pocklington's probation should be extended. However, the district court did not conduct that hearing until October 31—five days after Pocklington's probation expired. At the hearing, the court ordered a 90–day extension to run retroactively from October 26, 2012 to January 24, 2013. After further investigation, the Probation Office alleged that Pocklington violated the terms of his probation by failing to submit truthful written reports and failing to provide accurate financial statements. Almost a year after the show-cause order, in September 2013, the district court revoked Pocklington's probation and sentenced him to six months imprisonment followed by two years of supervised release, including six months of home detention.

Analysis

The central issue in this appeal is whether the requirements for extending probation under 18 U.S.C. § 3565 are jurisdictional. Section 3565(c) provides:

The power of the court to revoke a sentence of probation for violation of a condition of probation, and to impose another sentence, extends beyond the expiration of the term of probation for any period reasonably necessary for the adjudication of matters arising before its expiration if, prior to its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.

We conclude that the plain language limiting the “power of the court” sets out a jurisdictional rule. Because the government did not comply with the statute's strictures, the district court did not have the power to extend retroactively and later revoke Pocklington's probation.

Although Pocklington did not raise his jurisdictional argument below, we “review subject matter jurisdiction de novo despite any failure to object ... in the trial court.” Schnabel v. Lui, 302 F.3d 1023, 1029 (9th Cir.2002) ; see also United States v. Tisor, 96 F.3d 370, 373 (9th Cir.1996) (noting that, in criminal case, “[w]e review de novo a district court's assumption of [subject matter] jurisdiction.”) (second alteration in original) (quoting United States v. Vasquez–Velasco, 15 F.3d 833, 838–39 (9th Cir.1994) ); but see United States v. Madden, 515 F.3d 601, 608 (6th Cir.2008) (applying plain-error review to jurisdictional inquiry under 18 U.S.C. § 3583(i) ).

Jurisdictional provisions set out “the courts' statutory or constitutional power to adjudicate the case.” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (emphasis in original) (quoting Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ). Although the Supreme Court has warned against overuse of the term jurisdictional, Congress “need not use magic words” to make a jurisdictional rule; all that is required is a “ ‘clear’ indication that Congress wanted the rule to be ‘jurisdictional.’ ” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435–36, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 515–16, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ). Central to the inquiry is whether the provision “speak[s] in jurisdictional terms ...” Arbaugh, 546 U.S. at 515, 126 S.Ct. 1235 (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) ). To speak the language of jurisdiction, Congress can do no better than frame a provision in terms of the power of the court. Landgraf v. USI Film Prods., 511 U.S. 244, 274, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (“[J]urisdictional statutes ‘speak to the power of the court rather than to the rights or obligations of the parties.’ ”) (quoting Republic Nat'l Bank of Miami v. United States, 506 U.S. 80, 100, 113 S.Ct. 554, 121 L.Ed.2d 474 (1992) (Thomas, J., concurring)).

The unmistakable language of § 3565(c) —defining the “power of the court to revoke a sentence of probation”—could hardly speak more clearly to the district court's jurisdiction-defining “power to adjudicate the case.” Cotton, 535 U.S. at 630, 122 S.Ct. 1781. We have characterized the statute as jurisdictional, explaining that § 3565(c) “allows the court to retain jurisdiction” if its requirements are met. United States v. Castro–Verdugo, 750 F.3d 1065, 1070 (9th Cir.2014). In the same vein, we described identical language in the companion provision dealing with supervised release, see § 3583(i), as “extend[ing] the jurisdiction of the federal court.” United States v. Garrett, 253 F.3d 443, 449 (9th Cir.2001) ; see also United States v. Vargas–Amaya, 389 F.3d 901, 907 (9th Cir.2004). Our precedent is aligned with that of the Second and Third Circuits, which both treat § 3583(i) as jurisdictional. United States v. Merlino, 785 F.3d 79, 81 (3d Cir.2015) ; United States v. Janvier, 599 F.3d 264, 267 (2d Cir.2010).

The government's argument that plain-error review nevertheless applies is unavailing. Its citation to a single published case, the Sixth Circuit's decision in Madden, is not persuasive. 515 F.3d at 608. To begin, that case did not involve the timing or retroactive extension of probation. Rather, in Madden, there was “no dispute that the [ ] warrant was issued before [the defendant's] supervised-released term expired, and it therefore met the...