United States v. Peter Pocklington , 792 F.3d 1036 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50461
Plaintiff-Appellee,
D.C. No.
v. 5:09-cr-00043-VAP-1
PETER HUGH POCKLINGTON,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
April 6, 2015—Pasadena, California
Filed July 2, 2015
Before: Andrew J. Kleinfeld, M. Margaret McKeown,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge McKeown
2 UNITED STATES V. POCKLINGTON
SUMMARY*
Criminal Law
The panel reversed the district court’s order retroactively
revoking a defendant’s probation and imposing penalties for
purported probation violations.
The panel held that 18 U.S.C. § 3565(c), which 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, is
jurisdictional, and that because the government did not get a
warrant or summons before the defendant’s probation
expired, the district court lacked jurisdiction to extend the
defendant’s probation beyond its termination date.
COUNSEL
Becky Walker James (argued), James & Stewart LLP, Pacific
Palisades, California, for Defendant-Appellant.
Joseph B. Widman (argued), Assistant United States
Attorney, Riverside California; Stephanie Yonekura, Acting
United States Attorney, and Robert E. Dugdale, Assistant
United States Attorney, Chief, Criminal Division, Riverside
California, for Plaintiff-Appellee.
*
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. POCKLINGTON 3
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
4 UNITED STATES V. POCKLINGTON
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
UNITED STATES V. POCKLINGTON 5
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:
6 UNITED STATES V. POCKLINGTON
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 (2002) (emphasis in original)
(quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83,
89 (1998)). Although the Supreme Court has warned against
UNITED STATES V. POCKLINGTON 7
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 (2011) (quoting Arbaugh v. Y&H
Corp., 546 U.S. 500, 515–16 (2006)). Central to the inquiry
is whether the provision “speak[s] in jurisdictional terms . . .”
Arbaugh, 546 U.S. at 515 (quoting Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 394 (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 (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 (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. 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
8 UNITED STATES V. POCKLINGTON
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 requirements set out in
§ 3583(i).” Id. at 607–08. Of course, that is precisely the
problem in this case—no warrant was issued before
Pocklington’s probation expired. Significantly, the Sixth
Circuit repeatedly described § 3583(i) as a jurisdictional
provision, labeling the question on appeal as “[t]he district
court’s jurisdiction over Madden’s supervised-release
violation” and its “[j]urisdiction to sanction Madden under
18 U.S.C. §3583(i).” Id. at 605, 606.
As the government acknowledges, we have “no authority
to create equitable exceptions to jurisdictional requirements.”
Bowles v. Russell, 551 U.S. 205, 214 (2007); see also
Merlino, 785 F.3d at 87–88 (holding that, as a jurisdictional
rule, § 3583(i) is not subject to equitable tolling). That
wiggle room falls within Congress’s province. Here,
Congress has prescribed a specific procedure for extending
the jurisdiction of the district court beyond the expiration of
probation: the issuance of a “warrant” or “summons” before
the probation period expires.1
1
The government argued, for the first time in a Fed. R. App. P. 28(j)
letter three days before oral argument, that § 3565(c) is susceptible to what
it terms “extra-textual” tolling, citing two cases where we applied the
UNITED STATES V. POCKLINGTON 9
Our precedent is clear: A warrant must comply with the
Fourth Amendment, which provides that “no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation . . .” U.S. Const. amend. IV; see Vargas-Amaya,
389 F.3d at 906–07. Hence, a warrant “must have been based
upon sworn allegations that the person violated a condition
of” supervised release or probation; it “cannot allege
something less than” such a violation. Vargas-Amaya,
389 F.3d at 905–06. A summons similarly requires
allegations supported by probable cause. United States v.
Greenberg, 320 F.2d 467, 471 (9th Cir. 1963) (holding that
rules for “issuance of a warrant are the same” as with
“issuance of a summons . . . insofar as the requirement of
probable cause is concerned.”); see also see Fed. R. Crim. P.
4 (describing summons and warrant interchangeably).
The Probation Office’s request to extend probation issued
October 18, 2012 can hardly be classified as a warrant
because the Probation Office lacks the power to issue one.
See Sherman v. U.S. Parole Comm’n, 502 F.3d 869, 875 (9th
Cir. 2007) (noting that a judge or court must issue a warrant).
The Probation Office was crystal clear about the absence
of anything resembling probable cause. The Probation Office
first stated unequivocally that Pocklington had not violated
his probation and then, upon prodding by the district court
fugitive tolling doctrine to the supervised release statute. See United
States v. Watson, 633 F.3d 929, 931 (9th Cir. 2011); United States v.
Ignacio Juarez, 601 F.3d 885, 888 (9th Cir. 2010) (per curiam). In both
Watson and Ignacio Juarez, however, the defendants conceded the general
validity of the fugitive tolling doctrine without reference to Bowles.
Fugitive tolling is inapposite to the facts of Pocklington’s case, so we need
not resolve any tension between Watson and Ignacio Juarez and the
Supreme Court’s statements in Bowles.
10 UNITED STATES V. POCKLINGTON
and an FBI review, confirmed that it “did not see any obvious
violations of Mr. Pocklington’s Probation.” The ultimate
request for more time to “determine if any additional
information can be discovered regarding possible violations”
expressed, at most, the aspiration that wrongdoing might be
uncovered at some unknown future date.
The district court’s response to the Probation Office—a
one-sentence handwritten note for an “order to show cause
hearing”—has none of the indicia of a warrant. Rather than
confirming the existence of probable cause, that note simply
contemplated giving the Probation Office extra time to
“determine if there are any violations of Probation.”
The government’s argument that § 3565(c) permits the
extension of probation any time a court issues the “functional
equivalent” of a warrant falls flat. This approach would
require us to ignore the provision’s plain language—a
cardinal sin of statutory interpretation. “We decline to ‘read
words into a statute that are not there.’” United States v.
Schales, 546 F.3d 965, 974 (9th Cir. 2008) (quoting United
States v. Watkins, 278 F.3d 961, 965 (9th Cir. 2002)).
Congress pegged jurisdiction to the issuance of a “warrant”
or “summons”—not the functional equivalent of a warrant or
summons. See Merlino, 785 F.3d at 87–88 (rejecting
“functional equivalence” test for warrant or summons);
Janvier, 599 F.3d at 268 (same).
We are not alone in our adherence to the statutory text.
In Janvier, the district court ordered the issuance of a warrant
before the defendant’s probation expired, but the order wasn’t
carried out until two days after expiration. 599 F.3d at 265.
Although the government argued that the district court’s
warrant order was an “analogous circumstance[]” to the
UNITED STATES V. POCKLINGTON 11
actual issuance of the warrant, the Second Circuit disagreed
and noted that “[t]he statute states that the extension of
jurisdiction occurs when ‘a warrant or summons has been
issued,’ clearly referencing the issuance of a warrant as an
action that has been perfected.” Id. at 267–68 (quoting
18 U.S.C. § 3583(I)). The Third Circuit is in accord. See
Merlino, 785 F.3d at 84 (noting “strict application” of
jurisdictional requirements in supervised release cases). Like
our sister circuits, we decline to fudge the plain language of
§ 3565(c). If anything, the government is on weaker ground
than in Janvier because no warrant or summons was even
issued, much less “perfected,” before Pocklington’s probation
expired.
The district court lacked jurisdiction under § 3565(c) to
extend Pocklington’s probation beyond its October 26, 2012
expiration date. We vacate the September 13, 2013 order
revoking Pocklington’s probation and sentencing him to six
months in prison and two years of supervised release.2
VACATED.
2
In light of our holding, we need not consider Pocklington’s remaining
arguments that his due process rights were violated, the government broke
grand jury secrecy rules, and his sentence was substantively unreasonable.